No. 21-12 

================================================================================================================

In The 

Supreme Court of the United States 

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FEDERAL ELECTION COMMISSION, 

Appellant, 

v. 

TED CRUZ FOR SENATE and 

SENATOR RAFAEL EDWARD “TED” CRUZ, 

Appellees. 

--------------------------------- ♦ --------------------------------- 

On Appeal From The 

United States District Court 

For The District Of Columbia 

--------------------------------- ♦ --------------------------------- 

BRIEF OF CAMPAIGN LEGAL CENTER AS 

AMICUS CURIAE IN SUPPORT OF APPELLANT 

--------------------------------- ♦ --------------------------------- 

PAUL M. SMITH

Counsel of Record 

TARA MALLOY

ADAV NOTI

ALEXANDRA COPPER

CAMPAIGN LEGAL CENTER

1101 14th St. NW, Suite 400 

Washington, DC 20005 

(202) 736-2200 

psmith@campaignlegal.org 

Counsel for Amicus Curiae 

================================================================================================================ COCKLE LEGAL BRIEFS (800) 225-6964 

WWW.COCKLELEGALBRIEFS.COM 
i 

TABLE OF CONTENTS 

Page 

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

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

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

ARGUMENT ........................................................ 5 

 I. The Lower Court Misconstrued and Overstated the First Amendment Burdens Presented by the Loan-Repayment Limit ........ 5 

A. The challenged law functions as a limit 

on personal gifts aggregating over 

$250,000, not as a limit on candidate 

campaign spending ................................ 5 

B. The district court’s standing analysis 

relied on a material error .................... 8 

 II. Limiting Post-Election Payments that Personally Enrich Candidates Serves Demonstrated Anti-Corruption Interests that the 

District Court Failed to Credit .................... 11 

A. The interests advanced by the challenged law are neither novel nor implausible .............................................. 11 

B. The FEC provided ample evidence to 

substantiate the anti-corruption objective of the loan-repayment limit ..... 17 

C. The district court failed to pay deference to Congress in an area of unique 

legislative expertise ............................. 22 

CONCLUSION ..................................................... 25 
ii 

TABLE OF AUTHORITIES 

Page 

CASES

Ariz. Free Enterprise Club’s 

Freedom Club PAC v. Bennett, 

564 U.S. 721 (2011) ................................................... 7 

Buckley v. Valeo, 

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

Cal. Med. Ass’n v. FEC, 

453 U.S. 182 (1981) ................................................. 24 

Citizens United v. FEC, 

558 U.S. 310 (2010) ................................................. 14 

Davis v. FEC, 

554 U.S. 724 (2008) ......................................... 5, 7, 24 

FEC v. Beaumont, 

539 U.S. 146 (2003) ............................................. 3, 24 

FEC v. Colo. Republican 

Fed. Campaign Comm., 

533 U.S. 431 (2001) ................................................. 13 

FEC v. Nat’l Conservative PAC, 

470 U.S. 480 (1985) ....................................... 3, 17, 24 

FEC v. Nat’l Right to Work Comm., 

459 U.S. 197 (1982) ................................................. 23 

First Nat’l Bank of Boston v. Bellotti, 

435 U.S. 765 (1978) ................................................... 3 

McConnell v. FEC, 

540 U.S. 93 (2003) ................................. 1, 4, 6, 14, 24 

McCutcheon v. FEC, 

572 U.S. 185 (2014) ............................................. 1, 13 
iii 

TABLE OF AUTHORITIES—Continued 

Page 

Nev. Comm’n on Ethics v. Carrigan, 

564 U.S. 117 (2011) ................................................. 15 

Nixon v. Shrink Mo. Gov’t PAC, 

528 U.S. 377 (2000) ........................... 4, 12, 21, 22, 24 

Randall v. Sorrell, 

548 U.S. 230 (2006) ................................................. 24 

Schickel v. Dilger, 

925 F.3d 858 (6th Cir. 2019) .................................... 13 

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

512 U.S. 622 (1994) ................................................... 4 

Wagner v. FEC, 

793 F.3d 1 (D.C. Cir. 2015) ................................ 13, 21 

Williams-Yulee v. Florida Bar, 

575 U.S. 433 (2015) ................................................. 23 

STATUTES AND REGULATIONS

5 U.S.C. § 7353(a) ........................................................ 15 

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

52 U.S.C. § 30116(j) ................................................... 2, 5 

5 C.F.R. § 2635.204 ..................................................... 15 

11 C.F.R. § 113.1(g) ..................................................... 16 

11 C.F.R. § 116.11(b)(1) ............................................. 5, 6 

11 C.F.R. § 116.11(c)(1) ................................................. 5 
iv 

TABLE OF AUTHORITIES—Continued 

Page 

OTHER AUTHORITIES

Kitty Eisele, Presidential Campaign Debt Can 

Linger For Decades, NPR (July 5, 2011), 

https://www.npr.org/2011/07/05/137615746/

presidential-campaign-debt-can-linger-fordecades ...................................................................... 9 

