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 FOR APPELLEES __________________________________________ 

CHRIS GOBER

THE GOBER GROUP 

 PLLC 

14425 Falcon Head 

 Blvd. E-100 

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 

December 15, 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 

PARTIES TO THE PROCEEDING 

The Federal Election Commission (“FEC”) is the 

appellant in this Court and was a defendant in the 

district court. Ted Cruz for Senate and Senator Rafael 

Edward “Ted” Cruz are appellees in this Court and 

were plaintiffs in the district court. 

Appellees also named Ellen L. Weintraub, Matthew S. Petersen, Caroline C. Hunter, and Steven T. 

Walther, in their official capacities as Commissioners 

of the FEC, as defendants in the district court. Mr. Petersen and Ms. Hunter’s terms of service subsequently 

expired, and Shana M. Broussard, Allen Dickerson, 

Sean J. Cooksey, and James E. Trainor III were subsequently appointed as Commissioners of the FEC. 

The individual Commissioners have not separately 

appealed. 

CORPORATE DISCLOSURE STATEMENT 

The disclosure statement in Appellees’ Motion to 

Affirm or Dismiss remains accurate. 
iii 

TABLE OF CONTENTS 

Page 

TABLE OF AUTHORITIES ........................................ v 

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

STATEMENT OF THE CASE .................................... 5 

I. Section 304’s Limit on the Repayment 

of Candidate Loans. ............................................ 5 

II. Senator Cruz’s 2018 Loans. ................................ 7 

III. Proceedings Below. .............................................. 8 

SUMMARY OF THE ARGUMENT ............................ 9 

ARGUMENT ............................................................ 11 

I. The District Court Correctly Held that 

Appellees Have Standing. ................................. 11 

A. Appellees’ Injuries Are Traceable to 

BCRA Section 304 And Redressed by 

the Judgment Holding Section 304 

Unconstitutional. ...................................... 11 

B. Appellees’ Unpaid Loan, whether 

“Self-Inflicted” or Not, Establishes 

Their Standing. ......................................... 30 

II. The District Court Correctly Held that the 

Loan-Repayment Limit Is Unconstitutional. ................................................................. 39 

A. Because the Loan-Repayment Limit 

Burdens Core Political Speech, It Is 

Subject to Strict Scrutiny. ......................... 39 
iv 

B. The Loan-Repayment Limit Fails 

Even “Closely-Drawn” Scrutiny Because It Does Not Further any AntiCorruption Interest. .................................. 46 

C. The Loan-Repayment Limit Is Not 

Sufficiently Tailored. ................................ 54 

CONCLUSION .......................................................... 55 
v 

TABLE OF AUTHORITIES 

Page 

CASES

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

295 U.S. 495 (1935) .............................................. 18 

Allen v. Wright, 

468 U.S. 737 (1984) .............................................. 31 

American Power & Light Co. v. SEC, 

329 U.S. 90 (1946) ................................................ 18 

Anderson v. Spear, 

356 F.3d 651 (6th Cir. 2004) ...................... 7, 40, 48 

Arizona Free Enter. Club’s Freedom Club PAC 

v. Bennett, 

564 U.S. 721 (2011) ................................. 41, 42, 43, 

44, 46, 47 

Bennett v. Spear, 

520 U.S. 154 (1997) ....................................... 22, 23, 

Bowsher v. Synar, 

478 U.S. 714 (1986) .............................................. 17 

Broadrick v. Oklahoma, 

413 U.S. 601 (1973) .................................. 45, 54, 55 

Brown v. Board of Education, 

347 U.S. 483 (1954) ........................................ 31, 32 

Buckley v. Valeo, 

424 U.S. 1 (1976) ............................ 1, 17, 40, 42, 45 
vi 

California v. Texas, 

593 U.S. ---, 141 S. Ct. 2104 (2021) ......... 18, 19, 20 

Carney v. Adams, 

592 U.S. ---, 141 S. Ct. 493 (2020) ....................... 29 

Chicago, Indianapolis, & Louisville Ry. Co. 

v. Hackett, 

228 U.S. 559 (1913) ........................................ 13, 16 

Citizens United v. FEC, 

558 U.S. 310 (2010) .............................................. 51 

Clapper v. Amnesty Int’l, 

568 U.S. 398 (2013) ........................................ 33, 34 

Clinton v. City of New York, 

524 U.S. 417 (1998) .............................................. 16 

Collins v. Yellen, 

594 U.S. ---, 141 S. Ct. 1761 (2021) ..................... 16

DaimlerChrysler Corp. v. Cuno, 

547 U.S. 332 (2006) .............................................. 21 

Davis v. FEC, 

554 U.S. 724 (2008) ........................ 6, 41, 42, 43, 47 

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

575 U.S. 43 (2015) ................................................ 18 

Evers v. Dwyer, 

358 U.S. 202 (1958) .............................................. 31 

Ex parte Siebold, 

100 U.S. 371 (1879) .............................................. 13 

FDA v. Brown & Williamson Tobacco Corp., 

529 U.S. 120 (2000) ........................................ 12, 13 
vii 

FEC v. Akins, 

524 U.S. 11 (1998) ................................................ 38 

Financial Oversight & Mgmt. Bd. for P.R. v. 

