No. 21-12 

IN THE

Supreme Court of the United States 

FEDERAL ELECTION COMMISSION, 

Appellant, 

—v.— 

TED CRUZ FOR SENATE

and SENATOR RAFAEL EDWARD “TED” CRUZ, 

Appellees. 

ON APPEAL FROM THE UNITED STATES 

DISTRICT COURT FOR THE DISTRICT OF COLUMBIA 

BRIEF OF BRENNAN CENTER FOR JUSTICE 

AT N.Y.U. SCHOOL OF LAW AS AMICUS CURIAE 

IN SUPPORT OF APPELLANT

d

DANIEL I. WEINER

THE BRENNAN CENTER

FOR JUSTICE AT NYU 

SCHOOL OF LAW

1140 Connecticut Avenue NW 

Suite 1150 

Washington, DC 20036 

(646) 292-8383 

weinerd@brennan.law.nyu.edu 

Counsel for Brennan Center 

for Justice at NYU School 

of Law 

CLAIRE RAJAN

Counsel of Record 

WILLIAM JACOBSON

ERIN DOWNEY

ALLEN & OVERY LLP 

1101 New York Avenue NW 

Washington, DC 20005 

(202) 683-3800 

claire.rajan@allenovery.com 

MARK DANIELS

JANA STEENHOLDT

ALLEN & OVERY LLP 

1221 Avenue of the Americas 

New York, NY 10020 

(212) 610-6300 

Counsel for Amicus Curiae
i 

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES.................................. iii

STATEMENT OF IDENTITY AND INTEREST .. 1

SUMMARY OF THE ARGUMENT....................... 1

ARGUMENT........................................................... 3

I. This Case Warrants A Deferential Standard of 

Review Because Section 304 Does Not 

Meaningfully Burden Protected First 

Amendment Interests ....................................... 3

A. Section 304 does not meaningfully 

restrict the political speech of candidates.... 5

B. Section 304 does not pose a competitive 

burden for any candidates .......................... 10

C. Section 304 does not burden contributors’ 

associational rights ..................................... 11

II. The Government’s Interest In Preventing 

Corruption And Its Appearance Is Undisputed 

And Furthered By Section 304 ....................... 13

A. The government has a profound interest 

in the prevention of corruption and its 

appearance that includes prevention of 

quid pro quo corruption and broader 

efforts to protect the integrity of 

government .................................................. 14

B. Section 304 plainly furthers the 

government’s anti-corruption interests, 

which was the primary goal of its passage 18
ii 

C. It is not necessary that the government 

provide a record of actual quid pro quo 

corruption or other forms of corruption for 

the law to stand........................................... 22

D. Section 304 is not under-inclusive ............ 24

CONCLUSION ..................................................... 27

APPENDIX A ....................................................... 1a 
iii 

TABLE OF AUTHORITIES

CASES PAGE(S)

Ariz. Free Enter. Club’s Freedom Club 

PAC v. Bennett, 

564 U.S. 721 (2011) .............................................. 10

Blount v. SEC, 

61 F.3d 938 (D.C. Cir. 1995) .......................... 18, 23

Buckley v. Valeo, 

424 U.S. 1 (1976) ...........................................passim

Burson v. Freeman, 

504 U.S. 191 (1992) .............................................. 23

Citizens United v. FEC, 

558 U.S. 310 (2010) .................................... 3, 14, 17

Crandon v. United States, 

494 U.S. 152 (1990) ........................................ 13, 15

Davis v. FEC, 

554 U.S. 724 (2008) ........................................ 10, 19 

FEC v. Beaumont, 

539 U.S. 146 (2003) .......................................... 3, 13 

FEC v. Colo. Republican Fed. Campaign 

Comm., 

533 U.S. 431 (2001) .............................................. 22 

FEC v. Craig for U.S. Senate, 

816 F.3d 829 (D.C. Cir. 2016) .............................. 17
iv 

FEC v. Nat’l Conservative Pol. Action 

Comm., 

470 U.S. 480 (1985) .............................................. 13

FEC v. Nat’l Right to Work Comm., 

459 U.S. 197 (1982) .............................................. 14

FEC v. O’Donnell, 

209 F. Supp. 3d 727 (D. Del. 2016)............ 4, 12, 17

Libertarian Nat’l Comm., Inc. v. FEC, 

924 F.3d 533 (D.C. Cir. 2019) 

(en banc), cert. denied, 

140 S. Ct. 569 (2019) .............................................. 6 

McCutcheon v. FEC, 

572 U.S. 185 (2014) ...................................... 3, 4, 22 

Michael M. v. Superior Ct. of Sonoma 

Cnty., 450 U.S. 464 (1981).................................... 21

Nixon v. Shrink Miss. Gov’t PAC, 

528 U.S. 377 (2000) ................................................ 6

Ognibene v. Parkes, 

671 F.3d 174 (2d Cir. 2011).................................. 22 

Preston v. Leake, 

660 F.3d 726 (4th Cir. 2011) ................................ 18

Randall v. Sorrell, 

548 U.S. 230 (2006) ............................................ 5, 6 

Stop This Insanity Inc. Emp. Leadership 

Fund v. FEC, 

761 F.3d 10 (D.C. Cir. 2014) .................................. 9
v 

Ted Cruz for Senate v. FEC, 

No. 19-cv-908 (NJR) (APM) (TJK) 