Dave Levinthal, 14 presidential candidates 

who still owe campaign debt, Salon (May 2, 

2013), https://www.salon.com/2013/05/02/14_

presidential_candidates_who_havent_paid_for_

their_campaigns_partner ....................................... 10 

Judicial Conference, Code of Conduct for United 

States Judges, Canon 4(D)(4) ................................. 15 

U.S. Office of Gov’t Ethics, Conflicts of Interest 

Considerations: Liabilities 2 (last updated June 

22, 2018), https://www.oge.gov/web/OGE.nsf/

0/2063F6A1854A65E3852585B6005A2275/

$FILE/Liabilities.pdf ............................................. 16 
1 

INTEREST OF AMICUS CURIAE1

 This brief is filed by Campaign Legal Center (CLC), 

a nonpartisan, nonprofit organization that works in 

the areas of campaign finance, ethics, and election law 

to ensure that government is accountable, accessible, 

and transparent. 

 CLC has participated as an amicus curiae or counsel to parties in numerous campaign finance cases 

directly relevant to this appeal, including McConnell v. 

FEC, 540 U.S. 93 (2003), and McCutcheon v. FEC, 572 

U.S. 185 (2014). 

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SUMMARY OF ARGUMENT 

 When the Supreme Court decried the “danger of 

actual quid pro quo arrangements” in Buckley v. Valeo, 

424 U.S. 1, 27 (1976) (per curiam), it was concerned 

about the possibility that private contributions would 

be given to candidate campaigns in exchange for eventual official favors. 

 In this case, however, the “quid” in question is not 

a typical campaign contribution made to a federal 

candidate’s authorized committee to support an active 

1 On July 28, 2021, pursuant to Rule 37.2(a), counsel for 

amicus curiae informed the parties of its intent to file an amicus

brief, nine days before the filing date of August 6. All parties consented in writing to CLC’s participation in this case. This brief 

was not authored in whole or in part by counsel for any party. No 

person or entity other than amicus or its counsel made a monetary contribution to this brief ’s preparation or submission. 
2 

campaign; instead, it is money solicited after the 

election has occurred for the sole purpose of repaying 

the candidate’s personal campaign loans—and is thus 

money that goes right back into the candidate’s pocket. 

See 52 U.S.C. § 30116(j) (the “loan-repayment limit”). 

 The risk of corruption posed by what is functionally a personal “gift” to a candidate is self-evident. 

Indeed, the immediate personal financial benefits provided by such a post-election contribution are even 

more likely to lead to “blatant and specific attempts 

of those with money to influence governmental action,” 

Buckley, 424 U.S. at 28, than are the more typical 

contributions to campaign treasuries addressed in 

Buckley. 

 Nonetheless, the district court reviewed the loanrepayment limit challenged here as if its anti-corruption purpose were novel, disregarding the myriad 

longstanding laws and rules regulating contributions 

and gifts to candidates and officeholders, many of 

which have been reviewed and upheld by this Court. 

 The district court’s blinkered review resulted in 

two principal errors. 

 First, in laboring to wedge this unique limit into 

the existing taxonomy of campaign finance law, the 

lower court misunderstood how the limit functioned 

and consequently overstated the First Amendment 

burdens it posed. Properly understood, the limit 

does not regulate candidate self-financing or restrict 

campaign contributions; instead, it simply limits a 
3 

candidate’s accrual of personal financial benefits in the 

post-election period. 

 The lower court also overlooked a key fact in this 

case: Ted Cruz for Senate (the “Cruz campaign”) did 

not actually use post-election contributions to repay 

Senator Cruz for his $260,000 loan to the campaign. 

Instead, the campaign used pre-election contributions 

to repay $250,000 of this loan, and thus was not constrained with respect to the type of contributions it 

could apply to the remaining $10,000 loan balance. 

This material error represents a clear defect in the district court’s findings with respect to appellees’ standing and underscores the tenuous nature of the alleged 

burden. Summary reversal of the district court’s judgment and remand with instructions to dismiss is warranted on this ground alone. 

 Second, the district court erred in presuming that 

the anti-corruption objectives of the loan-repayment 

limit were somehow novel or untested—instead, the 

importance of this governmental interest is well-established and has been repeatedly recognized as justifying 

a range of analogous campaign contribution limits and 

gift rules. To be sure, the government still bears the 

burden of demonstrating that the challenged law is 

well-tailored to advance this “legitimate and compelling” governmental interest, FEC v. Nat’l Conservative 

PAC, 470 U.S. 480, 496 (1985), but the sufficiency or 

weight of the interest “has never been doubted.” FEC 

v. Beaumont, 539 U.S. 146, 154 (2003) (quoting First 

Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 788, n.26 

(1978)). 
4 

 As a consequence of this error, the lower court held 

appellant Federal Election Commission (FEC or Commission) to an unduly stringent standard in terms of 

the evidence needed to substantiate its governmental 

interest, and then rejected the FEC’s proffered evidence without adequate explanation or any discernable standard governing its review. But “[t]he quantum 

of empirical evidence needed to satisfy heightened judicial scrutiny of legislative judgments will vary up or 

down with the novelty and plausibility of the justification raised.” Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 

377, 391 (2000). It is hardly novel or implausible to believe that a post-election contribution that effectively 

goes straight into a candidate’s pocket may create a 

risk of corruption. The government’s burden should 

have been correspondingly light. 