Aurelius Inv., LLC, 

590 U.S. ---, 140 S. Ct. 1649 (2020) ..................... 17 

Free Enter. Fund v. PCAOB, 

561 U.S. 477 (2010) .............................................. 18 

Gundy v. United States, 

588 U.S. ---, 139 S. Ct. 2116 (2019) ............... 17, 18 

Havens Realty Corp. v. Coleman, 

455 U.S. 363 (1982) .................................. 30, 31, 37 

Holder v. Humanitarian Law Project, 

561 U.S. 1 (2010) .................................................. 29 

INS v. Chadha, 

462 U.S. 919 (1983) .............................................. 17 

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

276 U.S. 394 (1928) .............................................. 18 

Lewis v. Casey, 

518 U.S. 343 (1996) .............................................. 21 

Lexmark Int’l, Inc. v. Static Control Components, 

Inc., 

572 U.S. 118 (2014) ........................................ 14, 15 

Lichter v. United States, 

334 U.S. 742 (1948) .............................................. 18 

Louisiana Pub. Serv. Comm’n v. FCC, 

476 U.S. 355 (1986) ........................................ 13, 14 
viii 

Loving v. United States, 

517 U.S. 748 (1996) .............................................. 18 

Lujan v. Defenders of Wildlife, 

504 U.S. 555 (1992) .............................................. 38 

McConnell v. FEC, 

540 U.S. 93 (2003) .................................... 23, 24, 35 

McCutcheon v. FEC, 

572 U.S. 185 (2014) ................................. 47, 48, 51, 

52, 54, 55 

Mistretta v. United States, 

488 U.S. 361 (1989) .............................................. 18 

Moose Lodge No. 107 v. Irvis, 

407 U.S. 163 (1972) .............................................. 21 

MWAA v. Citizens for Abatement of Aircraft 

Noise, Inc., 

501 U.S. 252 (1991) ........................................ 16, 17 

NBC v. United States, 

319 U.S. 190 (1943) .............................................. 18 

NLRB v. Noel Canning, 

573 U.S. 513 (2014) .............................................. 18 

Panama Ref. Co. v. Ryan, 

293 U.S. 388 (1935) .............................................. 18 

Pennsylvania v. New Jersey, 

426 U.S. 660 (1976) ........................................ 35, 36 

Pierson v. Ray, 

386 U.S. 547 (1967) .............................................. 45 
ix 

Randall v. Sorrell, 

548 U.S. 230 (2006) .............................................. 46 

Rothstein v. UBS AG, 

708 F.3d 82 (2d Cir. 2013) ................................... 29 

Schneider v. Smith, 

390 U.S. 17 (1968) ................................................ 18 

Seila Law LLC v. CFPB, 

591 U.S. ---, 140 S. Ct. 2183 (2020) ..................... 17 

South Bay United Pentecostal Church v. Newsom, 

592 U.S. ---, 141 S. Ct. 716 (2021) ....................... 54 

Susan B. Anthony List v. Driehaus, 

573 U.S. 149 (2014) .............................................. 37 

Touby v. United States, 

500 U.S. 160 (1991) .............................................. 18 

Ward v. Rock Against Racism, 

491 U.S. 781 (1989) .............................................. 43 

Warth v. Seldin, 

422 U.S. 490 (1975) .............................................. 31 

Yakus v. United States, 

321 U.S. 414 (1944) .............................................. 18 

STATUTES AND LEGISLATIVE MATERIALS

5 U.S.C. § 706(2)(C) ................................................... 13 

18 U.S.C. § 607 .......................................................... 21 

52 U.S.C. 

§ 30101(9)(A)(i) ..................................................... 40 

§ 30114(a) ............................................................. 25 
x 

§ 30116(a)(1)(A) .................................................... 49 

§ 30116(j) .......................................... 1, 6, 25, 27, 29 

§ 30116 note ......................................................... 23 

147 CONG. REC. 

S2463 (daily ed. Mar. 19, 2001) ............................. 6 

S2465 (daily ed. Mar. 19, 2001) ............................. 7 

S2541 (daily ed. Mar. 20, 2001) ....................... 7, 46 

S2544 (daily ed. Mar. 20, 2001) ....................... 7, 46 

RULES AND ADMINISTRATIVE MATERIALS

11 C.F.R 

§ 100.110 ............................................................... 40 

§ 100.111(a) & (b) ................................................. 40 

§ 110.1(b)(1) ............................................................ 5 

§ 110.1(b)(2)(ii) ..................................................... 25 

§ 110.1(b)(3) .......................................................... 25 

§ 110.1(b)(3)(i) .................................................. 6, 49 

§ 110.1(b)(3)(ii)(C) ................................................ 45 

§ 110.1(b)(3)(iii)(C) ................................................. 5 

§ 110.1(b)(5) .......................................................... 26 

§ 110.1(b)(5)(iii) .................................................... 27 

§ 116.11(c) ............................................................... 8 

§ 116.11(c)(1) .......................................................... 6 

§ 116.11(c)(2) .................................................... 6, 12 

§ 116.12(a) ............................................................ 25 

68 Fed. Reg. 3970 (Jan. 27, 2003) ............................. 13 

86 Fed. Reg. 7867 (Feb. 2, 2021) ................................. 5 

Ted Cruz for Senate, FEC Form 3: Report of Receipts and Disbursements (Dec. 6, 2018) ...... 26, 27 
1 

INTRODUCTION 

No First Amendment right is more vital in our 

constitutional democracy than “the freedom of a candidate to speak without legislative limit on behalf of 

his own candidacy.” Buckley v. Valeo, 424 U.S. 1, 54 

(1976). Indeed, this freedom implicates not only the 

candidate’s own personal liberty but the deepest interests of our Nation as a whole. For under our system 

of democratic government “it is of particular importance that candidates have the unfettered opportunity to make their views known so that the electorate may intelligently evaluate the candidates’ personal qualities and their positions on vital public issues before choosing among them on election day.” Id. 

at 52-53. Section 304 of the Bipartisan Campaign Reform Act of 2002 (“BCRA”), now codified at 52 U.S.C. 

Section 30116(j), imposes a special and significant 

burden on this core First Amendment freedom. The 

district court was right to strike it down. 

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 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 
2 

unanimously held, this burden on a candidate’s 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 its lead argument is 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 not to Section 304 but to its implementing regulation requiring repayment within 20 days of the election of any portion of a candidate loan exceeding 

$250,000. This argument is wrong as a matter of law: 

this Court’s precedent, and fundamental principles of 

administrative law, make clear that a plaintiff directly injured by an implementing regulation has 

standing to challenge the constitutionality of the statutory provision that the regulation implements. After 

all, such an injury not only is fairly traceable to the 

authorizing statute, it is only traceable to that statute, 

which is the sole and exclusive source of whatever legal force the regulation may have. And the injury is 

redressable by a judgment invalidating the statute, 

since the regulation implementing it necessarily must 

fall from the same blow. As any first-year law student 

knows, if there is no valid authorizing statute, there 

can be no valid implementing regulation. That is, if 

the host perishes, so also must its parasite. 
3 

Appellant’s argument is also wrong on the facts: 

the evidence directly refutes Appellant’s claim that “it 

is mathematically impossible for the committee to 

have repaid Senator Cruz $250,000 using contributions made after the date of the election.” FEC Br. 15. 

In reality, the Committee raised more than enough in 

contributions between the end of the election and the 

time of repayment to fund all $250,000 that were repaid—so it is both Section 304 and its implementing 

regulation that today prevents the repayment of the 

remaining balance. 

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, FEC Br. 

23, “has no bearing on [Appellees’] standing to challenge the law” under longstanding and uniform precedent from this Court, J.S.App. 53a. Indeed, a contrary conclusion would cause a sea change in the modern landscape of constitutional litigation and call into 

question several landmark civil rights cases. 

And Appellant’s insistence that the Committee 

could have found a way to fully repay Cruz’s loans using only the pre-election 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. at 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 
4 

challenges under the First Amendment. To the contrary, Appellant’s argument turns standing law on its 

head: if the Committee had repaid Cruz in full in compliance with the 20-day rule, he would have avoided 

the very $10,000 injury that gives him standing. 

When Appellant finally turns to the merits, it offers nothing that casts any doubt on the district 

court’s unanimous conclusion that the Government 

“has failed to demonstrate that the loan-repayment 

limit serves an interest in preventing quid pro quo corruption, or that the limit is sufficiently tailored to 

serve this purpose.” J.S.App. 6a. Appellant admits 

that Section 304 imposes some “burden on speech,” 

and while it (wrongly) disputes that strict scrutiny applies, it effectively concedes that at a minimum the 

loan-repayment limit must be subjected to “ ‘closely 

drawn’ scrutiny.” FEC Br. 27, 32. Under either standard, the loan-repayment limit cannot survive. 

The fundamental problem is easy to see. It is beyond dispute that Appellees are free today to accept 

contributions, unrestricted by any $250,000 cap, so 

long as those contributions are used for the upcoming 

election and so long as they comply with the federal 

$2,900 contribution limit. Indeed, Appellees are even 

free to use those contributions, without limit, to repay 

any candidate loans made to finance the upcoming 

campaign. Appellant’s defense of the loan-repayment 

limit thus necessarily depends on the notion that a 

contribution made at the same time, in the same 

amount, from the same contributor, to the same candidate, suddenly poses a “special risk of corruption,” 
5 

id. at 39, when instead of being used to repay a loan 

to fund the next election, it is used to repay a single 

dollar over the $250,000 limit for a candidate loan 

from the prior election. To state that proposition is to 

refute it. 

But Appellant’s defense of Section 304 gets even 

worse. It says that contributions used to repay a candidate’s campaign loan “pose an increased danger of 

corruption,” FEC Br. 42, because the money repaid to 

the candidate is akin to a gift, for it “goes into the candidate’s pocket,” where it “can accordingly be used for 

personal purposes,” id. at 33-34. This remarkable argument, which ignores the difference between a loan 

and a gift, also answers itself. 

The district court’s judgment should be affirmed. 

STATEMENT OF THE CASE 

I. Section 304’s Limit on the Repayment of 

Candidate Loans. 

While under federal law “a campaign may borrow 

an unlimited amount of money ... from the candidate 

himself,” FEC Br. 2-3, Section 304 of BCRA imposes a 

$250,000 limit on the repayment of those “candidate 

loans” with money contributed after the election. Federal law generally allows an individual to contribute 

money in support of a federal candidate’s election after election day, so long as (a) each contribution is 

within the contributor’s inflation-adjusted $2,900 contribution limit with respect to that candidate and election, 11 C.F.R. §§ 110.1(b)(1), (b)(3)(iii)(C); 86 Fed. 

Reg. 7867, 7869 (Feb. 2, 2021), and (b) the post-
6 

election contributions received by the committee do 

not exceed its “net debts outstanding” from that election, 11 C.F.R. § 110.1(b)(3)(i). But Section 304 provides: 

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). 

FEC’s regulations implement this provision by 

providing, inter alia, that any repayment of over 

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

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

amount 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). 

Section 304 was adopted as part of the “Millionaire’s Amendment,” a provision that this Court already has invalidated in substantial part, Davis v. 

FEC, 554 U.S. 724 (2008), and that was avowedly designed to “level the playing field” between self-funding 

candidates and their non-self-funding opponents. 147 

CONG. REC. S2463 (daily ed. Mar. 19, 2001) (statement 
7 

of Sen. DeWine); see also J.A. 211-13. And this was not 

simply the purpose of the Millionaire’s Amendment as 

a whole: it was the purpose of the loan-repayment 

limit in particular. As the principal source the loanrepayment 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); see also J.A.213-14. The legislative record further indicates that 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 (or loan) significant 

amounts of their own 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 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). 

II. Senator Cruz’s 2018 Loans. 

Prior to the 2018 election, Cruz made two loans 

totaling $260,000 to the Committee to help finance his 

reelection campaign for the United States Senate. J.A. 

217-18. At the end of election day, 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 also owed 
8 

about $2.7 million in debts it incurred in connection 

with the election—including the $260,000 it owed to 

Cruz—leaving it with approximately $337,748 in “net 

debts outstanding,” as of election day. Id. During the 

20 days following the election, the Committee used its 

cash on hand to repay debts to other creditors rather 

than Cruz’s loans. Id. at 219. Only in December of 

2018—after 11 C.F.R § 116.11(c)’s 20-day deadline 

had passed—did the Committee begin to repay Cruz’s 

personal loans. Id. And at that point, in compliance 

with the challenged limits, the Committee was permitted to repay Cruz only $250,000, leaving a total of 

$10,000 unpaid. Id.

