No. 21-12

In the Supreme Court of the United States

FEDERAL ELECTION COMMISSION, APPELLANT

v.

TED CRUZ FOR SENATE, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

BRIEF FOR THE FEDERAL ELECTION COMMISSION

LISA J. STEVENSON

Acting General Counsel

KEVIN DEELEY

Associate General Counsel 

HARRY J. SUMMERS

Assistant General Counsel

HAVEN G. WARD

SHAINA WARD

Attorneys 

Federal Election Commission

Washington, D.C. 20463

ELIZABETH B. PRELOGAR

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. 
(III) 

TABLE OF CONTENTS

Page

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

Jurisdiction.................................................................................... 2

Statutory and regulatory provisions involved ........................... 2

Statement:

A. Legal background ..................................................... 2

B. Facts and proceedings below................................... 4

Summary of argument ................................................................. 9

Argument:

I. Appellees lack Article III standing ............................. 10

A. Appellees’ injury is not traceable to, and would 

not be redressed by restraining the 

enforcement of, BCRA’s loan-repayment limit.... 11

1. Appellees have not shown that their injury 

is fairly traceable to BCRA’s loanrepayment limit or that restraining its 

enforcement would redress the injury ........... 12

2. An FEC regulation currently precludes the 

committee from repaying the remaining 

$10,000 of Senator Cruz’s loan, but that 

regulatory bar does not give appellees 

standing to challenge the statutory loanrepayment limit................................................. 16

B. Appellees lack standing because their injury 

is self-inflicted.......................................................... 20

1. Self-inflicted injury does not create 

standing ............................................................. 20

2. The injury in this case was self-inflicted........ 22

II. The loan-repayment limit complies with the First 

Amendment.................................................................... 26

A. The loan-repayment limit imposes at most a 

modest burden on speech....................................... 27

1. On its face, the loan-repayment limit 

imposes at most a modest burden on 

speech................................................................. 27
IV

Table of Contents—Continued:   Page

2. As applied in this case, the loan-repayment 

limit does not burden speech at all ................. 31

B. Congress’s compelling interest in preventing 

actual and apparent corruption justifies the 

burden imposed by the loan-repayment limit...... 32

1. The loan-repayment limit serves the 

compelling interest in preventing actual 

and apparent corruption .................................. 33

2. The loan-repayment limit is properly 

tailored............................................................... 40

C. The district court’s contrary analysis is flawed... 42

1. The district court erred in concluding that 

the loan-repayment limit does not help to 

prevent actual and apparent corruption ....... 42

2. The district court erred in finding the 

loan-repayment limit to be inadequately 

tailored............................................................... 44

Conclusion ................................................................................... 48

Appendix — Statutory and regulatory provisions ................ 1a

TABLE OF AUTHORITIES

Cases:

Arizona Free Enterprise Club’s Freedom Club PAC 

v. Bennett, 564 U.S. 721 (2011).............................. 27, 33, 40

Bluman v. FEC, 766 F. Supp. 2d 1 (D.D.C. 2011).............. 19

Buckley v. Valeo, 424 U.S. 1 (1976)............................. passim

California v. Texas, 141 S. Ct. 2104 (2021)....... 17, 18, 19, 21

Christian Legal Society Chapter v. Martinez, 

561 U.S. 661 (2010).............................................................. 15

Citizens United v. FEC, 558 U.S. 310 (2010)...................... 26

Clapper v. Amnesty International USA, 

568 U.S. 398 (2013).............................................................. 21
V 

Cases—Continued: Page

Clark v. Community for Creative Non-Violence, 

468 U.S. 288 (1984).............................................................. 28

Clements v. Fashing, 457 U.S. 957 (1982)........................... 44

Clingman v. Beaver, 544 U.S. 581 (2005)............................ 26

Cyan, Inc. v. Beaver County Employees Retirement 

Fund, 138 S. Ct. 1061 (2018).............................................. 47

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006)........ 18

Davis v. FEC, 554 U.S. 724 (2008)........................... 26, 28, 47

Exxon Mobil Corp. v. Allapattah Services, Inc., 

545 U.S. 546 (2005).............................................................. 20

FCC v. Fox Television Stations, Inc., 

556 U.S. 502 (2009)........................................................ 43, 44

FCC v. Prometheus Radio Project, 

141 S. Ct. 1150 (2021) ......................................................... 43

FEC v. National Right to Work Committee, 

459 U.S. 197 (1982).............................................................. 40

FEC v. O’Donnell, 209 F. Supp. 3d 727 (D. Del. 2016)...... 34

FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990)......... 12

Ferre v. State ex rel. Reno, 

478 So. 2d 1077 (Fla. Dist. Ct. App. 1985).................. 35, 42

Frisby v. Schultz, 487 U.S. 474 (1988)................................. 40

Furnco Construction Corp. v. Waters, 

438 U.S. 567 (1978).............................................................. 36

Lewis v. Casey, 518 U.S. 343 (1996)..................................... 18

Lujan v. Defenders of Wildlife, 

504 U.S. 555 (1992)............................................ 10, 12, 14, 25

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

McCullen v. Coakley, 573 U.S. 464 (2014)........................... 45

McCutcheon v. FEC, 572 U.S. 185 (2014) ..................... 41, 44

Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972)............ 18
VI

Cases—Continued: Page

Natural Resources Defense Council, Inc. v. United 

States Food & Drug Administration, 

710 F.3d 71 (2d Cir. 2013) .................................................. 24

Nixon v. Shrink Missouri Government PAC, 

528 U.S. 377 (2000).......................................27, 31, 33, 42, 43

Pennsylvania v. New Jersey, 426 U.S. 660 (1976)............. 22

R. A. V. v. City of St. Paul, 505 U.S. 377 (1992) ................. 46

Randall v. Sorrell, 548 U.S. 230 (2006) ............................... 44

Shapiro v. McManus, 577 U.S. 39 (2015) ............................. 6

TransUnion LLC v. Ramirez, 

141 S. Ct. 2190 (2021) ................................................... 17, 25

Turner Broadcasting System, Inc. v. FCC:

512 U.S. 622 (1994).......................................................... 43

520 U.S. 180 (1997).......................................................... 39

United States v. Richardson, 418 U.S. 166 (1974) ............. 25

Wilkinson v. Jones, 

876 F. Supp. 916 (W.D. Ky. 1995) ..................................... 39

Williams-Yulee v. Florida Bar, 

575 U.S. 433 (2015).......................................26, 41, 43, 46, 48

Constitution, statutes, regulations, and rules:

U.S. Const.:

Art. I, § 9, Cl. 8 (Foreign Emoluments Clause)........... 34

Art. III.........................................................9, 10, 18, 20, 22

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

Bipartisan Campaign Reform Act of 2002, 

Pub. L. No. 107-155, 116 Stat. 81 ........................................ 2

§ 403(a), 116 Stat. 113-114 .......................................... 5, 19

Federal Election Campaign Act of 1971, 

Pub. L. No. 92-225, 86 Stat. 3 .............................................. 2

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

52 U.S.C. 30114(b)(2)................................................. 34
VII

Statutes, regulations, and rules—Continued: Page

52 U.S.C. 30116(a) ................................................... 2, 3

52 U.S.C. 30116(c)........................................................ 3

52 U.S.C. 30116(j).......................3, 9, 11, 12, 19, 32, 1a

52 U.S.C. 30144 .......................................................... 45

Patent Protection and Affordable Care Act, 

26 U.S.C. 5000A(a).............................................................. 17

2 U.S.C. 4725.......................................................................... 34

5 U.S.C. 7342.......................................................................... 34

5 U.S.C. 7351.......................................................................... 34

5 U.S.C. 7353.......................................................................... 34

5 C.F.R. 2635.204................................................................... 34

11 C.F.R.:

Section 110.1(b)(3)............................................................. 3

Section 110.1(b)(3)(i) ............................................. 3, 28, 35

Section 116.11(b)(1)..................................................... 4, 2a

Section 116.11(b)(3)..................................................... 4, 2a

Section 116.11(c)(1) ..................................................... 4, 2a

Section 116.11(c)(2) ..........................4, 5, 16, 17, 19, 20, 2a

Section 116.12(a).......................................................... 4, 3a

Fed. R. Civ. P.:

Rule 56(a) ......................................................................... 12

Rule 56(c)(1)(A) ............................................................... 12

Rules of the House of Representatives, 

116th Cong. (2016).............................................................. 34

Standing Rules of the Senate, 

113th Cong., 1st Sess. (2013) ............................................. 34

Miscellaneous:

Associated Press, Minnesota’s Post-Election Money 

Blitz, At A Glance, (St. Paul, Minn.), Feb. 5, 2015.......... 38

147 Cong. Rec. (2001):

p. 3882............................................................................... 38
VIII

Miscellaneous—Continued: Page

p. 3966............................................................................... 38

p. 3970............................................................................... 38

Jerry Cornfield, Post-election: It’s the

season to keep on giving, Auburn Reporter, 

Dec. 10, 2014........................................................................ 38

Jeff Mapes:

Brown Enjoys Post-Election Donation Boom—

While Pushing Campaign Finance Limits, 

Oregon Public Broadcasting (Portland), 

Feb. 28, 2019 .............................................................. 37

Oregon legislators reap big post-election 

donations—much of it ‘makeup money,’ 

The Oregonian / OregonLive (Salem), 

(Mar. 10, 2013) ........................................................... 38

Price Index Adjustments for Contribution 

and Expenditure Limitations and Lobbyist 

Bundling Disclosure Threshold, 

82 Fed. Reg. 10,904 (Feb. 16, 2017) .................................... 3

Steven V. Roberts, Debt Retirement Party 

Becoming an Institution, N.Y. Times, 

Nov. 29, 1982 ....................................................................... 37

Conor Shine, Why did Nevada candidates 

keep getting donations after election?, 

Las Vegas Sun, Jan. 21, 2015 ............................................ 38

Ted Cruz for Senate, FEC Form 3:

Report of Receipts and Disbursements: 

(Dec. 6, 2018), https://docquery.fec.gov/pdf/477/ 

201812069134977477/201812069134977477.pdf....... 15

(Aug. 23, 2019), https://docquery.fec.gov/pdf/526/ 

201908239163101526/201908239163101526.pdf....... 16

United States Courts, Guide to Judiciary Policy

(July 27, 2021) ..................................................................... 34
IX

Miscellaneous—Continued: Page

13A Charles Alan Wright et al., Federal Practice and 

Procedure (2008)........................................................... 21, 23

Andrew Zajac, Interest on campaign loan pays, 

L.A. Times, Feb. 14, 2009 .................................................. 37

 
(1) 

In the Supreme Court of the United States

No. 21-12

FEDERAL ELECTION COMMISSION, APPELLANT

v.

