FEDERAL ELECTION COMMISSION

 WASHINGTON, D.C. 20463

MEMORANDUM

TO: The Commission

FROM: Neven Stipanovic 

Acting Associate General Counsel

Policy Division 

Lorenzo Holloway 

Assistant General Counsel

Compliance Advice 

Danita Alberico

Attorney

SUBJECT: Request for Consideration of Legal Questions submitted by Mike Braun for 

Indiana (LRA 1096) 

 Mike Braun for Indiana, the principal campaign committee of Senator Mike Braun, 

(“Committee”), filed a Request for Consideration of Legal Questions addressing a determination 

by the Reports Analysis Division that the Committee may not repay Braun’s loans exceeding 

$250,000 more than 20 days after the primary election.

1

 Attachment. We recommend that the 

Commission should similarly conclude here that the Committee may not repay Braun in excess 

of $250,000 more than 20 days after an election because the loans were Braun’s personal loans. 

The Committee disclosed Braun as the source of $4,584,800 in loans to the Committee 

and reported that Braun had borrowed those funds from three commercial lending institutions 

1 The Reports Analysis Division’s determination was based on informal advice from the Office of General 

Counsel. The Committee subsequently submitted this request according to a Commission policy that allows persons 

and entities to have a legal question considered by the Commission in the report review process and the audit 

process. See Policy Statement Regarding a Program for Requesting Consideration of Legal Questions by the 

Commission, 81 Fed. Reg. 29861 (May 13, 2016). At least two Commissioners agreed to consider this request as 

required by this policy. Id. 

May 23, 2019

DA by JW

LH by JW
Memorandum to Commission

Mike Braun for Indiana - LRA 1096

Page 2 of 5 

based on his credit worthiness and net worth. The Committee repaid Braun $1,064,639, but it 

did so more than 20 days after the primary election. 

The Committee contends that the repayment was permissible because Braun used 

proceeds from personal lines of credit that did not require a security interest or a guarantor. 

Thus, according to the Committee, the line of credit proceeds were not Braun’s “personal loans”

under 11 C.F.R. § 116.11(a). Id. The Committee also contends that the statutory and regulatory 

requirement that committees must repay candidates exceeding $250,000 within 20 days of an 

election is unconstitutional because the requirements significantly impede a candidate’s ability to 

use personal assets to pursue a political campaign and severely burden a candidate’s First 

Amendment rights. Attachment at 5.2

 As described below, the Commission should reject both 

of these arguments.

I. THE COMMISSION SHOULD CONCLUDE THAT THE LOANS ARE

BRAUN’S “PERSONAL LOANS” AND THUS ARE SUBJECT TO THE 

REPAYMENT PROVISIONS AT 11 C.F.R. 116.11(a) 

The Federal Election Campaign Act of 1971, as amended (“FECA”), prohibits an 

authorized committee from using contributions made after the date of the election to repay any 

amount of a candidate’s personal loan over $250,000. 52 U.S.C. § 30116(j). Commission 

regulations further provide that authorized committees must repay personal loans of a candidate 

that exceed $250,000 within 20 days of the election. 11 C.F.R. § 116.11(c)(1). A personal loan 

includes “advances, made by a candidate, using personal funds, as defined in 11 C.F.R. § 

100.33,” and loans that are “endorsed or guaranteed by the candidate or that are secured by the 

candidate’s personal funds.” Id. The Commission explained that “[t]his definition ensures that 

loans to authorized committees that are used in connection with the candidate’s campaign for 

election, for which the candidate is personally liable, are subject to the provisions of 11 C.F.R. § 

116.11.” 68 Fed. Reg. 3970, 3973 (Jan. 27, 2003). Thus, a bank loan for which the candidate is 

“personally liable” would be a “personal loan” for purposes of this regulation. 

