No.

In the Supreme Court of the United States

FEDERAL ELECTION COMMISSION, APPELLANT

v.

TED CRUZ FOR SENATE AND

SENATOR RAFAEL EDWARD “TED” CRUZ

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

JURISDICTIONAL STATEMENT

LISA J. STEVENSON

Acting General Counsel

KEVIN DEELEY

Associate General Counsel 

HARRY J. SUMMERS

Assistant General Counsel

SETH NESIN

Attorney

Federal Election Commission

Washington, D.C. 20463

ELIZABETH B. PRELOGAR

Acting Solicitor General

Counsel of Record

MALCOLM L. STEWART

Deputy Solicitor General

VIVEK SURI

Assistant to the Solicitor 

General

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217
(I) 

QUESTIONS PRESENTED

When a candidate for federal office lends money to 

his own election campaign, federal law imposes a 

$250,000 limit on the amount of post-election contributions that the campaign may use to repay the debt owed 

to the candidate. 52 U.S.C. 30116(j). The questions presented are as follows: 

1. Whether appellees have standing to challenge the

statutory loan-repayment limit.

2. Whether the loan-repayment limit violates the 

Free Speech Clause of the First Amendment. 
(II) 

PARTIES TO THE PROCEEDING

The Federal Election Commission (FEC) is the appellant in this Court and was a defendant in the district 

court. Ted Cruz for Senate and Senator Rafael Edward 

“Ted” Cruz are appellees in this Court and were plaintiffs in the district court. 

Ellen L. Weintraub, Matthew S. Petersen, Caroline 

C. Hunter, and Steven T. Walther, in their official capacities as Commissioners of the FEC, were originally 

named as defendants in the district court. Petersen and 

Hunter have since been succeeded as Commissioners of 

the FEC by James E. Trainor III and Allen Dickerson. 

The individual Commissioners have not separately appealed.

RELATED PROCEEDINGS

United States District Court (D.D.C.):

Ted Cruz for Senate v. FEC, No. 19-908 (June 3, 

2021)
(III) 

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction.................................................................................... 1

Statutory provisions involved...................................................... 2

Statement ...................................................................................... 2

Reasons for summary vacatur or for postponing jurisdiction ..... 7

Conclusion ................................................................................... 26

Appendix A — Amended notice of appeal

 (June 13, 2021)........................................... 1a

Appendix B — Notice of appeal 

 (June 11, 2021)........................................... 3a

Appendix C — District court memorandum opinion 

 (June 3, 2021)............................................. 5a

Appendix D — District court order (June 3, 2021)............. 38a

Appendix E — District court memorandum opinion and

 order (Dec. 24, 2019) ............................... 40a

Appendix F — Statutory and regulatory provisions .......... 65a

TABLE OF AUTHORITIES

Cases:

Arbaugh v. Y&H Corp., 546 U.S. 500 (2006)....................... 13

Arizona State Legislature v. Arizona Independent 

Redistricting Commission, 576 U.S. 787 (2015) ............. 25

Broadrick v. Oklahoma, 413 U.S. 601 (1973)...................... 23

Buckley v. Valeo, 424 U.S. 1 (1976)............................ 2, 17, 19

California v. Texas, No. 19-840 (June 17, 2021)................... 8

Carney v. Adams, 141 S. Ct. 493 (2020).............................. 15

Christian Legal Soc’y Chapter of the Univ. of 

California, Hastings Coll. of the Law v. Martinez, 

561 U.S. 661 (2010).............................................................. 16

Clapper v. Amnesty Int’l, 568 U.S. 398 (2013) ................... 14

Clingman v. Beaver, 544 U.S. 581 (2005)............................ 17
IV

Cases—Continued: Page

Cutter v. Wilkinson, 544 U.S. 709 (2005)............................ 13

Davis v. FEC, 554 U.S. 724 (2008)........................... 17, 21, 23

FEC v. National Conservative Political Action 

Comm., 470 U.S. 480 (1985)............................................... 19

FEC v. O’Donnell, 209 F. Supp. 3d 727

(D. Del. 2016)....................................................................... 20

Furnco Construction Corp. v. Waters, 438 U.S. 567 

(1978).................................................................................... 21

Gonzalez v. Automatic Emps. Credit Union,

419 U.S. 90 (1974) ................................................................. 4

Hicks v. Miranda, 422 U.S. 332 (1975) ................................. 8

Kontrick v. Ryan, 540 U.S. 443 (2004) ................................ 13

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

(1992).......................................................................... 8, 11, 15

McConnell v. FEC, 540 U.S. 93 (2003) ................................ 14

McCutcheon v. FEC, 572 U.S. 185 (2014) ........................... 22

Natural Res. Def. Council, Inc. v. United States 

Food & Drug Admin., 710 F.3d 71 (2d Cir. 2013)........... 15

Nixon v. Shrink Missouri Gov’t PAC,

528 U.S. 377 (2000).............................................................. 22

Pennsylvania v. New Jersey, 426 U.S. 660 (1976)............. 14

Shapiro v. McManus, 577 U.S. 39 (2015) ............................. 4

TransUnion LLC v. Ramirez, No. 20-297

(June 25, 2021)............................................................... 12, 14

United States v. Richardson, 418 U.S. 166 (1974) ............. 14

Williams-Yulee v. Florida Bar, 575 U.S. 433 (2015)......... 24

Wisconsin Right to Life, Inc. v. FEC, 546 U.S. 410, 

412 (2006)............................................................................. 13
V 

Constitution, statutes, regulations, and rules: Page

U.S. Const.:

Art. III.......................................................................... 8, 13

Amend. I.................................................................. passim

Bipartisan Campaign Reform Act of 2002,

Pub. L. No. 107-155, 116 Stat. 81:

§ 403(a), 116 Stat. 113 ................................................... 4, 7

§ 403(a)(1), 116 Stat. 113-114............................................ 7

§ 403(a)(3), 116 Stat. 114................................................... 8

§ 403(a)(4), 116 Stat. 114........................................... 8, 65a

§ 403(d)(2), 116 Stat. 114........................................... 7, 66a

Federal Election Campaign Act of 1971,

Pub. L. No. 92-225, 86 Stat. 3 (52 U.S.C. 30101 

et seq.)..................................................................................... 2

52 U.S.C. 30106.................................................................. 2

52 U.S.C. 30116(a) ....................................................... 2, 21

52 U.S.C. 30116(c) ....................................................... 2, 21

52 U.S.C. 30116(j).................................................. 2, 9, 65a

5 C.F.R. 2635.204................................................................... 21

11 C.F.R.:

Section 116.11(b)(1)................................................... 2, 67a

Section 116.11(c)(1) ................................................... 3, 68a

Section 116.11(c)(2) ......................................... 3, 4, 12, 68a

Fed. R. Civ. P. 56(a) .............................................................. 11

R. of the H. XXV.5 (2019) ..................................................... 21

Standing R. of the S. XXXV (2013)...................................... 21

Sup. Ct. R. 18.12 .................................................................... 25

Miscellaneous:

Judicial Conference, Code of Conduct for United 

States Judges, Canon 4(D)(4) (2019) ................................ 21

 
(1) 

In the Supreme Court of the United States

No. 

FEDERAL ELECTION COMMISSION, APPELLANT

v.

TED CRUZ FOR SENATE AND

SENATOR RAFAEL EDWARD “TED” CRUZ

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA

JURISDICTIONAL STATEMENT

OPINIONS BELOW

An opinion of the district court (App., infra, 5a-37a) 

is not yet reported, but is available at 2021 WL 2269415. 

A prior opinion and order of the district court (App., infra, 40a-64a) is unreported, but is available at 2019 WL 

8272774. 

JURISDICTION

The judgment of the district court was entered on 

June 3, 2021 (App., infra, 38a-39a). The Federal Election Commission filed a notice of appeal on June 13, 

2021 (App., infra, 1a-2a). The jurisdiction of this Court 

is invoked under the Bipartisan Campaign Reform Act 

of 2002, Pub. L. No. 107-155, § 403(a)(3), 116 Stat. 113-

114.
2 

 STATUTORY PROVISIONS INVOLVED

Pertinent statutory provisions are reproduced at 

App., infra, 65a-68a.

STATEMENT

1. The Federal Election Campaign Act of 1971 

(FECA), Pub. L. No. 92-225, 86 Stat. 3, as amended by 

the Bipartisan Campaign Reform Act of 2002 (BCRA), 

Pub. L. No. 107-155, 116 Stat. 81, regulates the financing of federal election campaigns. The Federal Election 

Commission (FEC or Commission) is responsible for 

administering those statutes. 52 U.S.C. 30106.

Under FECA, BCRA, the FEC’s regulations, and 

this Court’s First Amendment precedents, candidates 

may use a variety of means to fund their campaigns. A 

candidate may spend an unlimited amount of his own 

money in support of his election. Buckley v. Valeo, 424 

U.S. 1, 52-53 (1976) (per curiam). The campaign may

also accept contributions from individuals and certain 

political committees, subject to per-election limits. 

52 U.S.C. 30116(a) and (c). And the campaign may borrow money, either from a third-party lender or from the 

candidate himself. App., infra, 7a.

As relevant here, federal law imposes three restrictions on the repayment of a candidate’s personal 

loans. App., infra, 8a. First, BCRA states that a candidate “shall not” use “contributions made * * * after the 

date of [the] election” to repay such “personal loans 

* * * to the extent such loans exceed $250,000.” 

52 U.S.C. 30116(j). Second, the Commission’s regulations provide that candidate committees may use preelection contributions to repay the portion of the loans 

that exceeds $250,000 only if the repayment is made 

within 20 days after the election. 11 C.F.R. 116.11(b)(1) 
3 

and (c)(1). Third, if a candidate loan that exceeds 

$250,000 remains unpaid 20 days after the election, the 

committee must recharacterize the portion in excess of 

$250,000 as a contribution rather than a loan (precluding later repayment). 11 C.F.R. 116.11(c)(2). 

2. In 2018, appellee Senator Ted Cruz ran for reelection to represent Texas in the United States Senate. 

App., infra, 8a. Senator Cruz’s campaign against Beto 

O’Rourke was at the time the most expensive in the Senate’s history. FEC Statement of Undisputed Material 

Facts (SMF), D. Ct. Doc. 65, ¶ 52 (July 14, 2020). Appellee Ted Cruz for Senate, Senator Cruz’s principal 

campaign committee, raised more than $35 million in 

2017-2018. Id. ¶ 53. 

The day before the general election, Senator Cruz 

lent his committee $260,000—$10,000 more than the 

maximum amount that BCRA’s loan-repayment provision allows to be repaid with post-election contributions. App., infra, 8a. After the election, the committee 

had approximately $2.2 million in cash on hand. Ibid. 

The committee could have used those pre-election funds 

to repay Senator Cruz in whole or in part, but it chose 

not to do so within the 20-day deadline set by FEC regulations. Id. at 8a-9a. If the committee had used preelection contributions to repay Senator Cruz $10,000 

within that 20-day window, it could lawfully have used 

post-election funds to repay the remaining $250,000.

Once the 20-day deadline elapsed, the FEC regulation required that $10,000 of the prior $260,000 loan be

recharacterized as a contribution from Senator Cruz to 

his campaign. 11 C.F.R. 116.11(c)(2). Senator Cruz 

then emailed his campaign staff: “Since more than 20 

days have passed, it would be REALLY good if we could 

pay back at least some of the $250k now.” SMF ¶ 62 
4 

(citation omitted). The committee then repaid Senator 

Cruz $250,000. App., infra, 9a. But because the committee had purposefully waited until 20 days had 

elapsed, it could not repay the remaining $10,000. Ibid.; 

see 11 C.F.R. 116.11(c)(2). Appellees have stipulated 

that “the sole and exclusive motivation behind Senator 

Cruz’ actions in making the 2018 loan and the committee’s actions in waiting to repay them was to establish 

the factual basis for this challenge.” SMF ¶ 56. 

3. On April 1, 2019, appellees sued the Commission

in federal district court in the District of Columbia, alleging that BCRA’s loan-repayment limit violates the 

First Amendment (and raising additional challenges to 

the FEC’s regulations). Compl. 1; App., infra, 9a; see 

Compl. ¶¶ 34-51. They invoked Section 403(a) of BCRA, 

which authorizes a three-judge district court to hear 

challenges to “the constitutionality of any provision of 

this Act or any amendment made by this Act.” BCRA 

§ 403(a), 116 Stat. 113. 

When a plaintiff files suit and requests that the case 

be heard by a three-judge district court, a single judge 

may dismiss the complaint for lack of jurisdiction without convening a three-judge court. See Shapiro v. 

McManus, 577 U.S. 39, 45 (2015); Gonzalez v. Automatic Employees Credit Union, 419 U.S. 90, 96 n.14 

(1974). Invoking that principle, the FEC moved to dismiss the claims before a three-judge court had been

convened, arguing that appellees lacked standing to 

sue. App., infra, 9a. Acting through a single judge, the 

district court denied the motion to dismiss and granted 

the application to convene a three-judge court. Id. at 

40a-64a. 
5 

The district court concluded that Senator Cruz had 

standing to sue because he had suffered a “$10,000 financial injury” due to BCRA’s loan-repayment limit. 

App., infra, 51a. Citing appellees’ complaint, the district court stated that, “[f]ollowing the 20-day repayment period, the Cruz Committee repaid Senator Cruz 

the $250,000 statutory maximum using post-election 

contributions, but BCRA foreclosed it from paying back 

the $10,000 balance.” Id. at 44a. The court observed 

that “Senator Cruz loaned his campaign $10,000 more 

than he could legally be repaid using post-election contributions”; that the 20-deadline for using pre-election 

contributions to repay Senator Cruz had expired; and 

that, “[a]s a consequence of all this, Senator Cruz is still 

owed $10,000, * * * which is plainly a cognizable injury.” Ibid. The FEC argued that, because the committee could easily have used pre-election contributions 

to repay all or part of Senator Cruz’s loan during the 20-

day post-election window, Senator Cruz’s injury was 

self-inflicted. Id. at 52a, 53a-54a. The court rejected 

that contention, stating that “[t]he flaw in the FEC’s argument [wa]s that it would require Senator Cruz to 

avoid an injury by subjecting himself to the very framework he alleges is unconstitutional.” Id. at 54a. 

The FEC took steps to renew its standing argument 

during discovery. See 451 F. Supp. 3d 92, 97-98. But 

the three-judge court “reject[ed]” the FEC’s argument 

“outright.” Id. at 98. The court noted that the single 

judge had “explained, in detail, why [the FEC’s] theory 

that [appellees] had caused their own injury * * * is 

irrelevant to standing,” and it “adopt[ed] that analysis 

in its entirety.” Ibid. 
6 

4. The three-judge district court subsequently 

granted appellees’ motion for summary judgment, denied the FEC’s motion for summary judgment, and held 

that BCRA’s loan-repayment limit violates the First 

Amendment. App., infra, 5a-37a. In its description of 

the factual background of the suit, the three-judge court 

stated (consistent with appellees’ complaint and the 

prior opinion of the single-judge court) that the campaign committee had “repaid Senator Cruz the maximum $250,000 with post-election contributions but 

[BCRA’s loan-repayment limit] prevented the campaign from paying back the final $10,000.” Id. at 9a. 

The district court first concluded that the loanrepayment limit burdens the exercise of political 

speech. App., infra, 11a-19a. The court explained that 

the limit “burdens candidates who wish to make * * * 

personal loans” to their campaigns by “constrain[ing] 

the repayment options available to the candidate.” Id.

at 13a-14a. The court suggested that, as a result of the 

limit, a candidate could be “inhibited from making a personal loan * * * out of concern that she will be left holding the bag on any unpaid campaign debt.” Id. at 19a. 

Applying heightened scrutiny, the district court then 

concluded that the government had not adequately justified this burden on political speech. App., infra, 20a36a. The court acknowledged that, under this Court’s 

precedents, Congress may enact campaign-finance laws 

to prevent the reality and appearance of quid pro quo

corruption. Id. at 21a. The court concluded, however, 

that the FEC had “fail[ed] to demonstrate that quid pro 

quo corruption or its appearance arises from post-election

contributions to retire a candidate’s personal debt.” Id.

at 23a. The court noted that “the FEC ha[d] not identified a single case of actual quid pro quo corruption in 
7 

this context,” and that “many states impose no restriction on using post-election contributions to repay 

candidate loans.” Ibid. 

The district court further held that the loanrepayment limit “[wa]s not ‘closely drawn’ to protect expressive and associational freedoms.” App., infra, 30a

(citation omitted). The court deemed the limit “over inclusive” because it “applies across the board to winning 

and losing candidates, although any purported anticorruption rationale applies only to winning candidates.” 

Id. at 31a. The court also found the limit “substantially 

underinclusive” because “[a] person may contribute to 

retire any outstanding campaign debt, with the exception of a candidate’s personal loans over $250,000.” Id.

at 32a. Finally, the court emphasized that “[t]he loanrepayment limit also imposes an additional regulatory 

requirement on top of the existing base [contribution] 

limits,” which already protect “against quid pro quo corruption or its appearance.” Id. at 34a. 

REASONS FOR SUMMARY VACATUR OR 

FOR POSTPONING JURISDICTION

Under Section 403(a) of BCRA, a suit challenging 

“the constitutionality of any provision of this Act or any 

amendment made by this Act” may be filed in the 

United States District Court for the District of Columbia and heard by a three-judge court. § 403(a)(1), 116 

Stat. 113-114. A separate provision makes Section 

403(a) applicable to suits filed after 2006 if the plaintiffs 

so elect, see § 403(d)(2), 116 Stat. 114, and appellees so 

elected here, see App., infra, 9a, 43a. Section 403(a) 

further provides that, when a plaintiff challenging the 

constitutionality of a BCRA provision invokes that special review mechanism, the three-judge district court’s

“final decision in the action shall be reviewable only by 
8 

appeal directly to the Supreme Court of the United 

States.” § 403(a)(3), 116 Stat. 114. “Such appeal shall 

be taken by the filing of a notice of appeal within 10 

days, and the filing of a jurisdictional statement within 

30 days, of the entry of the final decision.” Ibid. Section 

403(a) makes it “the duty” of the district court and this 

Court “to advance on the docket and to expedite to the 

greatest possible extent the disposition of the action 

and appeal.” § 403(a)(4), 116 Stat. 114. 