TED CRUZ FOR SENATE, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA

BRIEF FOR THE FEDERAL ELECTION COMMISSION

OPINIONS BELOW

The order of the district court granting appellees’ 

motion for summary judgment (J.S. App. 38a-39a) is not 

reported. The opinion of the district court granting appellees’ motion for summary judgment (J.S. App. 5a37a) is not yet published in the Federal Supplement but 

is available at 2021 WL 2269415. The order of the district court denying appellees’ motion to reconsider is 

not published in the Federal Supplement but is available at 2020 WL 7699951. The opinion of the district 

court granting in part and denying in part the Federal 

Election Commission’s motion for partial remand and to 

compel discovery responses (J.A. 68-82) is reported at 

451 F. Supp. 3d 92. The opinion and order of the district 

court granting appellees’ motion to convene a threejudge court and denying the Commission’s motion to 

dismiss (J.S. App. 40a-64a) is not published in the Federal Supplement but is available at 2019 WL 8272774. 
2 

JURISDICTION

The district court entered its judgment on June 3, 

2021. The Federal Election Commission filed an amended notice of appeal on June 13, 2021 (J.S. App. 1a-2a)

and a jurisdictional statement on July 2, 2021. On September 30, 2021, this Court postponed consideration of 

the question of jurisdiction to the hearing of the case on 

the merits. The jurisdiction of the Court rests on the 

Bipartisan Campaign Reform Act of 2002, Pub. L. No. 

107-155, § 403(a)(3), 116 Stat. 114.

 STATUTORY AND REGULATORY 

PROVISIONS INVOLVED

Pertinent statutory and regulatory provisions are 

reproduced at App., infra, 1a-3a. 

STATEMENT

A. Legal Background

1. Congress enacted the Federal Election Campaign 

Act of 1971 (FECA), Pub. L. No. 92-225, 86 Stat. 3, to 

regulate the financing of federal election campaigns. It

later amended FECA in the Bipartisan Campaign Reform Act of 2002 (BCRA), Pub. L. No. 107-155, 116 Stat. 

81. The Federal Election Commission (FEC or Commission) administers those statutes. 52 U.S.C. 30106. 

Under FECA, BCRA, the Commission’s regulations, 

and this Court’s First Amendment precedents, federal 

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 campaign. 

Buckley v. Valeo, 424 U.S. 1, 51-52 (1976) (per curiam). 

A campaign also may accept contributions from individuals and certain political committees. 52 U.S.C. 30116(a). 

And a campaign may borrow an unlimited amount of 
3 

money from third-party lenders or from the candidate

himself. J.S. App. 7a. 

2. Individuals’ contributions to federal campaigns 

are subject to per-election dollar limits, which are indexed for inflation. 52 U.S.C. 30116(a) and (c). In 2017 

and 2018, the election cycle at issue here, an individual 

generally could contribute a maximum of $5400 to a 

campaign: $2700 for the primary and $2700 for the general election. See Price Index Adjustments for Contribution and Expenditure Limitations and Lobbyist 

Bundling Disclosure Threshold, 82 Fed. Reg. 10,904, 

10,906 (Feb. 16, 2017). Today, the combined limit is 

$5800: $2900 for the primary and $2900 for the general 

election. J.S. App. 6a n.1. 

A campaign generally may receive contributions 

only for future elections, not for past elections. 

11 C.F.R. 110.1(b)(3). But a campaign may receive contributions for a past election to repay “net debts outstanding from such election.” 11 C.F.R. 110.1(b)(3)(i). 

3. This case concerns the use of post-election contributions to repay loans made by the candidate himself. 

In BCRA, Congress enacted the following restriction on 

such repayments: 

Any candidate who incurs personal loans made after 

the effective date of [BCRA] 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). Thus, under Section 30116(j), a 

campaign may use contributions made after election 

day to repay only up to $250,000 in candidate loans.
4 

To supplement BCRA’s loan-repayment limit, the 

Commission has promulgated regulations establishing 

three principles that are relevant here. First, a campaign may repay “up to $250,000” in candidate loans 

from contributions made “at any time before, on, or after the date of the election.” 11 C.F.R. 116.12(a). Second, a campaign may use pre-election funds to repay the 

portion of the candidate loans that exceeds $250,000 

only if the repayment occurs within 20 days after the 

election. 11 C.F.R. 116.11(b)(1) and (c)(1). If more than

$250,000 remains unpaid when the 20-day period expires, the campaign must recharacterize the portion 

above $250,000 as a contribution to the campaign, precluding later repayment. 11 C.F.R. 116.11(c)(2). Third, 

the regulations echo the statutory loan-repayment limit 

in providing that the campaign “[m]ust not repay * * * 

the aggregate amount of the personal loans that exceeds $250,000, from contributions * * * made after the 

date of the election.” 11 C.F.R. 116.11(b)(3). 

B. Facts And Proceedings Below

1. Appellee Ted Cruz represents Texas in the 

United States Senate. J.A. 290. Appellee Ted Cruz for 

Senate is his principal campaign committee. J.A. 291.

Senator Cruz ran for re-election in 2018. J.A. 290. 

In the lead-up to the election, his campaign raised more 

than $35 million in 2017 and 2018. J.A. 324.

The day before the general election, Senator Cruz 

loaned 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. J.S. App. 8a. After the election, the committee 

had approximately $2.38 million in pre-election funds

left on hand. J.A. 326. The committee could have used 

those funds to repay Senator Cruz in whole or in part, 
5 

but it chose not to do so within the 20-day deadline set 

by the regulations. J.S. App. 8a-9a. If the committee 

had used pre-election funds to repay Senator Cruz 

$10,000 within that 20-day window, it could have used 

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

any time following the election. 

Once the 20-day deadline elapsed, the Commission’s

regulation required that $10,000 of the $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.” J.A. 328-329 

(citation omitted). The committee then repaid Senator 

Cruz $250,000. J.S. App. 9a. But because the committee had purposely waited until the 20-day post-election 

period 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.” 

J.A. 196-197, 325. 

2. 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. J.A. 24-26. Appellees invoked 

Section 403(a) of BCRA, which authorizes a three-judge 

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. 113-114; see J.A. 26.

A single judge may dismiss a complaint for lack of 

jurisdiction without convening a three-judge court. See 
6 

Shapiro v. McManus, 577 U.S. 39, 45 (2015). Invoking 

that principle, the Commission moved to dismiss the 

claims for lack of standing before a three-judge court 

had been convened. J.S. App. 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.

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. 

J.S. App. 51a. Citing the complaint, the 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 asserted that “Senator 

Cruz loaned his campaign $10,000 more than he could 

legally be repaid using post-election contributions”; 

that the 20-day deadline for using pre-election contributions to repay Senator Cruz had expired; and that

“Senator Cruz is still owed $10,000,” “a cognizable injury.” Id. at 51a. The Commission 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-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. 

3. During discovery, the Commission took steps to 

renew its standing argument. J.A. 76-77. Specifically, 
7 

it sought documents concerning “the circumstances surrounding Senator Cruz’s loans and their repayment.” 

J.A. 76. 

In the course of resolving a dispute over those discovery requests, the three-judge court “reject[ed] outright” the Commission’s “continued assertion that information about [appellees’] subjective motivation in 

taking out the loans is somehow relevant to [appellees’] 

standing.” J.A. 77. The court instead adopted “in its 

entirety” the single-judge court’s prior analysis of 

standing. Ibid. 

In its subsequent summary-judgment briefing, the 

FEC did not reassert its argument that appellees 

lacked standing. The FEC did, however, bring to the 

three-judge court’s attention record materials (including the parties’ stipulation) showing that the campaign’s 

$250,000 repayment to Senator Cruz had been made 

with pre-election funds rather than post-election funds. 

In arguing that appellees’ as-applied constitutional 

challenge to the loan-repayment limit failed, the FEC 

relied in part on the committee’s use of pre-election 

funds to repay the $250,000 as evidence that BCRA’s 

loan-repayment limit had not subjected appellees to any

burden of constitutional magnitude. See Appellant Mot. 

for Summ. J. 16; Appellant Reply Br. in Supp. of Mot. 

for Summ. J. 16-18.

4. The three-judge district court granted appellees’ 

motion for summary judgment, denied the Commission’s motion for summary judgment, and held that 

BCRA’s loan-repayment limit violates the First Amendment. J.S. App. 5a-37a. In its description of the factual

background of the suit, the three-judge court stated

(consistent with appellees’ complaint and the prior opin-
8 

ion of the single-judge court) that the campaign committee had “repaid Senator Cruz the maximum $250,000 

with post-election contributions but [BCRA’s loanrepayment limit] prevented the campaign from paying 

back the final $10,000.” Id. at 9a. 

On the merits, the district court first concluded that 

the loan-repayment limit burdens the exercise of political speech. J.S. App. 11a-19a. The court explained that 

the limit burdens the right to lend money to campaigns

by “constrain[ing] the repayment options.” Id. at 13a14a. The court suggested that, as a result of the limit, a 

candidate could be “inhibited” from lending money, “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. J.S. App. 20a-36a. The district court 

acknowledged that, under this Court’s precedents, Congress may enact campaign-finance laws to prevent actual and apparent quid pro quo corruption. Id. at 21a. 

But the district court concluded that the Commission 

had failed to show that the use of post-election contributions to repay candidate loans poses a risk of corruption. Id. at 23a. The court also held that the limit was 

not “sufficiently tailored” to serve the government’s interests. Id. at 31a. The court deemed the limit “over 

inclusive” because it “applies across the board to winning and losing candidates,” and “substantially underinclusive” because it applies to personal but not thirdparty loans and to post-election but not pre-election 

contributions. Id. at 31a-32a. 

