No. 21-12 

IN THE

Supreme Court of the United States 

FEDERAL ELECTION COMMISSION, 

Appellant, 

v. 

TED CRUZ FOR SENATE, ET AL., 

Appellees. 

On Appeal from the United States District Court 

for the District of Columbia 

BRIEF OF AMICUS CURIAE PUBLIC CITIZEN 

IN SUPPORT OF APPELLANT AND VACATUR 

 SCOTT L. NELSON

 Counsel of Record 

 ALLISON M. ZIEVE

 PUBLIC CITIZEN 

 LITIGATION GROUP

 1600 20th Street NW 

 Washington, DC 20009 

 (202) 588-1000 

 snelson@citizen.org 

 Attorneys for Amicus Curiae 

November 2021 
i 

TABLE OF CONTENTS 

Page 

TABLE OF AUTHORITIES ....................................... ii 

INTEREST OF AMICUS CURIAE ............................ 1 

INTRODUCTION AND SUMMARY OF 

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

ARGUMENT ............................................................... 7 

I. Requirements for establishing standing to 

challenge a statute such as the one at issue are 

neither novel nor onerous. ................................... 7 

II. The statutory contribution limit has not injured 

Senator Cruz. ..................................................... 10 

CONCLUSION .......................................................... 17 
ii 

TABLE OF AUTHORITIES 

Cases Page(s) 