 Nor did the lower court pay appropriate deference 

to Congress’s judgment about the dangers of postelection fundraising—although this subject is uniquely 

within the legislature’s expertise. “We ‘must accord 

substantial deference to the predictive judgments of 

Congress,’ particularly when, as here, those predictions are so firmly rooted in relevant history and common sense.” McConnell, 540 U.S. at 165 (quoting 

Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 665 

(1994) (plurality opinion)). Here, Congress’s “prediction” that post-election contributions that directly 

and personally enrich candidates pose a particularly 

acute threat of corruption aligns both with common 
5 

sense and the record in this case. The lower court’s 

judgment should be summarily reversed. 

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ARGUMENT 

I. The Lower Court Misconstrued and Overstated the First Amendment Burdens Presented by the Loan-Repayment Limit. 

A. The challenged law functions as a limit 

on personal gifts aggregating over 

$250,000, not as a limit on candidate 

campaign spending.

 At issue here is Section 304 of the Bipartisan 

Campaign Reform Act of 2002 (BCRA), which provides 

that a federal candidate may use up to $250,000 in 

contributions raised after the date of an election to 

repay the candidate’s outstanding personal loans incurred during the campaign. 52 U.S.C. § 30116(j). The 

law places no limit on the amount of funds raised prior 

to the election that can be used to repay the candidate’s 

loans. 11 C.F.R. § 116.11(b)(1). FEC regulations further 

provide that a campaign committee has 20 days after 

the election during which it can use pre-election funds 

to pay back the candidate’s personal loans without 

limitation. Id. § 116.11(c)(1). 

 The district court held that the loan-repayment 

limit “imposes a ‘drag’ on the candidate’s First Amendment activity by discouraging the personal financing of 

campaign speech.” App. 15a (citing Davis v. FEC, 554 

U.S. 724, 739 (2008)). But that ignores how the 
6 

provision actually operates—it limits post-election personal gifts, not a candidate’s ability to self-finance or 

speak. 

 When the Court in McConnell analyzed BCRA’s 

ban on spending so-called “soft money,” the Court recognized that this “mechanism” functioned no differently from a contribution limit, and therefore subjected 

what appeared to be a spending limit to the same level 

of scrutiny as that applied to contribution limits. 540 

U.S. at 138-39. Here, however, the lower court failed to 

appreciate that the loan-repayment limit actually 

functions as a gift limit, thus misconstruing the burden it imposes and the evidence necessary to sustain 

it. 

 The repayment limit does not even indirectly 

limit the amount of personal funds a candidate can 

spend or loan to his campaign. It limits neither the 

expenditures a campaign committee may make, contra Buckley, 424 U.S. at 54 (striking down “limitations 

on overall campaign expenditures” by federal candidates), nor the amount of personal funds a candidate 

can spend or loan to his campaign, contra id. at 51-52 

(striking down limits on expenditures by a candidate 

“from his personal funds”). It also imposes no limit on 

the amount of the candidate’s personal loans that a 

campaign can repay using contributions made on or 

before election day, see 11 C.F.R. § 116.11(b)(1). Functionally, the provision just prescribes when funds 

must be raised by the campaign committee for the 

purposes of loan repayment—if they are raised after

the election, the provision acts as a $250,000 “gift” 
7 

limit on contributions that candidates receive for their 

personal use. 

 Nor is the loan-repayment limit analogous to the 

laws considered in Davis v. FEC, 554 U.S. 724 (2008), 

or Arizona Free Enterprise Club’s Freedom Club PAC 

v. Bennett, 564 U.S. 721 (2011). The statutes at issue 

there provided for an immediate and asymmetric 

change in the operative campaign rules and imposed 

concrete fundraising disadvantages on self-financing 

candidates when their spending exceeded certain 

amounts. For example, the Millionaire’s Amendment 

reviewed in Davis tripled the base contribution limits 

for a candidate’s opponent if the candidate spent over 

a threshold amount of personal funds on the campaign. 

554 U.S. at 728. This imposition of “asymmetrical” limits represented “an unprecedented penalty on any candidate who robustly exercises [the] First Amendment 

right” to self-finance. Id. at 739, 741. Here, by contrast, 

the loan-repayment limit is a provision of general applicability, creating a single regime governing the repayment of candidate campaign loans to which all 

candidates are equally subject, regardless of the actions of their opponents. 