The district court additionally “ordered that [appellees’] regulatory claims, previously held in abeyance, 

are dismissed as moot.” J.S. App. 38a.
9 

SUMMARY OF ARGUMENT

I. Appellees lack Article III standing to challenge 

the loan-repayment limit imposed by 52 U.S.C. 30116(j). 

A. The loan-repayment limit did not cause, and restraining its enforcement would not redress, the injury 

that appellees assert—the committee’s current inability 

to repay the final $10,000 of Senator Cruz’s loan. Appellees have not shown that they exhausted the loanrepayment limit’s $250,000 cap because they have not

established that they used post-election contributions to 

repay the first $250,000 of Senator Cruz’s loan. To the 

contrary, appellees stipulated below that they did not

use post-election funds for any part of that repayment. 

As far as the statutory limit is concerned, they accordingly remain free to raise $10,000 in post-election contributions and to use those funds to repay the rest of 

Senator Cruz’s loan. The current legal obstacle to their 

repaying that final increment comes not from the statute but from the regulations—but an injury caused by 

the regulations does not confer standing to challenge 

the enforcement of the statute. 

B. Any injury to Senator Cruz was in any event selfinflicted. The committee could easily have repaid Senator Cruz using pre-election funds during the 20 days 

following the 2018 election. Or by repaying $10,000 with 

pre-election funds during that period, it could have preserved the option to raise additional post-election contributions to repay the remaining debt. It simply chose 

not to do so, as part of an effort to create standing to 

bring this suit. Any injury is thus traceable to appellees 

themselves, not to the Commission. 

II. BCRA’s loan-repayment limit complies with the 

First Amendment.
10

A. The loan-repayment limit imposes at most a modest burden on the right to make and accept contributions: it restricts the right to use money donated during 

only a specific period of time—after the election—and 

only for the single purpose of repaying candidate loans. 

Any burden on the candidate’s right to make loans is 

equally modest. The candidate remains free to loan his 

campaign an unlimited amount of money, and the campaign remains free to repay the loan in full. The limit 

simply means that the campaign may not use funds 

raised after the election to repay more than $250,000 of 

the loan. 

B. That modest burden is tailored to serve Congress’s compelling interest in preventing actual and apparent quid pro quo corruption. Contributions that repay a candidate’s personal loans pose a heightened risk 

of corruption because, like gifts, and unlike routine contributions, they add to the recipient’s personal wealth. 

The post-election context magnifies that risk of corruption. Once the election is over, it is less likely that the 

donor is giving money to fund speech or to help the favored candidate win, and more likely that she is giving 

money because of an expectation of special favors or a 

fear of retaliation. The limit targets the specific practice that poses the heightened risk, while leaving candidates’ and contributors’ speech otherwise unimpaired. 

ARGUMENT

I. APPELLEES LACK ARTICLE III STANDING

To establish Article III standing, a plaintiff must 

show that (1) he has suffered an injury in fact that is 

concrete, particularized, and actual or imminent; (2) the 

injury is fairly traceable to the defendant’s challenged 

action; and (3) the judicial relief he seeks would likely 

redress the injury. See Lujan v. Defenders of Wildlife, 
11

504 U.S. 555, 560-561 (1992). The district court held 

that Senator Cruz has standing to challenge the Commission’s enforcement of the loan-repayment limit because the statute barred the committee from repaying

him the remaining $10,000 of his original $260,000 loan. 

J.S. App. 51a. That holding was incorrect. First, the 

committee’s current inability to repay Senator Cruz 

$10,000 is not traceable to—and would not be redressed 

by an order restraining the enforcement of—the statutory provision that appellees challenge. Second, Senator Cruz’s injury is self-inflicted, since he and his campaign deliberately arranged their transactions so as to 

create a legal barrier to full repayment of the loan. 

A. Appellees’ Injury Is Not Traceable To, And Would Not 

Be Redressed By Restraining The Enforcement Of, 

BCRA’s Loan-Repayment Limit

A plaintiff who challenges a statutory provision 

bears the burden of showing that his injury is traceable 

to the enforcement of that particular provision and that 

restraining the enforcement of that provision would redress the injury. In this case, appellees have failed to 

show that the committee’s current inability to repay Senator Cruz is traceable to the statutory loan-repayment 

limit, or that restraining the enforcement of that limit 

would redress appellees’ injury. To the extent appellees’ injury is attributable to the government at all, it 

results from the Commission’s regulations rather than 

from 52 U.S.C. 30116(j). But an injury caused by the 

regulations does not establish standing to challenge the 

statute. 
12

1. Appellees have not shown that their injury is fairly 

traceable to BCRA’s loan-repayment limit or that restraining its enforcement would redress the injury

a. As the party invoking the federal court’s jurisdiction, the plaintiff bears the burden of proving the elements of standing. Defenders of Wildlife, 504 U.S. at 

561. Standing “cannot be ‘inferred argumentatively,’” 

and the “facts supporting Article III jurisdiction must 

‘appear affirmatively from the record.’” FW/PBS, Inc.

v. City of Dallas, 493 U.S. 215, 231 (1990) (brackets and 

citations omitted). 

A plaintiff must establish the facts necessary to show 

standing “in the same way as any other matter on which 

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

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

U.S. at 561. The plaintiff may rely on allegations at the 

pleading stage, affidavits and other evidentiary materials at the summary-judgment stage, and testimony and 

other evidence at the trial stage. Ibid. 

This case arises on cross-motions for summary judgment. See J.S. App. 9a. To survive the Commission’s 

motion, appellees must cite “particular parts of materials in the record” supporting each necessary factual 

predicate of standing. Fed. R. Civ. P. 56(c)(1)(A). And 

to prevail on their own motion, appellees must go further and show that “there is no genuine dispute” that

those predicates are satisfied. Fed. R. Civ. P. 56(a).

b. The BCRA loan-repayment limit that appellees 

challenge prohibits a campaign from using “contributions made * * * after the date of [an] election” to repay 

more than $250,000 in candidate loans for that election. 

52 U.S.C. 30116(j). Appellees contend (Mot. to Affirm
13

or Dismiss (Mot.) 6) that Senator Cruz loaned his campaign $260,000, that the committee has repaid $250,000 

of that loan, and that the statutory loan-repayment limit 

prevents it from using post-election funds to repay the 

remaining $10,000. 

To establish standing under that theory, appellees 

must show that the committee used post-election contributions to repay the first $250,000 of Senator Cruz’s 

loan. If the committee instead used pre-election contributions, nothing in the statutory provision they challenge would stop them from raising additional postelection contributions and using those funds to repay 

the remaining $10,000 debt. Indeed, if pre-election 

funds were used for even $10,000 (or more) of the prior 

$250,000 repayment, the statute would leave the campaign free to use post-election funds to repay the remaining indebtedness. 

Appellees have produced no record evidence, however, showing that they have exhausted the $250,000 

cap on the use of post-election funds. Appellees’ statement of undisputed material facts, and a declaration 

from the committee’s assistant treasurer, both state

only that the committee has repaid Senator Cruz 

$250,000. J.A. 219, 222. Neither states that the committee repaid that sum using post-election contributions. Those statements leave open the possibility that 

the committee instead repaid the loan, in whole or in 

part, using the $2.38 million in pre-election funds that it 

had on hand at the end of election day 2018. J.A. 326.

At the outset of the case, appellees alleged in their 

complaint that the committee had “repaid the statutory 

maximum of $250,000 from money raised after the election.” J.A. 23. In denying the FEC’s motion to dismiss

at the pleading stage, the single-judge district court
14

cited that allegation and stated that the committee had

“repaid Senator Cruz the $250,000 statutory maximum 

using post-election contributions, but BCRA foreclosed 

it from paying back the $10,000 balance.” J.S. App. 44a. 

The court was correct to accept appellees’ allegation as 

true in denying the motion to dismiss. The three-judge 

court erred, however, in uncritically repeating that 

statement at summary judgment, by remarking that 

“the campaign repaid Senator Cruz the maximum 

$250,000 with post-election contributions but [BCRA] 

prevented the campaign from paying back the final 

$10,000.” Id. at 9a.

At the summary-judgment stage, mere allegations 

no longer suffice; the plaintiff must produce evidence to 

support the allegations. See Defenders of Wildlife, 504 

U.S. at 561. Here, appellees failed to substantiate the 

allegation that the committee repaid the first $250,000 

“from money raised after the election.” J.A. 23. And by 

the time the district court ruled on the cross-motions 

for summary judgment, the court had before it the parties’ stipulation that pre-election funds had been used 

for this purpose, as well as FEC summary-judgment filings drawing that stipulated fact to the court’s attention, albeit as part of a merits rather than a standing 

argument. See p. 7, supra; pp. 15-16, infra. 

c. Appellees’ failure to meet their burden of proof 

itself requires dismissing this suit for lack of standing, 

but the jurisdictional problem runs deeper than that. 

The record affirmatively refutes the factual predicate of 

appellees’ original theory of standing—i.e., the premise 

that the committee used contributions made after the 

date of the election to repay Senator Cruz $250,000.
15

Appellees stipulated in the district court that, far 

from exhausting the statutory $250,000 limit, the committee did not use any contributions made after the 

date of the 2018 election to repay Senator Cruz. Paragraph 60 of the Commission’s statement of undisputed 

material facts stated that, “during the 20 days after the 

election and later, the Committee continued receiving 

post-election contributions, but rather than using those 

contributions * * * to pay any of Senator Cruz’s debt, 

the campaign designated the contributions for Senator 

Cruz’s 2024 re-election effort.” J.A. 245. And paragraph 64 stated that “[n]one of the $250,000 of the loan 

that was repaid was from contributions raised after the 

election.” J.A. 246. In response, appellees expressly 

admitted both facts. J.A. 328-329. Those factual admissions are now “binding and conclusive”; appellees are 

not “permitted to deny the truth of the facts stated, or 

to maintain a contention contrary to the agreed statement, or to suggest, on appeal, that the facts were other 

than as stipulated.” Christian Legal Society Chapter v. 

Martinez, 561 U.S. 661, 677 (2010) (citation and ellipses 

omitted). 

