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

___________

BRIEF OF CONSTITUTIONAL ACCOUNTABILITY 

CENTER AS AMICUS CURIAE IN

SUPPORT OF APPELLANT

___________

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

DAVID H. GANS

MIRIAM BECKER-COHEN

CONSTITUTIONAL

 ACCOUNTABILITY CENTER

1200 18th Street NW, Suite 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

November 22, 2021 * Counsel of Record
(i)

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES................................. iii 

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

INTRODUCTION AND SUMMARY OF 

ARGUMENT...................................................... 1

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

I. The Constitution’s Text and History 

Reflect the Framer’ Strong Interest in 

Preventing Corruption............................... 5

A. In Drafting the Constitution, the 

Framers Were Keenly Concerned 

with Preventing Both the 

Appearance and Reality of 

Corruption ......................................... 5

B. The Text of the Constitution 

Reflects Both Broad AntiCorruption Principles and Specific 

Gift, Salary, and Appointment 

Restrictions Designed to Prevent 

Corruption and the Appearance 

Thereof............................................... 11

II. The BCRA Provision at Issue Here Does 

Not Burden Campaign Speech and Fits 

Comfortably Within the Constitutional

Tradition of Avoiding Corruption in 

Government, Including Quid Pro Quo

Corruption.................................................. 18

III. By Faulting the Government for Failing 

to Provide Specific Examples of Quid Pro 

Quo Corruption Averted by the BCRA 

Provision, the Court Below Defied 

Constitutional Text and History and this 
ii

Court’s Precedents Permitting Measures 

to Avoid the Appearance of Quid Pro Quo

Corruption. ................................................. 22

CONCLUSION ..................................................... 26
iii

TABLE OF AUTHORITIES

Page(s)

Cases

Ariz. Free Enter. Club’s Freedom Club PAC

v. Bennett,

564 U.S. 721 (2011)................................ 22

Arizona v. Inter Tribal Council of Ariz., Inc.,

570 U.S. 1 (2013).................................... 17

Buckley v. Valeo,

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

Citizens United v. FEC,

558 U.S. 310 (2010)............................ 22, 23, 24

Davis v. FEC,

554 U.S. 724 (2008)................................ 4, 22

Ex parte Yarbrough,

110 U.S. 651 (1884).................................. 3

FEC v. Nat’l Conservative PAC, 

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

McConnell v. FEC,

540 U.S. 93 (2003).................................... 16, 24

McCutcheon v. FEC,

572 U.S. 185 (2014).................................. 5, 22

Nixon v. Shrink Missouri Government PAC,

528 U.S. 377 (2000).................................. 21, 24

Smiley v. Holm,

285 U.S. 355 (1932).................................. 17
iv

TABLE OF AUTHORITIES – cont’d

Page(s)

U.S. Civ. Serv. Comm’n v. Nat’l Assoc. of 

Letter Carriers, AFL-CIO,

413 U.S. 548 (1973).................................. 23

Statutes and Constitutional Provisions

52 U.S.C. § 30116(j)..................................... 2, 19

Bipartisan Campaign Reform Act of 2002, 

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

U.S. Const. art. I, § 4, cl. 1.......................... 2, 17

U.S. Const. art. I, § 6, cl. 2.......................... 16

U.S. Const. art. I, § 9, cl. 8.......................... 11, 13

U.S. Const. art. II, § 1, cl. 7......................... 13

Other Authorities

11 C.F.R. § 116.11 ....................................... 19

Applicability of Emoluments Clause to 

Emp. of Gov’t Emps. by Foreign Pub. Univ., 

18 Op. O.L.C. 13 (1994)............................ 10, 13

Application of Emoluments Clause to 

Part-Time Consultant for the Nuclear 

Regul. Comm’n, 

10 Op. O.L.C. 96 (1986)............................ 13
v

TABLE OF AUTHORITIES – cont’d

Page(s)

2 Debates in the Several State Conventions on 

the Adoption of the Federal Constitution 

(Jonathan Elliot ed., 1836) ..................... 17

3 Debates in the Several State Conventions on 

the Adoption of the Federal Constitution 

(Jonathan Elliot ed., 1836) ..................... 17

4 Debates in the Several State Conventions on 

the Adoption of the Federal Constitution 

(Jonathan Elliot ed., 1836) ..................... 9

The Federalist No. 22

(Clinton Rossiter ed., 1961) ..................... 12

The Federalist No. 39

(Clinton Rossiter ed., 1961) ..................... 25

The Federalist No. 51

(Clinton Rossiter ed., 1961) ..................... 1

The Federalist No. 52

(Clinton Rossiter ed., 1961) ..................... 11

The Federalist No. 68

(Clinton Rossiter ed., 1961) ..................... 2, 5

The Federalist No. 73

(Clinton Rossiter ed., 1961) ..................... 14
vi

TABLE OF AUTHORITIES – cont’d

Page(s)

Patrick Henry, Speech in the Convention of 

Virginia on the Expediency of Adopting the 

Federal Constitution, June 7, 1788, reprinted 

in 1 E.B. Williston, Eloquence of the United 

States (E. & H. Clark eds., 1827)............. 6

Samuel Issacharoff, On Political Corruption, 

124 Harv. L. Rev. 118 (2010)................... 8

Lawrence Lessig, Republic, Lost (2011) ..... 16

James McHenry, Speech before the Maryland 

House of Delegates (Nov. 29, 1787).......... 16

4 Charles de Montesquieu, The Spirit of Laws 

(Melvin Richter trans., Cambridge University 

Press 1991) (1748).................................... 8

John M. Murrin, Escaping Perfidious Albion:

Federalism, Fear of Aristocracy, and the Democratization of Corruption in Postrevolutionary America, in Virtue, Corruption, and SelfInterest: Political Values in the Eighteenth 

Century (Richard K. Mathews ed., 1994) 7

Alvin Rabushka, The Colonial Roots of American 

Taxation, 1607-1700, Hoover Institution Pol. 