Am. Legion v. Am. Humanist Ass’n, 

139 S. Ct. 2067 (2019) ........................................... 7 

Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 

568 U.S. 455 (2013) ............................................. 14 

ASPCA v. Feld Ent., Inc., 

659 F.3d 13 (D.C. Cir. 2011) ........................... 9, 10 

Babbitt v. Farm Workers, 

442 U.S. 289 (1979) ............................................... 8 

Bennett v. Spear, 

520 U.S. 154 (1997) ......................................... 8, 12 

California v. Texas, 

141 S. Ct. 2104 (2021) ........................................... 8 

Clapper v. Amnesty Int’l USA, 

568 U.S. 398 (2013) ............................................... 9 

Equal Rights Ctr. v. Post Props., Inc., 

633 F.3d 1136 (D.C. Cir. 2011) ........................... 10 

Evers v. Dwyer, 

358 U.S. 202 (1958) ............................................... 9 

Frank v. Gaos, 

139 S. Ct. 1041 (2019) ......................................... 13 

Havens Realty Corp. v. Coleman, 

455 U.S. 363 (1982) ......................................... 9, 10

Holder v. Humanitarian Law Proj., 

561 U.S. 1 (2010) ................................................... 8 

Jackson v. Finnegan, Henderson, 

Farabow, Garrett & Dunner, 

101 F.3d 145 (D.C. Cir. 1996) ....................... 13, 14 
iii 

Libertarian Nat’l Comm. v. FEC, 

924 F.3d 533 (D.C. Cir. 2019) ............................. 10

Lujan v. Defenders of Wildlife, 

504 U.S. 555 (1992) ............................... 6, 8, 12, 16 

MedImmune, Inc. v. Genentech, Inc., 

549 U.S. 118 (2007) ............................................... 8 

O’Bannon v. Town Ct. Nursing Ctr., 

447 U.S. 773 (1980) ............................................... 2 

Pennsylvania v. New Jersey, 

426 U.S. 660 (1976) ............................................... 9 

PETA v. U.S. Dep’t of Agric., 

797 F.3d 1087 (D.C. Cir. 2015) ........................... 10 

Steffel v. Thompson, 

415 U.S. 452 (1974) ............................................... 8 

Susan B. Anthony List v. Driehaus, 

573 U.S. 149 (2014) ....................................... 6, 7, 8 

TransUnion LLC v. Ramirez, 

141 S. Ct. 2190 (2021) ....................................... 6, 7 

Virginia v. Am. Booksellers Ass’n, 

484 U.S. 383 (1988) ............................................... 8 

Warth v. Seldin, 

422 U.S. 490 (1975) ............................................... 6 

Williams-Yulee v. Fla. Bar, 

575 U.S. 433 (2015) ............................................... 1 

Statutes and Rules 

52 U.S.C. § 30116(j) .................................................... 3 

11 C.F.R. § 116.11(b) ................................................. 15 

Fed. R. Civ. P. 56 ...................................................... 12 
iv 

D.D.C. Loc. Civ. R. 7(h) ....................................... 13, 14 

Other 

Federal Election Commission, 

Interim Final Rule, Increased Contribution and 

Coordinated Party Expenditure Limits for 

Candidates Opposing Self-Financed Candidates, 

68 Fed. Reg. 3970 (2003) ..................................... 15 

John Roberts, Article III Limits on Statutory 

Standing, 42 Duke L.J. 1219 (1993) ..................... 7 
INTEREST OF AMICUS CURIAE1

Public Citizen is an advocacy organization with 

members and supporters in all fifty states. Public Citizen appears before Congress, administrative agencies, and courts on a range of issues. Prominent among 

Public Citizen’s concerns is combating the corruption, 

and appearance of corruption, of governmental processes that can result from infusions of private money 

into campaigns for public office. Public Citizen therefore seeks to enact and defend workable and constitutional campaign finance reform legislation at the federal and state levels. Public Citizen has been involved, 

often as amicus curiae, in many cases in this Court 

and others involving the constitutionality of such legislation. See, e.g., Williams-Yulee v. Fla. Bar, 575 U.S. 

433 (2015). 

Public Citizen has an equally longstanding interest in issues concerning standing to seek judicial review of allegedly unconstitutional or unlawful government action. In its own litigation, Public Citizen often 

confronts standing issues, and it believes that unduly 

narrow conceptions of the injuries that give rise to 

standing, or of the related requirements of causation 

and redressability of injury, stand as obstacles to genuinely aggrieved persons who seek remedies for harms 

attributable to violations of the Constitution and laws. 

Standing decisions also tend to expand beyond their 

facts, as government defendants seize on words used 

in decisions of this Court and other appellate courts 

finding that particular plaintiffs lacked standing to 

–––––––––––––––––––––––– 1 This brief was not authored in whole or part by counsel for 

a party. No one other than amicus curiae made a monetary contribution to preparation or submission of the brief. Counsel for 

both parties have consented in writing to its filing. 
2 

argue that differently situated plaintiffs lack standing 

based on superficial similarities. Catch-phrases, such 

as “self-inflicted injury,” that may seem expressive of 

why one plaintiff lacks standing are particularly likely 

to be applied overbroadly to other plaintiffs who bring 

legitimate test cases when statutes or regulations impose negative consequences on their decisions to exercise their asserted rights. In this way, to paraphrase 

Justice Blackmun, easy standing cases may make bad 

law. See O’Bannon v. Town Ct. Nursing Ctr., 447 U.S. 

773, 804 (1980) (Blackmun, J., concurring in the judgment). 

This case implicates Public Citizen’s concerns both 

with campaign finance regulation and standing. The 

case is a challenge to a statute that limits to $250,000 

the amount of post-election contributions that candidates may collect to repay debt owed to them by their 

campaigns. That law is aimed at contributions that 

pose an obvious risk of fostering real or perceived corruption because they go directly into an officeholder’s 

pocket. Just as troubling as the challenge to that law 

is the fact that the challenge is being advanced by a 

plaintiff, Senator Ted Cruz, who was not injured by 

the challenged limit because his campaign could have 

repaid him in full with only $10,000 in post-election 

contributions. 