Even apart from those admissions, the committee’s

financial disclosures show that it is mathematically impossible for the committee to have repaid Senator Cruz 

$250,000 using contributions made after the date of the 

election. The repayments were made by December 24,

2018. See J.A. 323. But the committee’s reports to 

the Commission indicate that it received at most

$166,547.01 in contributions between election day and 

that date.* The committee could not have repaid Senator Cruz $250,000 using post-election funds, because it 

* See Ted Cruz for Senate, FEC Form 3: Report of Receipts and 

Disbursements 3 (Dec. 6, 2018) (reporting $42,201.48 in unitemized 
16

received significantly less than $250,000 in new contributions between the date of the election and the date

when it made the repayments. 

Put simply, the record shows that the committee has 

not yet reached BCRA’s $250,000 cap on the use of postelection contributions to repay candidate loans. BCRA’s

loan-repayment provision thus causes Senator Cruz and

his committee no injury, and restraining its enforcement would afford them no redress. 

2. An FEC regulation currently precludes the committee from repaying the remaining $10,000 of Senator 

Cruz’s loan, but that regulatory bar does not give 

appellees standing to challenge the statutory loanrepayment limit

a. The current legal barrier to the committee’s repayment of the final $10,000 of Senator Cruz’s loan is 

not the loan-repayment limit imposed by Congress, but 

a regulation adopted by the Commission. The regulation provides that, if more than $250,000 in candidate 

loans remains unpaid 20 days after the election, the 

campaign must recharacterize the portion in excess of 

$250,000 as a contribution by the candidate to the campaign. 11 C.F.R. 116.11(c)(2). The campaign then is forbidden from using any funds—whether pre-election or 

contributions from the day after election day through November 26, 

2018); id. at 7478-7498 (reporting a total of $16,300 in itemized contributions and other receipts from the day after election day 

through November 26, 2018); Ted Cruz for Senate, FEC Form 3: 

Report of Receipts and Disbursements 3 (Aug. 23, 2019) (reporting 

$78,465.53 in unitemized contributions from November 27, 2018 

through December 31, 2018); id. at 5-247 (reporting $29,580 in itemized contributions and other receipts from November 27, 2018 

through December 24, 2018).
17

post-election—to repay the recharacterized portion. 

Ibid.

In this case, the committee allowed the 20-day postelection period to expire without repaying any part of 

the $260,000 debt it owed to Senator Cruz. J.A. 327-328. 

At that point, the regulation required the committee to 

recharacterize $10,000 of that debt—i.e., the increment 

above $250,000—as a contribution. J.A. 328. It is that 

regulation, not BCRA’s loan-repayment limit, that today prevents the committee from repaying the final 

$10,000. 

Even if appellees were injured by the regulation, but 

see pp. 20-25, infra (arguing that appellees’ current injury is not attributable to the FEC because appellees 

deliberately arranged their transactions to trigger the 

regulatory bar), they would lack standing to challenge 

the statute. “[S]tanding is not dispensed in gross,” and 

a plaintiff instead must establish standing separately 

for “each claim” he presses and “each form of relief” he 

seeks. TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 

2208 (2021). 

In accord with that principle, this Court has repeatedly held that a plaintiff injured by one law does not 

thereby acquire standing to challenge a different law. 

Most recently, in California v. Texas, 141 S. Ct. 2104 

(2021), a group of States challenged the enforcement of 

the minimum-essential-coverage provision of the Patient Protection and Affordable Care Act, 26 U.S.C. 

5000A(a). They argued that the statute injured them by 

requiring them to incur various costs, such as the costs 

of informing beneficiaries of state health plans about 

their insurance coverage. California, 141 S. Ct. at 2119. 

The “problem” with that theory, the Court explained, 

was that “other provisions of [the] Act, not the minimum 
18

essential coverage provision, impose[d] these other requirements.” Ibid. As a result, the injury asserted by 

the States was “not ‘fairly traceable’ to enforcement of 

the ‘allegedly unlawful’ provision of which the [States] 

complain[ed]—§ 5000A(a).” Ibid. (citation omitted).

Many other precedents point in the same direction. 

In DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006), 

the Court held that plaintiffs injured by a municipal tax 

did not thereby acquire standing to challenge a closely 

related state tax. Id. at 350-353. The Court explained 

that a litigant cannot, “by virtue of his standing to challenge one government action, challenge other government actions that did not injure him.” Id. at 353 n.5. In 

Lewis v. Casey, 518 U.S. 343 (1996), the Court held that 

a prisoner injured by one alleged flaw in a prison’s lawlibrary system lacked standing to challenge other alleged defects in that system. Id. at 357-360. The Court 

explained that “harm from one particular inadequacy in 

government administration” does not create standing to 

challenge “all inadequacies in that administration.” Id.

at 357. And in Moose Lodge No. 107 v. Irvis, 407 U.S. 

163 (1972), the Court held that a guest excluded from a 

private club lacked standing to challenge the club’s 

membership policies. Id. at 165-171. The Court explained that the guest’s injury “stemmed, not from the 

[club’s] membership requirements, but from its policies 

with respect to the serving of guests.” Id. at 166. Those 

principles decide this case.

b. Appellees argue (Mot. 6-14) that they have Article 

III standing to challenge BCRA’s loan-repayment limit 

because the FEC regulation that directly injures them 

was promulgated to implement that limit. They contend 

(Mot. 8) that, in adjudicating their challenge to the reg-
19

ulation, the district court could assess the constitutionality of the statute itself, on the theory that invalidation 

of the statute would lead to invalidation of the regulation and thus redress appellees’ injury. 

Appellees’ theory resembles the “standing-throughinseverability argument” advanced in California. 141 

S. Ct. at 2122 (Thomas, J., concurring). Under that theory, a plaintiff may challenge a provision that does not 

cause him injury (here, the loan-repayment limit) if its 

invalidation would lead to the invalidation of another 

provision that does cause him injury (the FEC regulation). That is a “novel theory” of standing, id. at 2116 

(majority opinion), and this Court has never addressed 

it “in any detail,” id. at 2122 (Thomas, J., concurring). 

The theory depends on the premises that Section 

30116(j) caused appellees’ current injury by leading the 

Commission to promulgate 11 C.F.R. 116.11(c)(2), and 

that judicial invalidation of the statute would redress

the injury by causing the rule to be vacated or repealed. 

Even if appellees’ approach were otherwise sound, 

that basis for standing would be unavailable here, since 

the district court lacked independent subject-matter jurisdiction to hear appellees’ challenge to the regulation. 

BCRA grants three-judge courts jurisdiction over a suit

“to challenge the constitutionality of any provision of 

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

§ 403(a), 116 Stat. 113-114. It does not grant such courts

jurisdiction over challenges to the Commission’s regulations. This Court has accordingly recognized that “issues concerning the regulations are not appropriately 

raised” before the three-judge court, “but must be pursued in a separate proceeding.” McConnell v. FEC, 540 

U.S. 93, 223 (2003); see, e.g., Bluman v. FEC, 766 

F. Supp. 2d 1, 4 (D.D.C. 2011).
20

The district court held that it had supplemental jurisdiction over appellees’ challenges to the FEC’s regulations. See J.S. App. 9a n.2, 59a-63a. But before invoking supplemental jurisdiction, a court “must first have 

original jurisdiction over at least one claim in the action.” Exxon Mobil Corp. v. Allapattah Services, Inc., 

545 U.S. 546, 554 (2005). In this case, the three-judge 

court lacked original jurisdiction over the claims challenging the statutory loan-repayment limit, because, as 

explained above, appellees lacked standing to bring 

those claims.

Because the three-judge court lacked original jurisdiction over the challenge to the statute, it had no basis 

for exercising supplemental jurisdiction over the challenge to the regulation. And because it lacked jurisdiction over the challenge to the regulation, it could not 

consider the alleged unconstitutionality of the statute 

as a ground for invalidating the regulation. Indeed, 

while appellees have since suggested that the threejudge court could have treated the purported unconstitutionality of BCRA’s loan-repayment limit as a ground 

for invalidating 11 C.F.R. 116.11(c)(2), that is not what 

the court did. Rather, having held the challenged statutory provision to be invalid, the district court “ordered 

that [appellees’] regulatory claims * * * are dismissed 

as moot.” J.S. App. 38a. 

B. Appellees Lack Standing Because Their Injury Is SelfInflicted

Appellees lack standing for a second reason: their 

injury was self-inflicted. 

1. Self-inflicted injury does not create standing

A plaintiff has Article III standing only if his injury 

is “fairly traceable to the defendant’s allegedly unlawful 
21

conduct.” California, 141 S. Ct. at 2113 (emphasis 

added; citation omitted). When an injury results from a 

plaintiff’s own conduct, that requirement is not satisfied. As one treatise explains, “[s]tanding is not defeated merely because the plaintiff has in some sense 

contributed to his own injury,” but it is defeated if “the 

injury is so completely due to the plaintiff’s own fault as 

to break the causal chain.” 13A Charles Alan Wright et 

al., Federal Practice and Procedure § 3531.5, at 361-362

(2008) (Wright & Miller). 

In Clapper v. Amnesty International USA, 568 U.S. 

398 (2013), for example, this Court held that a group of

plaintiffs lacked standing to challenge an intelligence 

program, even though the plaintiffs had incurred costs 

to avoid surveillance under that program. Id. at 415-

419. The Court refused to allow the plaintiffs to “manufacture standing merely by inflicting harm on themselves.” Id. at 416. Said otherwise, the plaintiffs’ “selfinflicted injuries” were not “fairly traceable to the Government’s purported activities.” Id. at 418. 

Similarly in McConnell v. FEC, supra, this Court 

held that a group of political candidates lacked standing 

to challenge federal contribution limits as being too 

high. 540 U.S. at 228-229. The candidates claimed that 

large contributions created an appearance of improper 

influence; that they consequently did not wish to accept 

large contributions; and that the statute put them at a 

competitive disadvantage by allowing such contributions to be made to competing candidates. Id. at 228. 

The Court rejected that theory of standing, holding that 

the plaintiff candidates’ alleged injury was not “fairly 

traceable” to the statute. Ibid. (citation omitted). The 

candidates’ “alleged inability to compete,” the Court ex-
22

plained, “stem[med] not from the operation of [the statute], but from their own personal ‘wish’ not to solicit or 

accept large contributions, i.e., their personal choice.” 

Ibid. 