Rev. (Aug. 1, 2002)................................... 15

Alvin Rabushka, Taxation in Colonial America

(2008)........................................................ 14, 15
vii

TABLE OF AUTHORITIES – cont’d

Page(s)

1 The Records of the Federal Convention of 1787

(Max Farrand ed., 1966) ........................ 2, 6, 16

2 The Records of the Federal Convention of 1787 

(Max Farrand ed., 1966) ........................ passim

3 The Records of the Federal Convention of 1787 

(Max Farrand ed., 1966) ........................ 6, 9, 16

James D. Savage, Corruption and Virtue at the 

Constitutional Convention, 

56 J. Pol. 174 (1994)................................. 6, 7, 8

Zephyr Teachout, Corruption in America

(2014)...................................................... passim

Zephyr Teachout, The Anti-Corruption Principle, 

94 Cornell L. Rev. 341 (2009) ................ 7, 14
1

INTEREST OF AMICUS CURIAE1

Constitutional Accountability Center (CAC) is a 

think tank, public interest law firm, and action center 

dedicated to fulfilling the progressive promise of the 

Constitution’s text and history. CAC works in our 

courts, through our government, and with legal scholars to improve understanding of the Constitution and 

to preserve the rights and freedoms it guarantees. 

CAC accordingly has a strong interest in laws designed to further the Constitution’s anti-corruption 

principles and in this case.

INTRODUCTION AND 

SUMMARY OF ARGUMENT

In one of the most famous passages from The Federalist Papers, James Madison declared that “[i]f men 

were angels, no government would be necessary. If angels were to govern men, neither external nor internal 

controls on government would be necessary.” The Federalist No. 51, at 322 (James Madison) (Clinton Rossiter ed., 1961). Madison’s statement reflected the

Framers’ deep-seated and nearly universal fear of corruption in government, born out of experiences in England, that motivated the architects of our Constitution. 

The people’s interest in establishing political systems 

designed to combat corruption and improve integrity 

in government thus lies at the foundation of our constitutional democracy. 

1 The parties have consented to the filing of this brief. Under 

Rule 37.6 of the Rules of this Court, amicus states that no counsel 

for a party authored this brief in whole or in part, and no counsel 

or party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than amicus

or its counsel made a monetary contribution to its preparation or 

submission.
2

Exercising the powers granted in the Constitution 

to limit opportunities for corruption, Congress enacted 

Section 304 of the Bipartisan Campaign Reform Act of 

2002 (BCRA), Pub. L. No. 107-155, 116 Stat. 81, 97 (codified at 52 U.S.C. § 30116(j)), which bars federal candidates from using more than $250,000 in post-election 

campaign contributions to repay their personal campaign loans. By limiting the amount of funds given 

after an election that can go directly into a candidate’s 

pocket, the law takes aim at those contributions that 

most pose a risk of actual quid pro quo corruption, as 

well as the appearance thereof.

Concerns about the corrupting potential of personal gifts to people in positions of power date back to 

the Founding. When the Framers gathered in Philadelphia in the summer of 1787 to draft our Constitution, anti-corruption measures were considered essential to creating an enduring system of government. As 

George Mason warned his fellow delegates at the Constitutional Convention, “if we do not provide against 

corruption, our government will soon be at an end.” 1 

The Records of the Federal Convention of 1787, 392 

(Max Farrand ed., 1966) [hereinafter Farrand’s Records]. Because the Framers understood that corruption is insidious and could be “expected to make [its] 

approach[] from more than one quarter,” The Federalist No. 68, supra, at 412 (Alexander Hamilton), they 

designed the Constitution to include as many protections against corruption as possible, including by giving Congress the power to enact into law limits designed to ensure integrity in federal elections. See U.S. 

Const. art. I, § 4, cl. 1 (granting Congress authority to 

regulate “[t]he Times, Places and Manner of holding 

Elections”).

The Framers established governmental structures 

and political systems, such as “checks and balances” 
3

and election procedures, that were designed to help the 

government withstand corruption and ensure that it 

would be independent of potentially corrupting influences and thus dependent only on the people. But the 

Framers also included in the Constitution a number of 

specific and strongly worded gift, salary, and appointment restrictions targeted at minimizing discrete opportunities for corruption. These specific restrictions,

like the Emoluments Clauses, reach more broadly 

than simply outlawing bribery. Much like the BCRA 

provision at issue in this case, they serve as prophylactic measures that also target both actual quid pro quo 

corruption and the appearance thereof. 

Consistent with this constitutional text and history, this Court has long recognized Congress’s “legitimate and compelling” interest in “preventing corruption and the appearance of corruption.” FEC v. Nat’l 

Conservative PAC, 470 U.S. 480, 496 (1985). Over a 

century ago, the Court observed that “[i]n a republican 

government, like ours, where political power is reposed 

in representatives of the entire body of the people, chosen at short intervals by popular elections, the temptations to control these elections . . . by corruption is a 

constant source of danger.” Ex parte Yarbrough, 110 

U.S. 651, 666 (1884). Thus, avoiding even the appearance of corruption is “critical . . . if confidence in the 

system of representative Government is not to be 

eroded to a disastrous extent.” Buckley v. Valeo, 424 

U.S. 1, 27 (1976) (per curiam) (internal quotation 

marks omitted).

The BCRA provision limiting the use of post-election contributions to repay candidates’ personal campaign loans is a narrowly tailored means of serving

these compelling interests in preventing quid pro quo 

corruption and the appearance of such corruption. Indeed, the loan-repayment limitation at issue here is
4

similar in many ways to the various emoluments restrictions that have been part of the Constitution since 

it was written, and it reflects the same anti-corruption 

principles that inspired the architects of those constitutional provisions. 

By concluding that the BCRA provision “imposes 

a ‘drag’ on the candidate’s First Amendment activity 

by discouraging the personal financing of campaign 

speech,” J.S. App. 15a (citing Davis v. FEC, 554 U.S. 