In a direct appeal, this Court has “no discretion to 

refuse adjudication of the case on its merits as would 

have been true had the case been brought here under 

[its] certiorari jurisdiction.” Hicks v. Miranda, 422 

U.S. 332, 344 (1975). The Court may address the merits 

either by granting plenary consideration or by summarily disposing of the appeal. Ibid. Here, the district 

court erred both by holding that appellees have standing to challenge BCRA’s loan-repayment limit, and by 

holding that the limit violates the First Amendment. 

This Court should summarily vacate the district court’s 

decision and remand the case for further consideration 

of standing in light of its intervening decision in California v. Texas, No. 19-840 (June 17, 2021). Otherwise, 

the Court should set the case for plenary consideration.

1. To establish Article III standing, a plaintiff must 

show that it suffered an injury-in-fact; that its injury 

was fairly traceable to the defendant’s challenged conduct; and that a favorable judicial decision would redress the plaintiff’s injury. See Lujan v. Defenders of 

Wildlife, 504 U.S. 555, 560-561 (1992). The standing issue in this case turns on the second of those requirements, traceability. 

In this case, the district court held that Senator Cruz 

had standing to challenge BCRA’s loan-repayment limit
9 

because the committee still owed him $10,000 but could 

not repay that sum. App., infra, 51a. That was error. 

Although the loss of $10,000 constituted injury, that injury was not fairly traceable to the FEC’s enforcement 

of the loan-repayment limit. That is so for two separate 

reasons: (1) that injury was not traceable to the enforcement of the specific statutory provision that the 

district court held unconstitutional, and (2) the injury 

was self-inflicted. 

a. In California, this Court explained that, in order 

to establish standing, a plaintiff must show that its injury is “‘fairly traceable’ to enforcement of the ‘allegedly unlawful’ provision of which the plaintiffs complain.” Slip op. 15 (emphasis added; citation omitted). 

A plaintiff does not have standing to challenge a given 

provision if its injury is attributable to “other provisions” of law. Id. at 14. In this case, the committee’s 

inability to repay Senator Cruz is not attributable to 

BCRA’s loan-repayment limit.

i. The loan-repayment limit prohibits a committee 

from using more than $250,000 in post-election funds to 

repay a candidate’s personal loans. See 52 U.S.C.

30116(j). When the single-judge district court denied 

the FEC’s motion to dismiss and granted appellees’ request for a three-judge court, it appropriately took as 

true the allegations in appellees’ complaint. Because 

appellees’ complaint alleged that the committee had 

used post-election funds to repay Senator Cruz 

$250,000, the court decided the standing issue based on 

that understanding. See App., infra, 44a; Compl. ¶ 31 

(alleging that the committee “ha[d] repaid the statutory 

maximum of $250,000 from money raised after the election”). If that factual understanding were correct, 

BCRA’s loan-repayment limit would indeed prevent the 
10

committee from using additional post-election funds to 

repay the remaining $10,000.

During discovery, the FEC took steps to renew its 

argument that appellees lacked standing. But in ruling 

on a discovery dispute, the three-judge court “reject[ed] outright [the Commission’s] argument” and 

adopted the single judge’s analysis of standing “in its 

entirety.” 451 F. Supp. 3d 92, 98.

ii. In its subsequent merits ruling, the three-judge 

district court similarly stated that the committee had 

“repaid Senator Cruz the maximum $250,000 with postelection contributions.” App., infra, 9a. That statement, however, was contrary to the summary-judgment 

record that had been developed since the single-judge

court’s ruling on the motion to dismiss. That record 

made clear that the committee had not yet used any

post-election funds to repay Senator Cruz, but instead

had repaid Senator Cruz $250,000 using only preelection funds. 

In particular, that record contained deposition testimony confirming that “[t]he committee did not receive 

any post-election contributions at any time after * * * 

the general election of 2018.” D. Ct. Doc. 65-9, at 95 

(May 13, 2020). The deponent explained that, although 

the committee had continued to receive contributions 

after election day 2018, it had designated those contributions for use in “the primary and the general 2024 

election cycle,” and that none of those funds were 

treated as contributions to Senator Cruz’s 2018 campaign. Id. at 96. Further, appellees expressly admitted 

that “[n]one of the $250,000 of the loan that was repaid 

was from contributions raised after the election.” D. Ct. 

Doc. 67-1 ¶ 64; see id. ¶ 60 (admitting that, “during the 
11

20 days after the election and later, the Committee continued receiving post-election contributions, but rather 

than using those contributions to pay vendors or to pay 

any of Senator Cruz’s debt, the campaign designated 

the contributions for Senator Cruz’s 2024 re-election effort”). 

Thus, by the time the three-judge district court ruled 

on the merits of appellees’ First Amendment challenge 

to BCRA’s loan-repayment limit, the record made clear 

that appellees had used pre- rather than post-election 

contributions to repay Senator Cruz $250,000. At that 

point, any continued reliance on the contrary allegation 

in appellees’ complaint was unwarranted. “[E]ach element [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. At the 

summary-judgment stage, “the plaintiff can no longer 

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

affidavit or other evidence ‘specific facts.’” Ibid. (citation omitted). Appellees did not submit any evidence 

suggesting that the committee had used post-election 

contributions to repay $250,000 of Senator Cruz’s loan. 

And even if they had, the contrary evidence discussed 

above would have raised a genuine dispute of material 

fact that the court could not have resolved at summary 

judgment. See Fed. R. Civ. P. 56(a). 

iii. Because the prior $250,000 repayment to Senator 

Cruz was made using pre-election funds, nothing in 

BCRA’s loan-repayment provision stops the committee 

from raising post-election contributions and using those 

contributions to repay the remaining $10,000 owed to 

Senator Cruz. To the extent that appellees’ injury is 
12

attributable to the FEC at all, it flows from the FEC’s 

enforcement of an agency regulation, not from its enforcement of the statutory loan-repayment limit. Once 

the committee allowed the 20-day post-election period 

to expire without repaying any portion of the $260,000 

debt it owed to Senator Cruz, an FEC regulation required the committee to recharacterize $10,000 of that 

debt—i.e., the increment above the $250,000 statutory 

cap—as a contribution to the campaign. See App., infra, 9a; 11 C.F.R. 116.11(c)(2). It is that regulation—

not the statutory loan-repayment limit—that today 

prevents the committee from raising and using postelection funds to repay the remainder of Senator Cruz’s 

loan. As a result, whether or not appellees had standing 

to challenge the regulation, see pp. 13-16, infra (explaining that self-inflicted injury does not give rise to 

Article III standing), they lacked standing to challenge 

the statute. See Transunion LLC v. Ramirez, No. 20-

297 (June 25, 2021), slip op. 20 (“[A] plaintiff must 

‘demonstrate standing separately for each form of relief 

sought.’”) (citation omitted).

iv. Based on the record evidence described above, 

which had been assembled after the single-judge district court denied the Commission’s motion to dismiss, 

the FEC informed the three-judge court that the committee’s $250,000 repayment to Senator Cruz had been 

made with pre-election funds. See SMF ¶¶ 60, 64. On 

the merits, the FEC relied in part on the committee’s 

use of pre-election funds to repay that amount as evidence that appellees had suffered no burden of constitutional magnitude as a result of BCRA’s loan-repayment

limit. See FEC Mot. for Summ. J. 16; FEC Reply in 

Supp. of Mot. for Summ. J. 16, 17, 18. The Commission’s 

motion for summary judgment did not, however, ask the 
13

three-judge court to revisit the Article III standing 

analysis that had been adopted by the single judge and 

later embraced by the three-judge court. As noted 

above, despite the FEC’s references to the record evidence showing that pre-election funds had been used, 

the three-judge district court repeated the single-judge 

court’s earlier assertion that the $250,000 loan repayment had been made with post-election funds. See App., 

infra, 9a.

Although the FEC’s motion for summary judgment

did not ask the three-judge district court to revisit 

standing, the court had “an independent obligation to 

determine whether subject-matter jurisdiction exists, 

even in the absence of a challenge from any party.” Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006). And “[a] 

litigant generally may raise a court’s lack of subjectmatter jurisdiction at any time in the same civil action, 

even initially at the highest appellate instance.” Kontrick v. Ryan, 540 U.S. 443, 455 (2004).

 This Court’s decision in California, which emphasized the need for a plaintiff to demonstrate injury from 

the specific provision that is alleged to be unconstitutional, was issued after the proceedings below ended. 

This Court therefore should vacate the district court’s 

judgment and remand the case for further consideration of standing in light of that intervening decision. 

Although the Court could set the case for plenary consideration and consider the issue in the first instance, 

vacatur and remand would be more consistent with the 

Court’s role as “a court of review, not of first view.” 

Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005); see, 

e.g., Wisconsin Right to Life, Inc. v. FEC, 546 U.S. 410, 

412 (2006) (per curiam).
14

b. Appellees lack standing for a second reason: an 

injury is not fairly traceable to the defendant’s conduct

if it is “self-inflicted.” Clapper v. Amnesty International, 568 U.S. 398, 418 (2013); see McConnell v. FEC, 

540 U.S. 93, 228 (2003); Pennsylvania v. New Jersey, 

426 U.S. 660, 664 (1976) (per curiam). Here, the only 

injury identified by the district court—Senator Cruz’s 

loss of $10,000—was self-inflicted.

Senator Cruz’s committee had approximately $2.2 

million in pre-election funds left on hand after the election. App., infra, 43a. If it had used those funds to pay 

Senator Cruz $10,000 or more in the 20 days after the 

election, it could lawfully have used post-election contributions to pay any remaining portion of the debt, thus 

ensuring that Senator Cruz was fully repaid. See p. 3, 

supra. The committee simply chose not to do so. Senator Cruz’s loss of $10,000 thus was attributable to appellees’ “personal choice[s],” not to any action by the 

FEC. McConnell, 540 U.S. at 228. Appellees cannot 

“be heard to complain about damage inflicted by [their] 

own hand.” Pennsylvania, 426 U.S. at 664. 

The district court suggested that using pre-election 

funds would have harmed appellees because “it would 

[have] require[d] Senator Cruz to avoid an injury by 

subjecting himself to the very framework he alleges is 

unconstitutional.” App., infra, 54a. Under this Court’s 

precedents, however, a plaintiff’s belief that the government has violated the Constitution does not by itself 

give him standing. See, e.g., United States v. Richardson, 418 U.S. 166, 175 (1974). “Article III grants federal 

courts the power to redress harms that defendants 

cause plaintiffs, not a freewheeling power to hold defendants accountable for legal infractions.” TransUnion, slip op. 11 (citation omitted); see id. at 1, 27 (“No 
15

concrete harm, no standing.”). And “a plaintiff cannot

establish standing by asserting an abstract ‘general interest common to all members of the public,’ * * * ‘no 

matter how sincere’ or ‘deeply committed’ a plaintiff is 

to vindicating that general interest.” Carney v. Adams, 

141 S. Ct. 493, 499 (2020) (citation omitted). 

To be sure, appellees could have sought to establish 

their standing by demonstrating that using pre-election 

funds to repay Senator Cruz during the 20-day postelection window would itself have injured them in some 

concrete way. See, e.g., Natural Resources Defense 

Council, Inc. v. United States Food & Drug Administration, 710 F.3d 71, 85 (2d Cir. 2013) (holding that an 

injury was not self-inflicted because taking the action 

needed to avoid that injury would have subjected the 

plaintiff to a different harm). Appellees, however, have 

not shown that they would have suffered any concrete 

harm from disbursing $10,000 in pre-election funds to 

Senator Cruz within the 20-day regulatory deadline. 

Appellees argued below that “the Cruz Committee had 

a First Amendment right to prioritize its spending of 

pre-election contributions by paying vendors and other 

creditors rather than reimbursing Senator Cruz, and 

the Government cannot demand that the Committee 

give up that right to avoid the financial injury resulting 

from an unconstitutional statute.” D. Ct. Doc. 29, at 41 

(June 28, 2019). But appellees did not identify any specific payment to a vendor or other creditor that the 

Committee would have been hindered from making if it 

had used $10,000 of pre-election funds to reduce the 

debt that it owed to Senator Cruz. Cf. Defenders of 

Wildlife, 504 U.S. at 563 (to establish standing, organizations that sought to challenge federal activities that 

allegedly harmed endangered and threatened species 
16

outside the United States were required to show, 

“through specific facts, not only that listed species were 

in fact being threatened by funded activities abroad, but 

also that one or more of respondents’ members would 

thereby be ‘directly’ affected”). And because the funds 

with which the committee ultimately repaid the 

$250,000 were in the committee’s possession on the date 

of the election, and remained in its possession until after 

the 20-day post-election window had expired, it is difficult to see how their use for loan-repayment purposes 

during that window would have impaired the committee’s ability to pay other creditors.

Indeed, far from identifying any specific actual or 

threatened impairment of their ability to pay vendors 

or other creditors, appellees stipulated below that “the 

sole and exclusive motivation behind Senator Cruz’s actions in making the 2018 loan and the committee’s actions in waiting to repay them was to establish the factual basis for this challenge.” SMF ¶ 56 (citation omitted). A factual stipulation is “binding and conclusive.” 

Christian Legal Society Chapter of the University of 

California, Hastings College of the Law v. Martinez, 

561 U.S. 661, 677 (2010) (citation omitted). Having stipulated that the “sole and exclusive” reason for deferring 

any repayment of the loan until after the 20-day postelection window was “to establish the factual basis for 

this challenge,” SMF ¶ 56 (citation omitted), appellees 

may not now argue that their actual motive for that decision was to make the funds available for use in repaying other creditors.

2. The three-judge district court’s merits holding is

also erroneous. Contrary to the court’s decision, the 

loan-repayment limit does not violate the First Amendment. 
17

a. The First Amendment allows Congress to regulate the financing of political campaigns. See, e.g., 

Buckley v. Valeo, 424 U.S. 1, 26-27 (1976) (per curiam). 

Under this Court’s precedents, the level of scrutiny that 

applies to such a regulation depends on “the magnitude 

of the burdens imposed.” Clingman v. Beaver, 544 U.S. 

581, 591 (2005). “That is, the strength of the governmental interest must reflect the seriousness of the actual burden on First Amendment rights.” Davis v. 

FEC, 554 U.S. 724, 744 (2008). The Court has applied a 

stringent standard to “expenditure limitations,” which 

impose “severe restrictions on protected freedoms,” but

a less stringent standard to “contribution limitations,” 

which impose more “marginal restriction[s].” Buckley, 

424 U.S. at 21, 23.

The loan-repayment limit imposes at most a modest 

burden on First Amendment rights. It does not limit 

the amount of money that a candidate may spend, the 

amount of money that a campaign may borrow, the 

amount of money that a candidate may raise, or the 

amount of money that a donor may contribute to a campaign. It does not even impose a ceiling on a campaign’s 

ability to repay a candidate’s loans; so long as the campaign uses pre-election funds, it may repay the candidate in full no matter how large the debt. The limit instead imposes a narrow timing restriction: it affects a 

campaign’s ability to use a pool of funds raised at a particular time (after the election) for a particular purpose 

(repaying personal loans made by the candidate). And 

even that restriction on the use of post-election funds to 

repay the candidate’s personal loans applies only to the 

extent that such repayments exceed $250,000. 
18

The district court believed that the loan-repayment 

limit burdens speech by “constrict[ing] candidate lending” and “discouraging the personal financing of campaign speech.” App., infra, 15a. That assertion lacks a 

sound basis in the record. Most loans to election campaigns are for $250,000 or less, and thus are not affected 

by the loan-repayment limit. For example, during the 

five most recent election cycles, nearly 80% of the loans 

made by Senate candidates and nearly 90% of the loans 

made by House candidates were for $250,000 or less. 

See SMF ¶ 38-39. Further, “[t]he ratio of loans below 

$250,000 has not changed substantially from what the 

ratio was prior to BCRA.” Id. ¶ 40. That pattern suggests that, contrary to the court’s speculation, the loanrepayment limit has not meaningfully discouraged the 

financing of campaign speech. 

The district court’s concerns are particularly misplaced on the facts of this case. The loan at issue here 

was not made for the purpose of facilitating “campaign 

speech.” App., infra, 15a. Senator Cruz made the loan 

the day before the election, and he transparently tailored the loan’s $260,000 amount to facilitate this challenge to the $250,000 loan-repayment cap, while limiting 

(to $10,000) the personal financial loss that he might 

suffer if his constitutional challenge is ultimately unsuccessful. See p. 14, supra. Indeed, appellees have “stipulate[d] that the sole and exclusive motivation behind 

Senator Cruz’s actions in making the 2018 loan * * * 

was to establish the factual basis for this challenge.” 

SMF ¶ 56.

