No. 21-12 

In the 

Supreme Court of the United States __________________________________________ 

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 __________________________________________ 

MOTION TO AFFIRM OR DISMISS __________________________________________ 

CHRIS GOBER

THE GOBER GROUP 

 PLLC 

3595 RR 620 S., 

 Suite 200 

Austin, TX 78738 

(512) 354-1787 

CHARLES J. COOPER

 Counsel of Record

JOHN D. OHLENDORF

COOPER & KIRK, PLLC 

1523 New Hampshire 

Avenue, N.W. 

Washington, D.C. 20036 

(202) 220-9600 

ccooper@cooperkirk.com 

Counsel for Appellees 

August 6, 2021
i 

QUESTIONS PRESENTED 

When a candidate for federal office lends money to his 

own election campaign, federal law imposes a $250,000 limit 

on the amount of post-election contributions that the campaign 

may use to repay the debt owed to the candidate. 52 U.S.C. 

§ 30116(j). The questions presented are as follows: 

1. Whether Appellees have standing to challenge the statutory loan-repayment limit. 

2. Whether the loan-repayment limit violates the Free 

Speech Clause of the First Amendment.
ii

CORPORATE DISCLOSURE STATEMENT 

Ted Cruz for Senate has no parent corporation, 

and there is no publicly held corporation that owns 

10% or more of its stock.
iii 

TABLE OF CONTENTS 

Page 

TABLE OF AUTHORITIES ...................................... iv 

INTRODUCTION ....................................................... 1 

STATEMENT ............................................................. 3 

I. Section 304’s Limit on the Repayment of 

Candidate Loans. ................................................. 3 

II. Senator Cruz’s 2018 Loans. ................................. 5 

REASONS FOR SUMMARY AFFIRMANCE OR 

DISMISSAL ................................................................ 5 

I. The District Court Correctly Held that Appellees Have Standing. ............................................. 6 

A. Appellees’ Injuries Are Traceable to 

BCRA Section 304. ......................................... 6 

B. Appellees’ Unpaid Loan, whether “Self-Inflicted” or Not, Is an Injury-In-Fact. ............ 18 

II. The District Court Correctly Held that the 

Loan-Repayment Limit Is Unconstitutional. .. 25 

A. Because the Loan-Repayment Limit 

Burdens Core Political Speech, It Is 

Subject to Strict Scrutiny. ............................ 25 

B. The Loan-Repayment Limit Fails even 

“Closely-Drawn” Scrutiny Because It 

Does Not Further any Anti-Corruption 

Interest. ......................................................... 29 

C. The Loan-Repayment Limit Is Not 

Sufficiently Tailored. .................................... 37 

CONCLUSION ......................................................... 38 
iv

TABLE OF AUTHORITIES 

Page 

CASES

A.L.A. Schechter Poultry Corp. v. United States, 

295 U.S. 495 (1935) ............................................. 11 

Allen v. Wright, 

468 U.S. 737 (1984) ............................................. 20 

American Power & Light Co. v. SEC, 

329 U.S. 90 (1946) ............................................... 11 

Anderson v. Spear, 

356 F.3d 651 (6th Cir. 2004) ............. 30, 31, 32, 37 

Arizona Free Enter. Club’s Freedom Club PAC v. 

Bennett, 

564 U.S. 721 (2011) ................................. 26, 27, 31 

Arkansas Writers’ Project, Inc. v. Ragland, 

481 U.S. 221 (1987) ............................................. 24 

Bowsher v. Synar, 

478 U.S. 714 (1986) ............................................. 10 

Broadrick v. Oklahoma, 

413 U.S. 601 (1973) ....................................... 28, 29 

Brown v. Board of Education, 

347 U.S. 483 (1954) ....................................... 19, 20 

Buckley v. Valeo, 

424 U.S. 1 (1976) ........................... 1, 10, 28, 33, 34 

California v. Texas, 

593 U.S. ---, 141 S. Ct. 2104 (2021) .......... 7, 12, 13 
v 

Chicago, Indianapolis, & Louisville Ry. Co. v. 

Hackett, 

228 U.S. 559 (1913) ............................................... 8 

Clapper v. Amnesty Int’l, 

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

Clinton v. City of New York, 

524 U.S. 417 (1998) ............................................. 10 

Collins v. Yellen, 

594 U.S. ---, 141 S. Ct. 1761 (2021) ................ 9, 10 

Colorado Republican Fed. Campaign Comm. 