724, 739 (2008)), the court below ignored both what the 

law actually does, as well as the extent to which it vindicates the anti-corruption principles reflected in our

Constitution’s text and history. Significantly, the 

BCRA loan-repayment limitation does not limit campaign spending or prevent candidates from raising 

money to spread the candidate’s message during the 

election. It does not limit the amount that a candidate 

can personally loan to his campaign or the extent to 

which he can be reimbursed for such loans. It does not 

even limit campaign contributions to help a candidate 

repay a personal loan so long as they are made during

the campaign. As described below, the provision 

simply puts a limit on the dollar amount of monetary 

gifts made after a campaign that can go directly into a 

candidate’s pocket and be used in his personal capacity. In other words, the law dictates when funds must 

be raised by a campaign for the purpose of a candidate’s personal loan repayment. It does not restrict a 

candidate’s ability to personally finance his campaign 

or engage in political speech.

In that sense, the BCRA provision prevents quid 

pro quo corruption and the appearance of quid pro quo 

corruption in just the same manner as a restriction on 

the acceptance of gifts from foreign dignitaries and 

other related constitutional limitations. By insisting 

that the law must fail First Amendment scrutiny due 
5

to the government’s inability to point to a specific example of quid pro quo corruption occurring in its absence, the court below ignored the self-evident and 

deeply historical premise that gifts that inure to the 

personal benefit of a politician that are given at a time 

(after an election) when it is known that that politician 

will retain political power plainly give rise to an intolerable risk of actual quid pro quo corruption and the 

appearance of quid pro quo corruption. Indeed, the appearance of quid pro quo corruption alone is sufficient 

under this Court’s precedents to sustain the law. See, 

e.g., McCutcheon v. FEC, 572 U.S. 185, 191 (2014)

(“Our cases have held that Congress may regulate 

campaign contributions to protect against . . . the appearance of corruption.”).

Consistent with these precedents, as well as the 

constitutional text and history reflecting the Framers’ 

commitment to anti-corruption principles, this Court 

should uphold the BCRA provision at issue in this 

case, and the judgment of the court below should be 

reversed.

ARGUMENT

I. The Constitution’s Text and History Reflect 

the Framers’ Strong Interest in Preventing 

Corruption.

A. In Drafting the Constitution, the Framers 

Were Keenly Concerned with Preventing 

Both the Appearance and Reality of 

Corruption.

Corruption was a chief concern that informed the 

Framers’ design of the Constitution. Alexander Hamilton explained that in drafting the Constitution, 

“[n]othing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, 

and corruption.” The Federalist No. 68, supra, at 412.
6

“[T]here was near unanimous agreement [among the 

delegates at the Convention] that corruption was to be 

avoided, that its presence in the political system produced a degenerative effect, and that the new Constitution was designed in part to insulate the political 

system from corruption.” James D. Savage, Corruption and Virtue at the Constitutional Convention, 56 J. 

Pol. 174, 181 (1994). 

The Framers viewed the American Revolution as 

a fresh start from the corruption they saw as endemic 

to politics and government. While many viewed Britain as “the best example of structured self-government 

that [they] could imagine,” Zephyr Teachout, Corruption in America 36 (2014), they also viewed it as a tragedy of corruption, racked, in the words of Patrick 

Henry, by “the bolts and bars of power” with “bribery 

and corruption defiling the fairest fabric that ever human nature reared.” Patrick Henry, Speech in the 

Convention of Virginia on the Expediency of Adopting 

the Federal Constitution, June 7, 1788, reprinted in 1 

E.B. Williston, Eloquence of the United States 223 (E. 

& H. Clark eds., 1827); see also 1 Farrand’s Records 

380 (George Mason) (“I admire many parts of the British constitution and government, but I detest their corruption.”). 

Indeed, the very decision to hold the Constitutional Convention itself—separate from the ordinary 

process established under the Articles of Confederation—was in part a reaction to the perceived “corruption & mutability of the Legislative Councils of the 

States.” 2 Farrand’s Records 288 (John Francis Mercer). The Framers viewed those self-interested state 

legislatures as a chief cause of the failure of the Articles of Confederation, as they repeatedly put their own 

interests ahead of the whole. See 3 Farrand’s Records

542 (James Madison) (describing, for instance, how the 
7

states under the Articles of Confederation “were subject to be taxed by their neighbors,” creating “a source 

of dissatisfaction and discord, until the new Constitution, superseded the old”).

This preoccupation with stemming corruption, 

born of the Founders’ experience under British rule

and the shortcomings of the Articles of Confederation, 

pervaded the debates at the Constitutional Convention. James Madison’s notes of the Constitutional 

Convention record that fifteen delegates used the term 

“corruption” no less than fifty-four times, the vast majority by seven of the most prominent delegates, including Madison, Governeur Morris, George Mason, 

and James Wilson. Savage, supra, at 177. Corruption 

was an express topic of concern on almost a quarter of 

the days that the members convened, Zephyr 

Teachout, The Anti-Corruption Principle, 94 Cornell L. 

Rev. 341, 352 (2009), and concern over corruption 

quickly became “the common grammar of politics” during the Convention, John M. Murrin, Escaping Perfidious Albion: Federalism, Fear of Aristocracy, and the 

Democratization of Corruption in Postrevolutionary 

America, in Virtue, Corruption, and Self-Interest: Political Values in the Eighteenth Century 103, 104 (Richard K. Matthews ed., 1994).