The Committee acknowledges that Braun was “the borrower” on the loans, see

Attachment at 4, and the Committee reported that the basis on which the loans were made and 

“on which it assures repayment” was Braun’s own credit worthiness and net worth. Mike Braun 

for Indiana, July 2018 Quarterly, Schedule C-1. These facts demonstrate that Braun was 

personally liable for their repayment. 

 

2

 Commission policy allows OGC to seek informal resolution of requests for legal consideration “in 

situations where the information related to or generated in the request reveals information that could potentially 

result in the informal resolution of the matter, without using additional Commission resources to submit the request 

formally through the entire Program.” See Policy Statement Regarding a Program for Requesting Consideration of 

Legal Questions by the Commission, 81 Fed. Reg. 29861 (May 13, 2016). Because the Committee challenges the

constitutionality of the candidate loan repayment requirements, no new information is likely to be revealed. OGC 

accordingly has declined to seek an informal resolution with the Committee. 
Memorandum to Commission

Mike Braun for Indiana - LRA 1096

Page 3 of 5 

The Committee argues that Braun did not endorse, guarantee, or secure those lines of 

credit.

3

 Attachment at 4. More specifically, in arguing that Braun did not guarantee the loans, 

the Committee relies on a business dictionary definition of a “guarantor” that implies liability of 

a person in a three-party agreement. Id. Commission regulation 11 C.F.R. § 116.11, however, 

applies specifically to loans “guaranteed by the candidate.” A “guarantee” is defined in Black’s 

Law Dictionary simply as “[t]he assurance that a contract or legal act will be duly carried out.” 

Guarantee, BLACK’S LAW DICTIONARY (9th ed. 2009). Here, the loans were reportedly obtained 

on the basis of assurances provided by Braun that the contractual obligation to repay the loans 

will be duly carried out. On the basis of these assurances, Braun was personally liable for the 

loans. 

Because Braun was personally liable for the loans, the Commission should treat the loans 

as “personal loans” of the candidate under 11 C.F.R. § 116.11. As such, the Commission should 

also conclude that the Committee may not repay Braun in excess of $250,000 more than 20 days 

after the primary election. 

II. THE COMMISSION SHOULD REJECT THE COMMITTEE’S ARGUMENT 

THAT THE LOAN REPAYMENT REQUIREMENTS ARE 

UNCONSTITUTIONAL

The Committee asks the Commission to determine whether the candidate loan repayment 

requirements at 52 U.S.C. § 30116(j) and 11 C.F.R. § 116.11 are constitutional and enforceable 

given the U.S. Supreme Court’s holdings and reasoning in Davis v. Federal Election 

Commission, 554 U.S. 724 (2008). Attachment at 1. The Committee contends that the statute 

and Commission regulation are unconstitutional and unenforceable because, in their view, they 

significantly restrict Braun’s use of his personal assets in support of his campaign and thus 

impose a severe burden on his First Amendment rights. Id. at 5. The Committee argues that 

Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), supports its contentions 

 

3

 The Committee suggests that a candidate’s personal line of credit with a commercial lender is not subject to 

section 116.11 because such lines of credit are not “personal funds” of a candidate as defined in 11 C.F.R. § 100.33. 

See Attachment at 2 (citing to the Audit Division Recommendation Memorandum on Ted Cruz for Senate (2012)

(“Cruz Audit”)). Section 116.11, however, defines “personal loans” more broadly to include advances using 

candidate’s “personal funds” under section 100.33 and loans “that are endorsed or guaranteed by the candidate or 

that are secured by the candidate’s personal funds.” The Committee’s reliance on the Cruz Audit on this point is 

misguided. That audit considered how candidate loans must be reported under 11 C.F.R. § 104.3(d), and concluded 

that the personal line of credit should be reported separately from other “personal funds.” See Final Audit Report of 

the Commission on Ted Cruz for Senate (Jun. 22. 2017). The Commission, however, did not conclude, as a legal 

matter, that the proceeds from the lines of credit could not be used as source for “personal loans” under 11 C.F.R. § 