v. FEC, 

518 U.S. 604 (1996) ............................................. 28 

Davis v. FEC, 

554 U.S. 724 (2008) ...................... 1, 22, 24, 25, 26, 

28, 29, 30, 37 

DOT v. Association of Am. R.R.s, 

575 U.S. 43 (2015) ............................................... 11 

Evers v. Dwyer, 

358 U.S. 202 (1958) ............................................. 19 

Ex parte Siebold, 

100 U.S. 371 (1879) ............................................... 8 

FDA v. Brown & Williamson Tobacco Corp., 

529 U.S. 120 (2000) ............................................... 8 

FEC v. Akins, 

524 U.S. 11 (1998) ............................................... 23 

Financial Oversight & Mgmt. Bd. for Puerto 

Rico v. Aurelius Inv., LLC, 

590 U.S. ---, 140 S. Ct. 1649 (2020) .................... 11 
vi

Free Enter. Fund v. PCAOB, 

561 U.S. 477 (2010) ............................................. 11 

Gundy v. United States, 

588 U.S. ---, 139 S. Ct. 2116 (2019) .................... 11 

Havens Realty Corp. v. Coleman, 

455 U.S. 363 (1982) ............................................. 19 

INS v. Chadha, 

462 U.S. 919 (1983) ............................................. 10 

J.W. Hampton, Jr., & Co. v. United States, 

276 U.S. 394 (1928) ............................................. 11 

Laird v. Tatum, 

408 U.S. 1 (1972) ................................................. 24 

Lichter v. United States, 

334 U.S. 742 (1948) ............................................. 11 

Louisiana Pub. Serv. Comm’n v. FCC, 

476 U.S. 355 (1986) ............................................... 8 

Loving v. United States, 

517 U.S. 748 (1996) ............................................. 11 

Lujan v. Defenders of Wildlife, 

504 U.S. 555, 564 (1992) ...................................... 23

McConnell v. FEC, 

540 U.S. 93 (2013) ............................................... 22 

McCutcheon v. FEC, 

572 U.S. 185 (2014) ................................. 31, 37, 38 

Mistretta v. United States, 

488 U.S. 361 (1989) ............................................. 11 

MWAA v. Citizens for Abatement of Aircraft 

Noise, Inc., 

501 U.S. 252 (1991) ............................................. 10 
vii 

NBC v. United States, 

319 U.S. 190 (1943) ............................................. 11 

NLRB v. Noel Canning, 

573 U.S. 513 (2014) ............................................. 11 

Panama Ref. Co. v. Ryan, 

293 U.S. 388 (1935) ............................................. 11 

Pennsylvania v. New Jersey, 

426 U.S. 660 (1976) ....................................... 22, 23 

Pierson v. Ray, 

386 U.S. 547 (1967) ............................................. 29 

Randall v. Sorrell, 

548 U.S. 230 (2006) ............................................. 31 

Schneider v. Smith, 

390 U.S. 17 (1968) ............................................... 11 

Seila Law v. CFPB, 

591 U.S. ---, 140 S. Ct. 2183 (2020) .................... 10 

Touby v. United States, 

500 U.S. 160 (1991) ............................................. 11 

Warth v. Seldin, 

422 U.S. 490 (1975) ............................................. 20 

Yakus v. United States, 

321 U.S. 414 (1944) ............................................. 11 

STATUTES AND LEGISLATIVE MATERIALS

5 U.S.C. § 706(2)(C) .................................................... 8 

52 U.S.C. 

§ 30101(9)(A)(i) ................................................ 3, 25 

§ 30114(a) ............................................................ 15 

§ 30116(a) ............................................................ 31 
viii

§ 30116(a)(1)(A) ................................................... 33 

§ 30116(j) ......................................... 1, 4, 15, 16, 18 

147 CONG. REC. 

S2463 (daily ed. Mar. 19, 2001) .......................... 30 

S2465 (daily ed. Mar. 19, 2001) .......................... 31 

S2541 (daily ed. Mar. 20, 2001) .......................... 30 

S2544 (daily ed. Mar. 20, 2001) .......................... 30 

RULES AND ADMINISTRATIVE MATERIALS

11 C.F.R. 

§ 110.1(b)(1) ........................................................... 4 

§ 110.1(b)(3)(i) ................................................. 4, 33 

§ 110.1(b)(3)(ii)(C) ....................................... 4, 5, 28 

§ 116.11(c)(1) ......................................................... 4 

§ 116.11(c)(2) ......................................................... 4 

§ 116.12(a) ........................................................... 15 

68 Fed. Reg. 3970 (Jan. 27, 2003) .............................. 8 

86 Fed. Reg. 7867 (Feb. 2, 2021) ................................ 4 
1 

Appellees in the above-captioned case, Ted Cruz 

for Senate (“the Committee”) and Senator Rafael Edward (“Ted”) Cruz (“Cruz”), move to affirm or dismiss 

on the ground that the questions presented are so insubstantial as not to need further argument. 

INTRODUCTION 

 “[T]he concept that government may restrict the 

speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to 

the First Amendment....” Buckley v. Valeo, 424 U.S. 1, 

48-49 (1976). Section 304 of the Bipartisan Campaign 

Reform Act of 2002 (“BCRA”), now codified at 52 

U.S.C. § 30116(j), violates this bedrock principle by 

seeking to “level electoral opportunities for candidates 

of different personal wealth.” Davis v. FEC, 554 U.S. 

724, 741 (2008). 

Section 304, by design and effect, deters candidates from loaning money to their campaigns, through 

the mechanism of restricting the campaign’s ability to 

repay those loans. It caps, at $250,000, the amount of 

candidate loans that a committee may repay using 

funds raised after election day. To be sure, the loans 

may still be repaid in full with funds raised prior to

the election, but there can be no question that Section 

304’s limit—by substantially increasing the risk that 

any candidate loan will never be fully repaid—forces 

a candidate to think twice before making those loans 

in the first place. As the three-judge district court below unanimously held, this burden on a candidate’s 
2 

right to speak freely in favor of his own election “runs 

afoul of the First Amendment.” J.S.App.6a. 

Appellant briefly attempts to defend Section 304 

on the merits, but it spends most of its Jurisdictional 

Statement arguing that Appellees lack standing to 

challenge it. Not so. Appellees have clearly been injured by the loan-repayment limit—they executed a 

loan during Cruz’s 2018 reelection campaign that was 

subject to the limit, on which the Committee was 

forced to partially default because of the limit. Appellant argues that this injury is traceable only to Section 

304’s implementing regulations and not to Section 304 

itself. This argument, which by Appellant’s own admission was never raised in the court below, is based 

on a plain misreading of the record facts, one that runs 

directly counter to Appellant’s correct reading of the 

facts in the court below. But the overriding point is 

that Appellant’s new standing argument is an utterly 

irrelevant distraction, for even if Appellant’s reconceived understanding of the record was accurate, this 

Court’s case law clearly demonstrates that Appellees 

have standing to challenge both the implementing 

regulation directly causing them harm and the constitutional validity of the statutory provision that the 

regulation implements. After all, BCRA Section 304 is 

the sole and exclusive source of Appellant’s authority 

to regulate the repayment of candidate loans in the 

first place—and if Section 304 is struck down, the regulations implementing it obviously must fall from the 

same blow. That is, if the host perishes, so also must 

its parasite. 
3 

Appellant’s argument that Appellees’ injury is 

“self-inflicted” fares no better. Appellees’ subjective 

“motivation” in making and waiting more than 20 

days after the election to repay the 2018 loan, J.S.16, 

“has no bearing on [Appellees’] standing to challenge 

the law” under longstanding and uniform precedent 

from this Court, J.S.App.53a. And FEC’s insistence 

that the Cruz Committee could have found a way to 

fully repay Senator Cruz’s loans using only the preelection funds that Section 304 allows also poses no 

barrier to standing. For as the court below held, what 

this argument boils down to is that Cruz could have 

avoided his injury “by subjecting himself to the very 

framework he alleges is unconstitutional.” Id. 54a. 

This Court has never suggested that a plaintiff’s 

standing is defeated if he could have avoided all harm 

by complying with the very law he challenges as contrary to the First Amendment. 

This Court should summarily affirm—or, failing 

that, note probable jurisdiction and set the case for 

plenary consideration. 

STATEMENT 

I. Section 304’s Limit on the Repayment of 

Candidate Loans. 

Federal law generally allows candidates to make 

loans to their authorized campaign committees without limit—loans which BCRA defines as a form of “expenditure” by the candidate. 52 U.S.C. 

§ 30101(9)(A)(i). However, Section 304 of BCRA imposes a $250,000 limit on a committee’s ability to 
4 

repay those “candidate loans” with money contributed 

by donors after the election: 

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. 

52 U.S.C. § 30116(j). 

Appellant’s regulations implementing this provision require, inter alia, that any repayment of over 

$250,000 in candidate loans be made “within 20 days 

of the election.” 11 C.F.R. § 116.11(c)(1). Any amount 

of a candidate loan in excess of $250,000 that is not 

repaid within those first 20 days cannot be repaid at 

all, for it must be treated “as a contribution by the 

candidate.” Id. § 116.11(c)(2). 

Appellant’s regulations further provide that contributors may not make any post-election contributions designed to repay over $250,000 in candidate 

loans—even if those post-election contributions comply with the current $2,900 contribution limit with respect to that candidate and that election. See id. § 

110.1(b)(1); 86 Fed. Reg. 7867, 7869 (Feb. 2, 2021); see 

also 11 C.F.R. § 110.1(b)(3)(i) (contributions designated for past election limited to the campaign’s “net 
5 

debts outstanding”); id. § 110.1(b)(3)(ii)(C) (“net debts 

outstanding” excludes any candidate loans over 

$250,000). 

II. Senator Cruz’s 2018 Loans. 

Prior to the November 6, 2018, election, Senator 

Cruz made or incurred loans totaling $260,000 to the 

Cruz Committee to help finance his reelection campaign for the United States Senate. J.S.App.8a. At the 

end of November 6, the Committee did not have sufficient funds to both repay these loans and satisfy the 

Committee’s other creditors. In fact, while the Committee ended the election campaign with approximately $2.38 million deposited in, or in transit to, its 

bank accounts, it owed about $2.7 million—including 

the $260,000 it owed to Senator Cruz—leaving it with 

approximately $337,748 in “net debts outstanding,” as 

of election day. D. Ct. Doc. 61-2, ¶¶ 36-38 (June 9, 

2020). During the 20 days following the election, the 

Committee used its cash on hand to satisfy debts to 

other creditors rather than repay Senator Cruz’s 

loans. Id. ¶ 40. Only in December of 2018, more than 

20 days after the election, did the Committee repay 

Senator Cruz’s loans. Id. ¶ 41. In compliance with the 

challenged limits, the Committee only repaid Senator 

Cruz $250,000, leaving a total of $10,000 unpaid. 

J.S.App.9a. 

REASONS FOR SUMMARY 

AFFIRMANCE OR DISMISSAL 

Appellant contends that Senator Cruz and his 

Committee lack standing to challenge Section 304’s 
6 

loan-repayment limit and that the district court erred 

in striking it down under the First Amendment. Both 

arguments are plainly contrary to this Court’s precedent. 