The early American idea of corruption boiled down 

to a fear of “excessive private interests influencing the 

exercise of public power.” Teachout, Corruption in 

America, supra, at 38. This concept stemmed from two 

main sources: the theories of the French philosopher 

Charles de Montesquieu, and the Christian tradition

of virtue, which was intertwined with John Locke’s 

theories of natural law. See id. at 39. In both traditions, “the core metaphor of corruption was organic 

and derived from disease and internal collapse. Corruption was a rotting of positive ideals of civic virtue 
8

and public integrity.” Id. As Montesquieu explained, 

civic “virtue” at the core of a functioning democracy 

was “the love of the laws and of our country,” and 

“[s]uch love requires a constant preference of public to 

private interest.” 4 Charles de Montesquieu, The 

Spirit of Laws (Melvin Richter trans., Cambridge University Press 1991) (1748). Thomas Jefferson copied 

this passage into his notebook, and he and other 

Founders referred to these principles repeatedly 

throughout the late eighteenth century. Teachout, 

Corruption in America, supra, at 42.

While the Framers were well versed in political 

theory, they were not detached from the rough-andtumble world of politics, and they approached the 

problems of corruption with a real-world understanding of political systems and their potential to either 

foster or restrain corruption. “When the delegates 

spoke of corruption at the [C]onvention, they did so in 

a manner that reflected classical republican concerns 

about dependency, cabals, patronage, unwarranted influence, and bribery.” Savage, supra, at 181. They 

were also concerned that even the appearance of corruption posed a risk to civic virtue and the integrity of 

the fledgling American government. As one scholar

has explained, “[t]he Framers appear to have conceptualized corruption as a derogation of the public trust.” 

Samuel Issacharoff, On Political Corruption, 124 

Harv. L. Rev. 118, 129 (2010). 

In keeping with these practical concerns, the 

Framers frequently referenced several notorious instances of European corruption that they sought to 

protect against in the new constitutional order. Several of these incidents involved outright bribery: for instance, when Louis XIV paid Charles II and later 

James II for foreign affairs alliances. See, e.g., 2 Farrand’s Records 68-69 (Gouveneur Morris) (noting that 
9

even a king, who “[o]ne would think . . . well secured 

agst. Bribery . . . was bribed by Louis XIV”); 4 Debates 

in the Several State Conventions on the Adoption of the 

Federal Constitution 264 (Jonathan Elliot ed., 1836) 

[hereinafter Elliot’s Debates] (Charles Coteworth 

Pinckney) (noting the bribe of “Charles II., who sold 

Dunkirk to Louis XIV”).

But the Framers’ concerns about corruption extended beyond outright bribery. In Europe at the time, 

and especially in France, “[e]xpensive gifts—sometimes called presents du roi or presents du congé—

functioned as tokens of esteem, prestige items, and 

perhaps petty bribes, and were embedded in the culture of international relations.” Teachout, Corruption 

in America, supra, at 19 (quotation marks and end 

note omitted). During the Virginia ratification debates, Governor Edmund Randolph explained:

A box was presented to our ambassador by the 

king of our allies. It was thought proper, in order to exclude corruption and foreign influence, to prohibit any one in office from receiving or holding any emoluments from foreign 

states. I believe, that if at that moment, when 

we were in harmony with the king of France, 

we had supposed that he was corrupting our 

ambassador, it might have disturbed that confidence, and diminished that mutual friendship, which contributed to carry us through 

the war.

3 Farrand’s Records 327.

As this statement illustrates, the appearance of 

quid pro quo corruption did not just pose of a risk of 

domestic distrust in government, but also a risk of the 

souring of diplomatic relationships. Thus, based on 

their real-world experiences with corruption, the 
10

Founders were determined to craft a governing charter 

that rooted out not just outright bribery but also opportunities for corruption and situations that could 

give rise to the appearance of corruption.

In one famous example, the King of Spain gave 

John Jay a gift of a horse, even though he remained 

engaged in high-level negotiations with a Spanish representative at the time. See Applicability of Emoluments Clause to Emp. of Gov’t Emps. by Foreign Pub.

Univ., 18 Op. O.L.C. 13, 16 n.4 (1994). And in 1780, 

the United States Ambassador to France, Arthur Lee,

received from Louis XVI of France a portrait of the 

King set atop a gold box commonly called a “snuff box.” 

Id. Lee turned the gift over to Congress, which resolved that he could keep it. Id. 

And perhaps the most well-known snuff box was 

Benjamin Franklin’s. When Franklin left Paris in 

1785, Louis XVI gave him a spectacular parting gift: a 

portrait of King Louis, surrounded by 408 diamonds 

set in two rows around the painting and held in a solid 

gold snuff box. Teachout, Corruption in America, supra, at 1-2, 25-26. While no one suspected that the gift 

was a bribe, it posed a special concern of the appearance of corruption due to its ostentatious nature, 

Franklin’s “outsized role in the American political 

landscape,” and the fact that Franklin was “notoriously adored” by the French government. Id. at 25-26. 

In other words, not unlike post-election campaign contributions used to retire candidates’ personal loans, 

the gift to Franklin posed a risk of the appearance of

quid pro quo corruption because it inured to him personally and directly while he maintained power and 

influence in American government. 

Franklin ultimately asked Congress to approve 

the gift, which it did in 1786, and there is some evidence that the Constitution’s Foreign Emoluments 
11

Clause was inspired in part by Franklin’s notorious 

snuff box. Id. at 26-27. That Clause, along with several other distinct constitutional provisions described 

below, was designed to reduce temptations and opportunities for corruption among public officials and block 

influences that would tend to compromise the government’s intended “dependen[cy] on the people alone.” 

The Federalist No. 52, supra, at 326 (James Madison).

B. The Text of the Constitution Reflects 

Both Broad Anti-Corruption Principles 

and Specific Gift, Salary, and 

Appointment Restrictions Designed to 

Prevent Corruption and the Appearance 

Thereof.

The Framers recognized that whether or not a 

public official or an institution of government was actually tainted by a corrupting force, members of the 

public might reasonably question whether their representatives remained loyal to the public. Thus, rather 

than simply seek to criminalize bribery of public officials, the Framers also wrote into the Constitution specific provisions that would also prevent instances that 

could give rise to the appearance of corruption. Several of those provisions merit special attention, given 

their similarity to the loan-repayment law at issue in 

this case.