116.11(a). Indeed, the Commission found that the Cruz Committee failed to comply with 11 C.F.R. § 116.11(c) 

because it failed to convert the outstanding balance of the candidate’s personal loan to a contribution from the 

candidate although the original source of the candidate’s personal loan was proceeds from a line of credit. Final 

Audit Report of the Commission on Ted Cruz for Senate (Jun. 22. 2017); see Memorandum from Office of General 

Counsel to Audit Division on Resubmitted Draft Final Audit Report on Ted Cruz for Senate (January 17, 2017) 

(explaining that Senator Cruz’s line of credit could be a source for a personal loan under 11 C.F.R. § 116.11(a) as 

long as the candidate is personally liable for the line for credit); see also MUR 7455 (Cruz For Senate) (enforcement 

matter arising, in part, out of referral from audit report).
Memorandum to Commission

Mike Braun for Indiana - LRA 1096

Page 4 of 5 

because the Supreme Court’s holding reiterated that burdens on the First Amendment should not 

depend on the speaker’s personal wealth and invalidated the differential treatment of 

corporations. Id. The Committee suggests that the integrity of federal elections could be 

maintained by adopting less burdensome disclosure requirements as noted in McCutcheon v. 

Federal Election Commission, 572 U.S. 185 (2014). 4 Id. at 6. 

The Commission should reject the Committee’s constitutional argument. The provision 

at 52 U.S.C. § 30116(j) is a duly enacted law of Congress and no court has undermined or 

otherwise questioned the legal validity of section 30116(j) or its application to issues presented 

here. In the absence of a court decision finding section 30116(j) unconstitutional, the 

Commission lacks the authority to make an administrative determination premised on an act of 

Congress being considered unconstitutional. See Johnson v. Robinson, 415 U.S. 361, 368 (1974) 

(adjudication of constitutionality is generally outside an administrative agency's authority); 

Robertson v. FEC, 45 F.3d 486, 489 (D.C. Cir. 1995) (noting, in the context of the Commission's 

administrative enforcement process, that "[i]t was hardly open to the Commission, an 

administrative agency, to entertain a claim that the statute which created it was in some respect 

unconstitutional"); Advisory Opinion 2018-07 (Mace) at 5. As the Commission has previously 

recognized in other contexts, "[b]ecause no court has invalidated the [statutory] limitation ... on 

constitutional grounds, we are required to give the[] provision[] full force." Advisory Opinion 

2012-32 (Tea Party Leadership Fund et al.) at 3; cf Advisory Opinion 2011-12 (Majority PAC et 

al.) at 4 (declining to interpret the Supreme Court's decision in Citizens United v. FEC, 558 U.S. 

310 (2010), as a basis for not applying statutory contribution limits that were not considered in 

that case). 

The Committee inquires about the constitutionality of not only the statutory limitation on 

repayment of personal loans, but also the Commission’s interpretation of it at 11 C.F.R. § 

116.11. The Commission previously considered the issue and retained the regulation after

concluding that Davis did not invalidate the personal loan provision. The Commission should 

reach a similar conclusion here. Section 116.11 was promulgated as part of rules implementing 

sections 304 and 319 of the Bipartisan Campaign Reform Act of 2002, known as the 

“Millionaires’ Amendment.” While Davis v. Federal Election Commission held that the 

Millionaires’ Amendment was unconstitutional, the Commission concluded that 11 C.F.R. § 

116.11 was not invalidated because the Court in Davis did not address the validity of the 

personal loan provision and because the provision has wider application than, and “can operate 

effectively without,” the Millionaires’ Amendment. See Repeal of Increased Contribution and 

Coordinated Party Expenditure Limits for Candidates Opposing Self-Financed Candidates, 73 

Fed. Reg. 79597, 79600 (Dec. 30, 2008); see also Advisory Opinion 2008-09 (Lautenberg) 

(concluding that section 116.11 applied to the proposed personal loan repayment because Davis

did not address the constitutionality of 116.11). For the same reasons, the Commission should 

conclude that 11 C.F.R. § 116.11 remains constitutional and enforceable. 