I. The District Court Correctly Held that Appellees Have Standing. 

It is undisputed that Senator Cruz loaned the 

Cruz Committee $260,000 before the 2018 election. 

J.S.3. At that moment, Appellees became subject to 

Section 304’s limits on the “pool[s] of funds” that could 

be used to repay Senator Cruz’s loans. J.S.17. And because in the 20 days after the election the Cruz Committee used its limited cash on hand to repay its other 

creditors rather than Cruz, “Senator Cruz is still owed 

$10,000”—a sum that, under Appellant’s regulatory 

20-day-rule, can no longer lawfully be repaid. 

J.S.App.51a. 

Appellant does not dispute that the unpaid 

$10,000 debt “is plainly a cognizable injury,” id., nor 

that Appellees’ injury is redressed by the decision in 

their favor. Instead, Appellant’s standing argument is 

limited to the requirement of causation or traceability, J.S.8, which it challenges based on two distinct arguments. Neither is persuasive. 

A. Appellees’ Injuries Are Traceable to 

BCRA Section 304. 

First, Appellant argues that Senator Cruz’s financial injury is traceable to the FEC regulations implementing Section 304, but not Section 304 itself, depriving Appellees of standing to challenge Section 304 
7 

under this Court’s recent decision in California v. 

Texas, 593 U.S. ---, 141 S. Ct. 2104 (2021). According 

to Appellant, because the $250,000 the Cruz Campaign repaid to Cruz beginning in December of 2018 

came solely from “pre-election funds, nothing in 

BCRA’s loan-repayment provision stops the committee from using contributions raised after the election 

to repay the remaining $10,000 owed to Senator 

Cruz.” J.S.11. Instead, Appellant says, what prevents 

the repayment of the $10,000 balance is 11 C.F.R. Section 116.11(c)(2)’s requirement that once 20 days after 

election day have passed, the Committee “must treat 

the ... outstanding balance [of the loan] ... as a contribution by the candidate,” rendering it un-reimbursable. Appellant thus concludes that “[i]t is that regulation—not the statutory loan-repayment limit—that” 

is the source of Cruz’s $10,000 injury. J.S.12. 

As Appellant admits, it chose not to raise this argument before the district court. Id. at 13. That was 

the better choice, because the argument is completely 

without merit, both as a matter of fact and as a matter 

of law. As to facts, Appellant’s claim that the Committee “repaid Senator Cruz using only pre-election 

funds,” id. at 10, is flat-out false. It is based on a misreading of the record below and a misunderstanding 

of federal election law. But Appellant’s errors are ultimately irrelevant (although we will return to them, 

and correct them, below), for even if one accepts Appellant’s inaccurate account of the record facts, Appellees’ $10,000 financial injury is, as a matter of law, 

directly traceable to the constitutional infirmity in 
8 

Section 304. That conclusion is evident from bedrock 

principles of administrative law and is confirmed by 

decades’ worth of landmark constitutional decisions. 

We turn first to this dispositive point. 

1. Because “an administrative agency’s power to 

regulate ... must always be grounded in a valid grant 

of authority from Congress,” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 161 (2000), “an 

agency literally has no power to act ... unless and until Congress confers power upon it,” Louisiana Pub. 

Serv. Comm’n v. FCC, 476 U.S. 355, 357 (1986). And 

given the black-letter rule that “[a]n unconstitutional law is void, and is as no law,” Ex parte Siebold, 

100 U.S. 371, 376 (1879), it necessarily follows that 

where a statutory provision is invalid and unenforceable, any implementing regulations that were promulgated under its authority are likewise invalid and 

unenforceable. See Chicago, Indianapolis, & Louisville Ry. Co. v. Hackett, 228 U.S. 559, 566 (1913) (unconstitutional law is “as inoperative as if it had never 

been passed, for an unconstitutional act is not a law, 

and can neither confer a right or immunity nor operate to supersede any existing valid law”); 5 U.S.C. 

§ 706(2)(C) (courts shall “hold unlawful and set aside 

agency action ... in excess of statutory jurisdiction, authority, or limitations”). 

The application of these settled principles in this 

case is clear. Appellant’s regulation is wholly parasitic 

upon Section 304 itself; it was promulgated under its 

authority, see 68 Fed. Reg. 3970, 2973 (Jan. 27, 2003), 

and Appellant quite obviously could not have 
9 

promulgated it were Section 304 not on the books. 

There can thus be no dispute that under the district 

court’s ruling that Section 304 is unconstitutional, 11 

C.F.R. Section 116.11, Appellant’s 20-day limit, cannot be enforced any longer. Indeed, that is why the 

district court, upon holding Section 304 unconstitutional, dismissed Appellees’ separate claims challenging Section 116.11 as moot. J.S.App.38a. 

Accordingly, the causal link between the $10,000 

injury inflicted by Appellant’s regulatory 20-day rule 

and the unconstitutionality of Section 304 is clear and 

direct. It is only because Section 304 was enacted that 

Appellant had authority to promulgate the regulatory 

20-day limit at all. The only intermediate link in the 

chain of causation between Appellees’ injury and Section 304 is a parasitic regulatory provision that derived all of its legal authority from the statute that it 

implements—and that, with the statute held unconstitutional, can no longer be enforced. 

This Court’s cases have long held that plaintiffs 

in exactly this profile have standing to challenge not 

just the regulation or agency action that immediately 

caused their injury but the statutory provision that 

authorized it. Just last Term in Collins v. Yellen, for 

example, the Court held that shareholders injured by 

agency action taken by the Federal Housing Finance 

Agency had standing to challenge the constitutionality of the agency’s structure, expressly concluding that 

“the traceability requirement is satisfied” even though 

“the shareholder’s concrete injury flows directly from 

[the agency action]” rather than “the [statutory] 
10 

removal restriction.” 594 U.S. ---, 141 S. Ct. 1761, 

1779 (2021). 

Similarly, the Court found standing in Clinton v. 

City of New York to challenge the Line Item Veto Act 

even though the plaintiffs were immediately injured 

by the President’s cancellation of certain tax benefits 

to which they were otherwise entitled, not the Act’s 

general provision authorizing that cancellation, explaining that “traceability” was “easily satisfied” since 

their “injury is traceable to the President’s cancellation of [the benefits].” 524 U.S. 417, 433 n.22 (1998). 

And in MWAA v. Citizens for Abatement of Aircraft 

Noise, Inc., the Court allowed homeowners near 

Washington National Airport who alleged injury from 

the risk of “increased noise, pollution, and danger of 

accidents” posed by the “increased air traffic” that 

would result from a master plan imposed by the Metropolitan Washington Airports Authority (“MWAA”) 

to challenge the constitutionality of the MWAA’s composition, specifically rejecting the argument that the 

plaintiffs’ “injuries are caused by factors independent 

of” the alleged constitutional violation. 501 U.S. 252, 

264-65 (1991); see also Seila Law v. CFPB, 591 U.S. 

---, 140 S. Ct. 2183, 2195-96 (2020); Bowsher v. Synar, 

478 U.S. 714, 721 (1986); INS v. Chadha, 462 U.S. 

919, 936 (1983); Buckley v. Valeo, 424 U.S. 1, 12, 118 

(1976). 

Indeed, separation-of-powers challenges to the 

constitutionality of agency actions commonly bear this 

host-parasite character. In the typical Appointments 

Clause challenge, for example, where a party injured 
11 

by agency action challenges the appointment of the official who promulgated it, the causal link is more attenuated than here. For in those cases, it is the general statutory provision governing the official’s appointment, rather than the specific statutory provision being implemented, that is alleged to be invalid. 