(D.D.C. June 3, 2021), ECF No. 71...............passim

Thompson v. Hebdon, 

140 S. Ct. 348 (2019) .............................................. 6

Thompson v. Hebdon, 

7 F.4th 811 (9th Cir. 2021)................................... 11

Trist v. Child, 

88 U.S. (21 Wall.) 441, 

22 L.Ed. 623 (1874) .............................................. 15 

Turner Broad. Sys., Inc. v. FCC, 

520 U.S. 180 (1997) .............................................. 26 

United States v. Miss. Valley Generating 

Co., 364 U.S. 520 (1961)....................................... 15

United States v. Sun-Diamond Growers 

of Cal., 526 U.S. 398 (1999).................................. 14

Van Ee v. EPA, 

202 F.3d 296 (D.C. Cir. 2000) .............................. 16

Wagner v. Federal Election Commission, 

793 F.3d 1 (D.C. Cir. 2015) ...................... 17, 18, 22

Williams-Yulee v. Fla. Bar, 

575 U.S. 433 (2015) ....................................... 24, 25
vi

CONSTITUTION, STATUTES, REGULATIONS, AND RULES

U.S. CONST. amend. I .........................................passim

U.S. CONST. art. I, § 6, cl.2......................................... 16

U.S. CONST. art. I, § 9, cl.8......................................... 16

U.S. CONST. art. II, § 1, cl.7 ....................................... 16

U.S. CONST. art. II, § 4............................................... 16

5 U.S.C. § 7353........................................................... 16

18 U.S.C. § 203........................................................... 16

18 U.S.C. § 205........................................................... 16

18 U.S.C. § 208........................................................... 16

52 U.S.C. § 30114(b) ............................................ 16, 17

Bipartisan Campaign Reform Act 

Section 304.....................................................passim

STOCK Act, Pub. L. No. 112-105, 126 

Stat. 291 (2012) .................................................... 16

Code of Ethics for Government Service, 

H. Con. Res. 175 (1958)........................................ 15

House of Representatives,

Code of Official Conduct, Rule 23 ........................ 16

Senate Code of Official Conduct, Rule 37 ................. 16

Supreme Court Rule 37.3(a)........................................ 1
vii

OTHER AUTHORITIES

147 CONG. REC. (2001):

p. S2541 ............................................................... 21

p. S2543 ............................................................... 20

p. S2544 ............................................................... 21

p. S3882 ............................................................... 20

p. S3970 ......................................................... 19, 26 

Alexei V. Ovtchinnikov & Philip Valta, 

Debt in Political Campaigns 

(May 2020) .................................................... 7, 8, 23

Alexei Ovtchinnikov & Philip Valta, 

Self-funding of Political Campaigns

(June 2021) ............................................................. 7 

BRENT FERGUSON, BRENNAN CTR. FOR 

JUST., CANDIDATES & SUPER PACS:

THE NEW MODEL IN 2016 (2015), 

https://www.brennancenter.org/ourwork/research-reports/candidatessuper-pacs-new-model............................................ 9 

Incumbent Advantage, 

OPENSECRETS.ORG, 

https://www.opensecrets.org/elections

-overview/incumbentadvantage?cycle=2018 (last visited 

Nov. 17, 2021)....................................................... 11
viii 

L. SANDY MAISEL, THE INCUMBENCY 

ADVANTAGE, IN MONEY, ELECTIONS,

AND DEMOCRACY: REFORMING 

CONGRESSIONAL CAMPAIGN FINANCE

119 (Margaret Latus Nugent & John 

R. Johannes eds., 1990)........................................ 11

Matthew T. Cole et al., Incumbency 

Advantage in an Electoral Contest, 49 

ECON. & SOC. REV. 419 (2018).............................. 11

PENNY MILLER, KENTUCKY POLITICS &

GOVERNMENT: DO WE STAND UNITED? 

(Lincoln: University of Nebraska 

Press 1994) ........................................................... 24 

U.S. Federal Election Commission, 2018 

Financial Summary for Rafael 

Edward Ted Cruz, 

https://www.fec.gov/data/candidate/S

2TX00312/?cycle=2018&election_full

=true (last visited Nov. 20, 2021) .......................... 9 

U.S. Federal Election Commission, All 

Candidates – Bulk Data, 

https://www.fec.gov/data/browsedata/?tab=bulk-data (last visited 

Nov. 20, 2021)....................................................... 1a
1 

STATEMENT OF IDENTITY AND INTEREST1

The Brennan Center for Justice at NYU School of 

Law (“Center”) is a non-partisan law and public policy 

institute that works to strengthen the systems of 

democracy and justice.2 The Center seeks to bring the 

ideal of representative democracy closer to reality by 

working to eliminate barriers to full participation and 

to ensure that public policy and institutions reflect the 

diversity of voices and interests that enable a robust 

democracy. The Center researches and designs 

legislation and policy, empirical studies, and 

scholarship, among other means, to promote 

reasonable campaign finance reforms and other 

objectives that are central to its mission. 

The Center respectfully submits this brief to 

provide legal and factual context to assist the Court. 

SUMMARY OF THE ARGUMENT

At issue in this case is Section 304 of the Bipartisan 

Campaign Reform Act (“BCRA”), which allows a 

candidate to repay up to $250,000 in loans to their own 

campaign from contributions received post-election. 

Amicus concurs with the government that Section 304 

1 Pursuant to Rule 37.3(a), the parties have provided written 

consent for the filing of this amicus curiae brief. Counsel for the 

Brennan Center affirm, pursuant to Supreme Court Rule 37.6, 

that no counsel for any party authored this brief in whole or in 

part, and that no party, counsel for any party, or any other person 

other than amicus and its counsel made a monetary contribution 

intended to fund the preparation or submission of this brief.

2 This brief does not purport to convey the position, if any, of 

the New York University School of Law. 
2 

is constitutional. We write separately to underscore 

two points.

First, because Section 304 does not restrict the 

contributions a candidate may receive, the amount a 

candidate may loan or donate to their own campaign, 

or the amount the candidate or anyone else may spend 

on electoral advocacy, it imposes a minimal burden on

First Amendment rights and should be subject to a 

correspondingly deferential standard of review. The 

district court’s arguments that heightened review is 

justified because Section 304 indirectly burdens the 

ability of some candidates to self-fund, places 

disparate burdens on challengers, and limits the 

associational rights of contributors are unfounded. 

Second, the government interest in this case is 

profound—namely, to prevent the use of campaign 

fundraising for personal financial benefit. Candidates’ 

and officeholders’ use of campaign fundraising to 

benefit themselves not only poses an inherently high 

risk of classic quid pro quo corruption, but also 

undermines the basic ideal of public service as a public 

trust, which is at the heart of our system of 

government and which Congress has wide latitude to 

defend. The record amply demonstrates that Section 

304 furthers this interest. Moreover, prophylactic 

rules like Section 304 need not be all-or-nothing 

propositions: that Section 304 allows some postelection fundraising is demonstrative of the 

incremental, balanced approach adopted by Congress
3 

and does not undermine the importance of the 

government interest furthered by Section 304.3

ARGUMENT

I. This Case Warrants A Deferential 

Standard of Review Because Section 304 

Does Not Meaningfully Burden Protected 

First Amendment Interests

This Court’s campaign finance jurisprudence has

long made clear that the standard of review for a given 

restriction depends on the nature of the burden it 

places on protected First Amendment interests. See

McCutcheon v. FEC, 572 U.S. 185, 197 (2014) 

(plurality opinion) (noting that whether the Court 

should apply strict scrutiny or a less rigorous standard 

of review depends on “the degree to which [a law] 

encroaches upon protected First Amendment 

interests”); Citizens United v. FEC, 558 U.S. 310, 340 

(2010) (stating that campaign finance laws that 

“burden political speech” are subject to strict scrutiny);

FEC v. Beaumont, 539 U.S. 146, 161 (2003) (noting 

that “the basic premise we have followed in setting 

First Amendment standards for reviewing political 

financial restrictions” is that “the level of scrutiny is 

3 The position of Amicus is that Section 304 is facially 

constitutional and constitutional as applied to Senator Cruz and 

similarly-situated candidates. We take no position on whether a 

losing candidate who no longer holds public office could 

potentially mount a successful as-applied challenge, but concur 

with the government that appellees have not satisfied the overbreadth standard here because “evidence in the record showed 

that post-election contributions generally flow to winning 

candidates and that the loan-repayment limit has little effect on 

losing candidates.” Jurisdictional Statement at 23. 
4 

based on the importance of the ‘political activity at 

issue’ to effective speech or political association”). 