 

4

 Similar contentions have been raised in Cruz, et. al v. Federal Election Commission, Civil Action No. 19-

908 (U.S. District Court for the District of Columbia) (filed Apr. 1, 2019). We note that the litigation does not arise 

out of any determination or finding that the Commission made in the Ted Cruz for Senate Final Audit Report or 

MUR 7455.
Memorandum to Commission

Mike Braun for Indiana - LRA 1096

Page 5 of 5 

III. RECOMMENDATIONS

We recommend that the Commission conclude that the Committee may not repay the 

Candidate in excess of $250,000 more than 20 days after the primary election. We also 

recommend that the Commission reject the Committee’s argument that the candidate loan 

repayment requirements are unconstitutional. 

Attachment: 

Request for Legal Consideration from Mike Braun for Indiana, et. al, dated April 23, 2019 
BEFORE THE FEDERAL ELECTION COMMISSION

In the Matter of ) 

Mike Braun; ) 

Mike Braun for Indiana; ) 

Travis Kabrick, ) 

in his official capacity as Treasurer. ) 

 

INTRODUCTION

Through counsel, Mike Braun, Mike Braun for Indiana, and Travis Kabrick, in his 

official capacity as Treasurer, (collectively, “Filer”) are seeking the Commissioners’ 

consideration of genuine material questions of law pursuant to the Federal Election 

Commission’s (“FEC” or “Commission”) Permanent Program for Requesting Consideration 

of Legal Questions by the Commission established by the Commission in 76 Fed. Reg. 45798 

(August 1, 2011). Specifically, the Filer requests the Commissioners’ guidance regarding two 

questions: 

1. Are the proceeds from Mr. Braun’s personal lines of credit, pursuant to the facts 

provided herein, “personal loans” to Mike Braun for Indiana under 11 C.F.R. § 

116.11(a)? 

2. Is the $250,000 post-election loan-repayment limitation, which was codified by 

Congress in 52 U.S.C. § 30116(j) and interpreted by the Commission in 11 C.F.R. § 

116.11, a constitutional and enforceable limitation given the U.S. Supreme Court’s 

precedential holdings and reasoning in Davis v. Federal Election Commission, 

Citizens United v. Federal Election Commission, and McCutcheon v. Federal Election

Commission? 

BACKGROUND

 Mike Braun was elected to the U.S. Senate in 2018, and Mike Braun for Indiana is his 

authorized candidate committee. Prior to becoming a candidate for federal office, Mr. Braun 

obtained personal lines of credit from three commercial lending institutions that did not 

require a security interest or a guarantor. 

 During the 2018 election cycle, Mr. Braun utilized the personal lines of credit for the 

purpose of using the proceeds in connection with his candidacy. It is the undersigned 

counsel’s understanding that the various banks were notified at this time that Mr. Braun 

intended to use the funds in connection with his candidacy. Pursuant to the Commission’s 

Attachment 

Page 1 of 6
 Request for Consideration of Legal Questions 

 April 23, 2019 

 Page 2 of 6 

guidance and previous precedents, such as the Audit Division Recommendation 

Memorandum on Ted Cruz for Senate, the lines of credit do not constitute Mr. Braun’s 

“personal funds” because the funds were borrowed from commercial lenders. Mike Braun 

for Indiana then itemized these lines of credit on its subsequent campaign-finance reports 

and provided all required transaction details in accordance with the Federal Election 

Campaign Act of 1971, as amended, (“the “Act”), and FEC regulations. 

 On December 25, 2018, the FEC’s Reports and Analysis Division sent the Filer a series 

of Requests for Additional Information (“RFAIs”), which presumptively assumed that the 

lines of credit were “personal loans” subject to the $250,000 post-election loan-repayment 

limitation. The Filer, through counsel, subsequently conveyed its belief that the proceeds 

from the lines of credit should not be considered “personal loans,” as that term is plainly 

defined in 11 C.F.R. § 116.11(a), because they were neither (i) “made by [the] candidate” nor 

(ii) “made by other persons to the authorized committees that are endorsed or guaranteed 

by the candidate or that are secured by the personal funds of the candidate.” 