Yet in countless of these types of cases the Court has 

proceeded directly to the merits of the constitutional 

challenge, because no one even dreamed of arguing 

that the plaintiff’s injury was not fairly traceable to 

the alleged constitutional violation. See, e.g., Financial Oversight & Mgmt. Bd. for Puerto Rico v. Aurelius 

Inv., LLC, 590 U.S. ---, 140 S. Ct. 1649 (2020); Gundy 

v. United States, 588 U.S. ---, 139 S. Ct. 2116 (2019); 

DOT v. Association of Am. R.R.s, 575 U.S. 43 (2015); 

NLRB v. Noel Canning, 573 U.S. 513 (2014); Free Enter. Fund v. PCAOB, 561 U.S. 477 (2010); Loving v. 

United States, 517 U.S. 748 (1996); Touby v. United 

States, 500 U.S. 160 (1991); Mistretta v. United States, 

488 U.S. 361 (1989); Schneider v. Smith, 390 U.S. 17 

(1968); Lichter v. United States, 334 U.S. 742 (1948); 

American Power & Light Co. v. SEC, 329 U.S. 90 

(1946); Yakus v. United States, 321 U.S. 414 (1944); 

NBC v. United States, 319 U.S. 190 (1943); A.L.A. 

Schechter Poultry Corp. v. United States, 295 U.S. 495 

(1935); Panama Ref. Co. v. Ryan, 293 U.S. 388 (1935);

J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 

394 (1928). These decisions illustrate the sea change 

that acceptance of Appellant’s argument would cause 

in the standard model of constitutional litigation. 
12 

2. Appellant does not address any of the decisions from this Court finding standing in materially 

identical circumstances. Instead, the only authority 

Appellant cites for its argument is this Court’s recent 

decision in California v. Texas. California has no application here. 

 In California, several States (alongside two individuals) challenged Section 5000A(a) of the Affordable Care Act—the “minimum essential coverage requirement,” colloquially known as the “individual 

mandate”—as unconstitutional. But the alleged injuries that gave rise to their standing (as relevant here) 

were inflicted by “other provisions of the Act, not the 

minimum essential coverage provision.” 141 S. Ct. at 

2108, 2119. And as the Court repeatedly explained, 

the statutory provisions that had injured the State 

plaintiffs “operate independently of § 5000A(a),” and 

“[n]othing in the text” of those provisions “suggests 

that they would not operate without § 5000A(a).” Id. 

at 2119, 2120 (emphasis added). Accordingly, “[t]o 

show that the minimum essential coverage requirement is unconstitutional would not show that enforcement of any of these other provisions violates the Constitution,” and the States’ injuries were thus “not 

fairly traceable to enforcement of the allegedly unlawful provision of which the plaintiffs complain—§ 

5000A(a).” Id. at 2119 (quotation marks omitted). 

Appellees’ claims in this case are crucially different from the claims in California—and they differ for 

precisely the reasons that the Court singled out as depriving the State plaintiffs of standing in that case. 
13 

While California emphasized that the statutory provisions that had injured the State plaintiffs “operate 

independently” of the separate provision they challenged as unconstitutional, id. at 2120, here the regulatory 20-day rule that has harmed Senator Cruz to 

the tune of $10,000 cannot operate at all without the 

statutory provision it implements, BCRA Section 304. 

The key problem for the States in California, then, 

was that “[t]o show that the minimum essential coverage requirement is unconstitutional would not show 

that enforcement of any of these other provisions 

[causing the States’ injuries] violates the Constitution.” 141 S. Ct. at 2119. But here the unconstitutionality of BCRA Section 304 obviously renders Appellant’s 20-day regulation unconstitutional and unenforceable as well. 

The inapplicability of California here is underscored by the debate in that case between the Majority 

and Justice Alito concerning the States’ severability 

argument. Justice Alito’s dissenting opinion argued 

that the States’ injuries were “traceable to the individual mandate” because the separate provisions that inflicted those injuries “cannot be severed from the mandate.” Id. at 2131 (Alito, J., dissenting). The Majority 

“decline[d] to consider” that “novel” argument on the 

ground that it had been forfeited. Id. at 2116 (majority); see also id. at 2122 (Thomas, J., concurring) (concluding that the severability argument “might well 

support standing in some circumstances” but had not 

been adequately presented). Here, of course, Appellees have argued from the beginning that “[b]ecause 
14 

the challenged statute is unconstitutional, the FEC’s 

regulation implementing that statute, 11 C.F.R. § 

116.11, is likewise unconstitutional.” D. Ct. Doc. 1, 

¶ 46 (Apr. 1, 2019). And importantly, rather than depending on some “novel” severability theory, Appellees’ standing is grounded on the bedrock principle 

that where an authorizing statute is unconstitutional 

and invalid, the implementing regulations that it authorized are also unconstitutional and invalid. 

Countless cases have been decided by this Court 

either explicitly or implicitly based on materially 

identical logic. See supra, pp. 9-11. Appellant’s attempt to extend California into this dispositively different context would thus upend the practice of constitutional litigation. 

3. Appellant’s belated standing argument thus 

plainly fails as a matter of law, and the Court may 

dispose of it without reading any further. But the argument is also wrong on its own factual premise, for 

it is based on Appellant’s new and suspect understanding of the record below. Because Appellant’s decision to spring the argument for the first time on appeal deprived Appellees of the opportunity to address 

it below, we feel bound here to clarify what the record 

facts actually show despite their ultimate irrelevance 

to the question of Appellees’ standing. 

Appellant’s argument is premised on the claim 

that the Committee “repaid Senator Cruz $250,000 

using only pre-election funds.” J.S.10. Appellant explains that this assertion is based on Appellees’ 
15 

deposition testimony confirming that “[t]he 

committee did not receive any post-election 

contributions at any time after ... the general election of 2018.” ... The deponent explained that although the committee had 

continued to receive contributions after election day 2018, it had designated those contributions for use in “the primary and the 

general 2024 election cycle,” and that none 

of those funds were treated as contributions 

to Senator Cruz is 2018 campaign. 

Id. Appellant’s newly conceived understanding of 

these facts is based on a critical category mistake: it 

confuses the general category of money raised after 

election day with the subset of such funds that are 

both raised after the election and specifically designated as contributions for the previous election. As 

noted above, Appellant’s regulations allow a contributor to donate money after an election that is designated to repay debts still outstanding from that election (subject to the contribution limits of that election)—what are known in the argot of campaign-finance law as “post-election contributions.” But a committee can also repay debt outstanding from one election with funds raised after that election and designated for the candidate’s next upcoming election. See 

52 U.S.C. § 30114(a); 11 C.F.R. § 116.12(a). And because these contributions, no less than contributions 

expressly (and retroactively) designated to the previous election, are “made to [the] candidate ... after the 
16 

date of [the relevant] election,” they too are subject to 

Section 304’s $250,000 cap. 52 U.S.C. § 30116(j). 

Thus, when the Committee’s deponent said that 

“the Committee did not receive any post-election contributions after the general election of 2018,” J.S.10, 

he was using “post-election contributions” as a term of 

art, to refer only to contributions raised after the election and designated retroactively for the 2018 election. 

Indeed, the Committee’s deponent further explained 

that “the committee had continued to receive contributions after election day 2018,” but it “designated those 

contributions for use in ‘the primary and the general 

2024 election cycle.’ ” Id. (emphasis added); see also D. 

Ct. Doc. 65-9, 96 (July 14, 2020) (“the committee received collections that went toward both the primary 

and the general 2024 election cycle after Election 

Day”). Again, these funds could be and were used to 

pay 2018 election debts. 

Appellant fully understood this below. Appellant’s own trial counsel, in response to the deponent’s 

quoted statements, remarked that “the public record” 

shows “that there are individuals who did make contributions to the Ted Cruz for Senate Campaign after 

the general election of 2018,” which went “towards the 

2024 election” and could “have been used to repay debt 

from the 2018 campaign.” Id. at 95-97, 146. 