III. Proceedings Below. 

Appellees brought suit on April 1, 2019, challenging the constitutionality of both Section 304 and Appellant’s implementing regulation under the First 

Amendment and requesting that a three-judge court 

be convened pursuant to Section 403 of BCRA. J.A. 14-

18, 20. Appellant moved to dismiss, arguing, inter 

alia, that Appellees lacked standing. On December 24, 

2019, the district court judge, Hon. Amit Mehta, rejected Appellant’s standing argument and called for 

the convening of a three-judge court. J.S.App. 52a. 

On June 3, 2021, the three-judge district court 

unanimously granted Appellees summary judgment. 

It held that the loan-repayment limit burdened core 

political speech and that it failed even “closely drawn” 

scrutiny, the lowest standard that potentially could 

apply. J.S.App. 20a-21a. Because the invalidation of 
9 

Section 304 rendered the regulatory provisions implementing it unenforceable, the court dismissed the 

claims separately challenging those regulatory provisions as moot. J.S.App. 38a. 

SUMMARY OF THE ARGUMENT 

I. Appellees have standing to challenge Section 

304’s loan-repayment limit. Appellant’s first standing 

argument, that Appellees’ $10,000 injury is traceable 

to the 20-day regulation implementing Section 304 

but not 304 itself, fails as a matter of law. Even assuming Appellant’s account of the facts, Section 304 

caused Appellees’ injury, by authorizing the promulgation of the implementing regulation, and the district court’s judgment invalidating Section 304 redresses Appellees’ injury, by nullifying the implementing regulation and rendering it unenforceable. Appellant’s argument also fails on the facts, because the evidence demonstrates that the Committee did indeed 

raise sufficient money after the election to repay 

$250,000 of Cruz’s loan—such that the current barrier 

to repaying the remaining $10,000 is not only Appellant’s regulation, but Section 304 itself. 

Appellant’s second standing argument, that Appellees’ injury is “self-inflicted” and therefore must be 

ignored, also fails. This Court’s precedent squarely establishes that a plaintiff injured by the application of 

an unconstitutional law has standing even if he willingly subjected himself to the law to establish the basis for the challenge. And such a plaintiff’s standing 

cannot be defeated by pointing out that he could have 
10 

avoided the injury by obeying the very law he challenges as unconstitutional. 

II. Section 304 violates the First Amendment. Its 

limit on the funds a committee may use to repay a loan 

made by the candidate to finance his own election effort imposes a special and significant burden on a candidate’s First Amendment right to spend his own 

money advocating his own election. It also burdens 

the rights of committees and their contributors. Accordingly, Section 304 must be subjected to strict scrutiny—or, at a minimum, “closely drawn” scrutiny. It 

cannot survive either. The loan-repayment limit was 

impermissibly designed to “level the playing field,” not 

to curb quid pro quo corruption. And even if Section 

304 had an anti-corruption purpose, it cannot have 

any such effect, given that the $2,900 contribution 

limits already in place suffice to guard against any 

corruption concerns. And even setting aside these fatal analytical problems, the district court correctly 

held that Appellant has completely failed its burden 

of justifying Section 304 as narrowly tailored to prevent quid pro quo corruption. 
11 

ARGUMENT 

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

It is undisputed that Cruz loaned the Committee 

$260,000 before the 2018 election and that “Senator 

Cruz is still owed $10,000” of that amount because in 

the 20 days after the election, the Committee used its 

limited cash on hand to repay its creditors other than 

Cruz. J.S.App. 51a. Appellant does not dispute that 

this unpaid $10,000 debt “is plainly a cognizable injury.” Id. Instead, Appellant’s standing argument focuses on the second and third standing elements—

causation and redressability—which it claims Appellees have not satisfied for two distinct reasons. Neither is persuasive. 

A. Appellees’ Injuries Are Traceable to 

BCRA Section 304 And Redressed by 

the Judgment Holding Section 304 Unconstitutional. 

First, Appellant argues that Cruz’s financial injury is traceable only to the FEC regulation implementing Section 304, not Section 304 itself, depriving 

Appellees of standing to challenge Section 304. According to Appellant, the $250,000 the Committee repaid to Cruz beginning in December of 2018 came 

solely from “contributions made after the date of the 

election,” and the Committee therefore “has not yet 

reached BCRA’s $250,000 cap on the use of post-election contributions to repay candidate loans.” FEC Br. 

15, 16. Because Section 304 itself “thus causes 
12 

Senator Cruz and his committee no injury, and restraining its enforcement would afford them no redress,” id. at 16, Appellees lack standing to challenge 

it. Instead, Appellant says, the repayment of the 

$10,000 balance is prevented by 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 concludes that Cruz’s $10,000 injury is 

traceable only to its implementing regulation. 

Appellant acknowledges that it chose not to raise 

this argument before the district court. Id. at 7; J.S. 

13. That was the better choice. 

The argument fails as a factual matter, because 

Appellant’s claim that the December 2018 loan repayments must have been solely “made with pre-election 

funds,” FEC Br. 7, is based on a misreading of the record and a misunderstanding of federal election law. 

But Appellant’s factual errors are ultimately irrelevant, because even if one accepts its inaccurate account of the record facts, Appellees’ $10,000 injury is, 

as a matter of law, directly traceable to the constitutional infirmity in Section 304. We turn first to this 

dispositive point. 

1. The direct causal link between Appellee’s 

$10,000 injury and the constitutional validity of Section 304 is conclusively established by two blackletter 

principles of law that Appellant has never disputed. 

First, because “an administrative agency’s power to 
13 

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, 374 (1986). And 

second, given that “[a]n unconstitutional law is void, 

and is as no law,” Ex parte Siebold, 100 U.S. 371, 376 

(1879), when a statutory provision is held 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). It follows, of course, that an agency regulation promulgated to implement a statutory requirement owes its existence to, and cannot exist independent from, its authorizing statute. Put simply: no valid 

authorizing statute, no valid implementing regulation. 

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, 3973 (Jan. 27, 2003), 

and Appellant quite obviously could not have promulgated it were Section 304 not on the books. If Section 

304 is unconstitutional, then, Appellant’s 20-day limit 

is likewise invalid and cannot be enforced any longer. 
14 

No valid authorizing statute, no valid implementing 

regulation. 

Indeed, that is why the district court, in initially 

holding Appellees’ challenge to the regulation in abeyance pending resolution of Appellees’ First Amendment challenge to Section 304, observed that “a decision invalidating Section 304’s loan repayment limit 

as unconstitutional would effectively dispose of Plaintiff’s regulatory claims.” D. Ct. Doc. 47, 4-5 (Apr. 7, 

2020) (quoting J.A. 75). And because the district 

court’s decision invalidating Section 304 necessarily 

also invalidated Appellant’s regulation implementing 

it, the district court dismissed Appellees’ separate 

claims against the 20-day regulation as moot. 

J.S.App. 38a. 

Accordingly, Appellant’s contention that Appellees’ $10,000 injury is not “traceable to the statutory 

loan-repayment limit,” FEC Br. 11, is obviously 

wrong. Section 304 is plainly the but-for cause of Appellees’ $10,000 injury: the 20-day regulation was 

promulgated to implement Section 304, and because 

Section 304 is the only statutory provision that authorizes the regulatory 20-day rule, Appellant “literally 

has no power” to impose that rule if Section 304 is unconstitutional. Louisiana Pub. Serv. Comm’n, 476 

U.S. at 374. 

Further, while “[p]roximate causation is not a requirement of Article III standing, which requires only 

that the plaintiff’s injury be fairly traceable to the defendant’s conduct,” Lexmark Int’l, Inc. v. Static 
15 

Control Components, Inc., 572 U.S. 118, 134 n.6 

(2014), Section 304 is the proximate cause of Appellees’ 

injury. For 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—its very existence—from the statute that it implements. See id. at 133 (a single “intervening step ... is not fatal to the showing of proximate 

causation”). 

Appellant is also clearly wrong to claim that invalidating Section 304 as unconstitutional would not 

“redress appellees’ injury.” FEC Br. 19. Not only is Appellees’ injury “redressable” by a decision invalidating 

Section 304, the district court’s decision has in fact redressed it. Given the district court’s final judgment 

holding that “the loan-repayment limit, Section 304 of 

BCRA, is unconstitutional because it violates the 

First Amendment,” J.S.App. 37a, Appellant is obviously precluded from taking any action to enforce its 

regulatory 20-day limit, and the only thing preventing 

the Committee from repaying Cruz’s outstanding 

$10,000 balance, unimpeded by Appellant’s 20-day 

rule, is the pendency of this appeal. 