The statutory limit also did not have the effect of 

“constrict[ing] candidate lending.” App., infra, 15a. As 

explained above, the committee had more than $2 million in pre-election funds left over after the election, and 
19

it could easily have used those funds to repay Senator 

Cruz’s loan in full or in part during the first 20 days after the election. It simply chose not to do so, again with 

“the sole and exclusive motivation” of “establish[ing] a 

factual basis for this challenge.” SMF ¶ 56; see pp. 14, 

16, supra. As applied in this case, the loan-repayment 

limit thus did not impose any meaningful constraint on 

appellees’ expression. 

b. The interests served by the loan-repayment limit 

amply justify this modest burden on speech. Congress 

has a “legitimate and compelling” interest in “preventing corruption or the appearance of corruption.” FEC 

v. National Conservative Political Action Committee, 

470 U.S. 480, 496 (1985). “To the extent that large contributions are given to secure a political quid pro quo

from current and potential office holders, the integrity 

of our system of representative democracy is undermined.” Buckley, 424 U.S. at 26-27. And avoiding the 

appearance of corruption is “critical if confidence in the 

system of representative Government is not to be 

eroded to a disastrous extent.” Id. at 27 (citation and 

ellipsis omitted). 

For three reasons, the use of post-election contributions to repay personal loans creates a heightened risk 

of actual and apparent quid pro quo corruption. First,

money that repays a personal loan after an election effectively goes into the candidate’s pocket. A payment 

that adds to a candidate’s personal wealth (and that can 

accordingly be used for personal purposes) poses a 

greater threat of quid pro quo corruption than a payment that merely adds to a campaign’s treasury (and 

that can accordingly be used only for campaign purposes). Common sense suggests, for example, that the 
20

risk of corruption is greater when an officeholder receives $2900 that he can use to pay down his mortgage

than when he receives $2900 that his campaign can use 

to pay for more placards. Cf. 52 U.S.C. 30114(a) (identifying permissible uses of campaign contributions); 

52 U.S.C. 30114(b)(1) (“A contribution or donation described in subsection (a) shall not be converted by any 

person to personal use.”); FEC v. O’Donnell, 209 

F. Supp. 3d 727, 739-740 (D. Del. 2016) (upholding prohibition on the use of campaign contributions to defray 

the candidate’s personal expenses).

Second, a donor who contributes money before an 

election does not yet know whether the recipient of the 

contribution will prevail, but a donor who contributes

after an election does. In other words, the donor can 

know (rather than merely hope) that the recipient will 

be in a position to do him official favors. That markedly 

increases the risk that the contribution is (or will appear 

to the public to be) part of a quid pro quo arrangement. 

Third, the primary legitimate rationales for donating to electoral campaigns do not apply to contributions

that postdate the electoral campaign to which the contributions are directed. The most obvious legitimate 

reasons for contributing to a political campaign are (1) 

pooling resources with other donors to facilitate political expression and (2) increasing, at least marginally, 

the likelihood that the favored candidate will prevail. A 

post-election contribution serves neither of those purposes. It does not facilitate additional political expression, for the campaign has already ended. And it does 

not increase the likelihood that the favored candidate 

will prevail, for the election has already occurred. A 

post-election contribution is thus more likely than a preelection contribution to be motivated by an expectation 
21

of special favors from the recipient. Cf. Furnco Construction Corp. v. Waters, 438 U.S. 567, 577 (1978) (explaining that, “when all legitimate reasons” for an action “have been eliminated,” one may infer that the actor “based his decision on an impermissible consideration”). 

The longstanding practice of regulating personal 

gifts to public officials supports the congressional judgment underlying the loan-repayment limit. Rules adopted

by the Senate and House of Representatives restrict

members’ acceptance of gifts worth $50 or more. See 

Standing Rule of the Senate XXXV (2013); House Rule 

XXV.5 (2019). That limit is far smaller than the amount 

(currently $2900 per election) that an individual may

contribute to a federal candidate’s campaign. See App., 

infra, 6a n.1; 52 U.S.C. 30116(a) and (c). Regulations 

adopted by the Executive Branch restrict federal employees’ acceptance of gifts worth $20 or more from persons whose interests may be affected by the performance of the employees’ official duties. See 5 C.F.R. 

2635.204. Regulations adopted by the Judicial Conference likewise restrict judges’ acceptance of gifts. See 

Judicial Conference, Code of Conduct for United States 

Judges, Canon 4(D)(4) (2019). The loan-repayment 

limit rests on the same common-sense judgment as 

those rules: a payment that goes into a public official’s 

pocket creates a serious danger of actual or apparent 

corruption. 

In sum, the loan-repayment limit imposes at most a 

marginal restriction on speech to promote an interest of 

the highest order. Because “the strength of the governmental interest” outweighs “the seriousness of the actual burden on First Amendment rights,” the limit complies with the Constitution. Davis, 554 U.S. at 744. 
22

c. The district court’s contrary rationales lack 

merit. The court faulted the FEC for failing to produce 

empirical evidence that the loan-repayment limit prevents the reality or appearance of corruption. App., infra, 21a-30a. This Court has explained, however, that 

“[t]he quantum of empirical evidence needed to satisfy 

heightened judicial scrutiny of legislative judgments 

will vary up or down with the novelty and plausibility of 

the justification raised.” Nixon v. Shrink Missouri 

Government PAC, 528 U.S. 377, 391 (2000). The judgment underlying the loan-repayment limit—that payments that go directly into a candidate’s pocket raise a 

particularly serious risk of corruption—is neither novel 

nor implausible, but instead underlies conflict-of-interest

rules that apply to officials in all three Branches of the 

federal government. And because the loan-repayment

limit has now been in place for 20 years, the district 

court should have “recogniz[ed] that no data can be 

marshaled to capture perfectly the counterfactual world 

in which [such] limits do not exist.” McCutcheon v. 

FEC, 572 U.S. 185, 219 (2014) (opinion of Roberts, C.J.). 

In any event, the Commission presented extensive 

empirical evidence that the loan-repayment limit helps

to prevent the reality and appearance of corruption. 

For instance, the FEC cited a study showing that “indebted politicians, relative to their debt-free counterparts, are significantly more likely to switch their votes 

if they receive contributions from * * * special interests between the votes.” SMF ¶ 67 (citation omitted). 

The FEC identified numerous episodes in which officeholders had awarded government contracts and other 

special favors after receiving contributions designed to 

pay down personal debt. Id. ¶¶ 69-81. And it cited opinion polling showing that more than 80% of respondents 
23

believed that individuals who donate money to a campaign after an election expect political favors in return. 

Id. ¶ 90.

The district court also concluded that the limit is 

“over inclusive” because it “applies across the board to 

winning and losing candidates, although any purported 

anticorruption rationale applies only to winning candidates.” App., infra, 31a. That rationale, too, is mistaken. First, as a general matter, “a person to whom a 

statute may constitutionally be applied will not be heard 

to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in 

other situations not before the Court.” Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973). Senator Cruz won the 

2018 election, and the government’s anticorruption rationale applies to winning candidates with full force. 

Whether the loan-repayment limit would be constitutional as applied to a losing candidate is a separate question not presented in this case.

Second, to the extent that First Amendment overbreadth doctrine allows a litigant vicariously to assert 

the rights of third parties, the litigant must still show 

that the challenged law is “substantially overbroad” “in 

relation to the statute’s plainly legitimate sweep.” 

Broadrick, 413 U.S. at 615. Appellees have not satisfied 

that standard here; 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. SMF ¶ 42. Third, establishing separate rules for winning and losing candidates 

would have risked creating the kind of “asymmetrical 

contribution scheme” that this Court has previously 

found unconstitutional. Davis, 554 U.S. at 735. 
24

After concluding that the loan-repayment limit restricts too much speech, the district court concluded 

that it restricts too little. App., infra, 32a-33a. The 

court found the limit “substantially underinclusive” because it applies to candidate loans but not to “other 

types of campaign debt”; because it applies to post-election

contributions but not to contributions made “before the 

election”; and because it permits “post-election contributions to retire pre-election debt * * * up to the 

$250,000 cap.” Ibid. That analysis is misconceived. 

Contributions that repay candidate loans differ fundamentally from contributions that repay third-party 

loans, since the former personally enrich the candidates 

while the latter do not. Pre-election contributions likewise differ fundamentally from post-election contributions, since the latter are made after the winner of the 

election is known and are particularly likely to reflect 

an expectation of special favors. See p. 20, supra. And 

although Congress could have prohibited all uses of 

post-election contributions to repay personal loans

made by candidates to their campaigns, its decision to 

permit such repayments up to the $250,000 cap reflects 

an effort to accommodate candidates who wish to use 

personal loans as a method of campaign financing. In 

all events, “the First Amendment imposes no freestanding ‘underinclusiveness limitation.’” Williams-Yulee v. 

Florida Bar, 575 U.S. 433, 449 (2015) (citation omitted). 

This Court should not “punish [Congress] for leaving 

open more, rather than fewer, avenues of expression, 

especially when there is no indication that the selective 

restriction of speech reflects a pretextual motive.” Id.

at 452. 

Finally, the district court found the loan-repayment 

limit unconstitutional because it was “[l]ayered on top” 
25

of base limits on campaign contributions—limits that, in 

the court’s view, already adequately combated corruption and its appearance. App., infra, 34a. But as shown 

above, a contribution made after an election to repay a 

candidate’s personal loan poses a heightened risk of corruption, over and above the risk posed by a pre-election 

contribution in the same amount. See pp. 19-21, supra. 

The First Amendment permits Congress to adopt “an 

additional restriction,” App., infra, 34a, to address that 

additional danger. 

3. The district court thus erred both in holding that 

appellees have standing to challenge BCRA’s loan-repayment limit, and in declaring unconstitutional a provision of an Act of Congress. This Court should summarily vacate the district court’s judgment and remand 

the case for further consideration of standing in light of 

the Court’s intervening decision in California. Alternatively, the Court should set the case for plenary consideration.* 

* This Court may set a direct appeal for plenary consideration 

through either an order noting probable jurisdiction or an order 

postponing consideration of jurisdiction. See Sup. Ct. R. 18.12. Because the FEC has advanced a substantial argument that appellees 

lack standing, the appropriate course here—if the Court declines to 

vacate the judgment below—would be to postpone consideration of 

jurisdiction. See, e.g., Arizona State Legislature v. Arizona Independent Redistricting Commission, 576 U.S. 787, 793 (2015).
26

CONCLUSION

This Court should summarily vacate the judgment of 

the district court and remand the case for further consideration of standing in light of California v. Texas, 

No. 19-840 (June 17, 2021). Alternatively, the Court 

should postpone jurisdiction. 

Respectfully submitted.

LISA J. STEVENSON

Acting General Counsel

KEVIN DEELEY

Associate General Counsel 

HARRY J. SUMMERS

Assistant General Counsel

SETH NESIN

Attorney

Federal Election Commission

ELIZABETH B. PRELOGAR

Acting Solicitor General

MALCOLM L. STEWART

Deputy Solicitor General

VIVEK SURI

Assistant to the Solicitor 

General

JULY 2021
(1a) 

APPENDIX A

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civ. No. 19-908 (NJR, APM, TJK)

TED CRUZ FOR SENATE, ET AL., PLAINTIFFS

v.

FEDERAL ELECTION COMMISSION, ET AL., DEFENDANTS

Filed: June 13, 2021

NOTICE OF APPEAL

DEFENDANT FEDERAL ELECTION COMMISSION’S 

AMENDED NOTICE OF APPEAL

Notice is hereby given that the Federal Election 

Commission, defendant in this case, appeals to the Supreme Court of the United States, pursuant to Section 

403 of the Bipartisan Campaign Reform Act of 2002, 

Pub. L. No. 107-155, 116 Stat. 114, from the judgment of 

this Court entered in this action on June 3, 2021.

 Respectfully submitted, 

 /s/ SETH NESIN 

SETH NESIN 

 Attorney 

 snesin@fec.gov 

 COUNSEL FOR DEFENDANT 

 FEDERAL ELECTION COMMISSION 
2a 

 1050 First Street NE 

 Washington, DC 20463 

 (202) 694-1650 

 June 13, 2021

Lisa J. Stevenson (D.C. Bar No. 457628) 

Acting General Counsel 

lstevenson@fec.gov 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 

/s/ HARRY J. SUMMERS 

HARRY J. SUMMERS

Assistant General Counsel 

hsummers@fec.gov
3a 

APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civ. No. 19-908 (NJR, APM, TJK)

TED CRUZ FOR SENATE, ET AL., PLAINTIFFS

v.

FEDERAL ELECTION COMMISSION, ET AL., DEFENDANTS

Filed: June 11, 2021

NOTICE OF APPEAL

DEFENDANT FEDERAL ELECTION COMMISSION’S 

NOTICE OF APPEAL

Notice is hereby given that the Federal Election Commission, defendant in this case, appeals to the Supreme 

Court of the United States from the decision and order 

of this Court entered in this action on June 3, 2021. 

 Respectfully submitted, 

 /s/ SETH NESIN 

SETH NESIN 

 Attorney 

 snesin@fec.gov 

 COUNSEL FOR DEFENDANT 

 FEDERAL ELECTION COMMISSION 

 1050 First Street NE 
4a 

 Washington, DC 20463 

 (202) 694-1650 

 

 June 11, 2021

Lisa J. Stevenson (D.C. Bar No. 457628) 

Acting General Counsel 

lstevenson@fec.gov 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 

Harry J. Summers 

Assistant General Counsel 

hsummers@fec.gov
5a 

APPENDIX C

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

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

TED CRUZ FOR SENATE, ET AL., PLAINTIFFS

v.

FEDERAL ELECTION COMMISSION, ET AL., DEFENDANTS

Filed: June 3, 2021

MEMORANDUM OPINION

Before: RAO, Circuit Judge, MEHTA and KELLY, District Judges. 

RAO, Circuit Judge: 

In our constitutional democracy, elections are the 

primary way for the people to express their political will. 

Political speech promotes the free exchange of ideas 

about principles of government, pressing policy matters, 

and the relative merits of candidates for office. In recognition of the centrality of free speech to our democracy, the Supreme Court has consistently held that “the 

First Amendment ‘has its fullest and most urgent application’ to speech uttered during a campaign for political

office.” Eu v. San Fran. Cnty. Dem. Cent. Comm., 489 

U.S. 214, 223 (1989) (quoting Monitor Patriot Co. v. 

Roy, 401 U.S. 265, 272 (1971)). Protections for political 

speech extend to campaign financing because effective 
6a 

speech requires spending money. See Buckley v. 

Valeo, 424 U.S. 1, 19-23 (1976) (per curiam).

This case raises a constitutional challenge to a somewhat obscure campaign finance restriction that limits 

the amount of post-election contributions that may be 

used to repay a candidate’s pre-election loans. Section 

304 of the Bipartisan Campaign Reform Act of 2002 prohibits candidates from using post-election contributions 

to repay personal loans over $250,000. See 52 U.S.C. 

§ 30116(j) (the “loan-repayment limit”). Senator Rafael Edward “Ted” Cruz and his campaign committee 

Ted Cruz for Senate brought this suit to invalidate and 

enjoin the enforcement of Section 304 and its implementing regulation. We find that the loan-repayment

limit burdens political speech and thus implicates the

protection of the First Amendment. Because the government has failed to demonstrate that the loan-repayment 

limit serves an interest in preventing quid pro quo corruption, or that the limit is sufficiently tailored to serve 

this purpose, the loan-repayment limit runs afoul of the 

First Amendment. We therefore grant summary judgment for Senator Cruz and his campaign.

I.

A.

Candidates for federal office require substantial funds

to support their campaigns. Funding may come from 

individual contributions, which are subject to a perelection cap.1

 See Federal Election Campaign Act of 

1

 The current base limit is set at $2,900 per election. See 86 Fed. 

Reg. 7,867, 7,869 (Feb. 2, 2021). A primary election, general election, runoff election, and special election are treated as separate 

elections. See 52 U.S.C. § 30101(1)(A).
7a 

1971 (“FECA”), Pub. L. No. 92-225, 86 Stat. 3 (codified 

as amended at 52 U.S.C. § 30116); see also 52 U.S.C. 

§ 30116(a)(1)(A) & (c). Candidates may also selffinance their campaigns without monetary limits. See

11 C.F.R. § 110.10; see also Buckley, 424 U.S. at 51-54. 

Self-financing often takes the form of loans, either from 

a candidate’s personal funds or through a third-party 

lender. A campaign may repay a candidate’s loans using contributions received both before and after the 

election. Under Section 304 of the Bipartisan Campaign Reform Act of 2002 (“BCRA”), however, a campaign may repay only $250,000 of a candidate’s preelection loans with post-election contributions. See 

Pub. L. No. 107-155, § 304, 116 Stat. 81 (codified at 52

U.S.C. § 30116(j)).

The loan-repayment limit intersects with other restrictions on the use of campaign contributions promulgated by the Federal Election Commission (“FEC” or 

“Commission”). For instance, an individual may designate a contribution for a particular election, including a 

previous election. See 11 C.F.R. § 110.1(b)(2)(i). If 

designated for a previous election, a contribution may 

be accepted “only to the extent that [it] does not exceed 

net debts outstanding” from that election. See id. 

§ 110.1(b)(3)(i). A campaign’s “net debts outstanding” 

for an election equals the “total amount of unpaid debts 

and obligations” minus its total available resources. 

Id. § 110.1(b)(3)(ii)(A)-(C). A campaign may accept 

postelection contributions only to the extent necessary 

to pay down a net shortfall. To effectuate the loanrepayment limit in Section 304, the calculation of “net 

debts outstanding” excludes the amount of any candidate loans “that in the aggregate exceed $250,000 per 
8a 

election.” Id. § 110.1(b)(3)(ii)(C). The $250,000 limit applies to third-party loans secured by the candidate and 

also to loans from the candidate’s personal funds. See 

id. § 116.11(a).

A campaign has two options to pay back a candidate’s

personal loans. First, a campaign “[m]ay repay the entire amount of the personal loans using contributions” 

made before the election. Id. § 116.11(b)(1). If the campaign chooses to use pre-election contributions, “it must 

do so within 20 days of the election.” Id. § 116.11(c)(1). 

Second, pursuant to Section 304, a campaign may repay 

up to $250,000 of the personal loans with post-election 

contributions. After the election, any balance of the 

personal loan that exceeds $250,000 will be treated “as a 

contribution by the candidate.” Id. § 116.11(c)(2).