Under these circumstances, Public Citizen agrees 

with the Federal Election Commission that Senator 

Cruz and his committee lack standing.2 It submits this 

brief, however, to emphasize that a determination 

–––––––––––––––––––––––– 2 Because the district court based its standing determination 

on an alleged injury to Senator Cruz, and for purposes of convenience, this brief refers to the appellees collectively as “Senator 

Cruz” unless the context indicates otherwise. 
3 

that Senator Cruz lacks standing should not be 

framed so as to suggest that a plaintiff who voluntarily engages in conduct that subjects him to the unconstitutional operation of a statute lacks standing to 

bring a test case. In addition, the Court should not 

suggest that a plaintiff need always subject himself to 

a completed injury, as opposed to a substantial risk of 

injury, to challenge an unconstitutional statute. The 

problem with Senator Cruz’s case is that he showed 

neither that he suffered an actual injury attributable 

to the law’s claimed unconstitutionality nor that he 

faces any substantial risk of suffering such an injury. 

A properly limited standing ruling in this case will not 

threaten legitimate challenges to this law or any 

other. 

INTRODUCTION AND 

SUMMARY OF ARGUMENT 

Senator Cruz claims that 52 U.S.C. § 30116(j) violates the First Amendment by imposing a $250,000 

limit on the post-election contributions that can be 

used to repay loans made by candidates to their authorized election committees. One might expect an officeholder challenging that provision to have made a 

loan to his committee that, if the statute’s application 

were enjoined, would be repaid using contributions exceeding that limit. At least, one would expect such a 

challenger to have concrete intentions to make such 

loans and, but for the statute, to repay them using 

post-election contributions exceeding $250,000 in future elections. Those circumstances would straightforwardly establish an injury, or a substantial risk of injury, fairly traceable to the claimed constitutional violation. 
4 

Not so here. Senator Cruz did make a $260,000 

loan to his campaign in the last hours of the 2018 election campaign. Before this lawsuit was filed, however, 

his committee repaid $250,000 of that loan using preelection contributions, leaving a balance of only 

$10,000—an amount far below the statutory limit on 

post-election contributions. The statutory contribution limit that Senator Cruz says is unconstitutional 

does not interfere in any way with his ability to raise 

$10,000. 

Although it appears that Senator Cruz has lost 

$10,000, that is only because of a provision in FEC 

regulations under which, if more than $250,000 is outstanding on loans from a candidate to his committee 

20 days after an election, the amount exceeding 

$250,000 must be treated as a contribution from the 

candidate and may no longer be repaid—even if the 

repayment would otherwise come from pre-election 

contributions and/or from post-election contributions 

that comply with the statutory limit. Any injury Senator Cruz has suffered is traceable to that regulation, 

not to the limit on post-election contributions that he 

challenges. 

Accordingly, Senator Cruz lacks standing to raise 

his constitutional challenge. That consequence does 

not stem from any novel or especially onerous features 

of standing law. The basic requisites of standing to 

bring a constitutional challenge to an agency’s implementation of a statute like the one at issue are wellestablished and easily stated: The challenger must 

have suffered, or face a substantial risk of, a concrete 

injury in fact; the injury must be fairly traceable to the 

claimed unconstitutionality of the statute; and the injury must be redressable by the relief the challenger 

seeks. Faced with a genuine threat that the statute 
5 

will be enforced in ways that allegedly infringe First 

Amendment rights and financial interests, a person 

actually affected by the statute should have little difficulty in demonstrating standing. If the statute genuinely limits a candidate’s ability to raise funds to pay 

an outstanding loan, or is substantially likely to do so 

in light of the candidate’s plans for financing imminent campaigns, the candidate will likely have standing to challenge it—whether the challenge is meritorious or not. 

The problem here is not that the bar of standing is 

too high, but that Senator Cruz’s challenge trips over 

the lowest of thresholds. The statutory limit on contributions that he claims is unconstitutional did not prevent him from raising the $10,000 at stake, and he has 

shown no likelihood that the limit will ever affect him. 

This Court need not—and should not—erect any new 

and more stringent standing barriers to find that Senator Cruz’s challenge is nonjusticiable. 

In particular, the Court should not suggest that 

Senator Cruz’s standing problem arises because this 

is a “test case.” Individuals are entitled to lay the 

groundwork for test cases—even if they would not otherwise face injury—by engaging in conduct that they 

claim is constitutionally or legally protected and exposing themselves to injury attributable to allegedly 

wrongful conduct, such as the application of a law they 

claim is unconstitutional. Injuries traceable to the 

wrongs alleged in such cases are not “self-inflicted.” 