 The district court’s fundamental mistake was to 

analyze the loan-repayment limit only in terms of the 

purpose for which the candidate ostensibly made the 

initial loan—to finance an election campaign, an action 

that indisputably receives First Amendment protection. See App. 11a-12a. But the limit does not restrict 

the amount or timing of candidate loans in an election; 

it merely regulates how much candidates can repay 
8 

themselves with contributions made after the election, 

when there is no longer any imperative to raise funds 

for that campaign. 

 In narrowly focusing on the pre-election dimensions of the transaction, the district court ignored the 

actual purpose of the loan-repayment limit: regulating 

the solicitation and receipt of post-election contributions that will directly accrue to the financial benefit 

of the candidate. If, for instance, a campaign raises 

$500,000 after the election to repay personal loans received from the candidate, that half-million dollars will 

be pocketed by the candidate. 

 The loan-repayment limit therefore does not operate as a restriction on candidates’ freedom to selffinance their campaigns, including through personal 

loans. Instead, the limit serves simply as a gift rule, 

restricting a particular type of fundraising that directly and personally enriches candidates. 

B. The district court’s standing analysis relied on a material error. 

 The negligible burdens implicated by the loanrepayment limit are borne out in the facts of this case. 

Indeed, as the Commission explains, the district court 

greatly overstated the law’s effects on Senator Cruz because its analysis relied on a factual misapprehension 

concerning the repayment of his loan. 

 As the Commission highlights, the single-judge 

district court denied the FEC’s motion to dismiss and 
9 

found that appellees had established standing only 

after crediting the allegation in their complaint that 

the Cruz campaign had used post-election funds to repay $250,000 of Senator Cruz’s $260,000 loan to his 

campaign. Jurisdictional Statement (J.S.) 9-10. But 

this understanding of the facts was incorrect. Discovery preceding summary judgment revealed that the 

$250,000 had instead been repaid with pre-election 

contributions. Id. The loan-repayment limit thus did 

not restrict the type of contributions that could be used 

to repay the outstanding $10,000 or impose any other 

“constraint on appellees’ expression.” Id. at 19. This 

clear material error warrants reversal and remand 

with instructions to dismiss. 

 This error also underscores the insubstantial and 

hypothetical nature of the “burden” posited here. It 

was pure speculation to suppose, as the district court 

did, that candidates will make decisions about selffinancing based upon their options for post-election 

loan repayment, particularly given that they have no 

way of ascertaining ex ante how much they will raise 

either before or after the election. Indeed, post-election 

fundraising is well-known to be extremely challenging, 

see FEC Statement of Undisputed Material Facts 

(SMF), D. Ct. Doc. 65, ¶ 42 (July 14, 2020); even highprofile presidential campaigns often fail to raise sufficient funds post-election to retire all of their outstanding debt. See Kitty Eisele, Presidential Campaign 

Debt Can Linger For Decades, NPR (July 5, 2011), 
10 

https://www.npr.org/2011/07/05/137615746/presidentialcampaign-debt-can-linger-for-decades; Dave Levinthal, 

14 presidential candidates who still owe campaign debt, 

Salon (May 2, 2013), https://www.salon.com/2013/05/02/ 

14_presidential_candidates_who_havent_paid_for_their_ 

campaigns_partner. The lower court had no basis to hypothesize that a candidate would reduce a pre-election 

loan to his campaign because of a $250,000 limit on the 

use of post-election funds for repayment—instead of a 

candidate’s very reasonable concern that he would not 

be guaranteed to raise anything close to this amount 

after the election. 

 Indeed, Senator Cruz’s actions were not even consistent with the district court’s theory. He loaned his 

campaign $260,000 on the eve of the election because 

he could confidently predict that his campaign would 

have more than sufficient pre-election funds on hand 

to repay the loan in full. He did not entrust the repayment of his loan to the vagaries of post-election fundraising. Indeed, Cruz and his campaign admitted that 

they only refrained from paying back the $10,000 balance with pre- or post-election contributions to preserve a test challenge to the loan-repayment limit. J.S. 

10-11, 16. In short, appellees have yet to identify any 

candidates who have been deterred from self-financing 

their campaigns due to the loan-repayment limit; Senator Cruz himself does not even count as one such candidate. 
11 

II. Limiting Post-Election Payments that Personally Enrich Candidates Serves Demonstrated Anti-Corruption Interests that the 

District Court Failed to Credit. 

 The loan-repayment limit, like other campaign finance and ethics laws, is designed to prevent quid pro 

quo corruption and its appearance. The intent of the 

law is a matter of common sense; after an election, the 

typical rationales for contributing to a political campaign—to support a candidate’s election and campaign 

speech—do not apply. Instead, as explained by the FEC 

below, “[m]oney that repays a candidate’s personal loan 

after an election effectively goes into the candidate’s 

pocket, and not to fund speech or speech-related activities.” FEC Mem. in Supp. of Summ. J. Mot., D. Ct. Doc. 