So too in Pennsylvania v. New Jersey, 426 U.S. 660 

(1976) (per curiam), the Court held that a group of 

States did not acquire Article III standing to challenge 

taxes imposed by other States simply because the plaintiff States gave their residents credits for taxes paid to 

the defendant States. Id. at 664-665. The Court explained that the “injuries to the plaintiffs’ fiscs were 

self-inflicted” since nothing required the plaintiff States 

to extend tax credits for taxes paid to the defendant 

States. Id. at 664. “No State,” the Court concluded, 

“can be heard to complain about damage inflicted by its 

own hand.” Ibid. 

2. The injury in this case was self-inflicted

a. In this case, the committee’s inability to repay the 

final $10,000 of Senator Cruz’s loan is traceable to appellees’ own actions, not to the Commission’s conduct. 

The day before the 2018 election, Senator Cruz loaned 

his campaign $260,000—$10,000 more than the amount 

specified in the loan-repayment limit. J.A. 324. After 

the election, the committee had more than $2 million in 

pre-election funds still on hand. J.S. App. 8a. The committee could have used that money to repay Senator 

Cruz in full. The committee could also have used that 

money to pay Senator Cruz $10,000, and then raised 

post-election contributions to repay the remaining 

$250,000. All the committee needed to do was to make 

the payment within 20 days after the election. 

The committee, however, chose not to pay any part 

of Senator Cruz’s loan within the 20-day period. J.A.

327-328. Two days after that period expired, Senator 
23

Cruz sent his campaign staff an email stating that, 

“[s]ince more than 20 days have passed, it would be 

REALLY good if we could pay back at least some of the 

$250k now.” J.A. 328. That email implies that repayment of the $250,000 was intentionally delayed until the 

20-day post-election period had expired, thus triggering 

the regulatory requirement that the remaining $10,000 

be recharacterized as a contribution by Senator Cruz to 

the campaign. The email also implies that Senator Cruz 

regarded delay in the repayment as otherwise undesirable. And 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.” J.A. 325. 

In these circumstances, the committee’s inability to 

repay the final $10,000 of Senator Cruz’s loan is not 

fairly traceable to the Commission. Rather, “the injury 

is so completely due to [appellees’] own fault” as to defeat standing. Wright & Miller § 3531.5, at 362. 

b. The single-judge district court acknowledged that 

a plaintiff lacks standing if the injury is “so completely 

due to the plaintiff’s own fault as to break the causal 

chain.” J.S. App. 52a (brackets and citation omitted). 

The court nonetheless concluded that “[appellees’] role 

in Senator Cruz’s injury does not rise to that level.” 

Ibid. The court’s stated reasons for that conclusion lack 

merit.

The district court reasoned that, although the committee could have avoided its present injury by using 

pre-election funds to repay a portion of the loan within 

the 20-day window, that alternative course of action 

would itself have injured appellees. J.S. App. 53a-57a. 

It is true that an injury is not self-inflicted where taking 
24

the action needed to avoid that injury would subject the 

plaintiff to a different harm. See, e.g., Natural Resources Defense Council, Inc. v. United States Food & 

Drug Administration, 710 F.3d 71, 85 (2d Cir. 2013). In 

this case, however, appellees have not shown that they 

would have suffered any concrete harm from disbursing 

$10,000 in pre-election funds within the 20-day regulatory deadline. To the contrary, Senator Cruz’s email 

suggests that, if delay had not been essential to trigger 

the regulatory requirement that $10,000 of the total 

loan amount be recharacterized as a contribution to the 

campaign, appellees would have viewed earlier repayment as affirmatively desirable. 

The single-judge district court also stated that “[o]bligating [appellees] to avoid the Senator’s injury by repaying at least a portion of the loans using pre-election 

contributions would * * * 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.” J.S. 

App. 54a. The court made that statement at the motionto-dismiss stage of the case, when it appropriately took 

as true the complaint’s allegations and therefore 

treated BCRA’s loan-repayment limit as the existing legal barrier to full repayment of Senator Cruz’s loan. As 

explained above, however, repayment of the remaining 

$10,000 is actually barred only by a Commission regulation, because appellees voluntarily used pre-election 

funds to repay $250,000 of the campaign’s debt. See 

p. 16, supra. Appellees would not have “subject[ed]” 

themselves any further to BCRA’s “ostensibly unconstitutional[]” loan-repayment limit if they had made 

that $250,000 repayment—or even just $10,000 of it—

within 20 days after the election.
25

In any event, a plaintiff’s belief that a legal framework violates the Constitution does not by itself mean 

that the framework injures him. 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, 141 S. Ct. at 2205 (citation omitted). Appellees’ belief that the Commission’s 20-day requirement (or the statutory limitation that the 20-day requirement is intended to implement) violates the Constitution thus does not, by itself, mean that compliance 

with the requirement would have caused concrete injury. 

Appellees also have argued that the 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 

that the government may not “demand that the [campaign] 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 repay Senator Cruz during the first 20 days after the election. Cf. 

Defenders of Wildlife, 504 U.S. at 563 (requiring “specific facts” to establish standing at the summaryjudgment stage). Because sufficient funds for repaying

the $10,000 were in the committee’s possession on election day, were still in its possession 20 days after the 

election, and were actually used to repay Senator Cruz 

$250,000 with pre-election contributions shortly after 
26

the 20-day post-election window had expired, it is difficult to see how using those funds for loan-repayment 

purposes during that 20-day interval would have impaired the committee’s ability to repay other debts. 

And by stipulating that the desire “to establish the factual basis for this challenge” was “the sole and exclusive 

motivation” for the committee’s delay in repaying the 

loan, J.A. 325, appellees unambiguously disavowed any 

contention that the delay resulted from prioritizing 

other creditors.

II. THE LOAN-REPAYMENT LIMIT COMPLIES WITH

THE FIRST AMENDMENT

If this Court concludes that appellees have standing 

to challenge the constitutionality of BCRA’s loanrepayment limit, it should reverse the district court’s 

judgment on the merits.

The First Amendment protects the right to spend 

money on and to contribute money to campaigns, but 

that right is not absolute. See Buckley v. Valeo, 424 

U.S. 1, 14-23 (1976) (per curiam). The validity of a law 

regulating campaign-related activity depends on the interest served and the burden imposed; “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). A law that imposes 

a “severe” burden on protected speech, such as a restriction on independent campaign spending, is subject 

to strict scrutiny. Clingman v. Beaver, 544 U.S. 581, 

586 (2005); see, e.g., Citizens United v. FEC, 558 U.S. 

310, 372 (2010). A law satisfies that test if it is “narrowly 

tailored” to serve a “compelling interest.” WilliamsYulee v. Florida Bar, 575 U.S. 433, 442 (2015). A “less 

onerous” restriction, such as a restriction on campaign 

contributions, is subject to “a lower level of scrutiny.” 
27

Arizona Free Enterprise Club’s Freedom Club PAC v. 

Bennett, 564 U.S. 721, 735 (2011); see, e.g., Nixon v. 

Shrink Missouri Government PAC, 528 U.S. 377, 386-

387 (2000). A law satisfies that standard if it is “closely 

drawn” to serve a “sufficiently important interest.” 

Buckley, 424 U.S. at 25. 

BCRA’s loan-repayment limit imposes at most a 

modest burden on speech. That burden is justified under any applicable standard of review. The use of postelection contributions to repay candidate loans poses a 

special danger of real and apparent quid pro quo corruption, and the limit is carefully tailored to address

that risk.

A. The Loan-Repayment Limit Imposes At Most A Modest 

Burden On Speech 

On its face, the loan-repayment limit imposes at most 

a modest burden on political speech. As applied in this 

case, the limit imposes no burden at all on such speech. 

1. On its face, the loan-repayment limit imposes at most 

a modest burden on speech

a. The First Amendment protects an individual’s 

right to make and a candidate’s right to receive contributions. See Buckley, 424 U.S. at 20-21. On its face, 

however, the loan-repayment limit imposes at most a 

modest burden on that right.

The “communicative value” of contributions “inheres 

mainly in their ability to facilitate the speech of their 

recipients.” McConnell, 540 U.S. at 135. The right to 

make contributions enables the contributor to pool resources with others to fund speech, and the right to receive contributions enables the candidate to amass the 

resources necessary to run a campaign. The loanrepayment limit, however, does not restrict the use of 
28

contributions to fund election speech. The limit, after 

all, applies only to contributions made after the date of 

the election. Such contributions, by definition, do not 

fund additional political speech and instead can be used 

only to repay “net debts outstanding from such election.” 11 C.F.R. 110.1(b)(3)(i). 

A contribution also has “symbolic” value as an “expression of support for the candidate and his views.” 

Buckley, 424 U.S. at 21. But the loan-repayment limit 

does not prevent any contributor from engaging in that 

symbolic act. Individuals who wish to contribute money 

to a candidate remain free to do so. And a contribution’s 

symbolic value is substantially reduced if it is made after the election, when it cannot sway other voters. 

The loan-repayment limit is instead akin to a time, 

place, and manner regulation—a type of restriction on 

speech that this Court has often upheld. See, e.g., Clark 

v. Community for Creative Non-Violence, 468 U.S. 288, 

293-294 (1984). The restriction simply means that contributions used for a given purpose (repaying candidate 

loans) must be made at a given time (before rather than 

after election day). And even that timing restriction is 

not absolute. The limit on the use of post-election funds 

to repay candidate loans applies only to the extent that 

such repayments exceed $250,000. 

b. The First Amendment also protects a candidate’s 

right to finance his own campaign. See Davis, 554 U.S. 

at 738-739. But the loan-repayment limit, on its face, 

does not severely burden that right either. 

This Court’s decisions addressing candidate selffinancing of electoral campaigns have focused on the 

right to spend money rather than the right to lend it. 

See, e.g., Davis, 554 U.S. at 738-739; Buckley, 424 U.S. 

at 52-53. Allowing candidates to spend personal funds
29

on campaigns, the Court has observed, reduces the risk 

of corruption by diminishing candidates’ “dependence 

on outside contributions.” Buckley, 424 U.S. at 53. That 

rationale does not apply to candidate lending, for the 

candidate remains dependent on outside contributions 

for repayment of the loan. 

In any event, the loan-repayment limit does not impose a severe burden on the right to lend money to a 

campaign. It neither prohibits candidate loans nor restricts the size of such loans. 