 On or about April 2, 2019, the Filer’s counsel spoke with an attorney in the FEC’s 

Office of General Counsel (“OGC”) via telephone. During that conversation, the OGC attorney 

conveyed OGC’s position that the lines of credit were “secured” by Mr. Braun because they 

were approved by the banks in light of Mr. Braun’s extensive credit history with them. This 

position led OGC to conclude that there was at least a de facto personal guarantee of the 

loans. The OGC attorney then informed the Filer’s counsel that the Filer had 15 business days 

(i.e., April 23, 2019) to seek the Commissioners’ consideration of legal questions pursuant to 

76 Fed. Reg. 45798 (August 1, 2011). 

QUESTIONS PRESENTED

1. Are the proceeds from Mr. Braun’s personal lines of credit, pursuant to the facts

provided herein, “personal loans” to Mike Braun for Indiana under 11 C.F.R. §

116.11(a)?

The Filer’s belief that the proceeds from the lines of credit should not be considered 

“personal loans” is based on a plain reading of 11 C.F.R. § 116.11(a), entitled “Restriction on 

an authorized committee’s repayment of personal loans exceeding $250,000 made by the 

candidate to the authorized committee.” That regulation states:

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. 

Attachment 

Page 2 of 6
 Request for Consideration of Legal Questions 

 April 23, 2019 

 Page 3 of 6 

Furthermore, the FEC’s 2003 Explanation and Justification1 for this particular 

regulation states: 

The interim final rules define ‘‘personal loans’’ in paragraph (a) of 11 CFR 

116.11. The definition includes not only loans made by candidates to their 

authorized committees, but also loans made by other persons to the 

authorized committees that are endorsed or guaranteed by the candidate or 

that are secured by the personal funds of the candidate. This definition ensures 

that loans to authorized committees that are used in connection with the 

candidate’s campaign for election, for which the candidate is personally liable, 

are subject to the provisions of 11 CFR 116.11. It is important to note that new 

11 CFR 116.11 applies to all loans made, endorsed, or guaranteed by 

candidates regardless of whether the other provisions of the Millionaires’ 

Amendment are triggered, i.e., the increased contribution limits. 

Therefore, if loans are neither (i) “made by [the] candidate” nor (ii) “made by other 

persons to the authorized committees that are endorsed or guaranteed by the candidate or 

that are secured by the personal funds of the candidate,” then the loans do not constitute 

“personal funds” under a plain reading of the regulation. 

It is important to recognize that the terms “secured,” “guarantor,” and “endorser” are 

not separately defined by the Act or Commission regulations; however, they are universally 

understood terms of art in the legal and business professions. For example: 

 Black’s Law Dictionary defines “secured” as “a credit, obligation of loan that is 

guaranteed by a pledge of an item of greater or equal value on liquidation.” 

 BusinessDictionary.com similarly defines “secured” as any “credit, loan, or obligation 

whose full payment or satisfaction is guaranteed by the pledge of something of equal 

or greater liquidation value.” 

 Black’s Law Dictionary defines “guarantor” as “he who makes a guaranty.” A 

“guaranty” is defined by Black’s as “to undertake collaterally to answer for the 

payment of another’s debtor the performance of another’s duty, liability, or 

obligation; to assume the responsibility of a guarantor; to warrant.” 

 Gilbert’s Law Dictionary defines “guarantor” as “a person who gives a guaranty. A 

person who is secondarily liable for another’s obligation or debt as established by 

contract.” A “guaranty” is defined by Gilbert’s as “a promise or pledge to fulfill 

another’s obligation in case of that person’s default upon that obligation; an 

agreement to be secondarily liable for the debt(s) of another upon that person’s 

default on that debt.” 