The Foreign Emoluments Clause. The Constitution mandates that “no Person holding any Office of 

Profit or Trust under them, shall, without the Consent 

of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, 

Prince, or foreign State.” U.S. Const. art. I, § 9, cl. 8. 

The Framers wrote this clause in part in response to

those instances between the Revolution and the Convention when American diplomats—like Benjamin 

Franklin—received valuable gifts from foreign 
12

dignitaries. Teachout, Corruption in America, supra, 

at 27. But this Clause also responded to the Founders’ 

deep-seated concern, not tied to any particular incident, that foreign powers could use emoluments and 

gifts to interfere with America’s internal affairs, undermining the nation’s republican institutions and 

making its leaders subservient to foreign interests. Alexander Hamilton wrote that one of the vulnerabilities 

of republics “is that they afford too easy an inlet to foreign corruption.” The Federalist No. 22, supra, at 149. 

And during the Constitutional Convention, Elbridge 

Gerry warned that “[f]oreign powers will intermeddle 

in our affairs, and spare no expence to influence them.” 

2 Farrand’s Records 268. By reaching more broadly 

than simply outlawing bribery, the Foreign Emoluments Clause served as a prophylactic measure that 

targeted not just actual corruption, but also the appearance of quid pro quo corruption. 

This restriction on accepting foreign emoluments 

was one of the few measures to be transferred from the 

Articles of Confederation to the new Constitution in 

1787, reflecting its importance to the Founding generation. Teachout, Corruption in America, supra, at 26-

27. At Philadelphia, the Foreign Emoluments Clause 

was added to the draft of the new Constitution by 

unanimous agreement of the state delegations after 

Charles Pinckney “urged the necessity of preserving 

foreign Ministers & other officers of the U.S. independent of external influence.” 2 Farrand’s Records 389; 

see id. at 384. In adding that clause, the Founders 

largely borrowed the language of the precursor provision in the Articles of Confederation, but they made 

one important change: they codified the practice that 

federal officeholders could accept otherwise prohibited 

emoluments from foreign states if they first obtained 

the affirmative consent of Congress, thus reducing the 
13

appearance of corruption. Teachout, Corruption in 

America, supra, at 26-27.

Because the Founders wanted to eliminate “foreign influence of every sort,” they drafted the Clause 

with language “both sweeping and unqualified,” Applicability of Emoluments Clause to Employment of 

Government Employees by Foreign Public Universities, 

18 Op. O.L.C. at 17, “prohibit[ing] those holding offices 

of profit or trust under the United States from accepting ‘any present, Emolument, Office, or Title, of any 

kind whatever’ from ‘any . . . foreign State’ unless Congress consents,” id. (quoting U.S. Const. art. I, § 9, cl. 8 

(emphasis added by Office of Legal Counsel)). Consistent with that broad language, the Foreign Emoluments Clause has been understood to be “‘directed 

against every kind of influence by foreign governments 

upon officers of the United States,’ in the absence of 

consent by Congress.” Application of Emoluments 

Clause to Part-Time Consultant for the Nuclear Regul.

Comm’n, 10 Op. O.L.C. 96, 98 (1986) (quoting 24 Op. 

Att’y Gen. 116, 117 (1902)). The Founders’ desire to 

limit the appearance of corruption through gifts that 

inured directly to the personal benefit of American officeholders resulted in one of the most “strongly 

worded prohibitions in the Constitution.” Teachout, 

Corruption in America, supra, at 26.

The Domestic Emoluments Clause. The Constitution also provides that “[t]he President shall, at stated 

Times, receive for his Services, a Compensation, which 

shall neither be increased nor diminished during the 

Period for which he shall have been elected, and he 

shall not receive within that Period any other Emolument from the United States, or any of them.” U.S. 

Const. art. II, § 1, cl. 7. This clause, known as the Domestic Emoluments Clause, was written to allay the 

Founders’ concerns that vesting executive power in a 
14

single chief executive could stoke corruption of the 

kind they had seen in England—where a king engaged 

in “absolute Tyranny” over the people, The Declaration 

of Independence para. 2 (U.S. 1776), and where “a 

well-designed government was eventually internally 

corrupted and, therefore, self-destructed,” Teachout, 

The Anti-Corruption Principle, supra, at 350.

The Framers were especially worried that Congress or the states might exploit the President’s selfinterest as a means of inducing him to favor their personal or provincial concerns. Alexander Hamilton observed that “a power over a man’s support is a power 

over his will,” and that if legislatures could alter the 

President’s financial circumstances, they could “tempt 

him by largesses” and thereby cause him “to surrender 

at discretion his judgment to their inclinations.” The 

Federalist No. 73, supra, at 441. History revealed 

many examples “of the intimidation or seduction of the

Executive by the terrors or allurements of . . . pecuniary arrangements.” Id. Even in the American colonies, experience had shown how conniving legislatures 

could gain undue influence over the executive through 

financial rewards, and how the executive in turn could 

exploit his office to enrich himself.

In some colonies, for instance, governors lacked a 

fixed salary, instead relying on myriad other sources 

of profit that accompanied their offices: bonuses, 

awards of pensions, grants of land, use of land and 

public labor for personal profit, sharing in taxes and 

fees, use of idle public funds as personal capital, tax 

exemptions, and “customary gifts” of merchandise or

money from ships at port. Alvin Rabushka, Taxation 

in Colonial America 13, 241-44, 248, 374, 384, 536 

n.35, 606 (2008). In colonies that operated as proprietorships, the situation was ever starker: the “public 

revenue of the colony belonged to the private 
15

proprietor,” who often was the governor. Alvin 

Rabushka, The Colonial Roots of American Taxation, 

1607-1700, Hoover Institution Pol. Rev. (Aug. 1, 2002),

http://www.hoover.org/research/colonial-roots-american-taxation-1607-1700. In both situations, governors 

“engaged in trade,” “accepted bribes,” and even “engaged in illicit activities . . . and supported piracy.” 