65, at 20 (July 14, 2020). At a minimum, post-election 

fundraising to retire campaign debts gives rise to “the 

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

Id. at 33. 

A. The interests advanced by the challenged 

law are neither novel nor implausible. 

 The loan-repayment limit here regulates a kind of 

transaction that forms the heartland of most public 

corruption and conflict-of-interest laws—federal candidates accepting money that they can pocket for their 

own personal benefit. Nevertheless, the lower court 

deemed the FEC’s asserted anti-corruption interest 

novel and unfounded, and concluded that the Commission had failed to meet its “burden of demonstrating 
12 

that the loan-repayment limit serves a sufficiently important interest.” App. 22a. 

 This ruling is contrary to longstanding precedent. 

As the district court acknowledged, “[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.” App. 22a (quoting Nixon, 528 U.S. at 

391). The notion that a contribution that personally enriches a candidate might give rise to actual or apparent 

corruption is neither “novel nor implausible.” Nixon, 

528 U.S. at 391. The government’s evidentiary burden 

accordingly should have been light. Yet the lower court 

required the government to substantiate its anticorruption interest as if working from a blank slate, 

divorced from four decades of campaign finance precedents repeatedly establishing that contribution restrictions further a bona fide interest in combatting 

quid pro quo corruption and the appearance of corruption. 

 First, Buckley itself recognized as a matter of law 

that a campaign finance system reliant on private 

contributions created an “inherent” problem of real or 

apparent corruption. 424 U.S. at 28 (emphasis added). 

If contributions to a candidate’s campaign treasury 

present an inherent risk, then it is beyond dispute that 

contributions to a candidate’s personal funds present 

an even greater inherent risk. Thus, there is nothing 

novel or implausible about setting a limit of $250,000 

on contributions given to reimburse candidates for 

their loans. 
13 

 Second, the lower court erred in demanding that 

the FEC show current instances of quid pro quo corruption attributable to the use of post-election contributions to pay back personal loans. See, e.g., App. 23a 

(“We first observe that the FEC has not identified a 

single case of actual quid pro quo corruption” arising 

“from post-election contributions to retire a candidate’s 

personal debt”). This practice has been restricted at 

the federal level for almost 20 years. And as this Court 

has recognized, the government need not produce specific “counterfactual” evidence of quid pro quo corruption where, as here, a campaign finance restriction has 

been in place for decades and its objectives are wellestablished and not “implausible.” McCutcheon, 572 

U.S. at 219 (“We recognize that no data can be marshaled to capture perfectly the counterfactual world 

in which aggregate [contribution] limits do not exist.”); see also FEC v. Colo. Republican Fed. Campaign 

Comm., 533 U.S. 431, 457 (2001) (recognizing the “difficulty of mustering evidence to support long-enforced 

statutes”). 

 Lower courts of appeals have likewise rejected the 

“argument that only recent scandals justify a contribution ban,” especially given that this “Court views contribution limits as preventative measures.” Schickel 

v. Dilger, 925 F.3d 858, 874 (6th Cir. 2019); accord 

Wagner v. FEC, 793 F.3d 1, 14 (D.C. Cir. 2015) (“Of 

course, we would not expect to find—and we cannot 

demand—continuing evidence of large-scale quid pro 

quo corruption or coercion involving federal contractor 
14 

contributions because such contributions have been 

banned since 1940.”). 

 This demand for evidence of corruption arising 

from an activity that has long been restricted demonstrates a broader disregard for the principle that contribution limits are designed to be “preventative.” 

Citizens United v. FEC, 558 U.S. 310, 357 (2010). The 

validity of contribution limits does not rest on a factual 

showing that all or even most contributions will give 

rise to corruption; on the contrary, “few if any contributions to candidates will involve quid pro quo arrangements.” Id. But the Court has nevertheless repeatedly 

accepted Congress’s determination, based on “common 

sense” and the “ample record” compiled over time, that 

contribution limits are a necessary prophylactic to prevent corruption and its appearance. McConnell, 540 

U.S. at 145. 

 Third, the lower court ignored that the loan-repayment limit operates in a broader network of campaign 

finance and ethics laws that collectively aim to avert 

the potential for corruption and self-dealing in connection with contributions, loans, and gifts given to officeholders and candidates. The notion that transferring 

money or other items of value to candidates and officeholders for their personal benefit poses corruption risks 

and should be regulated is hardly unique to this provision. The same rationale animates a range of laws, 

from ethics rules regulating gifts and loans to officeholders, to FECA’s personal-use prohibition—reflecting 

the strength of Congress’s determination that providing 
15 

direct financial benefits to a candidate or officeholder 

creates a serious and inherent risk of abuse. 