For instance, expenditure limits receive strict 

scrutiny because “communicating ideas . . . requires 

the expenditure of money,” and, therefore, laws that 

restrict “the amount of money [one] can spend on 

political communication during a campaign” are akin 

to direct limits on speech. Buckley v. Valeo, 424 U.S.

1, 19–23 (1976) (per curiam). Contribution limits, on 

the other hand, “impose a lesser restraint on political 

speech because they ‘permit[ ] the symbolic expression 

of support evidenced by a contribution but do[ ] not in 

any way infringe the contributor’s freedom to discuss 

candidates and issues.’” McCutcheon, 572 U.S. at 197 

(quoting Buckley, 424 U.S. at 21). Therefore, 

contribution limits receive a less “rigorous standard of 

review,” under which they “may be sustained if the 

State demonstrates a sufficiently important interest 

and employs means closely drawn to avoid 

unnecessary abridgement of associational freedoms.” 

Id. (quoting Buckley, 424 U.S. at 25). 

Meanwhile, courts have held that rules governing 

the proper use of campaign funds, like restrictions on 

their personal use, “do[] not restrict the content of [a 

candidate’s] message” or “limit the amount of speech 

or political activity in which [a candidate] can engage,” 

and so are subject to no heightened standard of review. 

FEC v. O’Donnell, 209 F. Supp. 3d 727, 739–40 (D. Del. 

2016); see also Mem. Op., Ted Cruz for Senate v. FEC, 

No. 19-cv-908 (NJR) (APM) (TJK) (D.D.C. June 3, 

2021), ECF No. 71 at 13 n.6 (“D.D.C. Mem. Op.”)

(acknowledging that the prohibition on spending for a 

candidate’s personal use “arguably do[es] not” burden 

political expression). 
5 

As the district court acknowledged, “the loanrepayment limit does not cap the amount of candidate 

financing or prohibit a candidate from loaning his 

campaign more than $250,000, and the candidate 

remains free to repay the full amount of the loan with 

pre-election contributions.” D.D.C. Mem. Op. at 11. In 

finding that Section 304 nevertheless warranted 

heightened scrutiny, the district court focused on the 

supposed indirect burden it places on candidate speech 

and the competitive burden it allegedly places on 

electoral challengers over incumbents. Section 304, 

however, imposes minimal burdens on the First 

Amendment interests of candidates and contributors. 

Accordingly, it merits a deferential standard of review. 

A. Section 304 does not meaningfully 

restrict the political speech of 

candidates 

Section 304’s limit on the use of post-election 

contributions to recoup money a candidate has lent to 

their own campaign does not significantly restrict 

election-related speech (which by definition has 

already occurred) or other interests protected under 

the First Amendment. The district court’s suggestion

that Section 304 indirectly burdens political speech 

because limiting a candidate’s ability to recoup 

personal loans after the election could potentially 

deter them from loaning money in the first place is 

unfounded. Any incidental burden would only violate 

candidates’ First Amendment rights to the extent it 

prevented them “from amassing the resources 

necessary for effective advocacy.” Randall v. Sorrell, 

548 U.S. 230, 247 (2006) (plurality opinion). Appellees 

have not come close to making this showing.
6 

For First Amendment purposes, “a bank account 

balance becomes speech only when spent for 

expressive purposes.” Libertarian Nat’l Comm., Inc. v. 

FEC, 924 F.3d 533, 548 (D.C. Cir. 2019) (en banc), cert. 

denied, 140 S. Ct. 569 (2019). Section 304 does not 

limit the amount that a candidate may donate or loan 

to their own campaign, or how much they may raise 

from other contributors to spend on advocacy. Rather, 

it prescribes how and when a candidate may use postelection contributions to recoup candidate loans that 

the campaign has already spent. Recouping debt owed 

to the candidate post-election is not an “expressive 

purpose;” as the government noted, by that point, “any 

political message has already been communicated.” 

FEC Mot. to Dismiss at 29, 33. Instead, the “money 

that repays a candidate’s personal loan after an 

election effectively goes into the candidate’s pocket, 

and not to fund speech or speech-related activities.” 

Id. at 28. 

The district court’s focus on the potential for an 

indirect burden on candidate speech was misplaced. 

All fundraising restrictions have some potential to 

impact candidates’ electoral spending. For decades, 

this Court has consistently held that such incidental 

burdens violate candidates’ First Amendment rights 

only to the extent they prevent candidates “from 

amassing the resources necessary for effective 

advocacy.” Randall, 548 U.S. at 247 (quoting Buckley, 

424 U.S. at 21); Nixon v. Shrink Miss. Gov’t PAC, 528 

U.S. 377, 396 (2000) (internal quotations and citations 

omitted); see also Thompson v. Hebdon, 140 S. Ct. 348, 

350–51 (2019) (reaffirming holding in Randall). 

Here there is no evidence for such a conclusion. On 

the contrary, fundraising data available on the FEC’s 
7 

website shows that most Congressional candidates 

(72% of 26,320 Senate and House candidates from 

2003 to 2020) have not used personal loans to fund

their campaigns. See Appendix A. And of the minority 

of Congressional candidates who did loan their 

campaigns money since Section 304 was enacted, 

roughly 87% did so at amounts below the $250,000 

threshold, while approximately 12% exceeded the 

threshold. Id. The “clustering” of candidate self-loans 

at exactly the $250,000 level emphasized by the 

district court represents barely 1% percent of 

candidates who loaned their campaigns money, and 

only 0.30% of the tens of thousands who have run in 

Senate and House elections since the passage of 

Section 304. Id.; see also D.D.C. Mem. Op. at 10 (citing 

Alexei V. Ovtchinnikov & Philip Valta, Debt in 

Political Campaigns 24 (May 2020)).4 Apart from 

Senator Cruz’s representations, there is scant

evidence in the record shedding light on what role 

4 Even among the candidates analyzed by Ovtchinnikov and 

Valta, of those who loaned their campaigns between $100,000 and

$1 million, loans of exactly $250,000 were only 7%, compared to 

the 41% that exceeded $250,000. See Ovtchinnikov & Valta, Debt 

in Political Campaigns 24. 