The district court believed that the loan-repayment 

limit could nonetheless have an “indirect” effect on 

lending. J.S. App. 16a. The court inferred that, because 

the limit restricts repayment options, 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 16a, 19a. Any such indirect 

effect, however, does not amount to a substantial burden on speech. So long as the campaign uses pre-election 

funds, it may repay the candidate in full no matter how 

large the debt. The limit, again, operates only as a narrow timing restriction; it requires the funds used to repay the increment of a candidate loan above $250,000 to 

be raised before rather than after the election.

The record in this case contains substantial evidence 

regarding the effect of the loan-repayment limit, and 

candidate lending practices more generally, in federal 

electoral campaigns nationwide. That evidence underscores the modesty of the burden imposed. It shows, to 

start, that many payments made by candidates to their 

campaigns, although designated as “loans,” are “in essence contributions,” because they are made “with limited expectations of repayment.” J.A. 237. The loan-
30

repayment limit imposes no meaningful burden on the 

right to make such “loans.” 

The record also shows that the great majority of candidate loans are for less than $250,000 and thus do not 

implicate the loan-repayment limit in the first place. 

During the five election cycles preceding 2020, candidates for Senate made a total of 588 loans to their campaigns, of which 466 (79.3%) were for less than $250,000. 

J.A. 315-316. Candidates for the House of Representatives made a total of 3444 loans to their campaigns, of 

which 3076 (89.3%) were for less than $250,000. J.A. 316. 

The record also suggests that the loan-repayment 

limit does not meaningfully discourage candidates from 

lending their campaigns more than $250,000. As just

noted, in the five election cycles preceding 2020, 79.3% 

of loans by Senate candidates and 89.3% of loans by 

House candidates were for less than $250,000. J.A. 315-

316. In the five election cycles preceding the enactment 

of BCRA, those figures were 76% for the Senate and 

92.7% for the House. J.A. 316-317. The close correspondence between pre- and post-BCRA practices indicates that the limit has not appreciably deterred candidate lending.

c. The burden imposed by the loan-repayment limit 

is significantly more modest than the burden imposed 

by contribution limits, which this Court has upheld. 

Contribution limits cap the amount of money that a contributor may give a candidate, but the loan-repayment 

limit does not. Contribution limits apply to contributions made at any time, but the loan-repayment limit 

applies only to contributions made after the election. 

Contribution limits apply to contributions that are used

for any election-related purpose, but the loan-repayment
31

limit applies only to contributions used to repay candidate loans.

At least in theory, contribution limits could have the 

same type of deterrent effect on candidate lending that 

appellees attribute to the loan-repayment limit. Contribution limits may reduce the amount of money that a 

campaign can amass for any purpose, including repaying loans. On appellees’ theory, that possibility might

inhibit candidates from loaning money to their campaigns in the first instance. Yet this Court has concluded that contribution limits impose “only a marginal 

restriction” on speech. Buckley, 424 U.S. at 20. The 

burden imposed by the loan-repayment limit is even 

less substantial. 

2. As applied in this case, the loan-repayment limit

does not burden speech at all

“Through contributions [to a candidate] the contributor associates himself with the candidate’s cause, helps 

the candidate communicate a political message with 

which the contributor agrees, and helps the candidate 

win by attracting the voices of similarly minded voters.” 

Shrink Missouri, 528 U.S. at 400 (Breyer, J., concurring). Senator Cruz’s loan to his campaign did not 

meaningfully serve any of those purposes. 

Senator Cruz made the loan the day before the election, and he transparently tailored the loan’s $260,000 

amount to enable him to bring this challenge to the 

$250,000 cap, while limiting (to $10,000) the personal financial loss that he might suffer if his challenge ultimately fails. Appellees have presented no evidence that 

the campaign ever used or even intended to use the 

money to fund speech. To the contrary, appellees have 

stipulated that “the sole and exclusive motivation behind Senator Cruz’ actions in making the 2018 loan[s] 
32

* * * was to establish the factual basis for this challenge.” J.A. 325. As applied in this case, therefore, the 

loan-repayment limit did not burden the right to fund 

political speech, but affected only the ability to shuttle 

money from one account to another for other purposes. 

Even if the loan amounted to political speech, Section 

30116(j) imposed no practical impediment to the campaign’s ability to repay it. The committee had approximately $2.38 million in pre-election funds left over after 

the election. J.A. 326. Because the campaign used 

$250,000 of those funds to repay the bulk of Senator 

Cruz’s loan, BCRA’s loan-repayment limit imposed no 

constraint on appellees’ ability to use post-election 

funds to repay the rest. See pp. 12-16, supra. As noted, 

the campaign’s current inability to repay the remaining 

$10,000 is attributable to an FEC regulation rather than 

to the statute, see pp. 16-20, supra, and in any event it 

results from the campaign’s deliberate delay in repaying the $250,000 so as to facilitate this lawsuit. Nor did 

the limit prevent anyone who wanted to contribute 

money from doing so. In fact, appellees have stipulated 

that they “are unable to identify a single potential contributor” who sought “to make contributions to enable 

the Committee to repay Senator Cruz using more than 

$250,000 in post-election funds.” J.A. 330. 

B. Congress’s Compelling Interest In Preventing Actual 

And Apparent Corruption Justifies The Burden Imposed 

By The Loan-Repayment Limit

Given the minimal burdens on political speech that 

the loan-repayment limit imposes, the limit is subject at 

most to “closely drawn” scrutiny. In any event, the limit 

satisfies any potentially applicable standard of review, 

including strict scrutiny. 
33

1. The loan-repayment limit serves the compelling 

interest in preventing actual and apparent corruption

To satisfy heightened scrutiny, the government must 

show that the challenged law serves a “compelling” or 

“sufficiently important” interest. Arizona, 564 U.S. at 

734-735 (citations omitted). This Court has recognized 

the government’s compelling interest in preventing 

quid pro quo corruption and in avoiding the appearance 

of quid pro quo corruption. See Buckley, 424 U.S. at 26-

27. That interest “has never been doubted.” Shrink 

Missouri, 528 U.S. at 389 (citation omitted). Such corruption leads elected officials to violate their “obligations of office,” subverting “the political process” and 

threatening “the integrity of our system of representative democracy.” Id. at 388-389 (citations omitted). And 

avoiding the perception of such corruption “is also critical if confidence in the system of representative Government is not to be eroded to a disastrous extent.” 

Buckley, 424 U.S. at 27 (citation and ellipsis omitted). 

The loan-repayment limit helps prevent both actual and 

apparent corruption. 

a. The contributions regulated by the loan-repayment

limit raise a heightened risk of corruption because of 

the use to which the contributions are put: repaying a 

candidate’s personal loans. When a campaign uses a 

contribution to fund routine campaign activities, the 

contribution helps the candidate by marginally improving his chance of victory, but it does not add to the candidate’s personal wealth. But when a campaign uses a 

contribution to repay the candidate’s loan, every dollar 

given by the contributor ultimately goes into the candidate’s pocket. A contribution that adds to a candidate’s 

personal assets (and that can accordingly be used for 
34

personal purposes) poses a far greater threat of corruption than a payment that merely adds to a campaign’s 

treasury (and that can accordingly be used only for campaign purposes). 

In many other contexts, officeholders are forbidden 

to accept payments that add to their personal wealth

because of the risk that such payments could corrupt or 

be seen to corrupt them. The Foreign Emoluments 

Clause prohibits federal officials from accepting any 

“present” or “Emolument” from foreign powers. U.S. 

Const. Art. I, § 9, Cl. 8. Many federal statutes restrict 

the acceptance of gifts by federal officials. See, e.g., 

2 U.S.C. 4725; 5 U.S.C. 7342, 7351, 7353. Rules adopted 

by the Senate and House of Representatives restrict 

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

Standing Rules of the Senate, 113th Cong., 1st Sess. 46-

56 (2013) (Rule XXXV); Rules of the House of Representatives, 116th Cong. 42-46 (2019) (Rule XXV.5). 

Regulations adopted by the Executive Branch restrict 

executive officers’ and employees’ acceptance of gifts 

worth $20 or more from individuals who may be affected 

by performance of the gift recipients’ official duties. 

See 5 C.F.R. 2635.204. Similar regulations adopted by 

the Judicial Conference restrict judges’ and judicial employees’ acceptance of gifts worth more than $50 from 

persons doing business with the courts. See United 

States Courts, Guide to Judiciary Policy, Vol. 2C, Ch. 

6, § 620.35(8) (July 27, 2021). And federal law prohibits

candidates from using campaign contributions for personal purposes, such as paying off mortgages and buying clothes. 52 U.S.C. 30114(b)(2); see FEC v. O’Donnell, 209 F. Supp. 3d 727, 739-741 (D. Del. 2016) (upholding provision). 
35

The loan-repayment limit reflects the same commonsense recognition that a payment that increases an officeholder’s personal wealth creates a particular risk of 

real or apparent corruption. Like a gift made directly 

to the candidate, a contribution that repays an earlier 

candidate loan results in a dollar-for-dollar increase in 

the candidate’s personal assets. If a gift of just $50 creates a danger of corruption, a contribution that personally 

enriches the candidate by up to $2700 (the per-election

limit in 2018) can surely have that effect. 

b. The contributions targeted by the loan-repayment

limit are concerning in an additional respect as well, in 

that they are made after the election. A post-election 

contributor usually will be aware that his contribution 

will personally enrich the candidate, since a campaign 

may accept post-election contributions only to repay 

debt. See 11 C.F.R. 110.1(b)(3)(i). And more than 90% 

of campaign debt consists of candidate loans (as opposed to loans from third-party lenders). See J.A. 308. 

A pre-election donor may believe that his contribution 

will incrementally improve the favored candidate’s 

chances of prevailing in the election, but a post-election 

donor can be reasonably confident that the contribution 

will help the candidate on a personal level. That knowledge magnifies the risk of a quid pro quo. 

A post-election contributor also usually will know

whether the recipient of the contribution has prevailed 

in the election. The contributor therefore can know—

rather than merely hope—that the recipient will be in a 

position to do him official favors. That difference “between a bet and a bet on a sure thing” further increases

the risk that the contribution will be part of a quid pro 

quo. Ferre v. State ex rel. Reno, 478 So. 2d 1077, 1080 

n.9 (Fla. Dist. Ct. App. 1985).
36

The post-election context also introduces the risk 

that the donor will contribute out of perceived compulsion rather than conviction. For example, a donor who 

contributed to the losing candidate before the election 

may feel pressure to contribute to the winning candidate afterwards, lest he face retaliation. See pp. 37-38, 

infra (discussing examples of contributions made 

because of such fears). Congress has a compelling interest in protecting donors from such pressure. See 

McConnell, 540 U.S. at 148 n.47. 