Appellant also quotes the undisputed Statement 

of Fact (“SOF”) that “[n]one of the $250,000 of the loan 

that was repaid was from contributions raised after 

the election.” J.S.10. But Appellant only quotes half of 
17 

the SOF, omitting the following deposition testimony 

on which it was expressly based: “(30(b)(6) Dep. at 95 

(FEC Exh. 9) (‘the committee did not receive any general 2018 contributions after Election Day 2018.’).” D. 

Ct. Doc. 67-1, ¶ 64 (Aug. 11, 2020) (emphasis added). 

The cited SOF must be read, of course, in conjunction 

with the expressly quoted deposition testimony on 

which it was based, and it is only in that qualified context that Appellees admitted it. Again, the same deposition testimony establishes that the Committee did 

receive contributions after the 2018 election, that 

those contributions were designated for the 2024 election, and that those contributions were available to 

pay 2018 election debts—facts that, again, Appellant’s 

own trial counsel affirmatively acknowledged during 

the deposition. D. Ct. Doc. 65-9, 96. 

That Appellant’s trial counsel correctly understood these facts—that the Committee had raised 

2024 money after the election and properly used it to 

pay off its $337,748 of net 2018 debt—likely accounts 

for Appellant’s decision not to raise its newfound 

standing argument below. But whatever the reason, 

Appellant’s stratagem here, asking this Court not 

only to consider its new standing argument but also to 

needlessly prolong this case with a pointless immediate remand, should be firmly rebuffed. It is one thing 

for this Court to consider a standing argument presented for the first time on appeal. It is quite another 

not only to allow a party to spring a new standing argument on appeal, but then also to hand the party a 
18 

vacatur and remand back to the court where the party 

should have presented the argument in the first place. 

In short, the record shows that the Committee 

did in fact raise contributions “after the date of [the 

2018] election,” 52 U.S.C. § 30116(j), and that these 

contributions were available to and substantial 

enough to repay all of the Committee’s 2018 debts including $250,000 of Senator Cruz’s loans. Appellant’s 

assertion that the $250,000 repayment was made 

with pre-election money is thus simply wrong, and so 

is its newly concocted standing argument. 

B. Appellees’ Unpaid Loan, whether “SelfInflicted” or Not, Is an Injury-In-Fact. 

Appellant also argues that Senator Cruz’s 

$10,000 financial injury is not traceable to the loanrepayment limit because it “was self-inflicted.” J.S.14. 

This argument fails too. Where the defendant is engaged in an ongoing violation of constitutional or statutory rights and a would-be plaintiff simply exercises 

the right that exposes himself to that violation, the injury is caused by the defendant, not the plaintiff. 

1. Appellant repeatedly cites our stipulation before the district court that “the sole and exclusive motivation” behind Appellees’ loans “was to establish the 

factual basis for this challenge.” J.S.16. As the district 

court correctly held, this reliance on Appellees’ subjective intent “is easily disposed of.” J.S.App.52a. The 

reason Appellees stipulated to the FEC’s account of 

their subjective motives is that under this Court’s 

case-law, these motives are utterly irrelevant. 
19 

For example, in Havens Realty Corp. v. Coleman, 

two plaintiffs—one black and one white—inquired of 

the defendant landlord about the availability of apartments. 455 U.S. 363, 368 (1982). The black plaintiff 

did so “fully expecting that he would receive false information” and had no “intention of buying or renting 

a home.” Id. at 374. The defendant, in violation of the 

Fair Housing Act, consistently told the black plaintiff 

that there were no apartments available and told the 

white plaintiff that there were vacancies. Id. at 368. 

Despite the fact that the black plaintiff was a “tester” 

who merely “pose[d] as [a] renter[ ],” this Court held 

that he had standing. Id. at 373. 

Similarly, in Evers v. Dwyer, the Court held that 

an African-American plaintiff had standing to challenge Memphis, Tennessee’s segregated bus system 

even though he was only exposed to the challenged 

discrimination because he purposefully boarded a bus 

and sat in the whites-only section “for the purpose of 

instituting this litigation.” 358 U.S. 202, 203 (1958). 

The district court dismissed the challenge for lack of 

an “actual controversy,” but this Court reversed, holding that the fact that the plaintiff “may have boarded 

this particular bus for the purpose of instituting this 

litigation is not significant.” Id. at 204. 

Indeed, a contrary view would call into question 

several landmark cases striking down racial segregation and other forms of unconstitutional discrimination. The plaintiffs in Brown v. Board of Education, 

347 U.S. 483 (1954), would not have had standing to 

challenge racial segregation unless they had been 
20 

“personally denied equal treatment by the challenged 

discriminatory conduct.” Allen v. Wright, 468 U.S. 

737, 755 (1984) (quotation marks omitted); see also 

Warth v. Seldin, 422 U.S. 490, 502 (1975). They therefore voluntarily sought, and were denied, “admission 

to schools attended by white children under laws requiring or permitting segregation according to race.” 

Brown, 347 U.S. at 488. Contrary to the FEC’s logic, 

the fact that the Brown plaintiffs willfully exposed 

themselves to their constitutional injury by voluntarily seeking admission to a segregated school did not 

defeat their standing; it created their standing. 

For the same reasons, Appellees’ subjective motivations in making and repaying the 2018 loan are 

completely irrelevant to the standing analysis. 

2. The foregoing discussion also answers Appellant’s related argument that Appellees’ $10,000 injury 

is “self-inflicted” because they could have avoided that 

injury by “us[ing] [the $2.2 million pre-election funds 

on hand] to pay Senator Cruz $10,000 or more in the 

20 days after the election” but “simply chose not to do 

so.” J.S.14. The district court correctly explained why 

this argument fails: “The flaw in the FEC’s argument 

is that it would require Senator Cruz to avoid an injury by subjecting himself to the very framework he 

alleges is unconstitutional.” J.S.App.54a. A plaintiff, 

like the black “tester” in Havens Realty, does not forfeit standing merely because he refuses to abide by or 

otherwise conform his conduct to the very restriction 

he challenges as unlawful. 
21 

Nor is the notion that a plaintiff must avoid, if 

possible, a constitutional injury by refusing to “do the 

very thing she claims she has a right not to do,” id. at 

55a, supported by the three cases Appellant cites. The 

plaintiffs in Clapper v. Amnesty International challenged the constitutionality of provisions of the Foreign Intelligence Surveillance Act authorizing government surveillance of certain international electronic 

communications. 568 U.S. 398 (2013). They sought to 

ground their standing on costly measures (e.g., travel 

costs for in-person meetings) they had taken to avoid 

making international electronic communications and 

thus to eliminate the risk of government interception. Because the threat of any particular government 

interception was highly speculative rather than “certainly impending,” the self-imposed costs they incurred to avoid exercising their claimed constitutional 

right to engage in confidential international electronic 

communications were “simply the product of their fear 

of surveillance, and ... such a fear is insufficient to 

create standing.” Id. at 417. 

This case would at least be parallel to Clapper if 

Cruz had limited his campaign loan to $250,000 to 

avoid the risk of nonpayment created by Section 304, 

and then had sought to ground his standing to challenge Section 304 on the theory that he had been injured because he had refused to exercise his constitutional right to loan his campaign more than $250,000. 

But even in that circumstance, Clapper would be beside the point given that FEC’s enforcement of Section 

304 against any given violation is not speculative at 
22 

all, let alone in the multiple ways that FISA surveillance of any given international communication is. 

See Davis, 554 U.S. at 734 (finding standing in preenforcement challenge). Appellees’ constitutional 

claim is that Cruz has a First Amendment right to 

loan money to his campaign free from governmental 

restrictions as to amount and time of repayment. That 

Cruz could have avoided his $10,000 loss by refusing 

to loan his campaign more than $250,000, or by requiring repayment in full within 20 days, does not 

change the fact that he suffered a $10,000 injury by 

exercising his constitutional right to make the loan 

that he did. 