B.

This case arose from Senator Cruz’s 2018 campaign 

for reelection to the United States Senate. The day before the general election, Senator Cruz made two loans 

totaling $260,000 to his campaign: $5,000 from his personal bank account and $255,000 from a third-party lender 

secured with his personal assets. Senator Cruz won 

reelection.

After the election, Senator Cruz’s campaign had almost $2.5 million in debt against approximately $2.2 million in cash on hand. The campaign “used the funds it 

had on hand to pay vendors and meet other obligations 

instead of repaying [Senator Cruz’s] loans.” Compl. 

¶ 29, ECF No. 1. The campaign did not use any preelection funds within twenty days of the election to repay the Senator’s loans, as Section 304’s implementing
9a 

regulation would have permitted. Instead, the campaign repaid Senator Cruz the maximum $250,000 with 

post-election contributions but Section 304 prevented 

the campaign from paying back the final $10,000. The 

$10,000 balance of those loans was subsequently deemed 

a campaign contribution from Senator Cruz.

Senator Cruz and his campaign (collectively, the 

“Cruz campaign”) brought suit against the FEC, alleging that Section 304 of BCRA and its implementing regulation, 11 C.F.R. § 116.11, violate the First Amendment. The complaint contends that the loan-repayment 

limit unconstitutionally infringes the First Amendment 

rights of Senator Cruz, his campaign, other candidates, 

and any individuals who might seek to make post-election

contributions. Because the complaint concerned a constitutional challenge to a provision of BCRA, the Cruz 

campaign also applied for a three-judge district court 

pursuant to Section 403 of BCRA and 28 U.S.C. § 2284. 

The FEC moved to dismiss for lack of standing and also

argued that a three-judge court would not have subject 

matter jurisdiction. The one-judge district court denied the FEC’s motion to dismiss, held the Cruz campaign had standing to challenge the loan-repayment 

limit, and granted the Cruz campaign’s application for a 

three-judge district court. See Ted Cruz for Senate v. 

FEC, 2019 WL 8272774, at *5-8 (D.D.C. Dec. 24, 2019). 

We convened to hear and decide the case. Following 

additional preliminary proceedings, 2 the Cruz campaign and the FEC both moved for summary judgment. 

2

 We assumed supplemental jurisdiction over the Cruz campaign’s

constitutional and Administrative Procedure Act claims against 

the implementing regulation. See Ted Cruz for Senate v. FEC, 451 
10a 

Summary judgment is warranted if “there is no genuine 

dispute as to any material fact and the movant is entitled 

to judgment as a matter of law.” FED. R. CIV. P. 56(a). 

“[I]n ruling on cross-motions for summary judgment, 

the court shall grant summary judgment only if one of 

the moving parties is entitled to judgment as a matter of 

law upon material facts that are not genuinely disputed.” Shays v. FEC, 424 F. Supp. 2d 100, 109

(D.D.C. 2006). Because the Cruz campaign and the 

FEC agree that there is no genuine dispute of material 

fact, we resolve this case by summary judgment.

II.

To determine whether the loan-repayment limit 

abridges First Amendment rights we follow the approach taken in McCutcheon v. FEC, the Supreme 

Court’s most recent foray into the constitutionality of a 

campaign finance regulation. 572 U.S. 185 (2014) (plurality opinion). First, we assess whether the loan-repayment limit burdens political speech and thus implicates the protection of the First Amendment. Second,

because we conclude that the limit burdens political 

speech, we must carefully scrutinize the government’s 

interests and the fit between that interest and the regulatory means chosen to effectuate it. Even under the 

less exacting test of closely drawn scrutiny, we find the 

government fails to demonstrate that the loan-repayment

F. Supp. 3d 92, 100 (D.D.C. 2020). We held these claims in abeyance pending resolution of the constitutional challenge to Section 

304. Order, Ted Cruz for Senate v. FEC, No. 1:19-cv-00908 (D.D.C. 

Apr. 15, 2020), ECF No. 49. Our holding that Section 304 cannot 

pass constitutional muster moots the Cruz campaign’s regulatory

challenges.
11a 

limit serves an interest in preventing quid pro quo corruption or its appearance. Moreover, the loan-repayment limit has only a tenuous connection to the asserted

government interest in preventing corruption and thus 

lacks the close tailoring necessary under the First 

Amendment.

A.

When presented with a less familiar type of campaign

finance regulation, we must determine at the outset 

whether the restriction burdens the exercise of political 

speech. See id. at 203-06; Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett, 564 U.S. 721, 736-47 (2011); 

Davis v. FEC, 554 U.S. 724, 738-40 (2008). The Cruz 

campaign argues the loan-repayment limit burdens 

speech by limiting campaign expenditures and contributions. The FEC maintains the limit does not burden 

speech at all. We find the loan-repayment limit burdens political speech and thus implicates the protection 

of the First Amendment.

The First Amendment provides that “Congress shall 

make no law . . . abridging the freedom of speech.” 

U.S. CONST. amend. I. This Amendment “is designed 

and intended to remove governmental restraints from 

the arena of public discussion, putting the decision as to 

what views shall be voiced largely into the hands of each 

of us, in the belief that no other approach would comport 

with the premise of individual dignity and choice upon 

which our political system rests.” McCutcheon, 572 U.S.

at 203 (cleaned up). Robust and free political discussion is essential to the republican form of government 

established by our Constitution. Given the fundamental interests at stake, the First Amendment “safeguards 

an individual’s right to participate in the public debate 
12a 

through political expression and political association.” 

Id. Because financing for political campaigns implicates the freedom to speak and to associate, the Supreme Court has long recognized that limitations on 

campaign spending “necessarily reduce[] the quantity of 

expression by restricting the number of issues discussed, the depth of their exploration, and the size of the 

audience reached.” Buckley, 424 U.S. at 19.

Since Buckley, the Court’s decisions have focused on

identifying whether a restriction on campaign finance 

burdens expenditures or contributions, in part because 

the distinction can affect the standard of review.3

 See 

id. at 25, 44-45. But it is well established that both expenditures and contributions implicate “fundamental 

First Amendment activities.” Id. at 14. When a candidate makes expenditures on behalf of her campaign, 

she exercises her right to speak; and when a contributor 

donates to that campaign, he exercises the right to associate with the candidate and to express his support. 

The contributions to a campaign in turn promote more 

expenditures and political speech by the candidate.

In recent decisions, the Court has declined to eliminate the distinction between expenditures and contributions even as it has focused on speech interests more 

generally. See, e.g., McCutcheon, 572 U.S. at 199; id. 

at 228 (Thomas, J., concurring in the judgment) (suggesting that the distinction between expenditures and 

3

 While burdens on expenditures must withstand strict scrutiny, 

the Court has assessed burdens on contributions under a less demanding, “but still ‘rigorous standard of review.’” McCutcheon, 

572 U.S. at 197 (quoting Buckley, 424 U.S. at 29).
13a 

contributions “has only continued to erode in the intervening years”) (cleaned up). The Court has emphasized the central question of whether and how a challenged regulation burdens political speech. For example, in McCutcheon, the Court explained that Buckley’s 

distinction between expenditure and contribution limits 

stemmed from the “the degree to which each encroaches 

upon protected First Amendment interests.” Id. at 

197. The Court assessed the burden on expressive and 

associational rights imposed by the aggregate contribution limits challenged in that case. See id. at 204-05. 

In Davis, the Court found that a regulation burdened a 

candidate’s expenditures because it raised contribution 

limits asymmetrically, that is, only for the opponents of 

a candidate who spent over a certain amount of his own 

money. See 554 U.S. at 738-40. The Court focused on 

how the regulation functioned to analyze the burden 

that it imposed. See id.; see also Bennett, 564 U.S. at 

736-47 (evaluating the specific operation of Arizona’s 

matching funds provision and holding that it substantially burdened speech). In a political campaign, expenditures and contributions are part of a connected cycle of speech and association protected by the First 

Amendment.

We find that the loan-repayment limit restricts political expression and association for candidates and their

contributors. To begin with, the loan-repayment limit 

burdens candidates who wish to make expenditures 

through personal loans because the limit constrains the 
14a 

repayment options available to the candidate.4 Whereas other campaign debts may be repaid by post-election 

contributions, candidate loans above $250,000 do not receive the same treatment. That the candidate makes a 

choice to finance his campaign with personal loans, rather than through other forms of debt, does not minimize the First Amendment harm. Cf. Davis, 554 U.S. 

at 739 (“The resulting drag on First Amendment rights 

is not constitutional simply because it attaches as a consequence of a statutorily imposed choice.”). Candidate 

loans comprise the majority of campaign debt, and personal loans will sometimes be the only way for a candidate to raise enough money for an effective campaign in 

the short term. The limit places a particular burden on 

relatively unknown challengers who may require more

financing up front in order to wage an effective campaign against a better funded incumbent. See Anderson v. Spear, 356 F.3d 651, 673 (6th Cir. 2004) (“[A] candidate may need to speak early in order to establish her 

position and garner contributions.”).

We also note that since the enactment of BCRA and 

the loan-repayment limit, “there is a clear clustering of 

4

 In general, a loan from a candidate to his campaign is treated as 

an expenditure. Both FECA and its regulations define the term “expenditure” to include loans. See 52 U.S.C. § 30101(9)(A)(i) (“The 

term ‘expenditure’ includes . . . any . . . loan, . . . made 

by any person for the purpose of influencing any election for Federal

office[.]”); 11 C.F.R. § 100.111(a) (“A . . . loan . . . made by 

any person for the purpose of influencing any election for Federal 

office is an expenditure.”); 11 C.F.R. § 100.111(b) (“For purposes of 

this section, the term payment includes . . . any guarantee or 

endorsement of a loan by a candidate or a political committee.”); see 

also Anderson v. Spear, 356 F.3d 651, 672 (6th Cir. 2004) (“[L]oans 

are candidate expenditures, unless and until they are repaid.”).
15a 

loans right at the $250,000 threshold.” Alexei Ovtchinnikov & Philip Valta, Debt in Political Campaigns 24 

(HEC Paris Research Paper No. FIN-2016-1165, May 

2020). During this same time period, the percentage of 

candidate loans above $250,000 has remained roughly 

the same while spending on Senate and House campaigns has more than doubled, indicating that the loanrepayment limit constricts candidate lending.

We find the burden imposed by Section 304 “is evident and inherent in the choice that confronts” candidates who wish to use personal loans to finance their 

campaigns. Bennett, 564 U.S. at 745 (citing Davis, 554 

U.S. at 738-40). The limit imposes a “drag” on the candidate’s First Amendment activity by discouraging the 

personal financing of campaign speech. Davis, 554 

U.S. at 739.

The FEC defends the constitutionality of the loanrepayment limit by maintaining that it does not burden 

political speech at all, because “[m]oney 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.” FEC Mem. in Supp. of 

Mot. for Summ. J. (“FEC Mot.”) 20, ECF No. 65. The 

Commission highlights that the loan-repayment 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.

While it is true that the loan-repayment limit is not a 

ban on personal financing, the First Amendment’s protection has never been limited to direct restrictions on 

expenditures, because “[t]he First Amendment would 

. . . be a hollow promise if it left government free to 
16a 

destroy or erode its guarantees by indirect restraints.” 

United Mine Workers of Am. v. Ill. State Bar Ass’n, 389 

U.S. 217, 222 (1967). Laws that regulate in the First 

Amendment arena must be scrutinized even when the 

“deterrent effect on [speech] arises, not through direct 

government action, but indirectly as an unintended but

inevitable result of the government’s conduct.” Buckley, 424 U.S. at 65.

Even indirect regulations of speech may run afoul of 

the First Amendment, because they can “abridg[e] the 

freedom of speech.” U.S. CONST. amend. I. The word 

“abridge” means “to contract, to diminish, to cut short.” 

1 SAMUEL JOHNSON, A DICTIONARY OF THE ENGLISH 

LANGUAGE (6th ed. 1785); see also OXFORD ENGLISH 

DICTIONARY 43 (2d ed. 1989) (“abridge”: “To curtail, 

to lessen, to diminish (rights, privileges, advantages, or 

authority)”). At the time of the enactment of the First 

Amendment, as well as today, the plain meaning of 

“abridge” is to diminish or to curtail the freedom of

speech. Consistent with this meaning, the First Amendment protects individuals not only from direct and outright bans on speech, but also indirect actions the government might take to “abridge” the central freedom to 

speak freely in the democratic process.

Following these general principles, the Supreme Court

has found a First Amendment burden even absent an 

outright ban or cap, when the regulation acted as a 

“drag” on speech—which is to say an “abridgment” of 

speech. Davis, 554 U.S. at 739-40. In Davis, the Supreme Court held unconstitutional a provision of BCRA 

that relaxed the base contribution limits for a candidate’s opponents if the candidate spent more than

$350,000 of his own funds. The provision burdened 
17a 

free speech rights even though it “d[id] not impose a cap 

on a candidate’s expenditure of personal funds.” Id. at 

738-39. Instead, the challenged provision “impose[d] 

an unprecedented penalty” on candidates who chose to 

“robustly exercise[] [their] First Amendment right[s].” 

Id. at 739. Similarly, in Bennett, the Court held unconstitutional an Arizona law that gave matching funds 

to publicly financed candidates if privately financed 

candidates—or independent expenditure groups—spent 

over a set amount. See 564 U.S. at 728. The Court 

concluded that the Arizona law “plainly force[d] the privately financed candidate to ‘shoulder a special and potentially significant burden’ when choosing to exercise 

his First Amendment right to spend funds on behalf of 

his candidacy.” Id. at 737 (quoting Davis, 554 U.S. at 

739). If the law curtails a candidate’s ability to speak 

on his behalf, it runs afoul of the First Amendment even 

when the law is not an outright ban.

The FEC seeks to distinguish Davis and Bennett because those cases involved a penalty for candidate speech

above a certain threshold, whereas the loan-repayment 

limit has no similar penalty—by loaning his campaign 

more than $250,000 a candidate does not indirectly fund 

his opponent through either liberalized, asymmetrical 

contribution limits (Davis) or matching funds (Bennett). 

First Amendment burdens, however, are not limited to 

prescribed forms. Our review must scrutinize regulatory burdens in order to vigorously protect the freedom

of speech. While not identical to previously challenged
18a 

regulations, the loan-repayment limit restricts a candidate’s campaign expenditures by circumscribing the repayment options for candidate loans over $250,000.5

The FEC’s insistence that the loan-repayment limit 

does not burden political speech overlooks the reality of 

how the limit functions. The FEC narrowly focuses on 

the repayment of the loan and through this lens notes 

that the loan-repayment limit does not restrict expenditures because the candidate remains free to loan or contribute as much money as he wishes to his campaign.6

 

The FEC’s cramped understanding of the First Amendment fails to provide adequate protection to the important free speech interests at stake. The FEC would 

isolate the transactions at issue until they no longer resemble campaign expenditures or contributions.

5

 On the flip side, the loan-repayment limit may also impact contributors. Candidate loans over $250,000 are singled out and excluded from the “net debts outstanding” that a campaign may pay

off with post-election contributions. The FEC’s regulations permit

contributors to designate their contributions for a prior election. 

An individual who wanted to contribute to Senator Cruz after the 

2018 election could not have contributed to—and thus expressed his

support for—Senator Cruz’s 2018 election campaign if the only debt

remaining was the Senator’s loan in excess of $250,000.

6

 The FEC suggests there is no restriction on political speech in 

this case, relying on FEC v. O’Donnell, 209 F. Supp. 3d 727 (D. Del.

2016). That case is inapposite, however, because it concerned

FECA’s ban on the use of contributions to pay a candidate’s personal

expenses. The court held such contributions did not “facilitate 

political expression.” Id. at 739. By contrast, the loan-repayment

limit restricts political expression and implicates the First Amendment in a way that personal expenses for a new outfit and a gym 

membership arguably do not. See 52 U.S.C. § 30114(b)(2)(B) & (I).
19a 

In determining whether First Amendment interests 

are implicated, however, we must focus on whether a 

statute burdens political speech, not whether a particular regulatory label is a perfect fit. The relative novelty of a campaign finance regulation cannot insulate it 

from judicial scrutiny because “political speech must 

prevail against laws that would suppress it, whether by 

design or inadvertence.” Citizens United v. FEC, 558 

U.S. 310, 340 (2010). Legislators may try different

regulatory approaches to protect against quid pro quo

corruption; however, any such regulation of campaigns 

must comport with the First Amendment.

The loan-repayment limit implicates First Amendment interests. A candidate’s loan to his campaign is 

an expenditure that may be used for expressive acts. 

Such expressive acts are burdened when a candidate is 

inhibited from making a personal loan, or incurring one, 

out of concern that she will be left holding the bag on 

any unpaid campaign debt.

This case illustrates the reality that contributions 

and expenditures are often “two sides of the same First 

Amendment coin.” Buckley, 424 U.S. at 241 (Burger, 

C.J., concurring in part and dissenting in part). Contributions allow a candidate to make further expenditures, reflecting the practical link between the associational and expressive activity of the candidate and contributor. By limiting the amount of post-election contributions that can be used to retire candidate loans, the 

loan-repayment limit abridges political speech and implicates the protection of the First Amendment.
20a 

B.

Because the loan-repayment limit encumbers political speech, the government has “the burden of proving 

the constitutionality of its actions.” McCutcheon, 572 

U.S. at 210 (cleaned up). The parties dispute the relevant standard of review. The Cruz campaign maintains we should apply either the strict scrutiny applicable to expenditure limits or the closely drawn scrutiny 

applied to contribution limits. By contrast, the FEC 

suggests the loan-repayment limit must be analyzed under deferential rational basis review because the limit 

burdens no First Amendment interests. Because we 

find the loan-repayment limit restricts expressive and 

associational interests in political campaigns, we must 

apply a form of heightened scrutiny, either strict or 

closely drawn.