Senator Cruz’s claim does not fail because it is a test 

case, but because he set up the test in a way that ensured that the feature he intended to challenge—the 

$250,000 limit on post-election contributions—had no

impact on him. 
6 

As the FEC demonstrates, the $250,000 limit 

serves as a constitutional check on actual or perceived 

corruption because it applies to contributions that 

have minimal First Amendment value and maximal 

corruptive potential: those that go straight into the 

pocket of an officeholder who has already won an election. Nonetheless, this Court should, and indeed under its standing precedents must, leave consideration 

of the merits of the statutory limit on post-election 

contributions used to repay candidate loans to a case 

where that limit actually has operated, or threatens to 

operate, to restrict a candidate’s ability to raise funds 

to repay a loan. 

ARGUMENT 

I. Requirements for establishing standing to 

challenge a statute such as the one at issue 

are neither novel nor onerous. 

Although the requirement that a plaintiff have 

standing to sue is a much-litigated limit on the authority of federal courts to resolve a case or controversy, the basic elements of standing are simply 

stated. “To establish Article III standing, a plaintiff 

must show (1) an ‘injury in fact,’ (2) a sufficient ‘causal 

connection between the injury and the conduct complained of,’ and (3) a ‘likel[ihood]’ that the injury ‘will 

be redressed by a favorable decision.’ ” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157–58 (2014) 

(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 

560–61 (1992)). These requirements “help[ ] to ensure 

that the plaintiff has a ‘personal stake in the outcome 

of the controversy,’ ” id. at 158 (quoting Warth v. 

Seldin, 422 U.S. 490, 498 (1975)), and confine federal 

courts to “their proper function in a limited and separated government.” TransUnion LLC v. Ramirez, 141 
7 

S. Ct. 2190, 2203 (2021) (quoting John Roberts, Article 

III Limits on Statutory Standing, 42 Duke L.J. 1219, 

1224 (1993)). Put simply, the requirements limit a 

court to deciding “a real controversy with real impact 

on real persons.” Am. Legion v. Am. Humanist Ass’n, 

139 S. Ct. 2067, 2103 (2019) (Gorsuch, J., concurring 

in the judgment). 

Although determining the existence of “injury in 

fact” sometimes presents difficulties, in other cases it 

is easy. “[C]ertain harms readily qualify as concrete 

injuries under Article III,” including “tangible harms, 

such as physical harms and monetary harms.” 

Ramirez, 141 S. Ct. at 2204. Some intangible harms 

are just as easy to identify—in particular “harms specified by the Constitution itself,” id., such as claimed 

violations of personal constitutional rights, including 

those conferred by the First Amendment, see id. (citing examples). 

This Court has also made clear that, when the redress sought by a plaintiff is prospective relief, a risk 

of future harm may suffice for standing “if the threatened injury is certainly impending, or there is a substantial risk that the harm will occur.” Driehaus, 573 

U.S. at 158 (internal quotation marks and citation 

omitted). “[A] person exposed to a risk of future harm 

may pursue forward-looking, injunctive relief to prevent the harm from occurring, at least so long as the 

risk of harm is sufficiently imminent and substantial.” 

Ramirez, 141 S. Ct. at 2210. Thus, an individual subject to “threatened enforcement of a law” that assertedly would infringe constitutional or other rights “satisfies the injury-in-fact requirement where he alleges 

‘an intention to engage in a course of conduct arguably 

affected with a constitutional interest, but proscribed 

by a statute, and there exists a credible threat of 
8 

prosecution thereunder.’ ” Driehaus, 573 U.S. at 158–

59 (quoting Babbitt v. Farm Workers, 442 U.S. 289, 

298 (1979)). In such circumstances, the plaintiff need 

not “expose himself” to the consummation of the 

threatened injury to have standing. Id. at 158–61 (citing Steffel v. Thompson, 415 U.S. 452, 459 (1974), 

MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 

128–129 (2007), Virginia v. Am. Booksellers Ass’n, 484 

U.S. 383, 396 (1988), and Holder v. Humanitarian 

Law Proj., 561 U.S. 1, 15 (2010)). 