Appellant attempts to elide this legal reality by 

repeatedly arguing that an order “restraining [section 

304’s] enforcement would not redress the injury” 

caused by the 20-day regulation’s prohibition on the 

Committee’s repayment of the outstanding $10,000 

debt to Cruz. E.g., FEC Br. 9, 11, 16. But the necessary predicate of any such order would be a judgment

invalidating Section 304 as unconstitutional, thus 
16 

rendering it “as inoperative as if it had never been 

passed.” Chicago, Indianapolis, and Louisville Railway, 228 U.S. at 566. And the regulatory branch cannot survive the death of the statutory tree. Again, no 

valid authorizing statute, no valid implementing regulation. 

2. This Court’s cases have long held that plaintiffs in exactly these circumstances 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] 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 
17 

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 LLC 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 case, for example, where a party injured by agency action challenges 

the appointment or removal process of the official who 

promulgated it, the causal link is less direct than here. 

For in those cases, it is the general statutory provision 

governing the official’s appointment or removal, rather than the specific statutory provision being implemented, that is alleged to be invalid. Yet in these 

types of cases the Court has routinely proceeded directly to the merits of the constitutional challenge, because no one even considered arguing that the plaintiff’s injury was not fairly traceable to the alleged constitutional violation. See, e.g., Financial Oversight & 

Mgmt. Bd. for P.R. v. Aurelius Inv., LLC, 590 U.S. ---, 

140 S. Ct. 1649 (2020); Gundy v. United States, 588 
18 

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 standing argument would cause in the 

standard model of constitutional litigation. 

Although we cited each of these decisions in our 

Motion to Affirm or Dismiss, Appellant has completely 

ignored them—both in its Opposition to our Motion 

and in its Brief on the Merits. If Appellant has any 

answer to these cases at all, apparently we must await 

the filing of its Reply Brief—when Appellees will no 

longer have an opportunity to respond. 

3. Appellant suggests that its novel standing argument is supported by this Court’s recent decision in 

California v. Texas, 593 U.S. ---, 141 S. Ct. 2104 

(2021), but that case has no application here. 

In California, several States (alongside two individuals) challenged Section 5000A(a) of the Affordable 
19 

Care Act—the “minimum essential coverage requirement” (or “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. 

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 Appellant’s 20-day rule that has cost Cruz $10,000 cannot 

operate at all without the statutory provision it implements, Section 304. The key problem for the State 

plaintiffs in California, then, was that “[t]o show that 
20 

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 Section 304 obviously renders Appellant’s 20-day rule invalid and unenforceable as well. 

Appellant says the host-parasite basis of Appellees’ standing in this case “resembles the ‘standingthrough-inseverability argument’ advanced in California,” FEC Br. 19, but the analogy in fact cements 

California’s inapplicability here. The plaintiff States 

in California argued that their injuries were “traceable to the individual mandate” because the separate 

provisions that inflicted those injuries “cannot be severed from the mandate.” 141 S. Ct. at 2131 (Alito, J., 

dissenting). The Court characterized this severability 

argument as “novel” and ultimately “decline[d] to consider” it on the ground that it had been forfeited. Id. 

at 2116 (majority); see also id. at 2122 (Thomas, J., 

concurring). 

But the chain of causation for the standingthrough-severability theory requires a court to decide 

(1) that the statutory provision causing the plaintiff’s 

injury is not itself unconstitutional; (2) that a separate 

statutory provision causing no injury to the plaintiff 

and operating independently of the injuring provision 

is unconstitutional; and (3) that the injuring statutory 

provision cannot be severed from the harmless unconstitutional statutory provision and so both must fall. 

Whether or not this hip-bone-connected-to-the-thigh-
21 

bone-connected-to-the-shin-bone theory of standing 

satisfies Article III, it bears no resemblance at all to a 

standing theory that simply relies on the fundamental 

truth that an implementing regulation cannot survive 

the death of its authorizing statute. At a bare minimum, however, there can be no claim that California 

forecloses Appellees’ standing when it explicitly declined to address the standing-through-severability 

theory. 

Appellant lards its California argument with citations to three other cases, but one need only look at 

Appellant’s own description of them to see that they 

have no application here. In each of these cases, a 

plaintiff who was injured by one government action 

sought to leverage that injury to challenge a completely unrelated government action. See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 350-53 

(2006); Lewis v. Casey, 518 U.S. 343, 357-60 (1996); 

Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 165-68 

(1972). If Appellees sought to leverage the injury inflicted by the 20-day regulation to challenge, say, 

BCRA’s prohibition of fundraising on federal property 

in Section 302, 18 U.S.C. § 607, or some other distant 

provision of BCRA, these cases might have some relevance. They have none to Appellees’ challenge to Section 304. 

4. Appellant claims that the host-parasite “basis 

for standing [is] unavailable here, since the district 

court lacked independent subject-matter jurisdiction 

to hear appellees’ challenge to the regulation.” FEC 

Br. 19. Appellant’s theory is that BCRA Section 403’s 
22 

three-judge court provision grants jurisdiction over 

challenges to provisions of BCRA itself but not “challenges to the Commission’s regulations.” Id. It concludes that “because [the district court] lacked jurisdiction over the challenge to the regulation, it could 

not consider the alleged unconstitutionality of the 

statute as a ground for invalidating the regulation.” 

Id. at 20. 

But again, Appellees do not claim that they have 

standing only to challenge the 20-day regulation and 

that “in adjudicating their challenge to the regulation, 

the district court could assess the constitutionality of 

the statute itself.” Id. at 18-19 (emphasis added). Rather, our argument is that the $10,000 injury inflicted 

by the 20-day rule is traceable to Section 304 itself, for 

the reasons discussed above, and that this plainly confers standing on Appellees to challenge Section 304. To 

be sure, Appellees’ complaint also pleaded three separate counts challenging the regulation, J.A. 25-26, but 

the presence of those separate regulatory claims is entirely irrelevant to Appellees’ standing to challenge 

Section 304 itself, and Appellees’ standing would have 

been just as secure if those regulatory claims had 

never been added at the end of the complaint. 

Appellees’ profile is analogous to that of a plaintiff who sues the government based on injury caused 

by the intervening actions of a third party. Where the 

third-party’s actions are “produced by [the] determinative or coercive effect” of government action, the injury is traceable to the government itself and the 

plaintiff has standing to sue the government directly. 
23 

Bennett v. Spear, 520 U.S. 154, 169 (1997). There is no 

requirement, in such a case, that the plaintiff also

bring—or that the court also have independent subject-matter jurisdiction over—a claim against the 

third party. See id. at 159 (“Neither the Bureau nor 

any of its officials is named as defendant.”). So too 

here. Appellees have standing to challenge Section 

304 itself because their injury is fairly traceable to 

that provision, and there is no basis for Appellant’s 

demand that they also bring—or that the district 

court also have independent subject-matter jurisdiction over—a claim against the 20-day rule that most 

immediately caused the injury. 

Appellant cites McConnell v. FEC, 540 U.S. 93 

(2003), but when the actual nature of our challenge is 

understood, it becomes obvious that that case supports Appellees. In McConnell, certain plaintiffs challenged Section 214(c) of BCRA, which directed the 

FEC to promulgate new regulations governing coordinated expenditures that “shall not require agreement 

or formal collaboration to establish coordination.” 52 

U.S.C. § 30116 note. The plaintiffs challenged Section 

214(c) as unconstitutionally overbroad, but this Court 

upheld the statute on the merits. 540 U.S. at 221. 

Appellant focuses on the concluding paragraph of 

McConnell’s discussion, which held that “issues concerning the regulations [implementing Section 214] 

are not appropriately raised in this facial challenge to 

BCRA, but must be pursued in a separate proceeding.” 

Id. at 223. But in a passage of the opinion that Appellant neglects to quote, McConnell makes clear that the 
24 

only portion of the plaintiffs’ challenge “not appropriately raised” was the portion targeting “alleged constitutional infirmities ... found in the implementing 

regulations rather than the statute itself.” Id. (emphasis added). To the extent the McConnell plaintiffs instead challenged constitutional infirmities that, as 

here, were traceable to the statutory authorizing provision, this Court, far from questioning the existence 

of subject-matter jurisdiction, resolved the challenge 

on the merits. Id. at 219-23. Indeed, the opinion as a 

whole, and that of the district court, leave no doubt 

that if the Court had instead concluded that Section 

214(c)’s expansion of “coordination” violated the First 

Amendment, the FEC implementing regulations 

would have been rendered invalid by the same blow. 

No valid authorizing statute, no valid implementing 

regulation. 