In analyzing the impact of Section 304 on candidate funding, 

the authors found that (1) there was a clear bunching of self-loans 

in the post-BCRA period at round amounts ($200,000, $300,000, 

and $500,000), including 6.34% at $250,000; (2) “BCRA did not 

eliminate self-loans,” including 41% of candidates who exceeded 

the $250,000, “which suggests that many politicians are 

unaffected by BCRA;” and (3) “BCRA did not reduce the total 

demand for self-funds; rather the law affected the allocation of 

self-funds between self-loans and self-contributions.” Alexei 

Ovtchinnikov & Philip Valta, Self-funding of Political Campaigns

29 n.18 (June 2021). None of these findings support the 

conclusion that Section 304 resulted in less speech.
8 

Section 304 played in these few candidates’ decision to 

loan themselves exactly $250,000. Clustering of the 

sort noted by the district court occurs at various other 

“round number” amounts; in fact, more candidates 

have clustered at the $50,000 and $100,000 levels than 

at $250,000, Appendix A, indicating that clustering 

alone is not evidence of why certain candidates 

selected a particular amount to loan their campaigns.5

Even if Section 304 has affected the decisionmaking of a small number of candidates, there is no 

evidence that it has led to any reduction in candidates’ 

actual ability or willingness to self-fund. See note 4, 

supra. More broadly, there can be no credible 

argument that this provision has deprived candidates 

of the ability to amass resources necessary to mount 

effective campaigns. Along with raising up to 

$250,000 post-election to recoup self-loans, Senator 

Cruz and other candidates remain free to (1) 

contribute an unlimited amount to their own 

campaigns; (2) loan their campaigns unlimited 

amounts to be recouped with pre-election 

contributions; (3) receive an unlimited number of 

contributions within the legal limits prior to the 

election to fund speech directly and pay other 

campaign expenses; (4) receive an unlimited number 

of contributions within the legal limits post-election to 

retire other debts; and (5) fundraise pre- and postelection for other political action committees (“PACs”) 

5 The district court noted that “clustering” at $250,000 

increased following passage of BCRA, but the same is true for 

higher round numbers. For instance, the number of candidates 

loaning themselves $1 million more than doubled in the postBCRA period. See Ovtchinnikov & Valta, Debt in Political 

Campaigns 38. 
9 

expressly dedicated to advancing the candidate’s 

political fortunes, such as leadership PACs and even 

candidate-specific super PACs,6 see Section I(C), infra. 

Senator Cruz raised over $34 million in the 2018 

election cycle to fund his successful campaign,7 and 

appellees have pointed to no example of another 

candidate whose race was inhibited due to Section 

304.8 Appellees have not demonstrated that Section 

304 has been a meaningful restraint on his or any 

other candidate’s speech.

6 BRENT FERGUSON, BRENNAN CTR. FOR JUST., CANDIDATES &

SUPER PACS: THE NEW MODEL IN 2016 (2015), 

https://www.brennancenter.org/our-work/researchreports/candidates-super-pacs-new-model-2016. 

7 See U.S. Federal Election Commission, 2018 Financial 

Summary for Rafael Edward Ted Cruz, 

https://www.fec.gov/data/candidate/S2TX00312/?cycle=2018&ele

ction_full=true (last visited Nov. 20, 2021) ($34,437,689.21 in 

total contributions for the 2018 Senate election).

8 As the government notes, Section 304 did not, in fact, impose 

any burden on Senator Cruz and was only triggered by his choice 

to delay repayment of his self-loans. See FEC Br. at 11; cf. Stop 

This Insanity Inc. Emp. Leadership Fund v. FEC, 761 F.3d 10, 

13–16 (D.C. Cir. 2014) (reasoning that a law that restricted ways 

in which a separate, segregated fund could solicit contributions 

did not infringe upon the appellants’ First Amendment rights 

when appellants had the option to create an entity that was 

permitted to solicit the appellants’ desired type of contributions, 

but appellants chose to pursue the harder option). 
10

B. Section 304 does not pose a 

competitive burden for any 

candidates

Nor does Section 304 impose a competitive burden 

on particular candidates. It is certainly not analogous 

to the campaign finance provisions invalidated by this 

Court for penalizing the political speech of candidates

and others by granting a direct competitive advantage 

to their opponents. See, e.g., Davis v. FEC, 554 U.S. 

724, 743–44 (2008) (invalidating BCRA provisions that 

raised contribution limits for opponents of self-funded 

candidates); Ariz. Free Enter. Club’s Freedom Club 

PAC v. Bennett, 564 U.S. 721, 728–32, 753–55 (2011)

(invalidating Arizona law that provided increased 

public financing to candidates based on how much 

their privately financed opponents spent). Section 304 

imposes no such disparate burden. It applies to all 

candidates equally (and in any event does not have 

significant competitive electoral consequences given 

that it only comes into effect post-election and plainly 

does not deter the vast majority of candidates from 

loaning money to their campaigns, see supra Section 

I(A)). 

The district court nevertheless suggested that in 

practice Section 304 “places a particular burden on 

relatively unknown challengers” by limiting their 

ability to self-finance more than for incumbents, but 

the court offered absolutely no evidence for this 

assertion. D.D.C. Mem. Opp. at 10. If anything, 

striking the cap is most likely to benefit incumbents. 

It is well-established that sitting officeholders have far 

more capacity to leverage their office to fundraise than 

challengers who do not hold the office sought—and 
11

also that most incumbents who seek reelection win.9 

Striking the $250,000 cap on post-election candidate 

loan repayments will thus primarily benefit winning 

candidates, who are best positioned to fundraise in 

excess of $250,000. Most winning candidates who are 

likely to benefit will be incumbents who won reelection. See Incumbent Advantage, supra note 9. 

C. Section 304 does not burden 

contributors’ associational rights

Finally, Section 304 also does not significantly 

restrict the associational rights of contributors, who 

remain free to donate to the candidate of their choice 

up to the legal limit per election. 

The district court suggested in passing that Section 

304 might burden contributors’ right to associate with 

9 See Incumbent Advantage, OPENSECRETS.ORG, 

https://www.opensecrets.org/elections-overview/incumbentadvantage?cycle=2018 (last visited Nov. 17, 2021) (incumbents 

raised on average over $13,458,917 more than challengers during 

the 2018 senatorial elections); see also Matthew T. Cole, et al., 

Incumbency Advantage in an Electoral Contest, 49 ECON. & SOC.