As to the required element of causation, the plaintiff’s injury (or the substantial threat of injury) must 

be “fairly traceable to the challenged action of the defendant.” Bennett v. Spear, 520 U.S. 154, 167 (1997) 

(citing Defenders of Wildlife, 504 U.S. at 560–61). 

Proximate or exclusive causation is not required, see 

id. at 168–69, as long as the injury is, in some real 

sense, attributable to the specific illegality alleged by 

the plaintiff. California v. Texas, 141 S. Ct. 2104, 

2113–20 (2021). In a challenge to the implementation 

of an allegedly unconstitutional statutory provision, 

causation requires an injury “fairly traceable to the 

defendants’ conduct in enforcing the specific statutory 

provision [plaintiffs] attack as unconstitutional.” Id. 

at 2120. 

That the plaintiff’s own conduct plays a role in 

bringing to bear the challenged injurious application 

(or threat of application) of a statute to his conduct 

does not normally mean that the resulting injury or 

threat of injury is not fairly attributable to the challenged action. A plaintiff who claims a constitutional 

right or some other form of legal protection may engage in the conduct she claims is legally protected, 

knowing or expecting that she will be exposed to an 

action she views as illegal, and the resulting injury 
9 

will serve as a basis for a legal challenge because it is 

fairly attributable to the assertedly illegal conduct. 

See, e.g., Havens Realty Corp. v. Coleman, 455 U.S. 

363, 373–74 (1982). That the plaintiff could have 

avoided the injury by not exercising her claimed rights 

“does not negate the simple fact of injury” attributable 

to the defendant’s assertedly illegal response. Id. at 

374. That the plaintiff exercised her rights “for the 

purpose of instituting ... litigation” likewise “is not 

significant.” Evers v. Dwyer, 358 U.S. 202, 204 (1958). 

In short, an injury resulting from the application of an 

allegedly unconstitutional statute to a plaintiff willing 

to accept that consequence in order to bring a test case 

remains fairly traceable to the challenged conduct notwithstanding that it might be described as being “selfinflicted” in some sense. 

Denying standing based on the characterization of 

such harm as “self-inflicted” would represent a significant, and unwarranted, extension of standing doctrine. This Court has given relatively little consideration to “self-inflicted” harm in the context of standing, 

using the term only twice. See Clapper v. Amnesty Int’l 

USA, 568 U.S. 398, 418 (2013); Pennsylvania v. New 

Jersey, 426 U.S. 660, 664 (1976). Some lower courts, 

in particular the D.C. Circuit, have used that terminology more widely. See ASPCA v. Feld Ent., Inc., 659 

F.3d 13, 24–27 (D.C. Cir. 2011) (citing cases). Courts 

have not, however, applied it to direct consequences of 

statutory prohibitions or requirements that are triggered by a plaintiff’s choice of engaging in conduct for 

which he claims constitutional or legal protection. Rather, as Clapper and Pennsylvania v. New Jersey illustrate, courts have generally used the concept in attempting to distinguish between those indirect consequences of challenged laws and actions that are fairly 
10 

traceable to the defendant’s conduct and those that 

are not. More specifically, the term is most often used 

in cases where the issue is whether some action by an 

organizational plaintiff (such as an expenditure of resources) is attributable to the impairment of the plaintiff’s mission by the defendant’s challenged conduct, 

as in Havens, 455 U.S. at 379, or reflects a voluntary 

choice to engage in efforts to counter a policy to which 

the plaintiff merely objects, see ASPCA, 659 F.3d at 

26. Whatever the usefulness of the term in that context—which appears doubtful given the difficulty 

courts have experienced in applying it3—it has no application to cases where plaintiffs expose themselves 

to potential injury directly attributable to statutory or 

regulatory restrictions by engaging in conduct for 

which they claim constitutional protection. See, e.g., 

Libertarian Nat’l Comm. v. FEC, 924 F.3d 533, 538 

(D.C. Cir. 2019). 