McConnell v. FEC, 540 U.S. 93 (2013), is also distinguishable. McConnell held that plaintiffs could not 

challenge BCRA’s contribution limits as being set too 

high based on the supposed “competitive injury” they 

suffered because they did not “wish to solicit or accept 

large campaign contributions as permitted by BCRA.” 

Id. at 228. The plaintiffs made no claim that they had 

a constitutional right not to accept large donations, 

merely that this was “their own personal ‘wish,’ ” id., 

so McConnell is completely irrelevant here. 

The per curiam decision in Pennsylvania v. New 

Jersey, 426 U.S. 660 (1976), is irrelevant too, and for 

the same reason. There, several States challenged 

taxes that New Jersey and New Hampshire imposed 

on income earned within their borders by residents of 

the plaintiff States, arguing that the taxes violated 

the Privileges and Immunities Clause. But the plaintiff States (as opposed to their residents) were injured 
23 

by the challenged taxes only because of their choice 

“to extend a tax credit to their residents for income 

taxes paid” to the defendant States, which (combined 

with the challenged taxes) resulted in tax income being “diverted from their respective treasuries.” Id. at 

663-64. And critically, none of the plaintiff States 

claimed a constitutional right to extend such tax credits. Here, by contrast, the whole point of Appellees’ 

First Amendment claim is that they do have a constitutional right to repay candidate loans with post-election contributions. 

Appellant points to the settled rule that “a plaintiff cannot establish standing by asserting an abstract 

general interest common to all members of the public.” 

J.S.15 (quotation marks omitted). But the interest asserted by Appellees is not the general one of “seeing 

that the law is obeyed.” FEC v. Akins, 524 U.S. 11, 24 

(1998). It is the concrete First Amendment interest in 

repaying in full a specific loan in a manner free of unconstitutional restrictions that have resulted in Senator Cruz bearing the loss of a specific $10,000 sum. 

Appellant next argues that under Lujan v. Defenders of Wildlife, Appellees needed to “identify a[ ] 

specific payment to a vendor or other creditor that the 

Committee would have been hindered from making,” 

J.S.15, in order to justify their refusal to repay the 

loan with pre-election funds. But the problem in 

Lujan—that the “some day” intentions alleged by the 

plaintiffs failed to establish any “ ‘actual or imminent’ 

injury,” 504 U.S. 55, 564 (1992)—plainly does not apply in this case, which concerns a loan that has 
24 

already been made. Undisputed declaration testimony below establishes that “the Cruz Committee did 

not have sufficient funds in its bank account on November 6, 2018, to repay Senator Cruz’s loans in full 

and also to satisfy all of the Committee’s other creditors” and that in the first 20 days “the Committee paid 

some creditors but did not repay any portion of Senator Cruz’s loans.” D. Ct. Doc. 65, Statement of Genuine 

Issues, ¶¶ 35, 40 (July 14, 2020). Under this Court’s 

precedent, that plainly suffices. See, e.g., Davis, 554 

U.S. at 734 (finding standing without specific allegations concerning what activities candidate wished to 

fund). 

The premise of both of Appellant’s lines of attack 

appears to be that a plaintiff can avoid the charge of 

“self-inflicted” injury only if all of the options available to him would have resulted in giving him standing 

to bring the exact same challenge. Appellant cites no 

authority in support of such a proposition, and it 

makes no sense. A plaintiff faced with an unconstitutional fine for speaking at a particular occasion can 

plainly choose to speak, pay the fine, and then sue under the First Amendment without having to show that 

if he had avoided the fine by declining to speak, he 

could have sued anyway. Compare, e.g., Arkansas 

Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 227 

(1987) (publisher that paid discriminatory tax on the 

press had standing); with Laird v. Tatum, 408 U.S. 1, 

13 (1972) (no standing based on “subjective chill” 

alone). Similarly here, Appellees have alleged and established that they have suffered a concrete $10,000 
25 

injury fairly traceable to the challenged restrictions 

and that they could have avoided that injury only by 

complying with the very restrictions they are challenging as unconstitutional. Article III requires no 

more. 

Appellant’s standing arguments are thus completely meritless, and this Court can and should dispose of them, along with the appeal as a whole, without further briefing by summarily affirming the district court’s decision. See this Court’s Rule 16.1. 

II. The District Court Correctly Held that the 

Loan-Repayment Limit Is Unconstitutional. 

Appellant’s challenge to the district court’s decision on the merits also fails. 

A. Because the Loan-Repayment Limit 

Burdens Core Political Speech, It Is 

Subject to Strict Scrutiny. 

The loan-repayment limit burdens the core First 

Amendment rights of candidates, committees, and 

contributors, so it must be subject to strict—or, at a 

minimum, “closely drawn”—scrutiny. 

1. The First Amendment protects the right of a 

candidate “to engage in the discussion of public issues 

and vigorously and tirelessly to advocate his own election.” Davis, 554 U.S. at 738. A candidate who loans 

money to his campaign is exercising this core First 

Amendment freedom both as a matter of common 

sense and of BCRA’s own definition of “expenditure,” 

which explicitly includes loans. 52 U.S.C. 
26 

§ 30101(9)(A)(i). And Section 304 imposes a direct and 

significant burden on the exercise of this First Amendment right. By limiting the “pool of funds” committees 

may draw on to repay candidate loans, J.S.17, the 

$250,000 cap necessarily increases the risk that these 

loans will not be repaid in full, or perhaps at all. Appellant now describes this limit as “narrow,” id., but 

in briefing before the district court it acknowledged 

that when Section 304 applies, “a candidate deciding 

to loan his or her campaign money in advance of the 

election [will] not be able to accurately determine the 

likelihood he or she might be repaid.” D. Ct. Doc. 26, 

44 (June 7, 2019). 

True, Section 304 does not directly “impose a ceiling on a campaign’s ability to repay a candidate’s 

loans,” J.S.17, but that does not negate the First 

Amendment violation. Davis is directly controlling on 

this point. While the “asymmetrical contribution 

scheme” portion of the Millionaire’s Amendment at issue in Davis did “not impose a cap on a candidate’s 

expenditure of personal funds, it impose[d] an unprecedented penalty on any candidate who robustly exercises that First Amendment right.” 554 U.S. at 738-

39, 740. And that “special and potentially significant 

burden” on core First Amendment rights, the Court 

concluded, could be upheld only if it satisfied strict 

scrutiny. Id. at 739, 740. The portion of the Millionaire’s Amendment challenged here triggers strict 

scrutiny under this same reasoning. See also Arizona 

Free Enter. Club’s Freedom Club PAC v. Bennett, 564 

U.S. 721, 737, 740, 742 (2011). 
27 

Appellant argues that as a factual matter “[m]ost 

loans to election campaigns are for $250,000 or less” 

and “[t]he ratio of loans below $250,000 has not 

changed substantially from what the ratio was prior 

to BCRA.” J.S.18. That would be irrelevant even if it 

painted an accurate picture of Section 304’s effect (and 

as the district court found, it does not, see 

J.S.App.14a-15a). For the economic burden imposed 

on candidate spending by the loan-repayment limit is 

plain as a matter of law, not to mention common 

sense, and the Court need not pause to consider how 

many people it successfully deters from freely exercising their First Amendment rights. That is the clear 

holding of Bennett, which squarely rejected the approach advocated by Appellant: 

[T]he burden imposed by the [challenged] 

provision is evident and inherent in the 

choice that confronts privately financed candidates and independent expenditure 

groups.... As in Davis, we do not need empirical evidence to determine that the law at 

issue is burdensome. See 554 U.S., at 738-

40 (requiring no evidence of a burden whatsoever). 

564 U.S. at 745-46 (citations and quotation marks 

omitted). So too here. 