5. Accordingly, Appellant’s novel challenge to 

Appellees’ standing is meritless as a matter of law, 

and the Court may safely reject it without reading any 

further. But the argument is also based on an incorrect factual predicate. For contrary to Appellant’s assertion that “it is mathematically impossible for the 

committee to have repaid Senator Cruz $250,000 using contributions made after the date of the election,” 

FEC Br. 15, the facts before the Court demonstrate 

precisely the opposite conclusion. 

As explained in our Motion To Affirm or Dismiss, 

the contributions a committee raises after an election 

must be sorted, by Appellant’s regulations, into two 

separate pools. First, such contributions may be 
25 

specifically designated by the donor for the repayment 

of debts still outstanding from the previous election, 

in which case they will be tallied towards the contributor’s base contribution limits for that past election. 

See 11 C.F.R. § 110.1(b)(3). These contributions are 

known in the argot of campaign-finance law as “postelection contributions.” Second, in the absence of such 

a post-election designation, a contribution made after 

an election will instead automatically be designated 

for the candidate’s next upcoming election, and will instead count towards the contributor’s base contribution limit for that upcoming election. Id. 

§ 110.1(b)(2)(ii). Both of these types of contributions 

made after an election may be used to repay debts outstanding from that election, including debts to the 

candidate, see 52 U.S.C. § 30114(a); 11 C.F.R. § 

116.12(a) and both are subject to Section 304’s 

$250,000 cap on repaying candidate loans with contributions “made ... after the date of [the] election,” 52 

U.S.C. § 30116(j). 

In this case, as the evidence and testimony cited 

by Appellant shows, Appellees did not raise any of the 

first type of contributions—“post-election contributions” specifically designated to pay off debt left over 

from the 2018 election. J.A. 144-45, 245. However, the 

evidence conclusively demonstrates that Appellees 

did receive contributions of the second type after the 

2018 election, in amounts sufficient to repay $250,000 

of Cruz’s loans. 

The Committee made four repayments of Cruz’s 

loan, between December 4 and December 24, 2018. 
26 

J.A. 219. Appellant acknowledges, based on the Committee’s public FEC filings, that Appellees received 

approximately $166,547.01 in contributions, designated for 2024, between election day and December 

24.1 What Appellant misses is that the Committee 

also received, during this same period, another 

$278,603.82 in “redesignated” contributions. 

This second set of contributions came from contributors who originally donated towards the 2018 

election in amounts that exceeded their base contribution limit and who—pursuant to 11 C.F.R. 

§ 110.1(b)(5)—subsequently redesignated the overlimit amount as contributions to the 2024 election, 

during the period between election day and December 

24. These redesignated contributions are not recorded 

in the Summary Pages that Appellant’s calculations 

are based on, but they do appear as “memo transactions” in the publicly filed Itemized Receipts that follow the initial Summary Pages. See, e.g., Ted Cruz for 

Senate, FEC Form 3: Report of Receipts and Disbursements at 16, 17 (Dec. 6, 2018) (memo items reporting 

two refunds and redesignated contributions in the 

1 As Appellant notes, the Committee’s filings establish 

$45,880 in itemized contributions (contributions exceeding $200) 

clearly received by December 24 and another $120,667.01 in 

unitemized contributions (contributions of $200 or less) received 

between election day and December 31, 2018. FEC Br. 15-16 & 

n.*. Appellees’ records show that the actual amount of unitemized contributions received by December 24 was $102,906.79, 

making the total of 2024 contributions received by December 24 

and recorded on the summary pages of the Committee’s filings 

$148,786.79, not $166,547.01. 
27 

amounts of $600 and $50, respectively). And each redesignation constitutes, as a matter of fact and law, a 

contribution “made ... after the date of [the 2018] election.” 52 U.S.C. § 30116(j); see 11 C.F.R. 

§ 110.1(b)(5)(iii) (providing that redesignated contribution counts towards the contribution limit of the 

new election it is redesignated towards); Ted Cruz for 

Senate, FEC Form 3, supra, at 16, 17 (recording redesignations as simultaneous refunds, and then contributions, of the redesignated amount). Once the 

$278,603.82 in “redesignated” contributions received 

by December 24 are counted, it is clear that the Committee had more than enough in contributions “made 

... after the date of [the] election” to repay $250,000 to 

Cruz. Indeed, the $278,603.82 in redesignated contributions ignored by Appellant are alone enough to 

cover the $250,000, without even adding in the 

roughly $150,000 in other contributions received between election day and December 24 that Appellant 

does acknowledge. 

The undisputed Statement of Facts (“SOF”) filed 

by the parties below does not contradict this conclusion. Appellant first quotes its statement that “[n]one 

of the $250,000 of the loan that was repaid was from 

contributions raised after the election.” J.A. 246. But 

Appellant only quotes half of 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.’).” Id. The cited SOF 

must be read, of course, in conjunction with the 
28 

expressly quoted deposition testimony on which it was 

based, and it is only in that qualified context that Appellees admitted it. And that quoted deposition testimony makes clear that what the record actually

shows, and what Appellees actually admitted, was 

that no portion of the loan was repaid with post-election contributions designated for 2018—what the SOF 

refers to interchangeably as “contributions raised after the election” and “general 2018 contributions,” and 

what are known in campaign-finance law by the term 

of art “post-election contributions.” That same deposition testimony establishes, however, 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. J.A. 145-46. 

Appellant also cites another SOF, asserting that 

“during the 20 days after the election and later, the 

Committee continued receiving postelection contributions, but rather than using those contributions to pay 

vendors or to pay any of Senator Cruz’s debt, the campaign designated the contributions for Senator Cruz’s 

2024 re-election effort.” J.A. 245. But like the first 

SOF, this statement—in language that Appellant 

again omits from its quotation—is expressly based on 

the same deposition testimony, so Appellees’ admission of it must also be understood in that same light. 

See id. (citing “30(b)(6) Dep. at 96-97”). And again, 

that deposition testimony clearly shows that the contributions received after election day and designated 

towards the 2024 election were used to repay debt 
29 

outstanding from the 2018 campaign. See J.A. 176-77 

(“There was primary 2024 funds that were raised that 

assisted in paying off those debts.”). 

Accordingly, the Committee did receive contributions “after the date of [the 2018] election” sufficient 

to repay $250,000 of Cruz’s loans, 52 U.S.C. 

§ 30116(j), thereby “exhaust[ing] the $250,000 cap on 

the use of post-election funds,” such that it is “the statutory loan-repayment limit”—not merely the regulatory 20-day rule—that now “prevents it from using 

post-election funds to repay the remaining $10,000,” 

FEC Br. 13. 

To be sure, Appellees did not undertake the 

meaningless task of attempting to trace which fungible dollars were used to repay Cruz’s loans, rather 

than the Committee’s other outstanding 2018 debts. 

But this Court’s case law has repeatedly recognized 

the obvious proposition that “[m]oney is fungible.” 

Holder v. Humanitarian Law Project, 561 U.S. 1, 31 

(2010). The Article III analysis surely cannot turn on 

whether Appellees engaged in such a senseless and 

futile formalism. See Rothstein v. UBS AG, 708 F.3d 

82, 93 (2d Cir. 2013); cf. Carney v. Adams, 592 U.S. ---, 

141 S. Ct. 493, 503 (2020) (standing does not depend 

on whether plaintiff engaged in “a ‘futile gesture’ ” 

(quoting Teamsters v. United States, 431 U.S. 324, 

365-66 (1977)). 
30 

B. Appellees’ Unpaid Loan, whether “SelfInflicted” or Not, Establishes Their 

Standing. 

Appellant also argues that Cruz’s $10,000 injury 

is not traceable to the loan-repayment limit because it 

“was self-inflicted.” FEC Br. 20. This argument fails 

too. Where the government 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 government, 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.” FEC Br. 5, 23. As the 

district court correctly held, this reliance on Appellees’ 

subjective intent “is easily disposed of,” for under this 

Court’s case-law, Appellees’ motives are utterly irrelevant. J.S.App 52a. 

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” 
31 

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’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. 

Accordingly, as one of Appellant’s own supporting amici explains, ‘[d]enying standing based on the 

characterization of such harm as ‘self-inflicted’ would 

represent a significant, and unwarranted, extension 

of standing doctrine.” Public Citizen Br. 9. Indeed, 

such an extension 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 “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 
32 

requiring or permitting segregation according to 

race.” Brown, 347 U.S. at 488. Contrary to Appellant’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. 

Appellant does not address Evers or Havens Realty in its opening brief, but it did attempt to distinguish them in its Reply to our Motion To Affirm or 

Dismiss. “The problem here,” Appellant said, “is not 

simply that Senator Cruz sought to lay the groundwork for a lawsuit when he lent his campaign committee $260,000.” Rather “the crucial point” is that Appellees chose not to follow “the FEC’s proposed alternative”—namely, “simply ... using available pre-election funds to repay Senator Cruz $10,000 or more during the 20-day post-election window rather than waiting until just after the deadline had lapsed.” FEC Reply 7-8. 