Rabushka, Taxation in Colonial America, supra, at 

311. Such rampant profiteering enabled legislatures 

to influence governors’ decisions by manipulating their 

financial rewards. It also enabled governors to hold 

legislatures hostage to their personal monetary demands.

Aware of this history, the Framers wrote the Domestic Emoluments Clause to avert the flagrant extortion in which some colonial governors had engaged and 

prevent Congress from bribing the President or punishing him by manipulating his salary. But they ultimately realized that providing a fixed compensation 

was not enough: Congress and the states might instead give the President other lucrative benefits or rewards besides a compensation increase in order to 

bend him to their will. To prevent such corruption, 

John Rutledge and Benjamin Franklin moved to supplement the presidential compensation provision by 

adding the following: “and he (the President) shall not 

receive . . . any other emolument from the U.S. or any 

of them.” 2 Farrand’s Records 626. Franklin and 

Rutledge’s motion was swiftly approved by the Convention, and the Domestic Emoluments Clause became part of the new Constitution. Id.

The Ineligibility and Emoluments Clause. The 

Constitution also provides that “[n]o Senator or Representative shall, during the Time for which he was 

elected, be appointed to any civil Office under the Authority of the United States, which shall have been 
16

created, or the Emoluments whereof shall have been 

encreased during such time.” U.S. Const. art. I, § 6, cl. 

2. This constitutional restriction reflects the Framers’ 

deep anxiety that legislators’ temptation to secure future employment might cloud their duty to act in the 

public interest. “The core corruption the Framers 

wanted to avoid was Parliament’s loss of independence 

from the Crown because the king had showered members of Parliament with offices and perks that few 

would have had the strength to resist.” Lawrence Lessig, Republic, Lost 19 (2011). At the Convention, the 

delegates explained that this provision would 

“preserv[e] the Legislature as pure as possible, by 

shutting the door against appointments of its own 

members to offices, which was one source of its corruption.” 1 Farrand’s Records 386 (John Rutledge). 

The delegates’ decision that an express constitutional “precaution ag[ainst] intrigue was necessary” 

stemmed from their observations of the British experience, “where men got into Parl[iament] that they 

might get offices for themselves or their friends. This 

was the source of the corruption that ruined their 

Gov[ernment].” 1 Farrand’s Records 376 (Pierce Butler). George Mason supported the exclusion “as a corner stone in the fabric” of the Constitution and was “for 

shutting the door at all events ag[ainst] corruption,” 

particularly in light of the “venality and abuses” that 

took place in this regard in England. Id. During ratification debates over the Constitution, James 

McHenry explained that the purpose of the provision 

was “to avoid as much as possible every motive for Corruption.” James McHenry, Speech before the Maryland House of Delegates (Nov. 29, 1787), in 3 Farrand’s 

Records 148; see McConnell v. FEC, 540 U.S. 93, 153 

(2003) (“The best means of prevention is to identify 

and to remove the temptation.”).
17

Thus, much like the Foreign and Domestic Emoluments Clauses, the Ineligibility and Emoluments 

Clause uses sweeping language, yet it is sharply directed at circumstances under which an officeholder 

might receive—or appear to receive—a direct personal 

benefit (appointment to a more prestigious office along 

with future job security) in exchange for political favors. So too for the BCRA provision at issue in this 

case.

The Elections Clause. Finally, aware that the specific safeguards written into the Constitution might 

not be sufficient on their own to guard against corruption in elections in particular, the Framers drafted the 

Elections Clause to give Congress the tools to supplement those safeguards and address new abuses that 

might arise in the future. The Elections Clause provides that Congress may regulate the “Times, Places, 

and Manner of holding Elections.” U.S. Const. art. I, 

§ 4, cl. 1. “The Clause’s substantive scope is broad. 

‘Times, Places, and Manner[]’ . . . are ‘comprehensive 

words,’ which ‘embrace authority to provide a complete 

code for congressional elections.’” Arizona v. Inter 

Tribal Council of Ariz., Inc., 570 U.S. 1, 8-9 (2013)

(quoting Smiley v. Holm, 285 U.S. 355, 366 (1932)).

The Framers granted Congress the power to establish uniform ground rules for federal elections “to prevent corruption or undue influence,” 2 Elliot’s Debates

535 (Thomas M’Kean), and to ensure that Congress 

would be dependent on the people alone, not factions 

in the states that might seek to “mould their regulations as to favor the candidates they wished to succeed.” 2 Farrand’s Records 241 (James Madison); see

3 Elliot’s Debates 11 (George Nicholas) (observing that 

“the power of Congress to make the times of elections 

uniform in all the states, will destroy of the continuance of any cabal”). The Elections Clause gave 
18

Congress the power to guarantee the integrity of federal elections and prevent new forms of corruption 

from undermining the Constitution’s anti-corruption 

principles. Indeed, the BCRA provision at issue in this 

case was enacted pursuant to Congress’s Elections 

Clause power to regulate the “manner” of elections and

to guard against actual quid pro quo corruption, as 

well as the appearance of such corruption.

II. The BCRA Provision at Issue Here Does Not 

Burden Campaign Speech and Fits 

Comfortably Within the Constitutional 

Tradition of Avoiding Corruption in 

Government, Including Quid Pro Quo 

Corruption.

As the constitutional provisions detailed above illustrate, the Framers were both broadly concerned 

about corruption in government and specifically concerned about the risk of quid pro quo corruption posed 

by gifts or appointments that inure to the personal 

benefit of government officials. For this reason, they 

included multiple clauses in the Constitution targeted 

at restricting such emoluments, and they gave Congress the power to enact further restrictions to avoid 

corruption in elections. The BCRA provision at issue 

here serves the same interests as these constitutional 

provisions.