2. In addition to candidates, the loan-repayment 

limit also burdens the rights of committees and contributors. By limiting a committee’s ability to repay 

candidate loans with post-election funds, the loan-
28 

repayment limit effectively forces it to choose between 

using its limited cash on hand to: (1) repay the over-

$250,000 balance of candidate loans (thereby foregoing, or at least delaying, funding First Amendment expression), or (2) repay other vendors (thereby deterring the candidate from loaning money in the future). 

Section 304 “does not provide any way in which a 

[committee] can exercise [its First Amendment rights] 

without abridgment.” Davis, 554 U.S. at 740. And the 

loan-repayment limit also burdens the rights of contributors, by effectively creating a ceiling on overall 

post-election contributions. See 11 C.F.R. § 110.1

(b)(3)(ii)(C). At a minimum, the limit thus must be 

subjected to Buckley’s “closely drawn” scrutiny. 424 

U.S. at 25.1

3. Finally, Appellant urges that “[a]s applied in 

this case, the loan-repayment limit ... did not impose 

any meaningful constraint on appellees’ expression.” 

J.S.19. That point, even if true, is completely irrelevant, since Appellees challenged the limit as substantially overbroad on its face. It is black-letter law in the 

First Amendment context that a party may “challenge 

a statute not because their own rights of free expression are violated,” but rather because “the statute’s 

very existence may cause others not before the court 

1 Should the Court conclude that plenary consideration is 

necessary, Appellees reserve the right to argue that Buckley’s 

“closely drawn” scrutiny for contribution limits either is tantamount to strict scrutiny or is inconsistent with the First Amendment. See Colorado Republican Fed. Campaign Comm. v. FEC, 

518 U.S. 604, 635-44 (1996) (Thomas, J., dissenting). 
29 

to refrain from constitutionally protected speech or expression.” Broadrick v. Oklahoma, 413 U.S. 601, 612, 

613 (1973). That is the case here: because “the government has failed to demonstrate that the loan-repayment limit serves an interest in preventing quid pro 

quo corruption,” J.S.App.6a, the loan-repayment limit 

is unconstitutional every time it applies. 

In any event, the loan-repayment limit did burden Appellees as applied in this case. It is undisputed 

that Senator Cruz loaned his Committee $260,000 before the 2018 election—thereby exercising “his First 

Amendment right to spend his own money for campaign speech.” Davis, 554 U.S. at 738. And Appellees 

were indisputably burdened by the challenged loanrepayment limit: the limit barred the Cruz Committee 

from repaying $10,000 of Cruz’s $260,000 loans with 

any post-election contributions, and $10,000 of the 

loans remain unpaid. Appellant again trots out its arguments about the motivations behind the loan, 

J.S.18-19, but this Court’s precedent holds that a 

plaintiff’s subjective motivations are irrelevant to the 

merits of his constitutional challenge. See Pierson v. 

Ray, 386 U.S. 547, 558 (1967). 

B. The Loan-Repayment Limit Fails even 

“Closely-Drawn” Scrutiny Because It 

Does Not Further any Anti-Corruption 

Interest. 

Because Section 304 burdens First Amendment 

expression, it is subject to strict scrutiny—or, at a 

minimum, to Buckley’s “closely drawn” scrutiny. It 
30 

flunks either standard, because it does not further any 

interest in preventing quid pro quo corruption or its 

appearance. 

1. Section 304 was never designed as an anticorruption measure, so if it did serve that interest, it 

would be pure happenstance. Instead, the provision’s 

legislative history leaves no doubt about the purposes 

it was actually designed to serve: “level[ling] the playing field” between competing candidates. 147 CONG.

REC. S2463 (daily ed. Mar. 19, 2001) (statement of 

Sen. DeWine). Section 304 was enacted as part of the 

“Millionaire’s Amendment,” which this Court has already held was designed to “level electoral opportunities for candidates of different personal wealth.” Davis, 554 U.S. at 741. And the legislative history makes 

clear that this was also the specific purpose of the 

loan-repayment limit in particular: as the Senator 

who principally drafted the loan-repayment limit repeatedly and explicitly explained, it had “the same 

purpose” as the rest of the amendment, and this “purpose is to level the playing field.” 147 CONG. REC. 

S2541 (daily ed. Mar. 20, 2001) (statement of Sen. 

Hutchison). 

Moreover, Section 304 also had an even more 

self-serving design—it “protects incumbents.” 147 

CONG. REC. S2544 (daily ed. Mar. 20, 2001) (statement 

of Sen. Daschle). After all, while challengers often 

need to spend significant amounts of seed money to 

raise name recognition even before they start to receive significant contributions, see Anderson v. Spear, 

356 F.3d 651, 673 (6th Cir. 2004), incumbents “have a 
31 

lot of advantages that do not come out of our personal 

checkbooks,” 147 CONG. REC. S2465 (daily ed. Mar. 19, 

2001) (statement of Sen. Dodd). Both of these purposes are plainly illegitimate. See Bennett, 564 U.S. at 

749-50; Randall v. Sorrell, 548 U.S. 230, 248, 249 

(2006) (opinion of Breyer, J). 

2. Moreover, Section 304 cannot be justified as 

an anti-corruption measure because the federal contribution limits already serve to adequately address 

any corruption risk. The base limit of $2,900 per contributor (as adjusted for inflation) applies to all contributions “with respect to any election,” 52 U.S.C. 

§ 30116(a)—so it governs post-election contributions 

in the same measure as pre-election contributions. 

That eliminates any anti-corruption justification under McCutcheon v. FEC’s holding that “Congress’s selection of a [$2,900] base limit indicates its belief that 

contributions of that amount or less do not create a 

cognizable risk of corruption.” 572 U.S. 185, 209, 210 

(2014) (emphasis added). After all, the only effect of 

striking down the loan-repayment limit would be to 

place post-election contributions on equal footing with 

pre-election contributions—limited to the non-corrupting amount of $2,900 or less. See J.S.App.34a; Anderson, 356 F.3d 672-73 (striking down Kentucky limit on 

candidate loans for this reason).

3. Appellant attempts to get around this difficulty by arguing that the loan-repayments restricted 

by Section 304 “pose[ ] a heightened risk of corruption.” J.S.25. That contention fails for multiple independent reasons. 
32 

Appellant first argues that the contributions limited by Section 304 are especially corrupting because 

they supposedly go “into the candidate’s pocket.” Id. 

at 19. This argument fundamentally misunderstands 

what happens when contributions are used to repay a 

candidate’s loan. Such payments do not go into the 

candidate’s “pocket,” id., they go to reimburse the candidate for money he spent on political speech furthering his election campaign. Of course, the repayment 

allows the candidate to spend his own money for purposes unrelated to the campaign—in precisely the 

same manner as a pre-election contribution that obviates any need for the candidate to loan his own money 

in the first place. But that hardly means that the candidate has pocketed the contribution, whether made 

before or after the election, for his “personal purposes.” Id. While Appellant gestures towards the congressional restrictions on “personal gifts,” id. at 21, 

and the federal prohibition on using campaign funds 

for “personal use,” id. at 20, it does not even try to argue that the repayment of a candidate loan actually 

violates those limits. It plainly does not, and that is 

the end of this argument. 

Appellant next argues that the loan-repayment 

limit is justified by the special corruption risks posed 

by contributions made post-election, when “the donor 

can know ... that the recipient will be in a position to 

do him official favors.” Id. But apart from Section 304 

itself, Congress has placed no limits on an individual’s 

ability to contribute up to $2,900 “with respect to any 

election for Federal office” after election day has 
33 

passed. 52 U.S.C. § 30116(a)(1)(A); see 11 C.F.R. § 

110.1(b)(3)(i). By the FEC’s lights, any post-election 

contribution must pose a “heightened risk of corruption.” J.S.25. Yet federal law generally allows those 

contributions, up to $2,900—so this supposedly 

heightened risk of corruption cannot justify Section 

304’s limit on a small, arbitrary subset of them. 