II. The statutory contribution limit has not 

injured Senator Cruz. 

Under the principles discussed above, a candidate 

wishing to challenge the statutory $250,000 limit on 

post-election contributions that may be used by his authorized committee to repay loans from the candidate 

would have ready options to establish standing if the 

limit really affected him adversely. Most obviously, a 

candidate in Senator Cruz’s situation could use the 

full $250,000 in post-election contributions to repay as 

much of his loan as possible. Then, to the extent that 

the loan exceeded that amount and the candidate’s 

committee was unable or unwilling to pay the 

–––––––––––––––––––––––– 3 Compare, e.g., PETA v. U.S. Dep’t of Agric., 797 F.3d 1087 

(D.C. Cir. 2015), with Equal Rights Ctr. v. Post Props., Inc., 633 

F.3d 1136 (D.C. Cir. 2011). 
11 

remainder, the candidate would suffer a monetary injury traceable to the challenged limit. Even without 

exhausting the $250,000 limit on post-election contributions, a candidate who had lent more than that 

amount to his campaign (and had not yet been repaid) 

could assert an injury in fact traceable to the limit to 

the extent that he could establish a substantial likelihood that the limit would prevent use of post-election 

contributions to repay the full amount. Moreover, a 

candidate who could demonstrate that, but for the 

statute, he would finance his campaign through personal loans exceeding $250,000 that he would seek to 

have repaid using post-election contributions, and 

that the statute had caused him to refrain from using 

that method of financing, would likely also be successful in establishing an injury in fact (or a substantial 

risk of imminent injury) as a result of the application 

of the statute. 

Senator Cruz, however, established none of these 

injuries. He alleged the first type of injury in his complaint, which averred that his committee had repaid 

him using “the statutory maximum of $250,000 from 

money raised after the election,” JA 23, and that he 

had suffered a financial injury of $10,000 attributable 

to the challenged $250,000 limit, see id.4 Prior to 

–––––––––––––––––––––––– 4 The FEC’s brief discusses the claimed injury as involving 

harm to the committee’s ability to repay Senator Cruz as opposed 

to harm to Senator Cruz. See FEC Br. 9. This brief refers to the 

claimed injury as being to Senator Cruz because the district court 

found standing on that basis. JS App. 51a. In any event, the committee has not been injured by the statutory contribution limits 

for the same reasons that Senator Cruz has not, and for the additional reason that the regulation transforming $10,000 of the 

loans into a gift to the committee confers a financial benefit on 

the committee, not an injury. 
12 

appointment of the three-judge court, the district 

court based its determination that the complaint adequately alleged standing on that asserted injury, 

which it viewed as a “consequence” of three alleged 

facts: Senator Cruz had “declined to pay himself back 

with available pre-election funds and instead used 

those funds to pay back other creditors”; subsequently, “Senator Cruz’s campaign repaid him the 

$250,000 maximum using post-election contributions”; and the campaign is “legally barred from paying him back the $10,000 balance.” JS App. 51a. At 

the summary judgment stage, the three-judge court 

repeated its understanding that “the campaign repaid 

Senator Cruz the maximum $250,000 with post-election contributions but [the statute] prevented the 

campaign from paying back the final $10,000.” JS 

App. 9a. 

Because the elements of standing must “be supported in the same way as any other matter on which 

the plaintiff bears the burden of proof, i.e., with the 

manner and degree of evidence required at the successive stages of the litigation,” Defenders of Wildlife, 504 

U.S. at 561, the district court was correct to rely on 

the complaint’s allegations at the motion-to-dismiss 

stage, where even “general factual allegations of injury resulting from the defendant’s conduct may suffice,” id. See also Bennett, 520 U.S. at 168. 