First, the FEC‘s 20-day rule is a “proposed alternative” in the same sense that Don Corleone proposed 

an alternative by making “an offer he can’t refuse”: 

the candidate either accepts the FEC’s “alternative” 

or loses his money. Second, had Appellees complied 

with the 20-day rule, the campaign’s debt to Cruz 

would have been paid in full, and Appellant would no 

doubt then argue that Appellees had not suffered the 

“concrete injury” necessary to confer standing. Both 
33 

the initial loan and Appellees’ defiance of the government’s repayment demands were part of the same effort to “lay the groundwork for a lawsuit.” Under Appellant’s theory of self-inflicted injury, Mr. Evers 

could have “laid the groundwork” for his lawsuit by 

boarding a segregated bus, but would have forfeited 

his standing if he refused to give up his seat and move 

to the back. Mr. Evers did not forfeit standing merely 

because he refused to conform his conduct to the very 

action he challenged as unlawful. 

2. The bottom line was put well by the district 

court below: “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; see also Public Citizen Br. 10. Appellees’ whole claim is that the Government may not, consistent with the First Amendment, 

burden a candidate’s right to finance his own campaign through loans by limiting the types of funds 

that may be used to repay those loans. Appellees suffered a $10,000 injury because they refused to repay 

Cruz in conformity with Appellant’s unconstitutional 

restrictions. Appellant cannot defeat Appellees’ standing by pointing out that they could have avoided that 

financial injury if only they had obeyed the very governmental commands they are challenging as unconstitutional. 

Nor is Appellant’s “self-inflicted-injury” theory of 

standing supported by the three cases Appellant cites. 

Appellant’s principal authority, Clapper v. Amnesty 

International, 568 U.S. 398 (2013), is not remotely 
34 

apposite. The plaintiffs there challenged the constitutionality of provisions of the Foreign Intelligence Surveillance Act (“FISA”) authorizing government surveillance of certain international electronic communications. FISA had never been enforced against the 

plaintiffs, and so they brought a pre-enforcement challenge. In an attempt to make up for their inability to 

show any imminent likelihood that the Act would be 

employed to surveil them, they sought to ground their 

standing on costly measures (e.g., travel costs for inperson meetings) they had taken to avoid making international electronic communications and thus to 

eliminate the risk of government interception. The 

Court rejected the argument. Because the threat of 

any particular government interception was highly 

speculative rather than “certainly impending,” the 

self-imposed costs they incurred were “simply the 

product of their fear of surveillance, and ... such a fear 

is insufficient to create standing.” Id. at 417. 

Clapper thus did not involve plaintiffs who suffered an injury that was caused by the government 

but that they could have avoided by forgoing their 

claimed constitutional right; it involved plaintiffs who 

suffered an injury that was caused by themselves and 

that they could have avoided by exercising their 

claimed constitutional right (the right to engage in 

confidential international electronic communications). This case would at least be parallel to Clapper

if Cruz had limited his loan to $250,000 to avoid the 

risk of nonpayment created by Section 304, and then 

had brought a pre-enforcement challenge to Section 
35 

304 on the theory that the risk of the statute’s enforcement had deterred him from exercising his constitutional right to loan his campaign more than $250,000. 

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 all, 

let alone in the multiple ways that FISA surveillance 

of any given international communication is. In the 

actual circumstances of this case—where Appellees 

could have avoided their $10,000 injury only by obeying a government command to forgo the constitutional 

right at issue—Clapper is doubly beside the point. 

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

challenge BCRA’s contribution limits as too high

based on the supposed “competitive injury” they suffered because, unlike other candidates, they did not 

“wish to solicit or accept large campaign contributions 

as permitted by BCRA.” Id. at 228. That “alleged inability to compete,” the Court explained, “stems not 

from the operation of [BCRA], but from their own personal ‘wish’ not to solicit or accept large contributions.” Id. By contrast, Appellees’ $10,000 injury does 

not stem from their “personal ‘wish’ ” to repay Cruz’s 

loans with post-election money; it stems from their decision to exercise their constitutional right to repay the 

loans in a manner unlimited by Appellant’s unconstitutional restrictions. McConnell is thus irrelevant 

here. 

The per curiam decision in Pennsylvania v. New 

Jersey, 426 U.S. 660 (1976), is irrelevant too, and for 
36 

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 

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’s only response to this argument fundamentally misconceives it. Appellant implicitly 

claims that where a plaintiff has the ability to avoid 

his injury-in-fact by complying with the law or action 

he challenges as invalid, his standing is preserved 

only if “taking the action needed to avoid that injury 

would subject the plaintiff to a different harm.” FEC 

Br. 23-24. Put differently, a plaintiff faced with the dilemma of suffering a concrete injury or abiding by the 

very governmental command he challenges as unlawful only has standing, by Appellant’s lights, if both 

horns of the dilemma would result in the infliction of 

an injury-in-fact. That is not the law. 
37 

Appellant’s theory of standing is once again flatly 

inconsistent with Havens Realty. There, the AfricanAmerican “tester” plaintiff plainly would not have 

“suffered any concrete harm,” id. at 24, if instead of 

inquiring about the availability of apartments in the 

defendant’s complex, he had simply stayed home. After all, it was undisputed that he had no “intention of 

buying or renting a home.” Havens Realty, 455 U.S. at 

374. Under Appellant’s theory, the availability of an 

option that would have avoided any cognizable harm 

would have deprived the “tester” plaintiff of standing. 

But this Court expressly rejected that approach, holding instead that “the Art. III requirement of injury in 

fact is satisfied.” Id. 

More generally, Appellant’s argument that a 

plaintiff must show the absence of any injury-free, 

law-abiding alternative would effectively make a 

plaintiff’s standing to bring a post-enforcement challenge contingent on his ability to also demonstrate 

pre-enforcement standing. While many of this Court’s 

precedents deal with the “recurring issue” of “when 

the threatened enforcement of a law creates an Article 

III injury,” Susan B. Anthony List v. Driehaus, 573 

U.S. 149, 158 (2014), it has never been doubted that a 

plaintiff who has actually been penalized by the application of the law has standing to challenge it. 

Yet under Appellant’s approach, such a plaintiff 

would also have to show that had he “avoid[ed] that 

injury” by refraining from the proscribed conduct, he 

would nonetheless have been subject “to a different 

harm” that would also have given him standing, FEC 
38 

Br. 24—i.e., that he could have brought a pre-enforcement challenge. Appellees are not aware of a single 

case that has required a plaintiff already injured by 

the application of a law to make such a showing. 

When the basic flaw in Appellant’s approach is 

seen, its specific arguments fall apart. Appellees are 

complaining of a specific, $10,000 injury-in-fact they 

have actually suffered, not a generalized interest in 

“seeing that the law is obeyed,” FEC v. Akins, 524 U.S. 

11, 24 (1998), or “some day” intentions that do not 

show any “ ‘actual or imminent’ injury,” Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 (1992). Since 

plaintiffs need not negate the possibility of any “injury-free” law-abiding alternative course of action, it 

is utterly irrelevant that Appellees could have instead 

chosen to avoid any financial injury by repaying 

Cruz’s loan in compliance with the challenged limits. 

Finally, even if this Court’s precedent did demand such a showing, the record in this case readily 

satisfies it. Given that the Committee ended the 2018 

election with a $337,748 shortfall, J.A. 218, if it had 

chosen to repay $10,000 or more in pre-election contributions to Cruz within 20 days, that would have entailed forgoing, or at least delaying, by a like amount, 

the payment of specific vendors and other creditors 

that engaged in campaign speech on its behalf. Appellant responds that there could have been no injury because “sufficient [pre-election] funds for repaying the 

$10,000 were in the committee’s possession” and were 

ultimately “used to repay Senator Cruz $250,000.” 

FEC Br. 25. That argument assumes (incorrectly, as 
39 

explained above) that the $250,000 came from preelection funds; and in any event, it simply ignores the 

harm imposed by the delay in repaying other creditors 

that would have been entailed by putting Cruz at the 

front of the creditor queue. See J.A. 137. 

II. The District Court Correctly Held that the 

Loan-Repayment Limit Is Unconstitutional. 

A. Because the Loan-Repayment Limit 

Burdens Core Political Speech, It Is 

Subject to Strict Scrutiny. 

Section 304 intrudes deeply on the rights of candidates and their campaign committees to make constitutionally protected decisions about when and how 

much to speak during an election. During the heat of 

a campaign, a candidate may determine that she must 

give or loan her own money to her campaign to fund 

additional speech. And in the critical days before an 

election, a campaign’s creditors are in an especially 

precarious position, since any debts they are owed as 

of election night are inherently subject to a risk of default. Section 304 intensifies and distorts these inherent risks, deliberately curbing the funding, and thus 

the speech, of candidates, their campaigns, and their 

contributors. 