REV. 419, 420 (2018) (“Incumbents also tend to benefit from 

greater fundraising efficiency since as officeholders they are in a 

position to deliver political favours to donors.”); L. SANDY MAISEL, 

THE INCUMBENCY ADVANTAGE, IN MONEY, ELECTIONS, AND 

DEMOCRACY: REFORMING CONGRESSIONAL CAMPAIGN FINANCE

119 (Margaret Latus Nugent & John R. Johannes eds., 1990) 

(highlighting how incumbents have electoral advantages that 

translate into fundraising advantages as well as electoral 

strength at the polls); Thompson v. Hebdon, 7 F.4th 811, 820 (9th 

Cir. 2021) (noting that “in competitive campaigns in Alaska,

candidates who raise more money generally win, incumbents 

regularly raise more than challengers, and indeed incumbents 

win almost all elections”). 
12

Senator Cruz because the $250,000 limit would 

prevent their post-election contribution from being 

used for the 2018 election cycle. See D.D.C. Mem. Op. 

at 13 n.5. This suggestion is at odds with this Court’s 

decades-old understanding that a campaign 

contribution “serves as a general expression of 

support” for a candidate. See Buckley, 424 U.S. at 21. 

The reality is that any contributor who wished to 

associate with Senator Cruz had a variety of ways to 

do so: they had ample opportunity to donate before the 

election and were also free to donate after, not only to 

help him recoup money he lent to his campaign up to 

$250,000, but also to retire an unlimited amount of 

debt owed to other creditors. Contributors could also 

donate for future election cycles, or to other PACs 

established to advance Senator Cruz’s political 

fortunes, such as “Jobs, Freedom, and Security PAC,” 

his leadership PAC, and “Ted Cruz Victory 

Committee,” a joint fundraising committee that sends 

contributions to his campaign and leadership PACs. 

Given these options, there is no significant burden on 

contributors’ associational rights.

*** 

Because Section 304 at most minimally burdens 

the First Amendment rights of candidates and 

contributors (and arguably does not burden them at 

all), this Court need not apply a heightened standard 

of review. The $250,000 cap on reimbursing candidate 

loans with post-election funds is most analogous to 

other restrictions on the use of campaign funds to 

benefit a candidate personally, such as prohibitions on 

converting campaign funds to personal use, which 

warrant no heightened scrutiny. See O’Donnell, 209 F. 
13

Supp. 3d at 740. Even if there is some incidental 

burden on protected First Amendment interests, it is 

more “marginal” than that imposed by a direct 

contribution limit, Beaumont, 539 U.S. at 161, let 

alone a limit on expenditures, and so the typical strict 

and intermediate levels of scrutiny applied in the 

majority of campaign finance cases are not warranted 

here. 

II. The Government’s Interest In Preventing 

Corruption And Its Appearance Is 

Undisputed And Furthered By Section 304

Regardless of the level of scrutiny, Section 304 

should be upheld because it plainly furthers the 

government’s interest in deterring corruption. This 

Court has long held that the government has an 

interest in the prevention of corruption and its 

appearance, including deterrence of classic quid pro 

quo corruption and efforts to prevent public officials 

and others who have been given a public trust, 

including candidates and former candidates, from 

misusing their position for personal gain or otherwise 

acting—or even appearing to act—in favor of personal 

financial interests, rather than the public good. See, 

e.g., FEC v. Nat’l Conservative Pol. Action Comm., 470 

U.S. 480, 497 (1985) (“Corruption is a subversion of the 

political process. Elected officials are influenced to act 

contrary to their obligations of office by the prospect of 

financial gain to themselves or infusions of money into 

their campaigns.”); Buckley, 424 U.S. at 28–29;

Crandon v. United States, 494 U.S. 152, 164–65 (1990) 

(upholding 18 U.S.C. § 209 and recognizing that 

“[l]egislation designed to prohibit and to avoid 

potential conflicts of interest in the performance of 
14

governmental service is supported by the legitimate 

interest in maintaining the public’s confidence in the 

integrity of the federal service”). The government’s 

anti-corruption interest is at its height in cases such 

as this one, where there is a direct personal financial 

benefit to an officeholder or candidate. 

A. The government has a profound 

interest in the prevention of 

corruption and its appearance that 

includes prevention of quid pro quo 

corruption and broader efforts to 

protect the integrity of government 

This Court has continually recognized limits on 

campaign fundraising as appropriate prophylactic 

anti-corruption measures. See Citizens United, 558 

U.S. at 361 (“We must give weight to attempts by 

Congress to seek to dispel either the appearance or the 

reality of these [improper] influences.”); FEC v. Nat’l 

Right to Work Comm., 459 U.S. 197, 210 (1982) 

(finding that the Court will not “second-guess a 

legislative determination as to the need for 

prophylactic measures where corruption is the evil 

feared”).

Because campaign finance laws may burden 

important First Amendment interests, they must be 

tethered to the prevention of outright quid pro quo

corruption, not “[i]ngratiation and access.” Citizens 

United, 558 U.S. at 360. But campaign finance laws 

are also part of a broader set of anti-corruption laws 

designed to combat not only bribery but other attacks 

on the integrity of government. E.g., United States v. 

Sun-Diamond Growers of Cal., 526 U.S. 398, 404–05 

(1999) (describing the difference between the anti-
15

gratuity statute and anti-bribery: “. . . for bribery there 

must be a quid pro quo . . . . An illegal gratuity, on the 

other hand, may constitute merely a reward for some 

future act that the public official will take (and may 

already have determined to take), or for a past act that 

he has already taken.”).

Congress and this Court have long recognized that 

“public office is a public trust,” and thus federal law 

has long prohibited the acceptance of “favors or 

benefits under circumstances which might be 

construed by reasonable persons as influencing the 

performance of his governmental duties.” Code of 

Ethics for Government Service, H. Con. Res. 175, ¶¶ 5, 

8, 10 (1958); Trist v. Child, 88 U.S. (21 Wall.) 441, 450, 

22 L.Ed. 623 (1874) (“all public stations are trusts,” 

and “those clothed with them are to be animated in the 

discharge of their duties solely by considerations of 

right, justice, and the public good”); Crandon, 494 U.S. 

at 165 n.20 (conflict of interest legislation is directed 

at “an evil” that threatens “the very fabric of a 

democratic society, for a democracy is effective only if 

the people have faith in those who govern, and that 

faith is bound to be shattered when high officials and 

their appointees engage in activities which arouse 

suspicions of malfeasance and corruption”) (quoting 

United States v. Miss. Valley Generating Co., 364 U.S. 

520, 562 (1961) (noting the rationale behind 18 U.S.C. 