Even more fundamentally, Appellant’s argument 

would also doom all contributions, pre- or post-election, to incumbent officeholders. As the district court 

held, “[t]he FEC’s concerns ... seem to apply equally 

to any contribution made to an incumbent, because all 

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

J.S.App.33a. There is no dispute that any given contributor could have given Senator Cruz $2,800 (the 

prevailing limit then) on November 7, 2018, if he had 

designated it for the upcoming election cycle. The notion that the same contribution would have suddenly 

become corrupting if it were instead designated for the 

2018 election is farcical. 

Appellant also suggests that post-election contributions are suspicious because “the primary legitimate rationales for donating to electoral campaigns”—“pooling resources with other donors to facilitate political expression” and “increasing ... the likelihood that the favored candidate will prevail”—“do 

not apply” to post-election contributions. J.S.20-21. 

Appellant neglects to mention the primary “rationale” 

that Buckley identified for contributions—that they 
34 

“serve[ ] as a general expression of support for the candidate and his views,” 424 U.S. at 21—which does apply equally after the election. And besides, Appellant 

is wrong that the two “rationales” it identifies do not 

apply to post-election contributions. For at least with 

respect to candidates who may run again, contributors 

surely understand that helping repay debts from a 

prior campaign will free up money that the candidate 

can spend on the next campaign. 

Nor can there be any argument that the supposedly “heightened risk of corruption” is only present 

where contributions both (1) are received “after the 

winner of the election is known” and (2) go to “personally enrich” the candidate. J.S.24, 25. For both of these 

factors are present to exactly the same degree whenever an incumbent officeholder loans money to his 

reelection campaign and those loans are repaid with 

contributions received before election day. Yet Section 

304 allows such pre-election contributions to be used 

to repay an incumbent’s loans without limit. 

4. In addition to these fatal analytical problems, 

Appellant has failed to provide “any evidence” that 

post-election contributions used to repay candidate 

loans have given rise to any “actual corruption.” 

J.S.App.25a. Appellant puts forward three pieces of 

supposed evidence, but none is persuasive. 

First, Appellant points to “a study showing that 

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

votes if they receive contributions from special 
35 

interests between the votes.” J.S.22 (alteration and 

quotation marks omitted). But as the district court 

found, the unpublished paper Appellant cites “does 

not distinguish between voting pattern changes as a 

consequence of donor influence or access and voting 

pattern changes as part of quid pro quo corruption.” 

J.S.App.25a. That fact completely deprives it of probative value, given that “mere influence or access is 

not the type of quid pro quo corruption that justifies 

infringements on political speech.” Id. 

Moreover, the paper does not even purport to analyze the sole question that is relevant in this litigation: whether post-election contributions used to repay candidate loans in excess of $250,000 pose some 

heightened risk of corruption. To the contrary, the paper (1) is not limited to candidate loans; (2) is also not

limited to post-election contributions; and (3) also does 

not distinguish between the first $250,000 of candidate loan-repayment contributions and the two-hundred, fifty-thousand-and-first dollar. See D. Ct. Doc. 

67-1, ¶ 67. 

Second, Appellant asserts that it “identified numerous episodes” of “special favors” granted after the 

receipt of “contributions designed to pay down personal debt.” J.S.22. But as the district court found, all 

of Appellant’s anecdotes “involve only concerns that 

candidates will be too responsive to the influence of 

special interests or concerns about contributions unrelated to the repayment of candidate loans.” 

J.S.App.23a-24a; see, e.g., D. Ct. Doc. 67-1, ¶ 69 (former FEC employee simply asserting “that lobbyists 
36 

make debt-retirement contributions ... because they 

believe the contribution will benefit the Member who 

receives it”); id. at ¶ 76 (simply reporting contributions “funded by industries or special interests” to repay candidate loans); ¶ 79 (raising concerns about preelection contributions). Appellant’s failure to identify 

any meaningful evidence of quid quo pro corruption is 

highly significant: as the district court noted, “many 

states impose no restriction on using post-election 

contributions to repay candidate loans, and the Commission fails to identify any problems with quid pro 

quo corruption or its appearance in these states.” 

J.S.App.23a (footnote omitted). 

Third, Appellant points to “opinion polling showing that more than 80% of respondents believed that 

individuals who donate money to a campaign after an 

election expect political favors in return.” J.S.22-23. 

But the poll in question—which “was conducted at the 

FEC’s behest for this litigation,” J.S.App.27a— falls 

risibly short. The poll misleadingly asked respondents 

how they would feel “[i]f there were no limit on how 

much money a federal campaign could raise after 

Election Day to repay a candidate,” D. Ct. Doc. 67-1, 

¶ 95 (emphasis added), without mentioning that federal base contribution limits still apply. Moreover, because the survey failed to ask about post-election 

fundraising for the repayment of other types of campaign debt, it cannot show that the respondents 

viewed the specific payments limited by Section 304 

as specially corrupting. J.S.App.28a. And “the poll did 

not define the term ‘political favor,’ so the poll’s 
37 

responses are not evidence that the public associates 

such contributions with quid pro quo corruption, 

which Congress may regulate, or simply increased influence and access, which Congress may not.” Id.2

C. The Loan-Repayment Limit Is Not Sufficiently Tailored. 

Even if the loan-repayment limit did somehow 

further the interest in curbing quid pro quo corruption, it is not “narrowly tailored to achieve [that] objective.” McCutcheon, 572 U.S. at 218. Appellant’s justification for the limit—that post-election donors 

know “that the recipient will be in a position to do him 

official favors,” J.S.20—obviously has no purchase 

with respect to losing candidates. J.S.App.32a; see 

also Anderson, 356 F.3d at 673. Appellant notes that 

“post-election contributions generally flow to winning 

candidates,” J.S.23, but there are far more losing candidates than winning ones, so even if a smaller fraction of them are able to raise debt-retirement money, 

Section 304’s overbreadth remains substantial. And 

“establishing separate rules for winning and losing 

candidates” would not create an unconstitutional 

“asymmetrical contribution scheme,” J.S.23, since unlike the scheme struck down in Davis this asymmetry 

would not “impermissibly burden[ ] [a candidate’s] 

First Amendment right to spend his own money for 

campaign speech,” 554 U.S. at 738. 

2 Indeed, the political scientist who supervised the poll admitted that she herself understood the phrase “political favor” to 

include access. D. Ct. Doc. 67-1, ¶ 95. 
38 

Finally, as discussed repeatedly above, the loanrepayment limit is also dramatically underinclusive, 

given that post-election loan-repayment contributions 

are indistinguishable from many other types of contributions that are subject only to general base-contribution limits. See supra, pp. 31-34. To be sure, the First 

Amendment does not impose a “freestanding ‘underinclusiveness’ limitation,” J.S.24, but as the district 

court recognized, Section 304’s underinclusiveness 

“raise[s] doubts about whether the law advances the 

interests invoked by the government,” J.S.App.32a. 

Moreover, the loan-repayment limit’s underinclusiveness also dooms it under McCutcheon, by demonstrating that the specific activity targeted by Section 304 

in fact does not give rise to any risk of corruption distinct from the ordinary $2,900 contributions that, in 

Congress’s judgment, “do not create a cognizable risk 

of corruption.” 572 U.S. at 210. 

CONCLUSION 

For the foregoing reasons, the Court should summarily affirm the judgment of the district court or, at 

a minimum, set the case for plenary consideration. 
39 

August 6, 2021 

CHRIS GOBER

THE GOBER GROUP 

 PLLC 

3595 RR 620 S., 

 Suite 200 

Austin, TX 78738 

(512) 354-1787 

Respectfully submitted, 

CHARLES J. COOPER

 Counsel of Record

JOHN D. OHLENDORF

COOPER & KIRK, PLLC 

1523 New Hampshire 

Avenue, N.W. 

Washington, D.C. 20036 

(202) 220-9600 

ccooper@cooperkirk.com 

Counsel for Appellees