Appellant concedes that the loan-repayment 

limit imposes some “burdens on political speech,” but 

it downplays these burdens as “minimal” and asks for 

the application of “at most ... ‘closely drawn’ scrutiny.” 

FEC Br. 32. Although Section 304 is doomed under 
40 

any heightened standard of review, see infra, pp. 46-

55, strict scrutiny is required. 

1. As this Court has repeatedly made clear, because “the First Amendment simply cannot tolerate [a] restriction upon the freedom of a candidate to 

speak without legislative limit on behalf of his own 

candidacy,” any governmental burden placed “on personal expenditures by a candidate in furtherance of 

his own candidacy” may be upheld only if it satisfies 

the strictest judicial scrutiny. Buckley, 424 U.S. at 53, 

54. 

A candidate who makes a loan to his campaign is 

exercising this core First Amendment freedom. While 

lending money to support one’s own candidacy is different in some respects from spending personal funds 

outright, it is nonetheless the conveyance of a “[ ]thing 

of value,” so it plainly qualifies as an “expenditure.” 

52 U.S.C. § 30101(9)(A)(i); see also 11 C.F.R. 

§ 100.110. In fact, both BCRA and Defendants’ implementing regulations explicitly define “expenditure” to 

include loans. 52 U.S.C. § 30101(9)(A)(i); 11 C.F.R.

§ 100.111(a) & (b); see also Anderson, 356 F.3d at 673. 

Accordingly, under Congress’s and the FEC’s own definitions, not to mention common sense, a candidate 

who lends money to his own campaign is exercising 

his core First Amendment right “to engage in the discussion of public issues and vigorously and tirelessly 

to advocate his own election.” Buckley, 424 U.S. at 52. 

Section 304 imposes a direct and significant burden on the exercise of this fundamental First 
41 

Amendment right. By significantly limiting the 

sources of funding that committees can use to repay 

candidate loans, the $250,000 cap necessarily increases the risk that these loans will not be repaid in 

full, or perhaps at all. As Appellant itself explained 

before the district court, 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.” J.A. 33. For a candidate who wishes to spend 

more than $250,000 on behalf of his own election but 

can afford to do so only if he is reasonably assured of 

repayment after election day, the loan-repayment 

limit, by design and inevitable effect, will deter the 

candidate from making the expenditure at all. 

True, Section 304 does not directly “prohibit[ ] 

candidate loans [or] restrict[ ] the size of such loans.” 

FEC Br. 29; see also CAC Br. 4. But as this Court’s 

decision in Davis makes clear, it is far too late in the 

day to argue that the Government is free to burden 

the right to spend money on speech so long as it refrains from directly capping those expenditures. 554 

U.S. at 738-40 (applying strict scrutiny to law that 

burdened, but did not cap, candidate spending); see 

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

Bennett, 564 U.S. 721, 737, 740, 742 (2011) (same). 

Two of Appellant’s amici attempt to distinguish 

Davis on its facts, contending that Section 304 does 

not “penalize[e] the political speech of candidates and 

others by granting a direct competitive advantage to 

their opponents.” Brennan Br. 10; see also CAC Br. 21-
42 

22. This Court in Bennett explicitly rejected a precisely parallel argument: 

The State correctly points out that our decision in Davis focused on the asymmetrical 

contribution limits imposed by the Millionaire’s Amendment. But that is not because—as the State asserts—the reach of 

that opinion is limited to asymmetrical contribution limits. It is because that was the 

particular burden on candidate speech we 

faced in Davis. 

564 U.S. at 740 (citations omitted). 

Appellant, for its part, tries to diminish the “burden imposed by the loan-repayment limit” through an 

analogy to “contribution limits,” which it says could 

also have a “deterrent effect on candidate lending” by 

“reduc[ing] the amount of money that a campaign can 

amass for ... repaying loans.” FEC Br. 31. There is 

nothing to this. Buckley subjected FECA’s generic contribution limits to lesser “closely drawn” scrutiny because it concluded that they would have no “dramatic 

adverse effect on the funding of campaigns.” 424 U.S. 

at 21. But Davis shows that where—as here—a contribution limit imposes a “special and potentially significant burden” on a candidate’s “First Amendment 

right to spend his own money for campaign speech,” 

strict scrutiny applies. 554 U.S. at 738, 739. And because Section 304’s special limit is layered on top of 

the generic contribution limits already in place, the 

proper comparison is not, as Appellant imagines, 
43 

between one limit and the other—it is between the 

base contribution limits standing alone and those limits plus Section 304’s special limit on loan-repayment 

contributions. 

Appellant’s attempt to defend the loan-repayment limit as “akin to a time, place, and manner regulation” fails for similar reasons. FEC Br. 28. This 

Court has upheld such regulations only where they 

“are justified without reference to the content of the 

regulated speech,” Ward v. Rock Against Racism, 491 

U.S. 781, 791 (1989). Because Section 304 imposes a 

“special and potentially significant burden” on a candidate’s political speech, Davis, 554 U.S. at 739, it by 

definition is content-based and plainly falls outside 

the “time, place, and manner” category. 

Finally, Appellant argues that as a factual matter, Section 304 “has not appreciably deterred candidate lending.” FEC Br. 30. That argument, even if 

true, is irrelevant, since the burden imposed on candidate spending by the loan-repayment limit is plain on 

its face as a matter of law. That is the clear holding of 

Bennett, which, yet again, squarely rejected this exact 

approach: 

[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-
44 

40 (requiring no evidence of a burden whatsoever). 

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

omitted). 

In any event, Appellant is also wrong on the 

facts. As the district court explained, “since the enactment of BCRA and the loan-repayment limit, there is 

a clear clustering of loans right at the $250,000 

threshold.” J.S.App. 14a-15a; see also J.A. 310. Accordingly, the fact that “the great majority of candidate loans are for less than $250,000,” FEC Br. 30, far 

from “underscore[ing] the modesty of the burden imposed,” id. at 29, conclusively demonstrates it; see also 

J.S.App. 15a (showing that proportion of greaterthan-$250,000 candidate loans has remained stable 

even though “spending on Senate and House campaigns has more than doubled” since the enactment of 

BCRA). 

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 limit 

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). And the loan-repayment 

limit also burdens the rights of contributors, by effectively creating a ceiling on overall post-election 
45 

contributions. See 11 C.F.R. § 110.1(b)(3)(ii)(C). At a 

minimum, these burdens necessitate Buckley’s

“closely drawn” scrutiny. 424 U.S. at 25. 

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

this case,” the loan-repayment limit “imposes no burden at all on [political] speech.” FEC Br. 27. That 

claim is irrelevant even if true, given the settled doctrine allowing facial overbreadth challenges in the 

First Amendment context, even by a plaintiff whose 

“own rights of free expression” are not violated. 

Broadrick v. Oklahoma, 413 U.S. 601, 612, 613 (1973). 

But the claim is not true. It is undisputed that 

the Committee ended the election with $337,748 more 

in debts for campaign speech than its cash-on-hand, 

and that in the weeks following the election, it repaid 

other campaign creditors but not the $260,000 owed 

to Cruz. J.A. 285, 286. As an economic matter, then, 

there can be no question that Cruz’s loans were “used 

... to fund speech.” FEC Br. 31. And Section 304 (and 

the 20-day rule) barred the Committee from repaying 

$10,000 of Cruz’s loans with any post-election contributions. Appellant again trots out its arguments 

about the motivation behind the loan, id. at 31-32, but 

as with standing, a plaintiff’s subjective motivation is 

irrelevant to the merits of his constitutional challenge. See Pierson v. Ray, 386 U.S. 547, 558 (1967). 

Section 304 is thus subject to strict scrutiny. 
46 

B. The Loan-Repayment Limit Fails Even 

“Closely-Drawn” Scrutiny Because It 

Does Not Further any Anti-Corruption 

Interest. 

Even under “closely-drawn” scrutiny—which Appellant effectively concedes applies, FEC Br. 33—the 

district court correctly held that Section 304 must fall. 

1. Section 304 was not designed as an anti-corruption measure, so if it did serve that interest, it 

would be pure happenstance. Instead, as noted above, 

supra, pp. 6-7, it was actually designed to “level the 

playing field” between competing candidates of different wealth, 147 CONG. REC. S2541 (daily ed. Mar. 20, 

2001) (statement of Sen. Hutchison), and to “protect[ ] 

incumbents,” id. at S2544 (statement of Sen. Daschle). 

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). Appellant cites three statements that “discussed the dangers” of post-election loan repayments, FEC Br. 38, 

but there is no indication that any anti-corruption motivation was widely shared, or that it was anything 

other than second-fiddle to the provision’s virtuoso 

First Violin: Congress’s desire to level the playing 

field. See J.S.App. 26a. 