Underscoring all those points, the main legitimate

rationales for donating money to campaigns do not apply (or apply only insubstantially) to contributions made 

after the election. The most obvious legitimate reasons 

for contributing money are (1) pooling funds with other 

donors to facilitate political speech, (2) symbolically expressing support for a candidate, and (3) increasing, at 

least marginally, the likelihood that the favored candidate will prevail. A post-election contribution serves 

none of those purposes. It does not facilitate additional 

political speech, for the campaign is over. Its symbolic 

value as an expression of support is minimal, since any 

such message is conveyed after the opportunity to sway 

voters has 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 pre-election contribution 

to be motivated by an expectation of special favors or a 

fear of retaliation. 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”). 
37

c. Empirical evidence reinforces the common-sense 

judgment that post-election contributions used to repay 

candidate loans carry inherent corruptive potential. 

Winning candidates have historically found it easier 

than losing candidates to raise such contributions. See 

J.A. 317. “When you wake up a loser, you have a deficit. 

When you wake up a winner, you have a deficit retirement party.” Steven V. Roberts, Debt Retirement Party

Becoming an Institution, N.Y. Times, Nov. 29, 1982. 

That pattern suggests that the contributions reflect an 

expectation of favors from the recipient. 

Examples from States without loan-repayment limits, and from the federal government before Congress 

enacted the BCRA limit, illustrate the point. In 1998, a 

congresswoman who served on the House Transportation and Infrastructure Committee loaned her campaign $150,000 at 18% interest; collected $221,780 in interest (more than the original amount of the loan) over 

the next decade; and raised contributions to pay the 

principal and interest at fundraisers hosted by a lobbying firm representing transportation interests. See J.A.

334; Andrew Zajac, Interest on campaign loan pays, 

L.A. Times, Feb. 14, 2009. In Kentucky, two governors 

loaned their campaigns millions of dollars, “only to be 

repaid after the election by contributors seeking no-bid 

contracts.” J.A. 343 (citation omitted). In Ohio, an attorney general routed 225 state contracts worth $9.6 

million in legal fees to law firms and lawyers who had 

given him $194,830 after the election to repay personal 

loans. J.A. 337. In Oregon, contributors who had supported losing candidates before an election contributed 

to the winning opponents after the election; Oregon political insiders referred to these payments as “‘apology’ 

money or ‘make-up’ cash.” Jeff Mapes, Brown Enjoys 
38

Post-Election Donation Boom—While Pushing Campaign Finance Limits, Oregon Public Broadcasting 

(Portland), Feb. 28, 2019; see Jeff Mapes, Oregon legislators reap big post-election donations—much of it 

‘makeup money,’ The Oregonian / OregonLive (Salem),

Mar. 10, 2013. Other States have had similar experiences. See, e.g., J.A. 341 (Oklahoma); Conor Shine, Why 

did Nevada candidates keep getting donations after 

election?, Las Vegas Sun, Jan. 21, 2015 (Nevada); Jerry 

Cornfield, Post-election: It’s the season to keep on giving, Auburn Reporter, Dec. 10, 2014 (Washington); Associated Press, Minnesota’s Post-Election Money 

Blitz, At A Glance (St. Paul, Minn.), Feb. 5, 2015 (Minnesota). 

In the debates that preceded BCRA’s enactment, 

Members of Congress discussed the dangers of allowing 

candidates to repay personal loans using post-election 

contributions. One senator remarked that, without the 

loan-repayment limit, a winning candidate who loaned 

money to his campaign could “get it back from [his] constituents [at] fundraising events” where he could ask, 

“How would you like me to vote now that I am a Senator?” 147 Cong. Rec. 3882 (2001) (statement of Sen. Domenici). He also observed that, without the limit, a winning candidate could “go around and say, now I am the

Senator, I want you to get me money so I can pay back 

what I used of my own money to run for election.” 147 

Cong. Rec. 3966 (2001) (statement of Sen. Domenici). 

Another senator stated that candidates may “have a 

constitutional right to try to buy the office, but they do 

not have a constitutional right to resell it.” Id. at 3970 

(statement of Sen. Hutchison). 

A study of campaign debt and voting patterns from 

1983 to 2014 underscores the risks posed by the conduct 
39

that the loan-repayment limit addresses. See D. Ct. 

Doc. 65-1 (July 14, 2020). The study found that “indebted politicians” were “significantly more likely” 

than “debt-free counterparts” to “switch their votes if 

they receive[d] contributions from * * * special interests.” Id. at 29. That finding suggests that contributions used to repay personal loans are more valued by

officeholders than are other contributions. The study 

also found, however, that after enactment of the loanrepayment limit in 2002, politicians who made “large 

loans to their campaigns” were “significantly less responsive” to contributions than before and began to 

“behave remarkably similar to their debt free counterparts.” Id. at 26. That finding suggests that the loanrepayment limit helps counteract the corruptive potential of post-election contributions by diminishing the 

prospect that such contributions will personally enrich 

the officeholder. 

Finally, a survey in the record showed that 81% of 

respondents stated that they considered it “likely” or 

“very likely” that a person who donates money to a campaign after the election expects a political favor in return. J.A. 351 (citation omitted). That perception is understandable. After the election ends, “there is an impression that the contributor is lining the candidate’s 

pocket, as there is no ongoing campaign to which the 

contribution may be made.” Wilkinson v. Jones, 876 

F. Supp. 916, 930 (W.D. Ky. 1995). 

To the extent the matter is otherwise in doubt, this 

Court owes deference to the legislative judgment that 

the practices targeted by the loan-repayment limit pose 

a special risk of corruption. Even in First Amendment 

cases, a court owes “substantial deference to the predictive judgments of Congress.” Turner Broadcasting 
40

System, Inc. v. FCC, 520 U.S. 180, 195 (1997) (citation 

omitted). That deference rests in part on “respect” for 

Congress as a coordinate branch of government, and in

part on the understanding that Congress “‘is far better 

equipped than the judiciary to “amass and evaluate the 

vast amounts of data” bearing upon’ legislative questions.” Id. at 195-196 (citation omitted). Deference is especially appropriate in the context of campaign finance, 

“an area in which [Congress] enjoys particular expertise.” McConnell, 540 U.S. at 137; see FEC v. National 

Right to Work Committee, 459 U.S. 197, 209 (1982). 

2. The loan-repayment limit is properly tailored

To satisfy heightened scrutiny, the government also 

must show that the challenged restriction is “narrowly 

tailored” or “closely drawn” to serve its interest. Arizona, 564 U.S. at 734-735 (citations omitted). The loanrepayment limit satisfies that requirement too. The 

limit “targets and eliminates no more than the exact 

source of the ‘evil’ it seeks to remedy.” Frisby v. Schultz, 

487 U.S. 474, 485 (1988) (citation omitted). Using postelection contributions to repay candidate loans poses a 

special risk of corruption, and the limit homes in on that 

specific practice, leaving speech otherwise untouched. 

Congress had no less restrictive alternative that 

would have been equally effective in serving its interest. 

For example, it could not rely on bribery laws alone. 

This Court has “expressly rejected the argument that 

antibribery laws provided a less restrictive alternative” 

to campaign-finance restrictions, McConnell, 540 U.S. 

at 143; see Buckley, 424 U.S. at 28. All three branches 

of the federal government, moreover, have supplemented bribery laws with restrictions on the acceptance 

of gifts. See p. 34, supra. Those gift rules reflect the 

judgment that payments resulting in personal financial 
41

gain for an official should be substantially restricted as 

a categorical matter, without any showing that a particular gift forms part of a quid pro quo arrangement. The 

loan-repayment limit rests on the same judgment. 

Federal contribution limits likewise do not suffice, 

for they do not target the specific circumstances that

the loan-repayment limit addresses. Current federal 

contribution limits reflect Congress’s judgment as to 

the appropriate balance between facilitating effective 

electoral advocacy on the one hand, and minimizing the 

risk of actual or apparent corruption on the other, in the 

more typical circumstances where the contributions will 

be used for campaign-related activities. The loanrepayment limit, by contrast, addresses the risk of actual or apparent corruption created by a specific class 

of payments that add to the candidate’s personal wealth, 

and that do not facilitate campaign-related speech in the 

manner that pre-election contributions typically do. 

That danger can arise even when each contribution falls 

within the applicable statutory cap. The recognition 

that payments flowing to the candidate have increased 

corruptive potential underlies the decisions of both 

Houses of Congress to restrict the acceptance of gifts 

as small as $50. See p. 34, supra. In any event, this 

Court has “never held that adopting contribution limits 

precludes [the government] from pursuing its compelling interests through additional means.” WilliamsYulee, 575 U.S. at 455.

Nor, finally, do disclosure laws suffice. Disclosure 

laws can enable the electorate to supervise pre-election

contributions; voters who disapprove of a candidate’s 

funding practices can punish him at the ballot box. See 

McCutcheon v. FEC, 572 U.S. 185, 223-224 (2014) (opinion of Roberts, C.J.). But post-election contributions 
42

are inherently immune from that check; by the time 

such contributions occur and are disclosed, “it is too late 

for the revelation to be considered by the voters.” 

Ferre, 478 So. 2d at 1080.

C. The District Court’s Contrary Analysis Is Flawed

The district court concluded that the loan-repayment 

limit fails heightened First Amendment scrutiny, but its 

analysis is flawed.

1. The district court erred in concluding that the loanrepayment limit does not help to prevent actual and 

apparent corruption

The district court concluded that the government 

had failed to show that the transactions regulated by 

the loan-repayment limit pose a special risk of corruption. J.S. App. 21a-30a. The court found the record here 

less “robust” than in other cases where this Court has 

upheld challenged laws. Id. at 24a.

The district court understated the strength of the 

government’s showing. The government has shown 

that, as a matter of common sense, contributions that 

predictably result in personal financial gain for a candidate pose an increased danger of corruption, especially 

when the contributions occur after the election. See pp. 