Significantly, the BCRA provision does not affect 

campaign expression at all; it targets only those postelection contributions that inure directly to a candidate’s personal benefit. When a candidate receives 

funds to retire a personal loan from a campaign committee, those funds go directly into the candidate’s 

pocket. Their use is not restricted to activities related 

to the campaign or political activity. Indeed, their use

is not restricted at all: the money becomes personal 

cash for buying a car, paying off credit card debt, or 
19

saving for a child’s college education. As the government has explained, “common sense” illustrates that 

“the risk of corruption is greater when an officeholder 

receives $2900 that he can use to pay down his mortgage than when he receives $2900 that his campaign 

can use to pay for more placards.” J.S. 19-20. In a 

sense, then, funds used to repay a candidate’s personal 

loans to a campaign are no different than Franklin’s 

diamond and gold snuff box: they have no value to the 

campaign or the government itself—only to the recipient who enjoys the personal benefit of admiring those 

408 diamonds and to the gift-giver who puts himself in 

a position to receive political favors in exchange. 

Given this, the loan-repayment limitation is 

properly analyzed as a gift restriction—like the constitutional provisions detailed above—rather than a restriction on campaign spending or contributions. It is

thus difficult to make sense of the district court’s statement that the BCRA provision “discourag[es] the personal financing of campaign speech,” J.S. App. 15a,

when there is absolutely nothing in the law purporting 

to restrict the amount that a candidate can personally 

contribute to a campaign or even the amount of a candidate’s loan that a campaign can repay. 

For example, the loan-repayment limitation does 

not prevent a campaign committee from repaying one 

hundred percent of a candidate’s personal loan of, say,

$500,000. See 52 U.S.C. § 30116(j) (imposing no limit 

on the total loan repayment amount). Indeed, the campaign has multiple options for repaying such a loan. 

For instance, it can split the repayment 50/50 between 

pre- and post-election contributions or, provided that 

it acts within 20 days after the election, see 11 C.F.R. 

§ 116.11(c)(1), it can pay back the entire $500,000 personal loan using pre-election funds, id. § 116.11(b)(1)

(a campaign “[m]ay repay the entire amount of the 
20

personal loans using contributions to the candidate or 

the candidate’s authorized committee provided that 

those contributions were made on the day of the election or before”). In fact, that is almost precisely what 

happened here: Senator Cruz’s campaign committee 

repaid $250,000 of Cruz’s $260,000 personal loan using pre-election funds (although the campaign actually 

intended to use post-election funds for purposes of concocting this challenge). See Appellant’s Br. 7. Thus, 

the BCRA provision challenged here in no way prevented the Cruz campaign committee from raising 

$10,000 in post-election contributions and using those 

funds to repay the remainder of Senator Cruz’s personal loan.

Moreover, post-election contributions pose a special danger of corruption because they are made with 

the knowledge of whether a candidate has won or lost 

an election. Thus, even if a donor expects nothing in 

return after giving to a campaign following an election, 

there is, at a minimum, a risk of the appearance that 

the donor expected political favors based on the donor’s 

knowledge that the candidate would be in a position to 

grant such favors. Indeed, the record illustrates that 

post-election contributions generally flow to winning 

candidates, exacerbating the risk of the appearance of 

quid pro quo corruption. See J.A. 317; Appellant’s Br. 

37-38. This dynamic is why “Franklin’s outsized role 

in the American political landscape” made his snuff 

box particularly concerning, at least in terms of the appearance of corruption. Teachout, Corruption in 

America, supra, at 26. The “gift portended more than 

warmth and friendship. It was a show of power.” Id. 

The manner in which this law operates—imposing 

essentially no burden on political speech and operating 

narrowly to curtail situations in which the risk of quid 

pro corruption or its appearance is heightened—makes 
21

it significantly less restrictive of speech than laws that 

limit campaign contributions, which this Court has repeatedly upheld as valid measures to limit corruption 

in government despite the fact that they make it more 

difficult for candidates to raise money to fund their 

campaigns. For instance, in Buckley v. Valeo, this 

Court held that individual campaign and candidate 

contribution limits did not violate the First Amendment, as they imposed “little direct restraint” on a 

“contributor’s freedom to discuss candidates and issues” and still “permit[ed] the symbolic expression of 

support evidenced by a contribution.” 424 U.S. at 21. 

Similarly, in Nixon v. Shrink Missouri Government 

PAC, this Court upheld a Missouri law that imposed 

limits on contributions to state candidates, even 

though, adjusting for inflation, the limit might have 

been effectively lower than the one upheld in Buckley. 

528 U.S. 377, 396-97 (2000); see id. at 388 (“the dollar 

amount of the limit need not be ‘fine tun[ed]’” (quoting 

Buckley, 424 U.S. at 30)).

Unlike these laws upheld by this Court, the law 

here does not burden the ability of candidates to raise 

money to fund their campaigns at all. The law does 

not prevent candidates from soliciting the maximum 

amount of campaign contributions permitted under 

other campaign finance laws both pre- and post-election. And it does not restrict the amount that a candidate can personally loan to his campaign or the 

amount that he can be repaid for that loan. Rather, 

the BCRA provision at issue here simply restricts the 

amount of post-election funds (after $250,000) that can 

go directly into a federal candidate’s pocket to retire a 

personal loan. 

This case is also distinct from other recent cases in 

which this Court has held that discriminatory contribution limits dissuaded self-financing of campaigns in 
22

an impermissible manner. See Ariz. Free Enter. Club’s 

Freedom Club PAC v. Bennett, 564 U.S. 721 (2011); 

Davis v. FEC, 554 U.S. 724 (2008). Here, nothing in 

the BCRA provision dissuades self-financing by candidates because the law does not infringe on the ability 

of candidates who loan money to their campaigns to be 

paid back in full. It is hard to imagine why a candidate 

would care whether campaign funds used to repay his 

personal loan came in before or after the campaign unless he specifically intended to use the offer of political 

favors after winning an election for more effective 

fundraising—the precise situation that this law 

guards against. 