                                                            

1 https://www.fec.gov/resources/legalresources/rulemakings/nprm/millionaire_amend/fr68n017p03969.pdf

Attachment 

Page 3 of 6
 Request for Consideration of Legal Questions 

 April 23, 2019 

 Page 4 of 6 

 BusinessDictionary.com similarly defines “guarantor” as a “person or firm that 

endorses a three-party agreement to guarantee that promises made by the first party 

(the principal) to the second party (client or lender) will be fulfilled, and assumes 

liability if the principal fails to fulfill them (defaults).” 

 Gilbert’s Law Dictionary defines “endorsement” as an “act of signing the back of a 

negotiable instruction to transfer it entirely to another person,” so an “endorser” is 

presumably a person who make an endorsement. 

 BusinessDictionary.com similarly defines “endorser” as a “person or firm who, by 

signing a negotiable instrument, transfers the title of the instrument (or the property 

named therein) to another.” 

To be clear, in the instant case, Mr. Braun was simply the borrower. He did not secure 

the lines of credit, did not guarantee the lines of credit, and did not endorse the lines of credit 

as any of those three terms are generally understood. 

Notwithstanding the foregoing, OGC has taken the position that the lines of credit 

were “secured” by Mr. Braun because they were approved by the banks in light of Mr. Braun’s 

extensive credit history with them, which led OGC to conclude that there was at least a de 

facto personal guarantee of the loans. While the Filer might ordinarily defer to OGC’s 

interpretation of the Commission’s regulations, this far-reaching interpretation—which 

apparently requires the Commission to guess what a commercial lender’s state of mind 

was—is not supported by (i) the universally understood definitions of “secured” or 

“guarantor,” (ii) the plain language of 11 C.F.R. § 116.11(a), which was adopted pursuant to 

the Administrative Procedures Act, or (iii) the detailed analysis contained in the FEC’s 2003 

Explanation and Justification for this regulation. 

Such regulations are adopted pursuant to the Administrative Procedures Act (“APA”) 

with the following purposes in mind: 

 To require agencies to keep the public informed of their organization, procedures, 

and rules; 

 To provide for public participation in the rulemaking process (e.g., through public 

commenting); 

 To establish uniform standards for the conduct of formal rulemaking and 

adjudication; and 

 To define the scope of judicial review. 

The Commissioners’ adoption of OGC’s far-reaching position in this matter would 

seemingly violate the APA, as it requires the Commission to ignore the universally 

Attachment 

Page 4 of 6
 Request for Consideration of Legal Questions 

 April 23, 2019 

 Page 5 of 6 

understood definitions of “secured” and/or “guarantor,” as well as the plain language of 11 

C.F.R. § 116.11(a), to create a new “de facto” category of secured loans that is based, at least 

in part, on speculation of the commercial lender’s intent. Furthermore, finding that the Filer 

violated the $250,000 post-election loan-repayment limit because the Commission has 

introduced a new definition of “secured” or “guarantor” would certainly violate the Filer’s 

due process rights. 

Therefore, for the foregoing reasons, the Filer is seeking the Commissioners’ 

consideration, pursuant to 76 Fed. Reg. 45798 (August 1, 2011), of whether the proceeds 

from Mr. Braun’s personal lines of credit, pursuant to the facts provided herein, constitute 

“personal loans” to Mike Braun for Indiana under 11 C.F.R. § 116.11(a). 

2. Is the $250,000 post‐election loan‐repayment limitation, which was codified by

Congress in 52 U.S.C. § 30116(j) and interpreted by the Commission in 11 C.F.R. §

116.11, a constitutional and enforceable limitation given the U.S. Supreme Court’s

precedential holdings and reasoning in Davis v. Federal Election Commission,

Citizens United v. Federal Election Commission, and McCutcheon v. Federal Election

Commission?