§ 434, which prohibited executive branch officers from 

officially participating in proceedings in which they 

had financial interests, and its applicability to a 

government consultant)). Today, a variety of laws and 

rules restrict public officials and candidates for public 
16

office from using their official position for personal 

gain falling short of outright bribery.10

Indeed, concern about personal benefits potentially 

corrupting public officials and the execution of their 

public duties is embedded in various ways in the text 

of the Constitution, which not only included bribery as 

one of the few enumerated clauses for impeachment of 

high public officials, see U.S. CONST. art. II, § 4, but 

also contains three separate Emoluments Clauses, 

U.S. CONST. art. 1, § 9, cl.8; art. I § 6, cl.2; and art. II, 

§ 1, cl.7. 

10 See, e.g., 18 U.S.C. § 203 (prohibiting compensation for 

representational services in any matter in which the United 

States is a party or has a direct or substantial interest); 18 U.S.C. 

§ 205 (prohibiting, inter alia, federal employees from receiving a 

gratuity or share of an interest in a claim against the United 

States, upheld because a federal employee’s involvement “could 

potentially distort the government’s process for making a 

decision,” Van Ee v. EPA, 202 F.3d 296, 310 (D.C. Cir. 2000)); 18 

U.S.C. § 208 (prohibiting personal and substantial participation 

in matters in which an official has a financial interest); 52 U.S.C. 

§ 30114(b) (prohibiting any person, including candidates, 

campaign staff, and former candidates, from converting campaign 

funds to personal use); Stop Trading on Congressional Knowledge 

(STOCK) Act, Pub. L. No. 112-105, 126 Stat. 291 (2012) 

(prohibiting Members of Congress from using nonpublic 

information to influence their personal investment decisions); 5 

U.S.C. § 7353 (regulating gifts to federal employees); Senate Code 

of Official Conduct, Rule 37 (prohibiting members from 

knowingly using their positions for personal benefit and requiring 

disclosure of potential conflicts of interest); House of 

Representatives Code of Official Conduct, Rule 23 (prohibiting 

members from receiving compensation by improperly using their 

official positions).
17

The solicitation of campaign contributions plainly 

implicates this broader set of anti-corruption concerns.

First, there is the obvious risk that campaign 

spending will distort government decision-making. 

While that is not ordinarily a sufficient basis to restrict 

campaign fundraising, there are notable exceptions. 

For example, in Wagner v. Federal Election 

Commission, the en banc District of Columbia Circuit 

upheld the prohibition on federal government 

contractors making contributions, either directly or 

indirectly, to any political party, committee, or 

candidate for public office. 793 F.3d 1, 26 (D.C. Cir. 

2015). The court held that the statute supported a 

sufficiently important interest not only because it 

protects against quid pro quo corruption and its 

appearance, but also because it prevents interference 

with merit-based public administration in the 

issuance of contracts and the spending of taxpayer 

funds. Id. at 21. 

Second, as noted above, officeholders and

candidates may misuse their positions for personal 

benefit, which is why federal law and Congressional 

rules restrict their ability to convert campaign funds 

to personal use. See 52 U.S.C. § 30114(b); FEC v. 

Craig for U.S. Senate, 816 F.3d 829, 850 (D.C. Cir. 

2016); O’Donnell, 209 F. Supp. 3d at 740–41. 

This Court has concluded that the First 

Amendment precludes the government from relying on 

a broader conception of corruption to justify general 

limits on contributions and expenditures. See Citizens 

United, 558 U.S. at 360. But this case is different, 

given that the government is seeking to limit the direct 

personal financial benefit candidates can derive from 
18

campaign fundraising and using means that do not

meaningfully restrict electoral speech or association. 

In light of these facts, it is appropriate to evaluate a 

sitting officeholder’s challenge to Section 304 not only 

in reference to the government’s interest in preventing 

quid pro quo corruption, but also its broader interest 

in preserving the integrity of government. 

B. Section 304 plainly furthers the 

government’s anti-corruption 

interests, which was the primary 

goal of its passage

Candidates recouping personal loans to their 

campaigns by soliciting post-election contributions 

presents exactly the heightened corruption risk courts 

have found to justify more stringent regulation in 

other contexts. Cf. Wagner, 793 F.3d at 21 (“[T]he 

empirical record is more than sufficient to satisfy the 

heightened judicial scrutiny appropriate for review of 

the legislative judgments . . . the interests supporting 

the contractor contribution statute are legally 

sufficient, and the dangers it seeks to combat are real 

and supported by the historical and factual record.”); 

Preston v. Leake, 660 F.3d 726, 737 (4th Cir. 2011) 

(“[I]n aiming the ban at only lobbyists, who, experience 

has taught, are especially susceptible to political 

corruption, North Carolina closely drew its enactment 

to serve the state interests it identified.”); Blount v. 

FEC, 61 F.3d 938, 943 (D.C. Cir. 1995) (discussing 

safeguarding the commercial marketplace from 

corruption, explaining that “[i]n every case where a 

quid in the electoral process is being exchanged for a 

quo in a particular market where the government 
19

deals, the corruption in the market is simply the 

flipside of the electoral corruption.”). 

A candidate using post-election contributions to 

recoup personal funds effectively inverts one of the 

core supposed benefits of self-funding, which is to 

reduce the risk and perception of corruption due to the 

candidate having less reliance on third party funding. 

See Davis, 554 U.S. at 740–41 (“The Buckley Court 

reasoned that reliance on personal funds reduces the 

threat of corruption”). Instead of being a less 

corruption-prone method, funding one’s campaign 

through self-loans to be repaid with post-election 

contributions that will go directly to the candidate’s 

personal bank account increases the candidate’s 

incentive to perform official acts in exchange for 

donations. And even in the absence of an actual or 

perceived quid pro quo, a public official’s acceptance of 

a personal benefit dressed up as a campaign 

contribution could easily undermine the broader 

integrity of government.

The legislative history, particularly statements 

from Section 304’s two Senate sponsors, demonstrates 

that the prevention of corruption was a primary goal 

of Section 304. 

As one sponsor, Senator Hutchison, explained, 

while self-funded candidates have a constitutional 

right to spend or loan as much of their own money as 

they like, they “do not have a constitutional right to 

resell [their office].” 147 CONG. REC. S3970 (daily ed. 

Mar. 19, 2001) (statement of Sen. Hutchison). The 

other sponsor, Senator Domenici, added that 

candidates should know “right up front” that they will 

not be able to seek and receive repayments from 
20

contributors after an election by asking, “How would 

you like me to vote now that I am a Senator?” 147 

CONG. REC. S3882 (daily ed. Mar. 19, 2001) (statement 

of Sen. Domenici). As he later put it:

I think you should know what we are 

doing, respectfully, which is to say that 

anybody who puts in their own money, 

however they got their own money, when 

they get elected, they cannot use their 

Senate seat to raise money to pay off 

what they put in an election. 