 For example, concerns about corruption and its 

appearance are the basis for the federal government’s 

strict rules limiting officials in all three branches of 

government from accepting gifts. See, e.g., 5 U.S.C. 

§ 7353(a) (prohibiting members of Congress and federal officers and employees from soliciting or accepting 

anything of value from persons doing business with 

the individual’s employing entity or whose interests 

may be affected by the performance of the employees’ 

official duties); 5 C.F.R. § 2635.204 (restricting federal 

executive employees’ acceptance of gifts of $20 or more 

from persons whose interests may be affected by the 

performance of the employees’ official duties); Judicial 

Conference, Code of Conduct for United States Judges, 

Canon 4(D)(4) (restricting federal judges’ and judicial 

employees’ acceptance of gifts of any value from persons with business before the court or whose interests 

may be substantially affected by the court’s duties). Indeed, legislative gift and conflict of interest rules are a 

“long-established tradition” at both the federal and 

state level. Nevada Comm’n on Ethics v. Carrigan, 564 

U.S. 117, 122 (2011); see also, e.g., Standing Rule of the 

Senate 35 (restricting members’ acceptance of gifts 

worth $50 or more); House Rule 25.5 (same for House 

members). 

 Specific concerns about the conversion of a loan or 

campaign contribution into a personal benefit underlie 

not only the loan-repayment limit, but other provisions 
16 

of ethics and campaign finance laws. Federal ethics 

guidance specifies that loans constitute impermissible 

gifts to officeholders when those loans are characterized by “special terms in unusual cases” giving rise to 

corruption or its appearance. See U.S. Office of Gov’t 

Ethics, Conflicts of Interest Considerations: Liabilities 

2 (last updated June 22, 2018), https://www.oge.gov/web/ 

OGE.nsf/0/2063F6A1854A65E3852585B6005A2275/ 

$FILE/Liabilities.pdf. A similar concern about potential self-dealing underlies FECA’s prohibition on federal candidates using campaign funds for their own 

personal benefit. 52 U.S.C. § 30114(b) (“A [campaign] 

contribution . . . shall not be converted by any person 

to personal use.”); see also 11 C.F.R. § 113.1(g). 

 These provisions directly advance the important 

governmental interest in combatting corruption and 

self-dealing by elected officials. So too does the loanrepayment limit. That the financial benefit here takes 

the form of a campaign contribution to repay a candidate’s loans does not render it less potentially corruptive. As the FEC explains, “money that repays a 

personal loan after an election effectively goes into the 

candidate’s pocket. A payment that adds to a candidate’s personal wealth (and that can accordingly be 

used for personal purposes) poses a greater threat of 

quid pro quo corruption than a payment that merely 

adds to a campaign’s treasury (and that can accordingly be used only for campaign purposes).” J.S. 19. The 

loan-repayment limit seeks to eliminate this risk of 

heightened corruption. 
17 

 The concerns underlying the loan-repayment 

limit are neither “novel” nor “implausible,” but wellestablished and in line with those animating numerous other laws designed to ferret out corruption and its 

appearance in federal government. The district court 

failed to credit these concerns or accord the appropriate weight to anti-corruption interests long recognized 

by this Court as both “legitimate and compelling.” See 

Nat’l Conservative PAC, 470 U.S. at 496; see also Buckley, 424 U.S. at 26-27. 

B. The FEC provided ample evidence to 

substantiate the anti-corruption objective of the loan-repayment limit. 

 The lower court not only defined the universe of 

relevant evidence too narrowly, it also disregarded, 

without justification, the ample legislative record and 

other evidence offered by the FEC to substantiate the 

law’s anti-corruption purposes. See App. 21a-30a. 

 For instance, the lower court disregarded the legislative record materials presented by the FEC demonstrating the intent of the loan-repayment limit. See 

SMF ¶¶ 23-27. As the FEC pointed out, the loan-repayment limit was discussed by multiple lawmakers in the 

deliberations on BCRA who explained that the limit 

was meant to address the acute risk of quid pro quo

corruption arising from candidates’ post-election solicitation of contributions that directly benefit them 

financially. See, e.g., id. ¶ 27 (“[Candidates] have a 
18 

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

not have a constitutional right to resell it. . . . [A] candidate can spend his or her own money but there would 

be a limit on the amount that candidate could go out 

and raise to pay himself or herself back.”) (quoting 147 

Cong. Rec. S2541 (daily ed. Mar. 20, 2001) (statement 

of Sen. Hutchison)); id. ¶ 24 (“[A] candidate who incurred personal loans for his campaign should not be 

able ‘to get it back from [his or her] constituents. . . . 

[by] ask[ing] them: How would you like me to vote 

now that I am a Senator?’ ”) (quoting 147 Cong. Rec. at 

S2462 (statement of Sen. Domenici)). 