Alongside the so-called “Millionaire’s Amendment,” the $250,000 post-election loanrepayment limitation was enacted through the Bipartisan Campaign Finance Reform Act of 

2002 (“BCRA”) as means of limiting the influence of a candidate’s personal wealth in federal 

campaigns. Of course, the overarching aim of the Millionaire’s Amendment was flatly 

rejected by the U.S. Supreme Court in Davis v. Fed. Election Comm’n, 554 U.S. 724 (2008). 

 The Commission subsequently noted that the $250,000 post-election loan-repayment 

limitation was not at issue in Davis, and it seemingly defended this provision on the basis 

that the restriction applies to all candidates. See FEC Advisory Opinion 2008-09 

(Lautenberg). While the Commission is correct that the Davis Court was not presented with 

a direct question regarding the legality of the $250,000 post-election loan-repayment 

limitation, the applicability of the Court’s reasoning still presents significant questions about 

the constitutionality of this provision. In fact, the undersigned counsel represents plaintiffs 

in a pending lawsuit, captioned Cruz, et al. v. FEC, challenging its constitutionality. 

 In its reasoning, the Davis Court noted that a statute significantly impeding the ability 

to use personal assets to pursue a political campaign severely burdens that individual’s 

exercise of First Amendment fundamental rights and must be justified by a compelling state 

interest. See Davis at 740, Footnote 8. Not only did the Millionaire’s Amendment not serve 

the anti-corruption interest first identified by the Court in Buckley v. Valeo, 424 U.S. 1 (1976), 

the Court noted that encouraging candidates to use their own personal wealth may actually 

reduce the threat of actual or apparent quid-pro-quo corruption. Davis, 554 U.S. at 741. 

 In the wake of Davis, the Supreme Court has not wavered in its commitment to the 

underlying principles espoused in that decision. In Citizens United v. Fed. Election Comm'n, 

558 U.S. 310, 317-318 (2010), the Court again reiterated that additional burdens on the First 

Attachment 

Page 5 of 6
 Request for Consideration of Legal Questions 

 April 23, 2019 

 Page 6 of 6 

Amendment should not depend on a speaker’s personal wealth. The Court invalidated 

differential treatment of corporations as impossible to affirm under the weight of the First 

Amendment. Instead, as the Court later noted in McCutcheon v. Fed. Election Comm'n, 572 

U.S. 185, 190 (2014), the disclosure requirements of BCRA represented a far less 

burdensome protection of the integrity of federal elections. 

 Despite the Commission’s best efforts to distinguish the $250,000 post-election loanrepayment limitation from the Millionaire’s Amendment, the provisions of 11 C.F.R. § 116.11 

are akin to the framework rejected by the Supreme Court because they both create a 

statutorily imposed choice for a candidate seeking to exercise their First Amendment right. 

And despite the Commission’s argument that the $250,000 post-election loan-repayment 

limitation does not differentiate, the fact remains that the limitation does not apply to 

authorized campaign committees that obtain commercial loans. 

Therefore, for the foregoing reasons, the Filer is seeking the Commissioners’ 

consideration, pursuant to 76 Fed. Reg. 45798 (August 1, 2011), of whether the $250,000 

post-election loan-repayment limitation, which was codified by Congress in 52 U.S.C. § 

30116(j) and interpreted by the Commission in 11 C.F.R. § 116.11, is a constitutional and 

enforceable limitation given the U.S. Supreme Court’s precedential holdings and reasoning 

in Davis v. Federal Election Commission, Citizens United v. Federal Election Commission, and 

McCutcheon v. Federal Election Commission.

CONCLUSION

Thank you in advance for your consideration of these questions of law, which are 

being submitted pursuant to the Commission’s Permanent Program for Requesting 

Consideration of Legal Questions, and for your clarification and guidance based on the facts 

presented. 

Sincerely, 

Chris K. Gober 

Counsel to Mike Braun, Braun for Indiana and 

Travis Kabrick, in his official capacity as Treasurer 

Attachment 

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