147 Cong. Rec. S2543 (daily ed. Mar. 20, 2001) 

(statement of Sen. Domenici).

In referring to campaign fundraising generally, 

Senator Byrd explained: 

Both parties are enslaved to those who 

give. The special interests of the country 

are the people who are represented—the 

special interests, for the most part. The 

great body of people out there are not 

organized, and they are not represented 

here. We are beholden to the special 

interests who give us—when we go 

around the country holding out a tip cup 

saying, ‘‘Give me, give me, give me,’’ they 

are the people who respond and they are 

the people for whom the doors are 

opened. They are the people for whom 

the telephone lines are opened when the 

calls come in. 
21

147 CONG. REC. S2541 (daily ed. Mar. 20, 2001) 

(statement of Senator Byrd). 

Contrary to appellees’ assertion, shielding 

incumbents from competition was not a primary 

motivator for the implementation of Section 304. 

Appellees cite to generic comments on self-financing

that are not specific to Section 304 and to comments 

that were specifically about another provision, known 

as the Millionaires’ Amendment. Appellees’ Mot. to 

Affirm or Dismiss (“Appellees’ Br.”) at 30–31.11 

Whatever Congress’s primary motivations were for 

passing other provisions of BCRA, a desire to prevent 

corruption plainly was the primary motivating force 

behind passage of Section 304.

11 Appellees’ argument that Senators created Section 304 to 

“protect incumbents” lacks context and is misplaced. For 

example, appellees cite to a quote from Senator Daschle 

regarding incumbency protection, but he was clearly referring to 

the Millionaires’ Amendment. Appellees’ Br. at 30; 147 CONG.

REC. S2544 (daily ed. Mar. 20, 2001) (statement of Sen. Daschle) 

(“Just because I might have a wealthy opponent, should I be 

allowed to open up the floodgates here and take whatever money 

I can raise? How is that limiting the influence of money? No, 

instead this protects incumbents.”). While one Senator did 

mention impermissible objectives like “leveling the playing field”

in reference to Section 304, the weight of evidence in the record is 

clear that the primary motivation was corruption and that does 

not undermine the laudable and constitutional motives. Michael 

M. v. Superior Ct. of Sonoma Cnty., 450 U.S. 464, 469–70 (1981) 

(affording a permissible legislative motive behind a statute “great 

deference,” and accordingly upholding said statute, despite some 

legislators having voted for the statute with impermissible 

motives in mind).
22

C. It is not necessary that the 

government provide a record of 

actual quid pro quo corruption or 

other forms of corruption for the law 

to stand 

To demonstrate that Section 304 furthers its 

important interest in preventing corruption—quid pro 

quo or otherwise—it is not necessary that the 

government provide a record that actual corruption 

has occurred. Rather, the government need only show 

that there is a potential for corruption risk. See

Ognibene v. Parkes, 671 F.3d 174, 188 (2d Cir. 2011) 

(“There is no reason to require the legislature to 

experience the very problem it fears before taking 

appropriate prophylactic measures . . . Appellants 

essentially propose giving every corruptor at least one 

chance to corrupt before anything can be done, but this 

dog is not entitled to a bite.”) (internal citation 

omitted). 

In Wagner, the D.C. Circuit Court dismissed the 

claim that the law could only stand if the record 

contained evidence of quid pro quo corruption, noting 

that “no data can be marshaled to capture perfectly the 

counterfactual world in which an existing campaign 

finance restriction does not exist. Instead, the 

question is whether experience under the present law 

confirms a serious threat of abuse.” Wagner, 793 F.3d 

at 14 (citing McCutcheon, 572 U.S. at 219 (internal 

quotations omitted)); see also Colo. Republican Fed. 

Campaign Comm., 533 U.S. 431, 457 (2001) (“Despite 

years of enforcement of the challenged limits, 

substantial evidence demonstrates how candidates, 

donors, and parties test the limits of the current law, 
23

and it shows beyond serious doubt how contribution 

limits would be eroded if inducement to circumvent 

them were enhanced by declaring parties’ coordinated 

spending wide open.”); Burson v. Freeman, 504 U.S. 

191, 208 (1992) (upholding restriction of campaign 

speech near voting places as warranted, 

notwithstanding limited record evidence, to protect 

against offenses that “are successful precisely because 

they are difficult to detect.”); Blount, 61 F.3d at 945 

(“[N]o smoking gun is needed where . . . the conflict of 

interest is apparent, the likelihood of stealth great, 

and the legislative purpose prophylactic.”). 

Here, there is an ample record before the Court 

that sitting officeholders seek campaign contributions 

in exchange for taking some action in their official 

capacity, and that the risk of them doing so is 

especially great when the contribution goes to pay the 

officeholders themselves back for money loaned to 

their campaigns. In fact, successful candidates who 

hold office and maintain campaign debt from the last 

election of any sort are more likely to switch their votes 

based on the interests of their donors: “indebted 

politicians, relative to their debt-free counterparts, are 

significantly more likely to switch their votes if they 

receive contributions from those special interests 

between votes.” FEC J.A. 247 ¶ 67 (quoting 

Ovtchinnikov & Valta, Debt in Political Campaigns

26). Given that campaign debt generally is a driver of 

corruption, it was reasonable for Congress (made up of 

people intimately familiar with this dynamic) to 

conclude that risk would be especially greater where 

repayment of a debt would stand to benefit the 

candidate personally as well as politically. 
24

In fact, there is evidence that parties with interests 

pending before an officeholder have especially strong 

incentives to help the officeholder recoup money lent 

to the officeholder’s own campaign. One former 

attorney general of Ohio, for instance, loaned his 

campaign $2 million and in the years following his 

election raised $1.47 million to repay this debt; 

$194,830 in contributions reportedly came from ten 

law firms and their lawyers that garnered “$9.6 

million in legal fees for 225 assignments from the 

Attorney General’s office.” Id. at 249 ¶ 73. Two past 

governors of Kentucky loaned their respective 

campaigns a total of $3.55 million; they recouped these 

loans through post-election contributions from

“‘contributors seeking no-bid contracts.’” Id. at 252 

¶ 78 (quoting PENNY MILLER, KENTUCKY POLITICS &

GOVERNMENT: DO WE STAND UNITED? 219 (Lincoln: 

University of Nebraska Press 1994)). 

Given that Section 304 poses at most a marginal 

burden on protected First Amendment interest, supra

Section I, this and other evidence in the record before 

the Court is more than sufficient for it to be upheld.