33-40, supra; cf. McConnell, 540 U.S. at 158 (relying on 

“common sense”). It has explained how the judgment 

that underlies the loan-repayment limit also underlies 

longstanding laws restricting gifts to officeholders. See 

p. 34, supra; cf. McConnell, 540 U.S. at 158 (noting that 

the principle underlying a challenged restriction “appear[ed] elsewhere in federal laws”). It has cited statements from legislators and from courts discussing the 

dangers posed by the regulated practice. See pp. 35, 38, 

supra; cf. Shrink Missouri, 528 U.S. at 393-394 (relying 
43

on legislators’ statements). It has provided examples of 

the problems that can arise in the absence of the loanrepayment limit. See pp. 37-38, supra; cf. Buckley, 424 

U.S. at 27 (discussing “deeply disturbing examples”). 

And it has cited studies and surveys underscoring the 

risk of actual and apparent corruption. See pp. 38-39, 

supra; cf. Williams-Yulee, 575 U.S. at 459-461 (Ginsburg, J., concurring in part and concurring in the judgment) (relying on studies and surveys).

The district court’s insistence on an even more extensive record was inappropriate. Even administrative 

agencies may make policy judgments, and promulgate 

rules premised on those judgments, without producing 

statistical studies and empirical data to support their 

findings. See FCC v. Prometheus Radio Project, 141 

S. Ct. 1150, 1160 (2021); FCC v. Fox Television Stations, Inc., 556 U.S. 502, 518-520 (2009). And “Congress 

is not obligated, when enacting its statutes, to make a 

record of the type that an administrative agency or 

court does to accommodate judicial review.” Turner 

Broadcasting System, Inc. v. FCC, 512 U.S. 622, 666 

(1994) (plurality opinion). Congress may instead rely on 

“deductions and inferences for which complete empirical support may be unavailable.” Id. at 665. 

The district court’s concerns about the adequacy of 

the evidentiary record were particularly misplaced 

here. First, “[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 Missouri, 528 U.S. at 391. The justification raised here—

that payments resulting in personal financial gain for 

the candidate pose a particular risk of corruption—is 

neither novel nor implausible, but instead underlies gift 
44

rules that apply to officials in all three branches of the 

federal government. Second, the quantum of evidence 

needed also varies with the severity of the burden imposed. See Randall v. Sorrell, 548 U.S. 230, 248-249 

(2006) (opinion of Breyer, J.). The burden imposed here 

is slight. Third, it is one thing to object to the “failure 

to adduce empirical data that can readily be obtained,” 

but “something else to insist upon obtaining the unobtainable.” Fox, 556 U.S. at 519. Because BCRA’s loanrepayment limit has been in place for nearly 20 years, 

“no data can be marshaled to capture perfectly the 

counterfactual world in which [such] limits do not exist.” 

McCutcheon, 572 U.S. at 219 (opinion of Roberts, C.J.).

2. The district court erred in finding the loan-repayment

limit to be inadequately tailored

The district court also found the loan-repayment 

limit to be “not sufficiently tailored.” J.S. App. 31a. 

That, too, is incorrect.

a. The district court first found the loan-repayment

limit “over inclusive” because it “applies across the 

board to winning and losing candidates, although any 

purported anticorruption rationale applies only to winning candidates.” J.S. App. 31a. That analysis is flawed, 

because a litigant generally may “challenge the constitutionality of a statute only insofar as it adversely affects his own rights.” Clements v. Fashing, 457 U.S. 

957, 966 n.3 (1982). “[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.” Ibid. (citation omitted). The 

narrow-tailoring requirement does not create an exception to that rule; it enables a litigant to complain that a 

law restricts too much of his own speech, see, e.g., 
45

McCullen v. Coakley, 573 U.S. 464, 486-497 (2014), not

that it restricts the speech of too many other persons. 

Because this case involves a candidate who won his election, the anticorruption rationale underlying the loanrepayment limit applies with full force here. 

This Court has recognized, moreover, that Congress 

may “require that all parties and all candidates follow 

the same set of rules designed to protect the integrity 

of the electoral process,” even if the rationale for a particular rule applies with greater force to some parties 

or candidates than to others. McConnell, 540 U.S. at 

159. For example, Congress may subject minor parties 

to the same campaign-finance restrictions as the major 

parties, even though the minor parties’ “slim prospects 

for electoral success” mean that they “pose no threat of 

corruption comparable to that posed by the [major parties].” Ibid.; see Buckley, 424 U.S. at 34-35. By the 

same logic, Congress need not exempt losing candidates 

from the rules that properly apply to winning candidates. It is also significant, in this regard, that the loanrepayment limit has a practical constraining effect only 

on candidates who are able to raise more than $250,000 

in post-election funds. Because post-election contributions are much more often made to winning candidates 

than to losing ones, see p. 37, supra, the practical impact 

of the statutory limit falls predominantly on candidates

who prevail.

In all events, BCRA’s severability clause provides 

that, “[i]f any provision of this Act, or the application 

thereof to any person or circumstance, is held invalid, 

the validity of the remainder of the Act and the application of such provision to other persons and circumstances shall not be affected thereby.” 52 U.S.C. 30144. 
46

If the loan-repayment limit violates the First Amendment as applied to losing candidates, the proper remedy 

would be to hold as much if a losing candidate adversely 

affected by the limit brings suit to challenge it. But the 

limit would remain valid as applied to winning candidates like Senator Cruz. 

b. After concluding that the loan-repayment limit 

restricts too much speech, the district court complained 

that it restricted too little, finding it “substantially underinclusive as to the government’s asserted interests.” 

J.S. App. 32a. But “the First Amendment imposes no 

freestanding ‘underinclusiveness limitation.’” WilliamsYulee, 575 U.S. at 449 (citation omitted); see McConnell, 

540 U.S. at 207-208; R. A. V. v. City of St. Paul, 505 U.S. 

377, 387 (1992). Rather, underinclusiveness poses a 

constitutional problem only when it raises “doubts 

about whether the government is in fact pursuing the 

interest it invokes, rather than disfavoring a particular 

speaker or viewpoint.” Williams-Yulee, 575 U.S. at 448 

(citation omitted).

The district court deemed the loan-repayment limit 

underinclusive because it applies to contributions that 

repay “personal loans” but not “other types of campaign 

debt.” J.S. App. 32a. But contributions that repay candidate loans differ fundamentally from contributions 

that repay third-party loans. The former result in dollarfor-dollar increases in the candidate’s personal wealth, 

while the latter do not. See pp. 33-35, supra. That the 

loan-repayment limit applies only to the former shows 

not underinclusiveness but narrow tailoring. 

The district court also found the loan-repayment 

limit underinclusive because it “does not restrict preelection contributions to incumbents,” who are likewise 

“in a position to grant favors.” J.S. App. 33a. The court 
47

saw “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 preelection debt poses a unique and heightened concern.” 

Ibid. But a pre-election contribution, even to an incumbent, differs in meaningful ways from a post-election 

contribution.

A pre-election contribution usually will not add to the 

candidate’s personal wealth; a post-election contribution that repays personal loans will. And unlike a preelection contribution to an incumbent, a post-election 

contribution does not further the usual legitimate purposes of campaign contributions, since it cannot be used

to fund electoral advocacy during the relevant campaign 

and cannot increase the incumbent’s chances of winning 

the election. The district court also appeared to suggest 

that Congress should have pursued its anti-corruption

interest by enacting different limits for incumbents 

than for challengers, see J.S. App. 33a, but that asymmetrical scheme would itself raise constitutional concerns, see Davis, 554 U.S. at 738. 

Finally, the district court found the loan-repayment 

limit underinclusive because it permits a candidate to 

use up to $250,000 in post-election funds to repay personal loans. J.S. App. 32a-33a. That objection is difficult to reconcile with this Court’s observation that there 

is “no constitutional basis for attacking contribution 

limits on the ground that they are too high.” Davis, 554 

U.S. at 737. It also overlooks the reality that “[n]o legislation pursues its purposes at all costs.” Cyan, Inc. v. 

Beaver County Employees Retirement Fund, 138 S. Ct. 

1061, 1073 (2018) (citation omitted). Like many other 

provisions of federal campaign-finance law, the loan- 
48

repayment limit reflects Congress’s effort to strike an 

appropriate balance between potentially competing objectives, so as to vindicate the compelling government 

interest in avoiding actual or apparent quid pro quo corruption while preserving candidates’ ability to “amass 

the resources necessary to reach the electorate.” Buckley, 424 U.S. at 34. Although Congress could have forbidden all use of post-election contributions to repay 

personal loans, it chose instead to accommodate candidates who wish to use personal loans to finance their 

campaigns. This Court should not “punish [Congress] 

for leaving open more, rather than fewer, avenues of expression.” Williams-Yulee, 575 U.S. at 452. 

CONCLUSION

The judgment of the district court should be vacated,

and the case should be remanded with instructions to 

dismiss for lack of standing appellees’ challenge to 

BCRA’s loan-repayment limit. Alternatively, the judgment of the district court on the merits should be reversed. 

Respectfully submitted.

LISA J. STEVENSON

Acting General Counsel

KEVIN DEELEY

Associate General Counsel 

HARRY J. SUMMERS

Assistant General Counsel

HAVEN G. WARD

SHAINA WARD

Attorneys 

Federal Election Commission

ELIZABETH B. PRELOGAR

Solicitor General

MALCOLM L. STEWART

Deputy Solicitor General

VIVEK SURI

Assistant to the Solicitor 

General

NOVEMBER 2021
(1a)

APPENDIX

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. 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:
2a 

(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.

(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 
3a 

filed after the election pursuant to 11 CFR 104.5(a) or 

(b).

(d) This section applies separately to each election.

 

3. 11 C.F.R. 116.12 provides:

Repayment of candidate loans of $250,000 or less.

(a) A candidate’s authorized committee may repay 

to the candidate a personal loan, as defined in 11 CFR

116.11(a), of up to $250,000 where the proceeds of the 

loan were used in connection with the candidate’s campaign for election. The repayment may be made from 

contributions to the candidate or the candidate’s authorized committee at any time before, on, or after the date 

of the election.

(b) This section applies separately to each election.

(c) Nothing in this section shall supersede 11 CFR 

9035.2 regarding the limitations on expenditures from

personal funds or family funds of a presidential candidate who accepts matching funds.