 Instead, without explanation, the lower court focused on the background to Section 319 of BCRA, the 

“Millionaire’s Amendment,” a wholly different provision of the legislation with no identified link to the provision challenged here. App. 27a. Questioning the 

legislative intent behind one statutory provision by examining the history of an entirely different provision 

constitutes clear error. 

 The FEC also adduced evidence of problems at the 

state level resulting from post-election contributions to 

indebted candidates, pointing to investigations and 

corruption concerns in Ohio, Oklahoma, Kentucky, and 

Alaska. SMF ¶¶ 73-81. In Ohio, former attorney general and now governor Mike DeWine repeatedly loaned 

his campaign money and then raised millions of dollars in post-election contributions to pay off that debt, 

including from entities seeking—and ultimately obtaining—state contracts. See id. ¶¶ 73-75. The particular largesse of contributors with something to gain 
19 

from state contracting decisions under DeWine led 

to concerns that his debt-retirement fundraising 

was breeding corruption, or certainly its appearance. 

See, e.g., id. ¶ 73 (noting media reports that raised 

questions about the propriety of accepting large postelection contributions from lawyers that “hold special 

counsel contracts awarded by the attorney general’s 

office to represent public pensions, colleges, state agencies and more”) (citation omitted); id. ¶ 75 (reporting 

that debt collection firms “whose contracts were not renewed during the DeWine years were skeptical about 

the political purity of the contracting process”) (citation omitted). 

 Such has been the pattern in other states, too, 

where candidates have made millions of dollars in personal loans to their campaigns, then reimbursed themselves using post-election contributions, many of which 

have come from entities and individuals seeking business and favor from the government. See id. ¶ 76 (noting that, in 2018, Oklahoma Governor Kevin Stitt 

raised over $800,000 in post-election contributions, 

with “more than $100,000 from political action committees funded by industries or special interests”) (citation omitted); id. ¶¶ 77, 79 (in 1994, the Kentucky 

Registry of Election Finance observed that, “[i]n the 

last fifteen years, Kentuckians have endured the 

consequences of millionaires ‘loaning’ their campaigns millions of dollars, only to be repaid by contributors seeking no-bid contracts”) (citation omitted); id.

¶¶ 80-81 (noting that “a majority of the [Alaska Public Offices] commissioners stated strong support for 
20 

barring post-election contributions, and hoped such a 

ban would curtail contributions ‘intended to influence 

a successful candidate rather than the outcome of an 

election’ ”). 

 Further, despite the federal loan-repayment limit 

being in effect for almost two decades, the FEC adduced evidence of federal candidates using personal 

loans in a manner that circumvents contribution limits 

and raises corruption concerns. See id. ¶ 71 (“Senate 

candidate Matt Rosendale’s 2014 campaign debt was 

repaid in 2018 by ‘nine wealthy donors,’ eight of whom 

had already given the maximum to his 2018 campaign 

. . . Rosendale then loaned his 2018 campaign more 

money, ‘effectively creating a cycle of loans and repayments that bypasses traditional contribution limits.’ ”) 

(citation omitted); id. ¶ 72 (“Senator Mike Braun also 

allegedly used the tactic in 2018 by ‘taking contributions for the purpose of paying down his personal 

campaign debts from the Republican primary’ and 

then ‘loan[ing] his general election campaign the exact 

same sums, effectively allowing his donors to bypass 

contribution limits.’ ”) (citation omitted); id. ¶ 69 (“One 

retired campaign finance specialist noted that lobbyists assist with debt retirement fundraisers because 

they know it is really of benefit to the member.”) (citation omitted). 

 The lower court offered little explanation for its 

refusal to credit this evidence, some of which it mistakenly believed was “unrelated to the repayment of candidate loans.” See App. 23a-24a (citing SMF ¶¶ 76, 79). 

But it is well-settled that a jurisdiction may defend its 
21 

contribution restrictions both by relying on the “evidence and findings accepted in Buckley,” Nixon, 528 

U.S. at 393, and by pointing to the “experience of states 

with and without similar laws.” Wagner, 793 F.3d at 14. 

“The First Amendment does not require . . . conduct[ing] 

new studies or produc[ing] evidence independent of 

that already generated by other [jurisdictions].” Nixon, 

528 U.S. at 393, n.6 (citation omitted). 

 The lower court likewise disregarded an empirical 

study showing that self-lending candidates—as compared to both self-financed candidates with no expectation of repayment and candidates reliant on outside 

funds—exhibit a systematically greater likelihood to 

“sell” legislative votes to special-interest contributors, 

see SMF ¶¶ 67-68 (describing 2020 study finding that 

“indebted politicians, relative to their debt-free counterparts, are significantly more likely to switch their 

votes if they receive contributions from . . . special 

interests between the votes”) (citation omitted). The 

district court, however, dismissed the study for failing to show that the systematic “voting pattern 

changes” it linked to candidate indebtedness were in 

fact caused by rampant, undetected criminal bribes. 