Under either form of heightened scrutiny, we assess 

the government’s asserted interest in restricting speech 

and the fit between that interest and the means the government has chosen to fulfill it. See id. at 199. Applying strict scrutiny, a regulation will be upheld only if it 

furthers a compelling government interest and the government uses the least restrictive means of furthering 

that interest; whereas under closely drawn scrutiny a 

regulation will be upheld “if the State demonstrates a

sufficiently important interest and employs means closely

drawn to avoid” abridging First Amendment freedoms. 

See id. at 197.

The loan-repayment limit fails under even the less

exacting test of closely drawn scrutiny and so, as in

McCutcheon, we have no need to “parse the differences”

between the standards of scrutiny. Id. at 199. The government fails to demonstrate that the loan-repayment
21a 

limit serves an interest in addressing quid pro quo corruption. In addition, we find “a substantial mismatch,” 

id., between the government’s asserted interest and the 

loan-repayment limit.

1.

The government bears the burden of demonstrating 

that the loan-repayment limit serves a sufficiently important interest that justifies the burden on political 

speech. The Supreme Court has made clear that the 

only recognized government interest in restraining political speech is “preventing corruption or the appearance of corruption.” Id. at 206-07. The Court has 

considered—and rejected—other government justifications such as “reduc[ing] the amount of money in politics,” id. at 191; “level[ing] electoral opportunities by 

equalizing candidate resources and influence,” Bennett, 

564 U.S. at 748 (cleaned up); reducing “[i]ngratiation 

and access,” Citizens United, 558 U.S. at 360; or equalizing viewpoints among individuals and groups, Buckley, 

424 U.S. at 48-49. The government’s interest in eliminating corruption is limited to quid pro quo corruption, 

in other words, “dollars for political favors.” McCutcheon, 572 U.S. at 192 (quoting FEC v. Nat’l Conserv. 

PAC, 470 U.S. 480, 497 (1985)). To comport with the 

First Amendment, a regulation of political speech must 

target only this particular form of corruption, which 

means “the Government may not seek to limit the appearance of mere influence or access.” Id. at 208.

In addition, it is not sufficient for the FEC merely to 

assert an interest in preventing quid pro quo corruption. 

The government must demonstrate the validity of its interest by more than “mere conjecture.” Nixon v. 

Shrink Mo. Gov’t PAC, 528 U.S. 377, 392 (2000). 
22a 

“When the Government defends a regulation on speech 

as a means to . . . prevent anticipated harms, it 

must do more than simply posit the existence of the disease sought to be cured.” Colo. Repub. Fed. Campaign

Comm. v. FEC, 518 U.S. 604, 618 (1996) (cleaned up). 

Moreover, “[t]he quantum of empirical evidence needed 

to satisfy heightened judicial scrutiny of legislative 

judgments will vary up or down with the novelty and 

plausibility of the justification raised.” Shrink Mo., 

528 U.S. at 391; see also Zimmerman v. City of Austin, 

881 F.3d 378, 392-93 (5th Cir. 2018) (discussing cases). 

We assess the FEC’s asserted interests in light of these 

standards.

The FEC maintains that the loan-repayment limit

addresses the heightened risk and appearance of quid 

pro quo corruption that results from elected officeholders soliciting contributions that will be used to repay 

their personal loans. The Commission posits that 

“[m]oney given after the election . . . provides the 

contributor with even more influence over the candidate 

since the candidate is benefiting personally from the 

contribution.” FEC Statement of Material Facts (“FEC 

SMF”) ¶ 73, ECF No. 65 (cleaned up). The Commission repeatedly characterizes post-election contributions used to repay candidate loans as going into the candidate’s pocket. The FEC also points to media reports 

of debt retirement parties as giving rise “to at least the 

appearance of federal candidates trading dollars for favors in the context of repayment of candidate loans.” 

FEC Mot. 33. The Commission maintains there is a 

public perception that individuals who contribute to candidates after an election are likely to expect a political 

favor in return.
23a 

Despite these assertions, the Commission fails to

demonstrate that quid pro quo corruption or its appearance arises from post-election contributions to retire a 

candidate’s personal debt. We first observe that the 

FEC has not identified a single case of actual quid pro 

quo corruption in this context. This is particularly notable given that many states impose no restriction on using post-election contributions to repay candidate 

loans,7 and the Commission fails to identify any problems with quid pro corruption or its appearance in these

states. Cf. Citizens United, 558 U.S. at 357 (finding it

significant that the government failed to claim that “independent expenditures by for-profit corporations 

. . . corrupted the political process” in the twenty-six

states that did not restrict such expenditures). Here 

the FEC’s few state examples involve only concerns that

7

 The Cruz campaign identifies ten states that cap candidate loans 

or restrict candidate loan repayment in some fashion. See Cruz 

Mem. in Supp. of Mot. for Summ. J. 28 & n.4, ECF No. 61-1. Georgia and South Carolina cap the repayment of candidate loans with 

postelection contributions, similar to BCRA’s loan-repayment limit. 

See GA. CODE ANN. § 21-5-41(h); S.C. CODE ANN. § 8-13-1328. 

Although Florida permits candidate loans and their repayment with

pre-election contributions, it bans all post-election contributions. 

See FLA. STAT. § 106.08(3)(b). Alaska, Rhode Island, Texas, and

Washington cap the repayment of candidate loans with either preor post-election contributions. See ALASKA STAT. § 15.13.078(b)(1);

17 R.I. GEN. LAWS § 17-25-7.4; TEX. ELEC. CODE § 253.042(A);

WASH. REV. CODE § 42.17A.445(3). California, Massachusetts, and

Nebraska place no limit on the repayment of candidate loans but instead cap the amount that candidates may loan their campaigns. 

See CAL. GOV’T CODE § 85307(B); MASS. GEN. LAWS ch. 55, § 7; NEB.

REV. STAT. § 49-1446.04; 4 NEB. ADMIN. CODE ch. 10, § 004(02). The 

Commission does not contest that “only a minority of states” restrict 

candidate campaign loans in some way. FEC Mot. 34.
24a 

candidates will be too responsive to the influence of special interests or concerns about contributions unrelated 

to the repayment of candidate loans. See, e.g., FEC 

SMF ¶¶ 76, 79.

By contrast, in cases that have found a sufficient anticorruption interest, the record has been robust. In 

Buckley, the Court cited “the deeply disturbing examples surfacing after the 1972 election” as demonstrating 

that the problem of quid pro quo corruption was “not an 

illusory one.” 424 U.S. at 27 & n.28; see also Buckley 

v. Valeo, 519 F.2d 821, 838-40 & nn.26-38 (D.C. Cir. 1975) 

(en banc) (describing extensive factual record before 

Congress). In McConnell v. FEC, the omnibus challenge to BCRA, the record before the court consisted of 

more than 100,000 pages, including “576 pages of proposed findings of fact” and “the testimony and declarations of over 200 fact and expert witnesses.” 251 

F. Supp. 2d 176, 208-09 (D.D.C. 2003). In Bluman v. 

FEC, the court pointed to “public controversy and an extensive investigation by the Senate Committee on Governmental Affairs,” including specific examples of foreign governments attempting “to ‘influence U.S. policies 

and elections through, among other means, financing 

election campaigns,’” as justification for BCRA’s ban on 

expenditures and contributions by foreign nationals. 

800 F. Supp. 2d 281, 283 (D.D.C. 2011) (quoting S. REP.

NO. 105-67, at 47 (1998)).

A lengthy record may not be sufficient to demonstrate corruption, but the absence of any record of such 

corruption undermines the government’s proffered interest. The FEC cannot carry its substantial burden 

by simply asserting that post-election contributions to 
25a 

repay a candidate’s loans may come with expectations of 

a political favor.

In the absence of any evidence of actual corruption, 

the FEC turns elsewhere. For instance, the Commission 

relies heavily on an academic article that concluded 

“[i]ndebted politicians . . . exhibit a heightened sensitivity in their voting decisions to political contributions 

received from special interest groups.” Ovtchinnikov 

& Valta, Debt in Political Campaigns 29. The article, 

however, does not distinguish between voting pattern 

changes as a consequence of donor influence or access 

and voting pattern changes as part of quid pro quo corruption. In a representative democracy, mere influence or access is not the type of quid pro quo corruption

that justifies infringements on political speech. A “generic favoritism or influence theory . . . is at odds 

with standard First Amendment analyses because it is 

unbounded and susceptible to no limiting principle.” 

McConnell v. FEC, 540 U.S. 93, 296 (2003) (Kennedy, J., 

concurring in the judgment in part and dissenting in 

part). “The line between quid pro quo corruption and 

general influence may seem vague at times, but the distinction must be respected in order to safeguard basic 

First Amendment rights.” McCutcheon, 572 U.S. at 

209.

The Commission also places great weight on a selective legislative history of the loan-repayment limit, arguing that lawmakers intended to “mitigate the heightened risk of quid pro quo corruption and its appearance 

resulting from already-elected officeholders soliciting 
26a 

contributions for their own personal benefit.” 8 FEC 

Mot. 6. Even on the doubtful proposition that assertions in legislative debates could carry the government’s 

burden, these statements from the legislative history 

amount to mere suppositions about the appearance of

corruption. Moreover, the Cruz campaign proffers 

other tidbits of legislative history, including numerous 

statements suggesting that some legislators thought the 

loan-repayment limit would protect incumbents from 

wealthy challengers. 9

 The competing statements in 

8

 See, e.g., 147 CONG. REC. S2,462 (Mar. 19, 2001) (statement of

Sen. Domenici) (“In fact, it should be a condition to your putting up

your own money, knowing right up front you are not going to get it

back from your constituents under fundraising events that you 

would hold and then ask them: How would you like me to vote now 

that I am a Senator?”); 147 CONG. REC. S2,541 (Mar. 20, 2001) (statement of Sen. Hutchison) (“[Candidates] have a constitutional right 

to try to buy the office, but they do not have a constitutional right to 

resell it.”).

9

 See, e.g., 147 CONG. REC. S2,541 (Mar. 20, 2001) (statement of

Sen. Hutchison) (“Our purpose is to level the playing field so that

one candidate who has millions, if not billions, of dollars to spend on

a campaign will not be at such a significant advantage over another

candidate who does not have such means as to create an unlevel playing field.”); 147 CONG. REC. S2,465 (Mar. 19, 2001) (statement of Sen. 

Sessions) (“It also prohibits wealthy candidates, who incur personal 

loans in connection with their campaign that exceed $250,000, from 

repaying those loans from any contributions made to the candidate. 

. . . I know there were large contributions in this last Senate campaign from candidates of $10 million, $60 million, and other amounts 

of money that the winning candidates in this body contributed from 

their own funds. I tell you, I am glad I didn’t face a person who 

could write a check for $60 million, $10 million—or $5 million, for 

that matter. If so, I would like to be able to have a level playing 

field so I could stay in the ball game.”).
27a 

the legislative history of BCRA establish no clear emphasis on eradicating quid pro quo corruption as opposed to the impermissible purpose of leveling the playing field.

In addition, the loan-repayment limit, Section 304 of

BCRA, was enacted at the same time as Section 319, the 

so-called “Millionaire’s Amendment,” which the Supreme Court held unconstitutional in part because it was 

intended to “level electoral opportunities for candidates 

of different personal wealth.” Davis, 554 U.S. at 741 

(cleaned up). While Section 304 may serve a different 

purpose from Section 319, the text of BCRA, as well as 

the legislative debates, linked the two provisions, which 

suggests that the loan-repayment limit may also “further the impermissible objective of simply limiting the 

amount of money in political campaigns.” McCutcheon, 572 U.S. at 218. At a minimum, the connection between the provisions casts further doubt on the government’s asserted anticorruption interest.

Finally, the FEC relies on media reports and a 

YouGov poll, but these similarly fail to establish that restrictions like the loan-repayment limit serve the purpose of preventing quid pro quo corruption. The media 

reports merely hypothesize that individuals who contribute after the election to help retire a candidate’s 

debt might have greater influence with or access to the 

candidate. Yet this is not evidence of quid pro quo corruption, and minimizing influence and access is not a 

proper goal for campaign finance regulation. The 

YouGov poll was conducted at the FEC’s behest for this 

litigation to demonstrate that the loan-repayment limit 

addresses the appearance of corruption. The poll first 
28a 

asked respondents whether they were aware that candidates could loan their campaigns money and then be 

paid back with post-election contributions. FEC Mot.

Ex. 16, ECF No. 65-16 (Decl. of Ashley Grosse, Ex. A). 

In the poll’s only two follow-up questions, 81 percent of 

respondents thought it “very likely” or “likely” that individuals who donate money to a federal candidate’s 

campaign after an election “expect a political favor in return,” and 67 percent of respondents thought donors 

would “be more likely to expect political favors” if there 

were no limit on repaying a candidate loan with postelection contributions. Id. The FEC relies on these 

responses as evidence that the loan-repayment limit addresses “at least the appearance of quid pro quo corruption.” FEC Mot. 32.

We disagree. Such generic questions do not get at 

the specific problem of quid pro quo corruption the government asserts this statute combats. On the government’s reasoning, the poll answers would raise doubts 

about any contributions to incumbents (i.e. winning candidates) who use post-election contributions to retire 

any type of campaign debt. Even if contributors who 

donate to retire a candidate’s debt expect political favors, that hardly demonstrates that the (now elected) official is more likely to grant such political favors. Moreover, the poll did not define the term “political favor,” so 

the poll’s responses are not evidence that the public associates such contributions with quid pro quo corruption, which Congress may regulate, or simply increased 

influence and access, which Congress may not. See 

McCutcheon, 572 U.S. at 208. Finally, the poll failed to 

mention that the individual contribution limit applies to 

post-election contributions just as it does to pre-election
29a 

contributions. That omission renders the poll an ineffective measure of public perception of possible corruption in this context. At most, the poll suggests that 

some members of the public distrust or are skeptical 

about using contributions to repay candidate loans, but 

the “tendency to demonstrate distrust” is insufficient to 

establish corruption or its appearance. Nat’l Conserv. 

PAC, 470 U.S. at 499. We conclude the FEC fails to 

demonstrate that the loan-repayment limit serves an interest in preventing quid pro quo corruption.

The FEC also maintains that the loan-repayment 

limit prevents the circumvention of base contribution 

limits because without the limit a candidate could keep 

outstanding loans from past campaigns, which would allow individuals to stack up maximum contributions for 

each election for which the candidate had open loans. 

The problem with the FEC’s position, however, is that 

contributors are permitted to make multiple contributions at a single time—they can contribute to retire debt 

from a previous election (subject to the loan-repayment

limit) and they can contribute to any ongoing campaign 

for a future election. Each of these separate perelection contributions, however, is limited by the base

contribution limit. Nothing about the potential for 

stacking circumvents the base limits. What the FEC 

terms “circumvention” is in fact a lawful contribution 

under existing campaign finance laws.

The government suggests it is dissatisfied with the 

possibility of large one-time contributions, which the 

FEC treats as a kind of legal loophole. Yet the loanrepayment limit does little to close the ostensible loophole, because the limit applies only to a candidate’s personal loans, not to other campaign debt. Also, the FEC 
30a 

fails to identify a plausible financial incentive for a candidate to carry significant personal campaign debt over 

many years simply to keep open the possibility of soliciting larger stacked donations in the future.

In sum, the FEC’s position amounts to speculation 

that contributions to pay off a candidate’s personal loans 

carry a danger of quid pro quo corruption, but the Supreme Court has “never accepted mere conjecture as 

adequate to carry a First Amendment burden.” 

Shrink Mo., 528 U.S. at 392. The government has 

failed to demonstrate that its interest in the loan-repayment limit is sufficiently important, because the limit 

serves no additional purpose in preventing quid pro quo

corruption or the circumvention of base contribution 

limits. With little connection to any actual or perceived 

quid pro quo corruption interest, the FEC’s asserted rationale boils down to a general concern about money in 

politics and campaign contributions to incumbents—but 

such general concerns about influence or access cannot 

justify government regulation in the vital area of political speech.

2.

Even if the government had shown that the limit was

justified by an important government interest, the loanrepayment limit is not “closely drawn” to protect expressive and associational freedoms. McCutcheon, 572 

U.S. at 218 (quoting Buckley, 424 U.S. at 25). “In the 

First Amendment context, fit matters.” Id. The government’s rationale for the loan-repayment limit fits 

about as well as a pair of pandemic sweatpants. The 

First Amendment requires a better fit than that.
31a 

When assessing fit even under standards short of 

strict scrutiny, we “require a fit that is not necessarily 

perfect, but reasonable; that represents not necessarily 

the single best disposition but one whose scope is in proportion to the interest served, that employs not necessarily the least restrictive means but a means narrowly 

tailored to achieve the desired objective.” Id. (cleaned 

up). As part of the inquiry we consider “whether experience under the present law confirms a serious threat 

of abuse,” and whether there are less burdensome alternatives available to the government in securing its interests. Id. at 219 (quoting FEC v. Colo. Repub. Fed. 

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

In arguing for a close fit, the FEC maintains “[t]he 

Loan Repayment Limit is tailored to apply in situations 

when the strength of the government’s important anticorruption interests are at their peak,” because “the 

candidate will be in a position to grant political favors to 

[post-election] contributors.” FEC Mot. 40. Moreover, the FEC asserts, the limit is well tailored because 

it applies only to situations in which “the candidate or 

officeholder is directly, personally benefiting from the 

contributions,” and it does not prevent campaigns from 

repaying the loans in full with pre-election funds. Id. 

at 41.

Contrary to the government’s assertions, the loan-repayment limit is not sufficiently tailored to achieve the

objective of preventing quid pro quo corruption or its

appearance. To begin with, the loan-repayment limit is 

over inclusive. It applies across the board to winning 

and losing candidates, although any purported anticorruption rationale applies only to winning candidates. 