At summary judgment, however, the standard is 

different: At that stage, “the plaintiff can no longer 

rest on such ‘mere allegations,’ but must ‘set forth’ by 

affidavit or other evidence ‘specific facts,’ Fed. Rule 

Civ. Proc. 56(e), which for purposes of the summary 

judgment motion will be taken to be true.” Defenders 

of Wildlife, 504 U.S. at 561. Moreover, because the 

standing requirement is jurisdictional, a court is 
13 

obligated to determine that standing has been 

properly shown even if the defendant does not challenge it at the summary judgment stage. Cf. Frank v. 

Gaos, 139 S. Ct. 1041, 1046 (2019). Here, the summary 

judgment record failed to provide the degree of support necessary for Senator Cruz’s allegation of monetary injury; indeed, it definitively established that the 

undisputed facts negated that allegation. 

Specifically, the FEC’s statement of undisputed 

material facts in support of its summary judgment 

motion stated (with citation of evidentiary support in 

the summary judgment record) that “[n]one of the 

$250,000 of the loan that was repaid was from contributions raised after the election.” JA 246. Senator 

Cruz’s response to the FEC’s statement of undisputed 

material facts neither challenged the sufficiency of the 

evidentiary support offered by the FEC for its statement, identified any evidence that would create a dispute of fact on this point, nor contested the materiality 

of the fact. His response consisted of one word: “Admitted.” JA 329. 

The terms of Federal Rule of Civil Procedure 56 

leave no doubt that a party may establish that a fact 

is undisputed at the summary judgment stage of a 

case by pointing to “stipulations ... made for purposes 

of the motion [for summary judgment]” and “admissions.” The purpose of local rules, such as those of the 

court below (D.D.C. Loc. Civ. R. 7(h)), that require 

statements of undisputed fact and responses thereto 

is to distinguish triable issues of fact from those that 

are uncontested and must be taken as givens in determining whether a party is entitled to judgment as a 

matter of law. See Jackson v. Finnegan, Henderson, 

Farabow, Garrett & Dunner, 101 F.3d 145, 150–51 

(D.C. Cir. 1996). And in cases like this one, where a 
14 

fact is unambiguously asserted as undisputed by a 

moving party and expressly admitted by the other 

party, there can be no doubt that that “judicial admission” conclusively determines the facts for purposes of 

summary judgment. See Amgen Inc. v. Conn. Ret. 

Plans & Trust Funds, 568 U.S. 455, 470 n.6 (2013).5

The undisputed facts thus establish that Senator 

Cruz did not suffer a monetary loss that is fairly traceable to the statutory provision he claims violates the 

First Amendment—that is, the $250,000 limit on the 

amount of post-election contributions that can be used 

to repay a loan from a candidate to his committee. Because Senator Cruz’s committee repaid $250,000 of his 

$260,000 loans using pre-election contributions, the 

statutory cap on post-election contributions did not 

prevent him from raising the additional amount 

needed to make him whole: He could have recouped 

his entire “loss” by having his committee repay only 

$10,000 of the loan using post-election contributions, 

nowhere close to the amount of the limit. 

To the extent that Senator Cruz is out $10,000, it 

is not because of the $250,000 cap that he contends 

violates the First Amendment, but because of the operation of an additional requirement imposed by an 

FEC regulation. That regulation provides that a committee’s “cash on hand” as of the day after the election 

may only be used to repay all or part of candidate 

–––––––––––––––––––––––– 5 The district court’s local rule provides that when a party 

fails to properly contest an opponent’s statement of undisputed 

facts, the district court “may assume” the facts “are admitted.” 

D.D.C. Loc. R. 7(h)(1); see also Jackson, 101 F.3d at 154 (under 

prior rule, court may “deem” facts not properly disputed “as admitted”). No such permissive assumption, however, is necessary 

when a party has expressly “admitted,” JA 329, a fact proffered 

as undisputed. 
15 

loans exceeding $250,000 within 20 days after the 

election;6 thereafter, the “committee must treat the 

portion of the aggregate outstanding balance of the 

personal loans that exceeds $250,000 minus the 

amount of cash on hand as of the day after the election 

used to repay the loan as a contribution by the candidate,” which can no longer be repaid by the committee. 