See App. 25a. 

 Finally, and again with little explanation, the district court rejected robust polling data showing that 

the overwhelming public perception of post-election 

campaign contributions is that they are fundamentally 

corruptive. See id. ¶¶ 90-98 (describing April 2020 

survey of 1,000 Americans, 81 percent of whom stated 

that they “believed it was ‘very likely’ or ‘likely’ that 
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individuals who donate money to a federal candidate’s 

campaign after an election expect a political favor in 

return from candidates who later take office”) (citations omitted). 

 In sum, the FEC proffered substantial evidence of 

the corruptive effects of post-election political contributions used to repay candidate loans, but the lower 

court dismissed it all as mere “speculation.” App. 30a. 

This disregard for the evidence was arbitrary and constitutes a reversible error. 

C. The district court failed to pay deference to Congress in an area of unique 

legislative expertise. 

 The lower court also erred in failing to accord deference to Congress’s evaluation of the potential dangers of post-election fundraising to repay candidate 

loans, although this type of evaluation is squarely 

within the expertise of legislators. Nixon, 528 U.S. at 

402 (“Where a legislature has significantly greater 

institutional expertise . . . the Court in practice defers to empirical legislative judgments.”). Indeed, the 

loan-repayment limit at issue here would seem to be 

uniquely within the experience of legislators, many of 

whom have likely faced the fundraising pressures associated with post-election debt and the temptation to 

benefit personally from post-election campaign contributions. 

 This Court has further recognized that Congress 

may combat corruption by focusing on the problems it 
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perceives as the most egregious and proceeding with 

reform incrementally. See FEC v. Nat’l Right to Work 

Comm., 459 U.S. 197, 209 (1982) (noting that the “careful legislative adjustment of the federal electoral laws, 

in a ‘cautious advance, step by step,’ . . . warrants considerable deference”) (citation omitted). But the lower 

court nevertheless objected that the loan-repayment 

limit was “substantially underinclusive” because it 

applies only to post-election contributions, not preelection contributions; and because it does not ban, 

but instead allows the use of up to $250,000 in postelection contributions to retire candidate loans. App. 

32a-33a. Even putting aside the question of whether 

pre- and post-election contributions are interchangeable with respect to the risks they pose for abuse, it is 

not typically a constitutional problem when Congress 

regulates campaign or other expressive activities too 

lightly. “[T]he First Amendment imposes no freestanding ‘underinclusiveness limitation’ ” requiring a legislature to “address all aspects of a problem in one fell 

swoop; policymakers may focus on their most pressing 

concerns.” Williams-Yulee v. Fla. Bar, 575 U.S. 433, 449 

(2015). 

 The lower court also did not acknowledge that 

Congress must balance its pursuit of the anti-corruption 

interest against the need to ensure that candidates 

can “amass[] the resources necessary for effective advocacy,” Buckley, 424 U.S. at 21, and can self-finance 

their campaigns without undue restriction, id. at 51-

52. Because this balancing act requires a complex, 

fact-dependent inquiry, uniquely within Congress’s 
24 

expertise, the Court has consistently counseled deference to legislative judgments regarding the structure 

of contribution limits and the design of solicitation restrictions. See Davis, 554 U.S. at 737; Randall v. Sorrell, 548 U.S. 230, 248 (2006); McConnell, 540 U.S. at 

137; Beaumont, 539 U.S. at 155; Nixon, 528 U.S. at 391, 

397; Nat’l Conservative PAC, 470 U.S. at 500; Cal. Med. 

Ass’n v. FEC, 453 U.S. 182, 201 (1981); Buckley, 424 

U.S. at 30. 

 Here, Congress balanced these important but 

somewhat conflicting goals by allowing candidates to 

freely spend and loan personal funds to support their 

campaigns, while electing to restrict only a particularly corruptive type of post-election fundraising to 

repay personal loans and only once it exceeds certain 

monetary parameters. This does not “raise doubts 

about whether the law advances the interests invoked 

by the government,” App. 32a; it demonstrates that 

Congress is properly balancing competing compelling 

interests. Congress is permitted to—in fact, is required 

to—reconcile its anti-corruption goals with the constitutional imperative that it give ample berth to campaign activities protected by the First Amendment. 

--------------------------------- ♦ ---------------------------------
25 

CONCLUSION 

 The judgment of the district court should be summarily reversed, and the case remanded to the district 

court with instructions to dismiss. 

Respectfully submitted, 

PAUL M. SMITH

Counsel of Record 

TARA MALLOY

ADAV NOTI

ALEXANDRA COPPER

CAMPAIGN LEGAL CENTER

1101 14th St. NW, Suite 400 

Washington, DC 20005 

(202) 736-2200 

psmith@campaignlegal.org 

Counsel for Amicus Curiae

August 6, 2021