The FEC’s primary defense of the regulation is that 
32a 

post-election contributions used to retire a candidate’s

personal campaign loans are particularly susceptible to 

quid pro quo corruption or its appearance. This justification, however, does not apply to candidates who lose 

an election and therefore have no way to provide improper benefits to contributors who donate to retire

election debt. Losing candidates are less likely to receive post-election contributions and, in any event, contributions made to a losing candidate pose essentially no 

risk of corruption or its appearance. See Anderson, 

356 F.3d at 673 (invalidating a state cap on candidate 

loans and explaining that “the risk of quid pro quo is 

virtually non-existent where the contribution is made to

a losing candidate who seeks to recoup some of his 

debt”). When a campaign finance regulation sweeps in 

conduct well beyond the government’s asserted rationale, it does not provide the close fit required by the 

First Amendment.

The loan-repayment limit is also substantially underinclusive as to the government’s asserted interests. 

Although “the First Amendment imposes no freestanding underinclusiveness limitation,” a law’s underinclusiveness can indicate a poor fit and can raise doubts 

about whether the law advances the interests invoked 

by the government. Williams-Yulee v. Fla. Bar, 135 

S. Ct. 1656, 1668 (2015) (cleaned up). Here, aside from 

the loan-repayment and base contribution limits, there 

are no restrictions on post-election contributions made 

to retire other types of campaign debt. A person may

contribute to retire any outstanding campaign debt, 

with the exception of a candidate’s personal loans over 

$250,000. The FEC argues that a candidate who 
33a 

makes a loan to his campaign that he expects will be repaid is more dependent on outside contributions than a 

candidate who simply gives the money to his campaign. 

Yet not all candidates can afford to just give money to 

their campaigns—and there is nothing inherently corrupting about receiving campaign contributions after an

election.

The FEC’s concerns regarding post-election contributions to retire candidate loans seem to apply equally 

to any contribution made to an incumbent, because all 

incumbents are in a position to grant favors. But Congress does not restrict pre-election contributions to incumbents except through the base contribution limit. 

The government has advanced no reason why a contribution made to an incumbent before the election poses 

no risk of corruption, but the same contribution made

after the election to a winning candidate (now incumbent) and applied to pre-election debt poses a unique 

and heightened concern of quid pro quo corruption.

The government’s fit rationale also cannot explain 

why post-election contributions to retire pre-election 

debt are permissible up to the $250,000 cap. This cap 

means that in the current election cycle, a campaign 

committee can accept just over eighty-six maximum contributions after the election to repay a candidate loan 

(eighty-six contributions of $2,900 aggregates to 

$249,400, just shy of the $250,000 ceiling). It is hardly 

clear why the eighty-seventh or eighty-eighth contributor poses a particular danger of quid pro corruption. 

Cf. McCutcheon, 572 U.S. at 210. Instead, the $250,000 

cap operates to limit or disincentivize the total amount 

of campaign expenditure a candidate makes through 

personal loans.
34a 

The loan-repayment limit also imposes an additional 

regulatory requirement on top of the existing base limits. The loan-repayment limit is exactly the sort of 

“prophylaxis-upon-prophylaxis approach” that demands 

“we be particularly diligent in scrutinizing the law’s fit.” 

Id. at 221 (cleaned up). As the D.C. Circuit has explained, “an additional constraint layered on top of the 

base limits . . . separately need[s] to serve the interest in preventing the appearance or actuality of corruption.”10 Holmes v. FEC, 875 F.3d 1153, 1161 (D.C. 

Cir. 2017) (en banc) (cleaned up). Post-election contributions, like contributions made before an election, are 

subject to the base limits, which serve to prevent the 

dangers of quid pro quo corruption. Layered on top of 

the base limits, the loan-repayment limit places an additional restriction on pre-election expenditures and postelection contributions, but the government has failed to 

demonstrate that the limit provides additional protection against quid pro quo corruption or its appearance.

The Commission next tries to demonstrate fit by 

minimizing the burden of the loan-repayment limit. 

For instance, the Commission maintains that the loan10 Other circuit courts have similarly interpreted McCutcheon as 

requiring the government to make an additional showing to justify

campaign finance restrictions that operate on top of base limits. 

See, e.g., Jones v. Jegley, 947 F.3d 1100, 1106 (8th Cir. 2020) (“Just 

as in McCutcheon, Arkansas’s failure here to provide any evidence 

that its blackout period accomplishes anything more than the $2,700 

base limits alone means that it cannot survive exacting scrutiny.”);

Zimmerman v. City of Austin, 881 F.3d 378, 392 (5th Cir. 2018)

(holding restrictions in addition to the base limit “must be justified

by evidence that the additional limit serves a distinct interest in preventing corruption that is not already served by the base limit”).
35a 

repayment limit “increase[s] the funds available to campaign committees,” and so does not “prevent[] campaigns from ‘amassing the resources necessary for effective advocacy.’” FEC Mot. 41 (quoting Randall v. 

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

The FEC overreads Randall, which noted that if a contribution limit prevents a campaign from amassing the 

necessary resources, it cannot survive under the First 

Amendment. See Randall, 548 U.S. at 248. It does 

not logically follow, however, that if a campaign can 

manage to amass necessary resources, the regulation 

survives First Amendment scrutiny. Preventing candidates from amassing resources is only one of the reasons a regulation of political speech may fail under the 

First Amendment, and therefore it cannot serve as an 

independent basis for upholding a regulation. Cf. Libertarian Nat’l Comm. v. FEC, 924 F.3d 533, 558-59 

(D.C. Cir. 2019) (en banc) (Katsas, J., concurring in part, 

concurring in the judgment, and dissenting in part). 

Moreover, the determination of what resources are 

“necessary” for effective speech must be left to individual speakers, not the FEC.

Finally, the Commission urges this court to defer to 

Congress’s judgment that the loan-repayment limit is

necessary for combatting corruption. While we must 

respect the legislative choices of Congress acting within 

its constitutional sphere, we cannot defer on the question of whether a particular legislative choice is in fact 

constitutional. “We must give weight to attempts by 

Congress to seek to dispel either the appearance or the 

reality of [corruptive] influences. The remedies enacted by law, however, must comply with the First 

Amendment; and it is our law and our tradition that 
36a 

more speech, not less, is the governing rule.” Citizens 

United, 558 U.S. at 361; see also Schneider v. State, 308 

U.S. 147, 161 (1939) (explaining that legislative judgments may be “insufficient to justify” a restriction that 

“diminishes the exercise of rights so vital to the maintenance of democratic institutions”). Courts cannot rubber stamp congressional preferences when important 

First Amendment interests are at stake.

In sum, we hold that the government failed to meet 

its burden of demonstrating that the loan-repayment 

limit serves an interest in combatting quid pro quo corruption or its appearance and that in any event the loanrepayment limit is insufficiently tailored to meet this objective.

* * * 

When it comes to campaign finance regulation, the 

foxes are effectively in charge of the political henhouse, 

because elected officials set the rules for future elections. The Constitution, however, does not leave our 

liberties to the foxes. Laws regulating political speech 

implicate First Amendment rights essential to a free democracy, and courts have an independent duty to scrutinize the government’s interest as well as the means 

chosen to realize it. To protect “the political responsiveness at the heart of the democratic process,”

McCutcheon, 572 U.S. at 227, Congress may regulate 

political speech only to prevent the specific problem of 

quid pro quo corruption. The loan-repayment limit 

does not serve that interest, and the government’s arguments to the contrary boil down to hypothetical concerns about influence and access to incumbents. Such 

justifications are not sufficient under the First Amendment to uphold a statute that burdens political speech. 
37a 

The loan-repayment limit intrudes on fundamental

rights of speech and association without serving a substantial government interest.

For the foregoing reasons, we hold that the loanrepayment limit, Section 304 of BCRA, is unconstitutional because it violates the First Amendment. Thus, 

the court denies the Commission’s motion for summary 

judgment and grants the Cruz campaign’s motion for 

summary judgment. A separate order accompanies 

this memorandum opinion.
38a 

APPENDIX D

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Case No. 319-cv-908 (NJR, APM, TJK)

TED CRUZ FOR SENATE, ET AL., PLAINTIFFS

v.

FEDERAL ELECTION COMMISSION, ET AL., DEFENDANTS

Filed: June 3, 2021

ORDER

For the reasons set forth in the court’s Memorandum 

Opinion, ECF No. 71, the court grants Plaintiffs’ Motion 

for Summary Judgment and denies Defendants’ CrossMotion for Summary Judgment. It is further ordered 

that Plaintiffs’ regulatory claims, previously held in 

abeyance, are dismissed as moot.

This is a final, appealable Order.

Dated: June 3, 2021

 /s/ NEOMI J. RAO 

NEOMI J. RAO

 United States Circuit Court Judge

 /s/ AMIT P. MEHTA 

AMIT P. MEHTA

 United States District Court Judge
39a 

 /s/ TIMOTHY J. KELLY 

TIMOTHY J. KELLY

 United States District Court Judge
40a 

APPENDIX E 

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Case No. 19-cv-908 (APM)

TED CRUZ FOR SENATE, ET AL., PLAINTIFFS

v.

FEDERAL ELECTION COMMISSION, ET AL, DEFENDANTS

Filed: Dec. 24, 2019

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION 

Plaintiffs, Senator Rafael Edward Cruz (“Senator 

Cruz”) and Ted Cruz for Senate (“Cruz Committee” or 

“Committee”), seek declaratory and injunctive relief invalidating and enjoining the enforcement of Section 304 

of the Bipartisan Campaign Reform Act (“BCRA”) and 

its implementing regulations, which place limits on the 

amount of post-election contributions that may be used 

to pay back a candidate’s pre-election loans. They have

asked the court to convene a three-judge district court 

to hear their challenges in accordance with BCRA’s judicial review provision. Defendants, the Federal Election Commission and its four current Commissioners 

(collectively the “FEC”), oppose that request and have 

moved to dismiss the Complaint for lack of jurisdiction. 

For the reasons that follow, the court grants Plaintiffs’ 
41a 

motion to convene a three-judge court and denies the 

FEC’s motion to dismiss.

II. BACKGROUND 

A. Legal Background 

1. The Loan Repayment Limit 

In 2002, Congress enacted the Bipartisan Campaign 

Reform Act (“BCRA”), Pub. L. No. 107-155, 116 Stat. 81, 

which amended the Federal Election Campaign Act of 

1971 (“FECA”). One provision of BCRA states that a 

“candidate who incurs personal loans . . . in connection with the candidate’s campaign for election shall not 

repay (directly or indirectly), to the extent such loans 

exceed $250,000, such loans from any contributions 

made to such candidate or any authorized committee of 

such candidate after the date of such election.” 52 

U.S.C. § 30116(j). The FEC’s implementing regulations clarify that BCRA’s $250,000 limit applies both to 

loans secured by the candidate for the benefit of his 

campaign and to loans made to the campaign from the 

candidate’s personal funds. 11 C.F.R. § 116.11(a). 

BCRA and its implementing regulations (collectively 

the “Loan Repayment Limit”) thus give a campaign committee two options for paying back a candidate’s personal loans after an election. First, the committee may 

repay up to “the entire amount of the personal loans using contributions to the candidate or the candidate’s authorized committee provided that those contributions 

were made on the day of the election or before.” Id. 

§ 116.11(b)(1). If the committee elects to use preelection contributions to repay all or part of the loan, 

“it must do so within 20 days of the election.” Id. 

¶ 116.11(c)(1). 
42a 

Alternatively, the committee “[m]ay repay up to 

$250,000 of the personal loans from contributions made 

to the candidate or the candidate’s authorized committee after the date of the election.” Id. § 116.11(b)(2). 

There is no time limit on when the campaign may repay 

the $250,000 using post-election contributions; however, 

the committee “[m]ust not repay . . . the aggregate 

amount of the personal loans that exceeds $250,000, 

from contributions to the candidate or the candidate’s 

authorized committee if those contributions were made 

after the date of the election.” Id. § 116.11(b)(3). After the 20-day post-election period has elapsed, the committee must “treat the remaining balance of the candidate’s personal loan that exceeds $250,000 as a contribution from the candidate.” See Increased Contribution 

and Coordinated Party Expenditure Limits for Candidates Opposing Self-Financed Candidates, 68 Fed. Reg. 

3970, 3974 (Jan. 27, 2003); see also 11 C.F.R. § 116.11(c)(2). 

2. Judicial Review of Constitutional Challenges 

to BCRA

Section 403 of BCRA provides that “[i]f any action is 

brought for declaratory or injunctive relief to challenge 

the constitutionality of any provision of this Act[,] . . . 

[t]he action shall be filed in the United States District 

Court for the District of Columbia and shall be heard by 

a 3-judge court convened pursuant to [28 U.S.C.] section 

2284.” See Pub. L. No. 107-155, § 403(a) (codified at 52 

U.S.C. § 30110 note (hereinafter BCRA § 403)). The 

party seeking to convene a three-judge court must file a 

request, whereupon “the judge to whom the request is 

presented shall” initiate the process, “unless he determines that three judges are not required.” 28 U.S.C. 

§ 2284(b)(1). A three-judge court’s final decision on 
43a 

such an action “shall be reviewable only by appeal directly to the Supreme Court of the United States.” 

BCRA § 403(a)(3). 

B. Factual Background 

This case arises from Senator Cruz’s 2018 reelection 

campaign for the United States Senate. On the day before the November 6, 2018 general election, Senator 

Cruz made two loans totaling $260,000 to the Cruz Committee to help finance his campaign. See Compl., ECF 

No. 1 [hereinafter Compl.], ¶ 28; Ted Cruz for Senate, 

FEC Form 3 at 401-02 (Jan. 31, 2019).1 Of the $260,000 

lent to the Committee, $5,000 originated from Senator 

Cruz’s personal bank accounts and $255,000 originated 

from a margin loan secured with Senator Cruz’s personal assets. Compl. ¶ 28. 

At the close of election day, the Cruz Committee had

approximately $2.2 million on hand and nearly $2.5 million in debts associated with the 2018 general election. 

Id. ¶ 29. The Committee then “used the funds it had on 

hand to pay vendors and meet other obligations instead

of repaying [Senator Cruz’s] loans.” Id. The Committee did not use any of the funds it had on hand to pay 

off Senator Cruz’s loans during the 20-day period, meaning that after that period elapsed, the balance of those

loans that exceeded BCRA’s $250,000 statutory cap on 

post-election contributions—$10,000—converted into 

a campaign contribution. See id. ¶¶ 30-31; 11 C.F.R. 

§ 116.11(c)(2). 

1

 Available at https://docqueryfec.gov/pdf/325/20190131914523532

5/201901319145235325.pdf.
44a 

Following the 20-day repayment period, the Cruz

Committee repaid Senator Cruz the $250,000 statutory 

maximum using post-election contributions, but BCRA

foreclosed it from paying back the $10,000 balance. 

Compl. ¶¶ 31-32. Plaintiffs allege that, “[a]bsent the

restrictions of [BCRA] and the Commission’s corresponding regulation[s],” they “would solicit debt-retirement funds from potential donors and would use postelection contributions to defray the remaining $10,000 

loan balance.” Id. ¶ 33. 

C. Procedural History

In April 2019, Plaintiffs filed suit against the FEC, 

contending that: (1) the Loan Repayment Limit unconstitutionally infringes on their First Amendment 

rights to freedom of speech; (2) the limit also infringes

on the First Amendment free speech rights of potential 

post-election donors; and (3) the implementing regulation, 11 C.F.R. § 116.11, is contrary to law and arbitrary 

and capricious. See Compl. ¶¶ 5, 34-51. On the same 

day, Plaintiffs filed a request to convene a three-judge 

district court pursuant to BCRA § 403 and 28 U.S.C. 

§ 2284. See Appl. For a Three-Judge Court, ECF No. 2. 

The FEC opposes Plaintiffs’ motion to appoint a 

three-judge court and seeks dismissal of Plaintiffs’ 

Complaint for lack of jurisdiction. See Defs.’ Opp’n to 

Pls.’ Appl. for a Three-Judge Court and Mot. to Dismiss 

for Lack of Subject-Matter Jurisdiction, ECF No. 25 

[hereinafter Defs.’ Mot.]. The FEC argues that this 

case is not justiciable because Plaintiffs lack standing, 

see id. at 13-24, and that the three-judge court lacks subject-matter jurisdiction over the case because Plaintiffs’ 

constitutional claims are “wholly insubstantial,” see id. 

at 25-44. The FEC also contends this court should 
45a 

deny Plaintiffs’ request to convene a three-judge court 

with respect to their challenges to the implementing 

regulations because the three-judge court would lack 

authority to rule on those challenges. Id. at 44-45. 

Plaintiffs retort that (1) the FEC’s standing argument 

must be resolved by a three-judge court, and that in any 

event Plaintiffs do have standing; (2) their challenges 

are constitutionally substantial; and (3) a three-judge 

court has, at a minimum, supplemental jurisdiction to 

adjudicate Plaintiffs’ challenges to the FEC’s implementing regulations. See generally Pls.’ Reply in 

Supp. of Their Appl. For a Three-Judge Court & Resp. 

to Defs.’ Mot. to Dismiss, ECF No. 29 [hereinafter Pls.’ 

Reply]. 

III. DISCUSSION 

A. Plaintiffs’ Standing 

1. This Court Has Jurisdiction to Decide the Standing Question 

Plaintiffs contend that BCRA’s requirement that a 

three-judge court be convened to hear any “action” challenging BCRA’s constitutionality precludes a singlejudge court from ruling on a motion to dismiss for lack 

of standing in such an action. Plaintiffs’ rigid reading 

of the word “action,” however, is foreclosed by binding 

Supreme Court precedent. 