11 C.F.R. § 116.11(c). Because the outstanding balance of Senator Cruz’s loans exceeded $250,000 as of 

the 20th day after the election, the committee was required to treat the excess amount of $10,000 as a contribution and thus can no longer repay that amount, 

whether it uses pre- or post-election contributions. 

The challenged contribution limits are thus irrelevant to Senator Cruz’s situation. The regulatory requirement bears no direct relationship to the $250,000 

limit on repayment of loans from post-election contributions. The statute imposing the contribution limit 

says nothing about when repayments may be made, 

but on its face allows unlimited repayment of loans 

from pre-election contributions, regardless of when repayment is made, while limiting only the amount of 

post-election contributions used for loan repayment—

again without regard to when in the post-election period repayment is made. The reasons behind the regulation seem vague: The Federal Register notice 

promulgating the regulation explains only that a committee must make repayments from pre-election contributions within 20 days because that is the time for 

“clos[ur]e of the books for the post-election general report.” 68 Fed. Reg. 3970, 3974 (2003). Whether that 

–––––––––––––––––––––––– 6 The FEC does not appear to assert that the campaign’s payment using pre-election contributions after the expiration of the 

20-day limit violated this aspect of the regulation. 
16 

explanation is sufficient to sustain the 20-day cutoff is 

a different question altogether from the constitutionality of the limit on post-election contributions. Being 

injured by application of a regulatory cut-off date after 

which part of a loan may not be repaid even by contributions that comply with an allegedly unconstitutional statutory limit is not the same as being injured 

by the statutory limit itself. 

Senator Cruz’s test case thus fails not because his 

injury was “self-inflicted,” but because it was not 

traceable to the constitutional violation he alleges. Of 

course, Senator Cruz was not required to avoid injury 

by forgoing exercise of what he claimed to be his 

rights; he could deliberately exercise those claimed 

rights to trigger an injury, or risk of injury, attributable to the statute he wished to challenge. That is, as 

Judge Mehta put it, he was not required “to avoid an 

injury by subjecting himself to the very framework he 

alleges is unconstitutional.” JS App. 54a (emphasis 

added). But by the same token, to claim that he actually suffered an injury, he was required to subject himself to the injurious consequences he wished to challenge. He failed to do so. 

Alternatively, Senator Cruz could have sought to 

demonstrate standing by alleging, and offering proof, 

that he had concrete plans (as opposed to vague, 

“ ‘some day’ intentions,” Defenders of Wildlife, 504 

U.S. at 564) to finance later campaigns with loans 

that, but for the statutory limit, he would repay with 

post-election contributions exceeding $250,000. But 

the district court did not find standing on any such basis, and it appears that the very reason Senator Cruz 

chose to set up a test case was that the statute would 

otherwise be unlikely to have any impact on his realworld activities. Senator Cruz admitted and 
17 

stipulated below that “the sole and exclusive motivation behind [his] actions in making the 2018 loan ... 

was to establish the factual basis for this challenge.” 

JA 325. That concession strongly suggests that personal loans that would potentially trigger the limit on 

post-election contributions were not otherwise part of 

Senator Cruz’s campaign-finance strategies. Senator 

Cruz’s case thus stands or falls on whether the design 

of his test subjected him to injury traceable to the 

challenged contribution limits. Because it did not, this 

Court cannot delve into the merits of his challenge to 

the sufficiency of the substantial anti-corruption rationales offered by the FEC in defense of the statute. 

CONCLUSION 

The judgment of the district court should be vacated. 

Respectfully submitted, 

SCOTT L. NELSON

 Counsel of Record

ALLISON M. ZIEVE

PUBLIC CITIZEN LITIGATION

 GROUP 

1600 20th Street NW 

Washington, DC 20009 

(202) 588-1000 

snelson@citizen.org 

Attorneys for Amicus Curiae 

November 2021