D. Section 304 is not under-inclusive 

Finally, to the extent tailoring is required in this 

case, the district court erred in holding that Section 

304 is “not sufficiently tailored” to achieve its 

anticorruption purposes, in part because it is 

“substantially underinclusive.” D.D.C. Mem. Op. at 

26. The court itself acknowledged that “the First 

Amendment imposes no freestanding 

underinclusiveness limitation.” Id. (citing WilliamsYulee v. Fla. Bar, 575 U.S. 433, 449 (2015)). 

Nevertheless, the lower court found that Section 304’s 
25

exclusive application to post-election contributions 

over $250,000 to retire personal loans may “indicate a 

poor fit” to the extent that post-election fundraising to 

recoup self-loans is actually corrupting at any level. 

Id. The court also faulted Section 304 for not limiting 

other practices, including “post-election contributions 

made to retire other types of campaign debt.” D.D.C. 

Mem. Op. at 27. 

As this Court has noted, “[i]t is always somewhat 

counterintuitive to argue that a law violates the First 

Amendment by abridging too little speech.” WilliamsYulee, 575 U.S. at 448. Here, the use of post-election 

contributions to recoup personal loans plainly 

implicates unique corruption concerns. See FEC Br. at

46 (explaining, for example, that “contributions that 

repay candidate loans differ fundamentally from 

contributions that repay third-party loans” as the 

latter does not increase “the candidate’s personal 

wealth); supra Section II(B). While anti-corruption 

interests might be served through broader limits on 

post-election fundraising, Congress’s decision to adopt 

a narrower approach does not demonstrate insufficient 

tailoring. See Williams-Yulee, 575 U.S. at 449

(upholding Florida’s prohibition on personal 

solicitation of contributions by judicial candidates and 

noting that “[a] State need not address all aspects of a 

problem” through a single piece of legislation). 

The same is true for Congress’s decision to permit 

candidates to recoup a certain amount of debt through 

post-election fundraising. This decision, like the 

decision to focus only on one kind of campaign debt, 

reflects a balancing of interests by Congress to deter 

corruption while maximizing candidates’ ability to 

raise funds for their campaigns. See FEC Br. at 48 
26

(noting that Section 304, like other campaign finance 

regulations, “reflects Congress’s effort to strike an 

appropriate balance between potentially competing 

objectives”).

Section 304 was never intended to inhibit 

candidates from spending or loaning to their own 

campaigns to the fullest extent of their wishes: “[A] 

candidate can spend his or her money but there would 

be a limit on the amount that candidate could go out 

and raise to pay himself or herself back.” 147 CONG.

REC. S3970 (daily ed. Mar. 19, 2001) (statement of Sen. 

Hutchison). Given that fact, it was not unreasonable 

for Congress to draw the line in a less restrictive 

manner than it may otherwise have done to allow 

candidates maximum flexibility in deploying their own 

resources—even if that entailed tolerating an 

increased risk of corruption. Preventing corruption is 

a powerful government interest, but it is almost never 

the only consideration. This balancing of interests is 

exactly the type of decision that Congress is 

empowered to make. 

Indeed, this is the same sort of calculus that 

policymakers undertake when they set any campaign 

fundraising limit; this Court has never struck down a 

limit on the grounds that it could have permissibly 

been set lower. The Court has declined to employ a 

“scalpel to probe” such determinations, which are best 

left to the legislative branch. See Buckley, 424 U.S. at 

30; see also Turner Broad. Sys., Inc. v. FCC, 520 U.S. 

180, 195 (1997) (“We owe Congress’ findings deference 

in part because the institution is far better equipped 

than the judiciary to ‘amass and evaluate the vast 

amounts of data’ bearing upon legislative questions”) 

(internal quotations and citations omitted). Section 
27

304, like other campaign finance regulations, reflects

a sound effort to mitigate the risk of actual or apparent 

corruption while leaving candidates with as many

fundraising options as possible. FEC Br. at 48. That 

is the essence of appropriate tailoring, not a fatal flaw.

CONCLUSION

The judgment of the district court should be 

summarily reversed, and the case remanded to the 

district court with instructions to dismiss. 

Respectfully submitted,

Claire Rajan

 Counsel of Record

 William Jacobson

 Erin Downey

 ALLEN & OVERY LLP 

 1101 New York Avenue, NW 

 Washington, DC 20005

(202) 683-3800

claire.rajan@allenovery.com 

william.jacobson@allenovery.com 

 erin.downey@allenovery.com 

Mark Daniels

Jana Steenholdt

ALLEN & OVERY LLP

1221 Avenue of the Americas

New York, NY 10020

(212) 610-6300

markl.daniels@allenovery.com 

jana.steenholdt@allenovery.com 
28

 Daniel I. Weiner

THE BRENNAN CENTER FOR 

JUSTICE AT NYU SCHOOL OF LAW

1140 Connecticut Avenue, NW 

Suite 1150

Washington, DC 20036

(646) 292-8383

weinerd@brennan.law.nyu.edu

Counsel for Brennan Center for

Justice at NYU School of Law

Counsel for Amicus Curiae

November 22, 2021
APPENDIX
1a 

APPENDIX A

U.S. House and Senate Candidates 

and the Use of Personal Loans 

Post-BCRA (2003-2020) 

None $1 – 

$250,000 

At 

$250,000 

Above 

$250,000 

Total 

No. of 

Candidates 

18,960 6,419 79 862 26,320 

Percentage 72.04% 24.38% 0.30% 3.28% 100% 

U.S. House and Senate Candidates Who Used 

Personal Loans Post-BCRA 

  

Below 

$250k 

At 

$250k 

Above 

$250k Total 

No. of 

Candidates 6,419 79 862 7,360 

Percentage 87.21% 1.07% 11.71% 

100.00

% 

   
2a 

Examples of Clustering of U.S. House and 

Senate Candidates Using Personal Loans 

Post-BCRA (2003-2020)

$50K $100K $150K $200K

No. of 

Candidates 134 129 31 55

Percent of 

Total 

Candidates 0.51% 0.49% 0.12% 0.21%

$250K $300K $500K $1M

No. of 

Candidates 79 25 26 21

Percent of 

Total 

Candidates 0.30% 0.09% 0.10% 0.08%

**Note: The loan amounts reflected in this Appendix 

were obtained from financial information compiled by 

the Federal Election Commission for congressional 

races during the 2003 to 2020 period. See U.S. Federal 

Election Commission, All Candidates – Bulk Data, 

https://www.fec.gov/data/browse-data/?tab=bulk-data

(last visited Nov. 20, 2021). The FEC database makes 

publicly available financial information, including 

personal loan amounts, for each candidate committee 

registered with the FEC, as that information is 

reported by the candidate committee.