Section 403 of BCRA provides that a three-judge district court shall adjudicate any “action . . . brought 

for declaratory or injunctive relief to challenge the 

constitutionality of any provision of this Act.” BCRA 

§ 403(a)(3). Though framed in mandatory terms, the 

provision cross-references 28 U.S.C. § 2284, which provides that a single judge need not convene a three-judge 
46a 

panel if she “determines that three judges are not required.” § 2284(b)(2). The Supreme Court has held 

that a “three-judge court is not required where the district court itself lacks jurisdiction [over] the complaint 

or the complaint is not justiciable in the federal courts.” 

Shapiro v. McManus, 136 S. Ct. 450, 455 (2015) (quoting 

Gonzalez v. Automatic Emp. Credit Union, 419 U.S. 90, 

100 (1974)). A case is not justiciable in federal courts 

when the plaintiff lacks standing, and therefore the absence of standing is a “ground upon which a single judge 

[may] decline[] to convene a three-judge court.” See 

Gonzalez, 419 U.S. at 100. 

Plaintiffs object that Gonzalez and Shapiro are inapposite because they did not involve a challenge to BCRA. 

They contend that BRCA is unique among other threejudge judicial review provisions because it requires a 

three-judge court to “adjudicate the entire ‘action’—

which includes . . . a pre-trial motion to dismiss for 

lack of jurisdiction.” Pls.’ Reply at 13. BCRA’s use of 

the word “action” is not unique, however. Like BCRA, 

the statute at issue in Shapiro similarly requires the 

convening of a three-judge court to adjudicate the entire 

“action,” 28 U.S.C. § 2284(a), and yet the Supreme Court 

had no difficulty concluding that “a district judge need 

not unthinkingly initiate the procedures to convene a 

three-judge court without first examining the allegations in the complaint” and determining whether it 

“lacks jurisdiction [over] the complaint,” Shapiro, 136 

S. Ct. at 452; see also Wertheimer v. FEC, 268 F.3d 1070, 

1072 (D.C. Cir. 2001) (finding that “an individual district 

court judge may consider threshold jurisdictional challenges prior to convening a three-judge panel” under 

the Presidential Campaign Fund Act, which, like BCRA, 
47a 

requires three-judge courts to hear applicable “actions”). 

The D.C. Circuit has specifically applied Shapiro’s reasoning in the context of BCRA, explaining that “a threejudge court is not required” to hear a constitutional 

challenge to BCRA “where the district court itself lacks 

jurisdiction [over] the complaint or the complaint is not 

justiciable in the federal courts.” Indep. Inst. v. FEC, 

816 F.3d 113, 116 (D.C. Cir. 2016) (quoting Shapiro, 136 

S. Ct. at 455).2

 Consistent with this precedent, a host 

of district courts have held that a single judge may dismiss a constitutional challenge to BCRA for lack of

standing. See, e.g., Republican Party of La. v. FEC, 

146 F. Supp. 3d 1, 8 (D.D.C. 2015); Rufer v. FEC, 64 

F. Supp. 3d 195, 202 (D.D.C. 2014); Schonberg v. FEC, 

792 F. Supp. 2d 14, 17 (D.D.C. 2011). 

To be sure, Shapiro was focused on a separate jurisdictional issue—whether a claim was too “constitutionally insubstantial” to implicate the court’s federal subject-matter jurisdiction—but there is no basis to distinguish between Article III jurisdiction (standing) and 

federal subject-matter jurisdiction (constitutional substantiality) for purposes of convening a three-judge 

court. As with Article III standing, the court’s power 

to dismiss a constitutionally insubstantial question does

not hinge on any “interpretation of statutory text” of 

BCRA or 28 U.S.C. § 2284, but on the familiar proposition that the “essential” jurisdictional prerequisites

must be met before a single-judge court will exercise its

jurisdiction to convene a three-judge panel. See 

2

 Plaintiffs argue that Independent Institute’s statement is dicta. 

See Pls.’ Reply at 14. Even if it is, the issue is still controlled by

Shapiro and Gonzalez; therefore, the court does not consider this 

argument further.
48a 

Shapiro, 136 S. Ct. at 455 (quoting Ex parte Poresky, 

290 U.S. 30, 31(1933) (per curiam)); see also O’Hair v. 

United States, 281 F. Supp. 815, 818 (D.D.C. 1968) (“The 

first duty of the sole judge is to pass on the sufficiency 

of the complaint specifically as to whether or not a justiciable controversy is presented over which he has adjudicatory powers, and if he determines that the Court 

lacks jurisdiction, he must dismiss the suit.”). As discussed below, Plaintiffs freely concede that a single 

judge may dismiss a constitutionally insubstantial challenge to BCRA for lack of jurisdiction, see Pls.’ Reply at 

14; it follows that the same is true of a case where jurisdiction is lacking for want of standing. 

At oral argument, Plaintiffs sought to draw a line between these two jurisdictional inquiries, urging that the 

question of constitutional substantiality is within the 

single-judge court’s jurisdiction because it goes to 

whether a constitutional question is raised at all—a necessary prerequisite to trigger BCRA § 403’s judicial review requirement—whereas questions regarding a litigant’s standing fall under the broad umbrella of an “action” challenging BCRA, and therefore must go to a 

three-judge court. That reading, however, is irreconcilable with Gonzalez, in which the Supreme Court held 

that it did not have mandatory jurisdiction over a threejudge court’s dismissal of a claim for lack of standing 

because the lower court’s dismissal was “not merely 

short of the ultimate merits; it was also, like an absence 

of statutory subject-matter jurisdiction, a ground upon 

which a single judge could have declined to convene 

a three-judge court.” 419 U.S. at 100. The Court 

acknowledged that, under the statute at issue, a “single 
49a 

judge is literally forbidden to ‘dismiss the action, or enter a summary or final judgment’ in any case required 

to be heard by three judges,” but it eschewed such a literalist reading, noting that “we have always recognized 

a single judge’s power to dismiss a complaint for want of 

. . . jurisdiction.” Id. at 96 n. 14 (quoting 28 U.S.C. 

§ 2284(5)). Thus, Gonzalez confirms that a single 

judge’s power to dismiss a case on jurisdictional grounds 

does not turn on the type of jurisdictional question presented, even when, as here, the statute requires threejudge review of an entire “action.” 

The single-judge court’s power to dispose of non-justiciable challenges to BCRA finds further support from 

its important role as a gatekeeper. See Republican 

Party of La., 146 F. Supp. 3d at 8 (explaining that “the 

[single judge’s] role at this stage of the proceedings is to 

determine how and by whom this case will be heard”). 

It is the single-judge court’s responsibility to weed out 

jurisdictionally lacking cases that would otherwise “triple[] the normal cost of a case for the district court,” 

Turner Broad. Sys., Inc. v. FCC, 810 F. Supp. 1308, 1312 

(D.D.C. 1992), and burden the Supreme Court’s docket 

with mandatory review, see Gonzalez, 419 U.S. at 98 (explaining that three-judge judicial review statutes should 

be construed narrowly consistent with the Court’s 

“overriding policy, historically encouraged by Congress, 

of minimizing the mandatory docket of [the Supreme 

Court] in the interests of sound judicial administration”). 

Plaintiffs’ unyielding interpretation of the word “action” would upend this court’s important gatekeeping 

role. For instance, because any “action” challenging 

BCRA’s constitutionality is reviewable “only by appeal 
50a 

directly to the Supreme Court,” see BCRA § 403(a)(3), 

Plaintiffs’ reading would require that the Supreme 

Court assume “mandatory, direct appellate jurisdiction 

in this case” even if this court were to dismiss Plaintiffs’ 

Complaint for lack of standing, see Pls.’ Reply at 10. 

That cannot be squared with the “well settled” rule that 

the “refusal to request the convention of a three-judge 

court, dissolution of a three-judge court, and dismissal 

of a complaint by a single judge are orders reviewable 

in the court of appeals,” not in the Supreme Court. 

Gonzalez, 419 U.S. at 100; see also Turner, 810 F. Supp. 

at 1312 (rejecting an identical construction of the word 

“action” due to the “considerable burdens” it would 

place “on the federal judicial system”). 

In short, Plaintiffs seek to pile more weight on the 

word “action” as it is used in BCRA § 403 than it can 

bear. This court has authority to consider the question 

of Plaintiffs’ standing, which it turns to now. 

2. Plaintiffs’ Standing 

A plaintiff in federal court bears the burden of showing that she meets the “irreducible constitutional minimum” of Article III standing: (1) injury in fact, (2) causation, and (3) redressability. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992). To establish standing 

at the motion to dismiss stage, the plaintiff “must state 

a plausible claim that [she has] suffered an injury in fact 

fairly traceable to the actions of the defendant that is 

likely to be redressed by a favorable decision on the 

merits.” Food & Water Watch, Inc. v. Vilsack, 808 

F.3d 905, 913 (D.C. Cir. 2015) (quoting Humane Soc’y of 

the U.S. v. Vilsack, 797 F.3d 4, 8 (D.C. Cir. 2015)); see 

also Republican Party of La., 146 F. Supp. 3d at 9. 
51a 

Plaintiffs allege a variety of injuries, but the most 

clear-cut is Senator Cruz’s $10,000 financial injury. To 

recap, Senator Cruz loaned his campaign $10,000 more 

than he could legally be repaid using post-election contributions. Compl. ¶ 28. Believing that he had a right 

be repaid with such funds, he declined to pay himself 

back with available pre-election funds and instead used 

those funds to pay back other creditors. Id. ¶ 29. After the 20-day period had elapsed, Senator Cruz’s campaign repaid him the $250,000 maximum using post-election contributions, but it is legally barred from paying 

him back the $10,000 balance. Id. ¶¶ 30-32. 

As a consequence of all this, Senator Cruz is still 

owed $10,000, id. ¶ 32, which is plainly a cognizable injury. Indeed, any financial loss—even if only a “dollar 

or two”—is ordinarily a cognizable injury for standing 

purposes. See Sprint Commc’ns Co., L.P. v. APCC 

Servs., Inc., 554 U.S. 269, 289 (2008). That injury is 

caused by the Loan Repayment Limit, because the Cruz

Committee’s inability to repay the $10,000 balance is due

to the law’s restrictions on the amount of post-election 

contributions a campaign can use to repay a candidate’s

loans. And the injury would be redressed by a favorable

court decision, because, if a three-judge court were to 

strike down the Loan Repayment Limit, the Cruz Committee would solicit additional post-election contributions to pay off Senator Cruz’s loans. See Compl. ¶¶ 32-

33. Senator Cruz has therefore met his burden of plausibly alleging each of the three elements of standing.3

3

 Because Senator Cruz has standing due to his financial injury,

the court does not address Plaintiffs’ other theories of standing. 

See Ams. for Safe Access v. Drug Enf’t Admin., 706 F.3d 438, 443 
52a 

The FEC nevertheless argues that Senator Cruz

lacks standing because, it says, the Senator’s injury is 

self-inflicted. A self-inflicted harm is neither a “cognizable” Article III injury, nor “fairly traceable to the 

defendant’s challenged conduct.” Nat’l Family Planning & Reprod. Health Ass’n, Inc. v. Gonzales, 468 F.3d 

826, 831 (D.C. Cir. 2006). However, to be self-inflicted, 

an injury must be “so completely due to the [plaintiff’s] 

own fault as to break the causal chain.” Petro-Chem 

Processing, Inc. v. EPA, 866 F.2d 433, 438 (D.C. Cir. 

1989) (quoting Wright & Miller, 13A Fed. Prac. & Proc. 

Juris. § 3531.5 (2d ed. 1984)). Plaintiffs’ role in Senator 

Cruz’s injury does not rise to that level.

The FEC’s primary self-infliction argument—that

Senator Cruz caused his own injury by “transparently 

tailor[ing]” the $260,000 loans to bring a challenge to the

Loan Repayment Limit, Defs.’ Mot. at 15, is easily disposed of. It has “long been settled . . . that an individual does not forfeit his standing for jurisdictional 

purposes merely because he is a ‘test’ plaintiff.” 

Gavett v. Alexander, 477 F. Supp. 1035, 1041 (D.D.C. 

1979) (collecting cases). That is because, “if actual[]

adversary interests are involved, deliberate provocation 

of litigation does not defeat the existence of a controversy.” Wright & Miller, 13 Fed. Prac. & Proc. Juris. 

§ 3530 (3d ed. 2019). So long as there is “concrete adverseness” between the parties, see Granfield v. Catholic Univ. of Am., 530 F.2d 1035, 1045 (D.C. Cir. 1976), a 

test case brought by a litigant who has been injured by 

a law he seeks to challenge is no less justiciable than any 

(D.C. Cir. 2013) (explaining that “to proceed to the merits” of a group 

of petitioners’ claims, the court “need only find one party withstanding”).
53a 

other, see Kuehl v. Sellner, 887 F.3d 845, 851 (8th Cir. 

2018) (“[W]hen an individual searches for and finds a violation of the law, it is the violation itself—not the 

search—that causes the plaintiff injury.”).4

 Because 

the parties’ interests here are plainly adverse, the fact 

that Senator Cruz may have made the two loans fully

expecting that the Loan Repayment Limit would inhibit 

his ability to be fully repaid has no bearing on his standing to challenge the law. 

The FEC’s second argument—that Plaintiffs could 

have easily “taken legally available steps to avoid” Senator Cruz’s injury, Defs.’ Mot. at 16—is equally unavailing. Recall that the Loan Repayment Limit gives a

campaign committee two options for paying back a candidate’s personal loans after an election. The committee may either (1) repay up to “the entire amount of the 

personal loans using” pre-election contributions, so long 

as it makes the payment within 20 days of the election, 

11 C.F.R. § 116.11(b)(1), (c)(1), or (2) “repay up to 

$250,000 of the personal loans from” post-election contributions at any time, with any outstanding balance 

above $250,000 converting to a contribution from the 

candidate after the 20-day period expires, id. 

§ 116.11(b)(2), (c)(2). The FEC argues that Senator 

Cruz could have repaid himself with a minimum of 

4

 The only case cited by the FEC in support of its position, J. Roderick MacArthur Foundation v. FBI, 102 F.3d 600 (D.C. Cir. 1996), 

is not to the contrary. That case did not discuss the plaintiffs’ subjective motivations in bringing the lawsuit, and the only alleged 

harm—the risk to privacy associated with the public release of the

plaintiffs’ information—was exclusively the fault of the plaintiffs,

who voluntarily chose to make that information public. Id. at 606. 

Unlike that case, Senator Cruz’s harm is indisputably caused by the

Loan Repayment Limit’s restrictions on how his loans can be repaid.
54a 

$10,000 in pre-election contributions under Option 1, 

which would have enabled him to make himself whole 

with a maximum $250,000 payment using post-election 

funds. By choosing not to make a modest loan payment 

of $10,000 using pre-election funds, the FEC contends, 

Plaintiffs voluntarily chose to subject Senator Cruz to 

an injury under Option 2. Defs.’ Mot. at 16-17. 

The flaw in the FEC’s argument is that it would require Senator Cruz to avoid an injury by subjecting himself to the very framework he alleges is unconstitutional. 

For standing purposes, the court must accept as valid 

the merits of Plaintiffs’ claim, see re U.S. Office of Pers. 

Mgmt. Data Sec. Breach Litig., 928 F.3d 42, 54 (D.C. 

Cir. 2019), meaning the court must assume that the 

Loan Repayment Limit’s restriction on the amount of 

post-election contributions a campaign committee can 

use to repay a candidate’s pre-election loans unconstitutionally burdens free speech, see Compl. ¶¶ 3, 35-41. 

The corollary of this is that Plaintiffs would have the 

right to repay Senator Cruz’s loans in full using postelection contributions. Obligating Plaintiffs to avoid 

the Senator’s injury by repaying at least a portion of the 

loans using pre-election contributions would therefore 

require Senator Cruz to forego exercising a right that 

the court must assume he has, and subject him to the 

very framework that ostensibly unconstitutionally burdens his free speech. 

This principle animated the D.C. Circuit’s recent decision in Libertarian National Committee, Inc. v. FEC, 

where the court rejected an argument that a political 

committee had caused its own injury by refusing to subject itself to the statutory requirement it was challenging. 924 F.3d 533, 536 (D.C. Cir. 2019). In that case, 
55a 

a deceased member of the Libertarian Party had bequeathed more than $200,000 to the Libertarian National Committee (“LNC”)—well above the annual contribution limit of $33,400. Id. at 536. The LNC could 

have accepted the bequest all at once by placing $33,400 

in its general treasury and the rest in segregated accounts that limited the purposes for which the funds 

could be spent, but the committee believed it had a First 

Amendment right to receive the full bequest with no 

strings attached. Id. at 538. Rather than accept the 

money into spending-limited accounts, the LNC deposited the money into escrow, which limited its ability to 

use the money for expressive purposes. See id. at 538-

39. The court rejected the FEC’s argument that the 

LNC inflicted its own injury by failing to accept the entire bequest into segregated accounts, reasoning that 

“the LNC’s injury stems not from its inability to accept 

the entire bequest immediately (which it could have 

done), but rather from the committee’s inability to accept immediately the entire bequest for general expressive purposes (which FECA prohibits).” Id. at 538 

(cleaned up). Thus, as with this case, the LNC had no 

obligation to avoid its injury by subjecting itself to the 

very statutory requirement it claimed to be unconstitutional. 

None of the cases the FEC cites supports the notion 

that to avoid causing her own injury a plaintiff must 

do the very thing she claims she has a right not to do. 

For instance, in Gonzalez, the D.C. Circuit held that a 

plaintiff lacked standing where its purported injury—

uncertainty as to how to comply with a purportedly conflicting statute and regulation—could have easily been 
56a 

resolved by asking the relevant agency to clarify its regulations. 468 F.3d at 831. The plaintiff was not challenging the requirement that it seek clarification, however. Thus, unlike Plaintiffs’ injury here, the Gonzalez 

plaintiff’s “easy means for alleviating the alleged [injury],” id., did not require it to comply with a legal requirement it was challenging. Likewise, in Huron v. 