III. By Faulting the Government for Failing to 

Provide Specific Examples of Quid Pro Quo 

Corruption Averted by the BCRA Provision, 

the Court Below Defied Constitutional Text 

and History and this Court’s Precedents 

Permitting Measures to Avoid the 

Appearance of Quid Pro Quo Corruption.

Ignoring the constitutional history discussed 

above, as well as the way in which the loan-repaymentlimitation law actually operates, the court below insisted that the BCRA provision did not survive constitutional scrutiny because “the FEC has not identified 

a single case of actual quid pro quo corruption in this 

context.” J.S. App. 23a. But by insisting that the government provide actual examples of quid pro quo corruption, the court below flouted this Court’s rule, with 

roots in the Founding era, “that Congress may regulate campaign contributions to protect against corruption or the appearance of corruption.” McCutcheon, 

572 U.S. at 191 (emphasis added); see Citizens United 

v. FEC, 558 U.S. 310, 357 (2010) (noting that this 

Court has repeatedly “sustained limits on direct contributions in order to ensure against the reality or 
23

appearance of corruption” (emphasis added)). For the 

reasons outlined above, post-election campaign contributions used to retire a candidate’s personal loan carry 

a clear and heightened risk of actual and apparent

quid pro quo corruption. That heightened risk—particularly given its self-evident nature in the case of 

post-election campaign contributions—gives rise to 

the appearance of corruption in the scenarios barred 

by the BCRA.

Indeed, the risk of the appearance of quid pro quo 

corruption was a pivotal reason for this Court’s decision in Buckley v. Valeo to uphold Congress’s individual campaign and candidate contribution limits. The 

Court acknowledged that “the scope of such pernicious 

practices can never be reliably ascertained,” yet it 

found the risk “of the appearance of corruption stemming from public awareness of the opportunities for 

abuse inherent in a regime of large individual financial contributions” to be of “equal concern.” Buckley, 

424 U.S. at 27. Buckley cited approvingly this Court’s 

earlier decision in United States Civil Service Commission v. National Association of Letter Carriers, AFLCIO, 413 U.S. 548 (1973), a case in which this Court 

upheld broad restrictions on federal employees’ right 

of partisan political association. Buckley, 424 U.S. at 

27. “Here, as there,” the Buckley Court explained, 

“Congress could legitimately conclude that the avoidance of the appearance of improper influence ‘is also 

critical . . . if confidence in the system of representative Government is not to be eroded to a disastrous extent.’” Id. (quoting U.S. Civ. Serv. Comm’n, 413 U.S. 

at 565).

This Court even recognized the centrality of avoiding the appearance of quid pro quo corruption in Citizens United. Although it determined that “the appearance of influence or access . . . will not cause the 
24

electorate to lose faith in our democracy,” 558 U.S. at 

360, it did not disturb Buckley’s holding that “preventing . . . the appearance of corruption” is a compelling 

government interest, id. at 359. 

The Court in Citizens United also explained that 

even though “few if any contributions to candidates 

will involve quid pro quo arrangements,” regulation of 

campaign contributions is “preventative,” 558 U.S. at 

357, ensuring that candidates are not influenced to act 

“by the prospect of financial gain to themselves or infusions of money into their campaigns,” Nat’l Conservative PAC, 470 U.S. at 497. The essential point 

from these cases is that even where “actual corrupt 

contribution practices ha[ve] not been proved, Congress ha[s] an interest in regulating the appearance of 

corruption that is ‘inherent in a regime of large individual financial contributions.’” McConnell, 540 U.S. 

at 298 (Kennedy, J., concurring in part and dissenting 

in part) (quoting Buckley, 424 U.S. at 27). 

Although this Court did not explicitly ground its 

decisions in these cases in constitutional history, its 

articulation of the dangers of the appearance of corruption echo the concerns of the Framers. For example, 

fears that the perception of corruption would undermine faith in our government were precisely why 

Franklin’s snuffbox caused such concern for the 

Founding generation. Franklin was a beloved figure 

at the time, and there is no evidence in the historical 

record that anyone believed that he had been bribed 

by the King of France. See Teachout, Corruption in 

America, supra, at 25. Yet his contemporaries were 

concerned that the gift could give rise to appearances 

of corruption, and they also thought it best to prohibit

such gifts in the future, when the public might not 

have the same trust in their leaders as they did in 

Franklin. Id. at 25-26; cf. Shrink Missouri, 528 U.S. 
25

at 390 (“Leave the perception of impropriety unanswered, and the cynical assumption that large donors 

call the tune could jeopardize the willingness of voters 

to take part in democratic governance.”).

Concerns about the appearance of corruption also 

informed the Framers’ decision to amend the version 

of the Foreign Emoluments Clause in the Articles of 

Confederation to add a new provision permitting public officials to keep gifts from foreign dignitaries if Congress first provided its affirmative consent. Of course, 

Congress’s approval could not undo any quid pro quo 

arrangement, but it could subvert the appearance of 

corruption by sanctioning the gift with the approval of 

a representative body of government. See The Federalist No. 39, supra, at 241 (James Madison) (describing 

the need for a system of government where officials 

were dependent on “the great body of the people” and 

“not [on] an inconsiderable proportion or a favored 

class of it”).

At its core, the BCRA provision in this case is a 

prophylactic measure designed to limit the extent to 

which post-election gifts, which carry a heightened 

risk of quid pro quo corruption and have at most a tenuous connection to political speech, can be put directly 

into the pockets of candidates who lend money to their

campaigns. Both the Constitution’s text and history 

and this Court’s precedents gives Congress a wide 

berth to prohibit the potentially corrupt repayment 

scheme that this law guards against. 
26

CONCLUSION

For the foregoing reasons, this Court should reverse the decision of the court below. 

Respectfully submitted, 

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

DAVID H. GANS

MIRIAM BECKER-COHEN

CONSTITUTIONAL

 ACCOUNTABILITY CENTER

1200 18th Street NW, Suite 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

November 22, 2021 * Counsel of Record