Berry, the court held that a family lacked standing to 

challenge the federal government’s approval of certain 

health insurance plans for federal employees after the 

family switched to a plan that lacked medical coverage 

the father needed. 12 F. Supp. 3d 46, 47 (D.D.C. 2013). 

The family’s injury was self-inflicted, the court held, because they had chosen to enroll in a plan that lacked the 

needed coverage notwithstanding the fact that there 

were at least seven other federal plans that offered such 

coverage. Id. at 52-53. The family’s decision not to 

enroll in those other plans was based purely on their 

“own economic self-interest,” id. at 53; the family did not 

allege, as Plaintiffs allege here, that they had a constitutional right to enroll in the plan that lacked coverage, 

or that enrolling in any of the other plans would violate 

their rights. 

The FEC makes much of the D.C. Circuit’s decision 

in Stop This Insanity Inc. Employee Leadership Fund 

v. FEC, 761 F.3d 10 (D.C. Cir. 2014), but, as the agency 

conceded at oral argument, that case was not about 

standing. Instead, the court held “on the merits” that 

a corporation that sought to use a functionally obsolete 

type of political action committee to solicit contributions 

and make independent expenditures had no First Amendment right to be free of restrictions on that type of committee when the corporation itself could have engaged 
57a 

in the same activity free of any such restrictions. Id. at 

12-14. The court could not have reached the merits if 

the plaintiffs lacked standing, see Steel Co. v. Citizens 

for a Better Env’t, 523 U.S. 83, 101-02 (1998), which suggests that, as here, a plaintiff does not lack an injury 

simply because there are “less burdensome” and “more 

robust option[s]” to accomplish her desired goals, see 

Stop This Insanity, 761 F.3d at 14. 

In sum, Senator Cruz has plausibly alleged a cognizable, redressable injury that is caused by the Loan Repayment Limit, not by Plaintiffs. 

B. The Constitutional Substantiality of Plaintiff’s 

BCRA Challenges 

The FEC argues that the court should also deny 

Plaintiffs’ application for a three-judge court “for the 

separate and independent reason that plaintiffs have 

failed to ‘present a substantial [constitutional] claim.’” 

Defs.’ Mot. at 25 (quoting Republican Party of La., 146 

F. Supp. 3d at 8). The court disagrees.

“[A] district judge need not unthinkingly initiate the 

procedures to convene a three-judge court without first 

examining the allegations in the complaint” and determining whether it has jurisdiction over the action. 

Shapiro, 136 S. Ct. at 455. A challenge to BCRA fails 

to implicate federal subject-matter jurisdiction, thereby 

precluding federal judicial review, when the constitutional claim is “wholly insubstantial and frivolous.” Id. 

(quoting Bell v. Hood, 327 U.S. 678, 682-683 (1946)). 

“[T]he exception for insubstantial claims is narrow,” 

however. Independence Institute, 816 F.3d at 116. 

“It applies only when the case is ‘essentially fictitious, 

wholly insubstantial, obviously frivolous, and obviously 
58a 

without merit.’” Id. (quoting Shapiro, 136 S. Ct. at 

456). Plaintiffs’ constitutional challenges to BCRA are 

not so lacking as to fail to clear this low bar. 

Plaintiffs’ main constitutional concern with the Loan 

Repayment Limit is straightforward: “[B]y bar[r]ing 

the repayment of candidate loans greater than $250,000 

from money raised after the election,” they argue, “the 

[Loan Repayment Limit] necessarily increases the risk 

that these loans will not be repaid in full, or perhaps at 

all.” Pls.’ Reply at 15-16. This has the effect, Plaintiffs continue, of “deterring a candidate from making 

loans in excess of $250,000,” thereby “directly burdening his First Amendment right ‘to speak without legislative limit on behalf of his own candidacy.’” Id. (quoting Buckley v. Valeo, 424 U.S. 1, 54 (1976)). The FEC 

responds that Plaintiffs’ constitutional argument is 

“wholly insubstantial” because the Loan Repayment 

Limit “merely sets conditions on a candidate having his 

or her loans repaid, which is not a constitutional right at 

all,” and that even if the Limit did burden a candidate’s 

free speech, it would be justified by the government’s 

compelling interest in preventing corruption. See 

Defs.’ Mot. at 26-27.

The FEC has not shown that Plaintiffs’ argument is 

“frivolous or . . . so settled by precedent as to be 

beyond controversy.” Republican Party of La., 146 

F. Supp. 3d at 13. Indeed, the FEC has not identified 

any case law specifically holding that the type of indirect 

burden on a candidate’s ability to freely loan to his campaign identified by Plaintiffs does not implicate the First 

Amendment’s protections on political speech. Nor has 

the FEC shown that any speech burdens that the Loan 
59a 

Repayment Limit places on candidates would unequivocally survive constitutional scrutiny. Thus, while the 

argument “may or may not prevail on the merits,” Plaintiffs are entitled to make that case before a three-judge 

court. Independence Institute, 816 F.3d at 117. 

Plaintiffs also argue that the Loan Repayment Limit 

unconstitutionally burdens the First Amendment rights 

of committees and potential contributors, Pls.’ Reply at 

20-23, and the FEC contends that these claims are similarly insubstantial, Defs.’ Mot. at 33-35. The court 

need not address these arguments, however. Since 

Plaintiffs have advanced “at least one argument . . . 

that is not essentially fictitious, wholly insubstantial, obviously frivolous, and obviously without merit, the case 

must proceed to a three-judge court.” Independence 

Institute, 816 F.3d at 117 (internal quotation marks 

omitted). 

C. Whether Plaintiffs’ Challenges to the FEC’s 

Implementing Regulations May Be Heard by a 

Three-Judge Court

Finally, the FEC argues that the court should decline 

Plaintiffs’ request to convene a three-judge court with 

respect to Plaintiffs’ claims challenging the FEC’s implementing regulations because, it insists, a three-judge 

court would have no authority to rule on those claims. 

That is incorrect; if appropriate, a three-judge court 

could exercise supplemental jurisdiction over Plaintiffs’ 

challenges to the FEC’s regulations.

It has long been understood that in cases involving a 

claim that must be heard by a three-judge court, that 

court “has power to decide other claims in the case that, 

standing alone, would require only a single judge.” See 
60a 

Wright & Miller, 17A Fed. Prac. & Proc. Juris. § 4235 

(3d ed. 2019) (collecting cases); see also 28 U.S.C. 

§ 1367(a) (granting district courts supplemental jurisdiction “over all other claims that are so related to 

claims in the action within such original jurisdiction that 

they form part of the same case or controversy”). In 

Zemel v. Rusk, for instance, the Supreme Court held 

that a three-judge court properly exercised jurisdiction 

over a claim that the Secretary of State was acting in 

excess of his statutory authority because the complaint 

also included a substantial constitutional challenge to 

the enabling statutes themselves. 381 U.S. 1, 5 (1965). 

The Court rejected the government’s argument that the 

three-judge court was improperly convened, holding 

that the “joining in the complaint of a nonconstitutional 

attack along with the constitutional one does not dispense with the necessity to convene [a three-judge] 

court.” Id. at 6 (quoting Fla. Lime & Avocado Growers, Inc. v. Jacobsen, 362 U.S. 73, 80 (1960)). Likewise, 

in Allee v. Medrano, the court reiterated that a threejudge court “could properly consider” a challenge that 

raised claims not covered by the three-judge statute because it had “jurisdiction ancillary to that conferred by 

the constitutional attack . . . which plainly required 

a three-judge court.” 416 U.S. 802, 812 (1974). 

The FEC argues that the Supreme Court’s decision 

in McConnell v. FEC, 540 U.S. 93 (2003), compels a different result, see Defs.’ Reply in Supp. of its Mot. to Dismiss for Lack of Subject-Matter Jurisdiction, ECF No. 

32 [hereinafter Defs.’ Reply], at 9-10, but the agency 

misreads that case. The McConnell plaintiffs had 

raised vagueness and overbreadth challenges to a new 

provision of BCRA that directed the FEC to issue new 
61a 

regulations regarding non-candidates’ expenditures in 

support of a candidate. 540 U.S. at 220. The FEC issued its regulations only after oral argument and briefing had completed, however, and the plaintiffs never 

amended their complaints to challenge the regulations 

themselves. See McConnell v. FEC, 251 F. Supp. 2d 

176, 261-62 (D.D.C. 2003); see generally Docket Nos.

1:02-cv-00583-CKK-RJL; 1:02-cv-00751-CKK-RJL; 

1:02-cv-00754-CKK; 1:02-cv-00754-CKK-RJL. The 

three-judge district court held that the challenge was

unripe because the plaintiffs had not directly challenged 

the regulations, and the court did “not know to what extent the regulations have clarified the vagueness Plaintiffs contend would chill their rights.” McConnell, 251 

F. Supp. at 262.5

 On appeal, “portions of plaintiffs’ 

challenge . . . focus[ed] on the regulations” themselves, and the Supreme Court rejected those arguments, explaining that “issues concerning the regulations are not appropriately raised in this facial challenge 

to BCRA, but must be pursued in a separate proceeding.” McConnell, 540 U.S. at 223. Accordingly, the 

Court agreed with the district court that, “to the extent 

that the alleged constitutional infirmities are found in 

the implementing regulations rather than the statute itself,” plaintiffs’ challenge to the provision was unripe. 

Id.

The FEC seizes on the Supreme Court’s statement

that “issues concerning the regulations . . . must be 

5

 The district court also noted that BCRA’s jurisdictional grant 

“does not extend to the consideration of FEC regulations,”

McConnell, 251 F. Supp. 2d at 258, but that statement was dicta because the court was not confronted with a challenge to an FEC regulation.
62a 

pursued in a separate proceeding,” see Defs.’ Reply at 

10 (alterations in FEC’s brief), but it omits the Court’s 

clarification that those issues were not appropriately

raised “in this facial challenge”—not all facial challenges to BCRA. McConnell, 540 U.S. at 223 (emphasis added). Any challenges to the regulations were not 

appropriately raised in McConnell for the simple reason 

that the plaintiffs had not challenged the regulations in 

their complaints. The Supreme Court thus could not 

have been overruling its decades-old rule that a threejudge court may assume jurisdiction over a supplemental claim, nor creating an exception to that rule under BCRA, when there was no such supplemental claim 

to begin with.6

The FEC responds that supplemental jurisdiction

under BCRA § 403 would be incompatible with 52 U.S.C. 

§ 30110, another special judicial review provision in 

FECA. See Defs.’ Reply at 10. Because that provision requires that constitutional challenges to nonBCRA provisions of FECA be certified directly to the

en banc D.C. Circuit, the FEC fears that allowing supplemental jurisdiction in a BCRA challenge would mean 

6

 The district court in Bluman v. FEC—cited by the FEC in support of its position—also read McConnell as holding that regulatory

challenges are “not appropriately raised in [a] facial challenge to 

BCRA.” 766 F. Supp. 2d 1,4 (D.D.C. 2011) (alterations in original). 

This court is not, of course, bound by that decision. As discussed,

McConnell’s holding that the back door regulatory challenges raised

by the plaintiffs on appeal were not appropriately raised in “this facial challenge to BCRA” was confined to the facts of that case; the

statement had nothing to do with whether a three-judge court has 

supplemental jurisdiction to hear non-constitutional claims alongside a BCRA claim.
63a 

that a constitutional challenge to FECA, brought alongside a constitutional challenge to BCRA, would have to 

be heard simultaneously by the D.C. Circuit and a threejudge district court. The FEC misconstrues the nature of supplemental jurisdiction, however. Supplemental jurisdiction is not required when “expressly provided otherwise by Federal statute,” or when “there are 

other compelling reasons for declining jurisdiction.” 

28 U.S.C. § 1367(a), (c)(4). These exceptions would 

surely excuse a three-judge court from exercising supplemental jurisdiction over claims for which the D.C.

Circuit had exclusive jurisdiction.7

Finally, the FEC argues that supplemental jurisdiction is inappropriate because Plaintiffs’ regulatory 

claims are insufficiently related to their constitutional 

claims. See Defs.’ Reply at 10-11. That argument is

dubious, as the challenged regulations implement Section 304 of BCRA. In any event, the issue is one better 

left for the three-judge panel to resolve in the discretionary exercise of its supplemental jurisdiction. 

7

 That said, this potential statutory conflict illuminates why Plaintiffs’ alternate theory—that any claim that is part of an “action” that 

includes a constitutional challenge to BCRA challenge must be 

heard by the three-judge court, see Pls.’ Reply at 29-32—is incorrect. 

Such mandatory three-judge jurisdiction over all claims accompanying a BCRA constitutional claim—even claims utterly unrelated to 

BCRA—would directly conflict with 52 U.S.C. § 30110, see Wagner 

v. FEC, 717 F.3d 1007, 1011-12 (D.C. Cir. 2013) (explaining that section 30110 “deprive[s] both the district court and panels of the court 

of appeals of authority to hear the merits of constitutional challenges 

to the provisions of FECA”), and would impose untenable burdens 

on the courts, see Turner, 810 F. Supp. at 1312 (rejecting a similar 

argument due to its potential “burdens on both lower federal courts 

and the Supreme Court”).
64a 

IV. CONCLUSION AND ORDER 

For the foregoing reasons, the court grants Plaintiffs’ Application for a Three-Judge Court, ECF No. 2, 

and denies the FEC’s Motion to Dismiss, ECF No. 25. 

As required under 28 U.S.C. § 2284(b)(1), the Clerk of 

Court shall, on behalf of this court, notify the Chief 

Judge of the D.C. Circuit for assignment of this matter 

to a three-judge district court. 

Dated: Dec. 24, 2019 

 /s/ AMIT P. MEHTA 

AMIT P. MEHTA

 United States District Court Judge
65a 

APPENDIX F

1. 52 U.S.C. 30116(j) provides:

Limitations on contributions and expenditures

(j) Limitation on repayment of personal loans

Any candidate who incurs personal loans made after 

the effective date of the Bipartisan Campaign Reform 

Act of 2002 in connection with the candidate’s campaign 

for election shall not repay (directly or indirectly), to the 

extent such loans exceed $250,000, such loans from any 

contributions made to such candidate or any authorized 

committee of such candidate after the date of such election.

2. Section 403(a) and (d), Bipartisan Campaign Reform Act, Pub. L. No. 107-155, 116 Stat. 113-114 provides:

SEC. 403. JUDICIAL REVIEW.

(a) SPECIAL RULES FOR ACTIONS BROUGHT ON 

CONSTITUTIONAL GROUNDS.—If any action is brought 

for declaratory or injunctive relief to challenge the constitutionality of any provision of this Act or any amendment made by this Act, the following rules shall apply: 

(1) The action shall be filed in the United States 

District Court for the District of Columbia and shall 

be heard by a 3-judge court convened pursuant to 

section 2284 of title 28, United States Code.

(2) A copy of the complaint shall be delivered 

promptly to the Clerk of the House of Representatives and the Secretary of the Senate.
66a 

(3) A final decision in the action shall be reviewable only by appeal directly to the Supreme Court of 

the United States. Such appeal shall be taken by the 

filing of a notice of appeal within 10 days, and the filing of a jurisdictional statement within 30 days, of the 

entry of the final decision.

(4) It shall be the duty of the United States District Court for the District of Columbia and the Supreme Court of the United States to advance on the 

docket and to expedite to the greatest possible extent 

the disposition of the action and appeal.

* * * * * 

(d) APPLICABILITY.— 

(1) INITIAL CLAIMS.—With respect to any action 

initially filed on or before December 31, 2006, the 

provisions of subsection (a) shall apply with respect 

to each action described in such section.

(2) SUBSEQUENT ACTIONS.—With respect to any 

action initially filed after December 31, 2006, the provisions of subsection (a) shall not apply to any action 

described in such section unless the person filing 

such action elects such provisions to apply to the action.
67a 

3. 11 C.F.R. 116.11 provides:

Restriction on an authorized committee’s repayment of 

personal loans exceeding $250,000 made by the candidate 

to the authorized committee.

(a) For purposes of this part, personal loans mean a 

loan or loans, including advances, made by a candidate, 

using personal funds, as defined in 11 CFR 100.33, to his 

or her authorized committee where the proceeds of the 

loan were used in connection with the candidate’s campaign for election. Personal loans also include loans 

made to a candidate’s authorized committee that are endorsed or guaranteed by the candidate or that are secured by the candidate’s personal funds.

(b) For personal loans that, in the aggregate, exceed 

$250,000 in connection with an election, the authorized 

committee:

(1) May repay the entire amount of the personal 

loans using contributions to the candidate or the candidate’s authorized committee provided that those contributions were made on the day of the election or before;

(2) May repay up to $250,000 of the personal loans 

from contributions made to the candidate or the candidate’s authorized committee after the date of the election; and

(3) Must not repay, directly or indirectly, the aggregate amount of the personal loans that exceeds $250,000,

from contributions to the candidate or the candidate’s 

authorized committee if those contributions were made 

after the date of the election.
68a 

(c) If the aggregate outstanding balance of the personal loans exceeds $250,000 after the election, the authorized political committee must comply with the following conditions:

(1) If the authorized committee uses the amount of 

cash on hand as of the day after the election to repay all 

or part of the personal loans, it must do so within 20 days 

of the election.

(2) Within 20 days of the election date, the authorized 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.

(3) The candidate’s principal campaign committee 

must report the transactions in paragraphs (c)(1) and

(c)(2) of this section in the first report scheduled to be 

filed after the election pursuant to 11 CFR 104.5(a) or 

(b).

(d) This section applies separately to each election.