2. Moreover, Section 304 cannot be justified as 

an anti-corruption measure, because the federal 

$2,900 contribution limit already serves to adequately 

address any corruption risk. The only effect of striking 

down the loan-repayment limit would be to place post-
47 

election contributions on equal footing with pre-election contributions—such that both sets of contributions must still total no more than $2,900 per contributor. That eliminates any anti-corruption justification 

under this Court’s decision in McCutcheon v. FEC, 572 

U.S. 185 (2014). 

The plaintiffs in McCutcheon challenged FECA’s 

“aggregate” contribution limits, which capped the 

amount any individual could “contribute in total to all 

candidates or committees”—even though each contribution within the total could not exceed $2,900. Id. at 

192 (plurality). The Government defended the aggregate limits as an additional layer of protection against 

the same risk of corruption targeted by the base limits, but this Court rejected this “prophylaxis-uponprophylaxis approach.” Id. at 221. “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.” Id. at 209, 210 (emphasis added). And “[i]f there is no corruption concern” in 

donating the maximum allowable amount to each candidate until the aggregate limit is met, there can be 

no anti-corruption interest in preventing any further 

donations that also comply with the limit selected by 

Congress—donations that cannot be “regarded as corruptible” as a matter of law. Id.; see also Davis, 554 

U.S. at 741; Bennett, 564 U.S. at 751-52. 

So too here. Section 304’s “prophylaxis-uponprophylaxis” limit prevents post-election contributions “of any amount” that go to repay candidate loans 

in excess of $250,000—contributions that likewise 
48 

cannot be regarded as corrupting as a matter of law. 

McCutcheon, 572 U.S. at 210, 221 (plurality); see also

Anderson, 356 F.3d at 673. 

3. Appellant nonetheless argues that the loan repayments restricted by Section 304 pose “a special 

risk of corruption,” primarily because a contribution 

used to repay a candidate loan “goes into the candidate’s pocket,” thereby directly “add[ing] to [his] personal assets” funds that “can accordingly be used for 

personal purposes” such as “paying off mortgages and 

buying clothes.” FEC Br. 33-34, 40. Because such loan 

repayments “predictably result in personal financial 

gain for a candidate,” they are, Appellant says, akin 

to “a gift made directly to the candidate.” id. at 35, 42. 

See also CLC Br. 4-6; CAC Br. 18-19. 

This line of argument depends on viewing the 

two halves of a credit transaction—the making and 

the repaying of the loan—entirely in isolation, as 

though they were independent and unrelated. One 

need not have an advanced degree in economics, or accounting, to see the patent flaw in this analysis. Even 

a child knows the difference between lending a toy to 

a playmate and gifting the toy, and when the loaned 

toy is returned, the child knows that he has not received a gift and that his “personal assets” have not 

increased. 

Likewise, when a candidate loans money to his 

committee, that money “goes [out of] the candidate’s 

pocket,” where it could have been used by the candidate for “personal purposes,” and into the committee’s 
49 

pocket, where it will be used to communicate the candidate’s message to the voters. And it is of course tautologically true that the contributions used by the 

committee to repay the loan “go[ ] into the candidate’s 

pocket,” exactly where the money came from and 

where it can, once again, be used for the candidate’s 

personal purposes. But the loan repayment is not a 

gift, it does not “result in personal financial gain for 

[the] candidate,” and it does not “add to [his] personal 

assets.” FEC Br. 33, 42. Every homeowner understands that when they make their monthly mortgage 

payment they are not giving the bank a gift that adds 

to its “personal assets.” 

Appellant’s secondary reason for treating the 

loan-repayment contributions limited by Section 304 

as specially “concerning”—that “they are made after 

the election,” id. at 35—fares no better. Appellant 

maintains that “[a] post-election contributor ... usually will know whether the recipient of the contribution has prevailed in the election,” supposedly increasing the risk that the contributor will seek “official favors” or “will contribute out of perceived compulsion.” 

Id. at 35, 36. Indeed, Appellant claims that a “postelection contribution serves none” of the “main legitimate rationales for donating money to campaigns.” Id. 

at 36. By Appellant’s lights, then, any post-election 

contribution poses a “special risk of corruption.” Id. at 

40. Yet federal law generally allows those contributions, up to $2,900, 52 U.S.C. § 30116(a)(1)(A); see 11 

C.F.R. § 110.1(b)(3)(i), so this supposedly heightened 
50 

risk of corruption cannot justify Section 304’s limit on 

a small, arbitrary subset of them. 

Even more fundamentally, as the district court 

explained, Appellant’s argument would also doom all 

contributions, pre- or post-election, to incumbent officeholders. J.S.App. 33a. There is no dispute that any 

given contributor could have given 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 suddenly become corrupting if it were instead designated for the 

2018 election is, to put it charitably, not reasonable. 

4. In addition to these fatal analytical problems, 

the district court correctly found that 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 two types of supposed evidence, but 

neither comes close to satisfying its burden to justify 

Section 304. 

a. Appellant points to a handful of anecdotes 

that supposedly “illustrate” the corruption risk of 

post-election loan repayments. FEC Br. 37. But as the 

district court found, they all “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. For instance, the fact that a House 

member raised contributions in 1998 to pay off a candidate loan from “fundraisers hosted by a lobbying 
51 

firm,” FEC Br. 37, shows, at most, that some contributors donate money (whether pre- or post-election) not 

only to support the candidate’s policy agenda, but also 

to gain “influence or access”—not the type of dollarsfor-vote corruption that the First Amendment allows 

the Government to target. McCutcheon, 572 U.S. at 

208 (plurality). 

Appellant’s state election examples get it no further. It mentions debt-retirement contributions to 

“two governors” in Kentucky by donors seeking government benefits, FEC Br. 37, but again, the fact that 

contributors gave money in the hopes of obtaining “access to elected officials does not mean that these officials are corrupt,” absent some evidence of an actual 

or apparent quid pro quo. Citizens United v. FEC, 558 

U.S. 310, 359 (2010). Appellant also highlights debtretirement contributions in Ohio to an attorney general who “routed 225 state contracts” to the donors, 

FEC Br. 37, but it does not mention the evidence in 

the record showing (1) that the previous attorney general similarly favored donors for contracts (even 

though he apparently made no loans to his campaign), 

and (2) that the donors gave far more “to build up a 

war chest for [the attorney general’s] 2014 re-election 

bid” and to support the judicial campaign of his son—

contributions that have nothing to do with the repayment of candidate loans. J.A. 338. 

Finally, Appellant cites “make up” contributions 

by donors to losing candidates who subsequently give 

to the winner, FEC Br. 37-38, but it makes no claim 

that such contributions are related to the specific 
52 

conduct limited by Section 304—the use of post-election contributions to repay candidate loans. And 

again, such contributions show, at most, contributors 

seeking “influence over or access to elected officials”—

something that “the Government may not seek to 

limit.” McCutcheon, 572 U.S. at 208 (plurality) (quotation marks omitted). 

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”—by Appellees’ count (and that of the 

Campaign Legal Center, Br. 17-18), 40 States plus the 

District of Columbia—yet “the Commission fails to 

identify any problems with quid pro quo corruption or 

its appearance in these states.” J.S.App. 23a. 

b. Appellant also relies on two pieces of indirect 

evidence. First, it cites a “study of campaign debt and 

voting patterns” purportedly showing “that indebted 

politicians were significantly more likely than debtfree counterparts to switch their votes if they received 

contributions from special interests,” and that this behavior was more stark before the enactment of BCRA. 

FEC Br. 38-39 (alterations and quotation marks omitted). But as the district court found, the unpublished, 

non-peer-reviewed 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.
53 

What is more, 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 not limited to post-election contributions; and (3) does not distinguish between the first $250,000 of candidate loanrepayment contributions and the two-hundred, fiftythousand-and-first dollar. J.A. 330-33. 

Appellant’s second piece of indirect evidence—an 

online poll that “was conducted at the FEC’s behest 

for this litigation,” J.S.App. 27a—also falls risibly 

short. Appellant says its poll “showed that 81% of respondents” thought it likely “that a person who donates money to a campaign after the election expects 

a political favor in return.” FEC Br. 39. But Appellant’s poll misleadingly asked how respondents would 

feel “[i]f there were no limit on how much money a federal campaign could raise after Election Day to repay 

a candidate,” J.A. 354, without mentioning that base 

contribution limits still apply. Moreover, the survey 

failed to ask about post-election fundraising for the repayment of other types of campaign debt; and it also 

failed to “define the term ‘political favor,’ so the poll’s 

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.” J.S.App. 

28a. Indeed, the pollster who supervised the poll 
54 

admitted that she herself understood the phrase “political favor” to include access. J.A. 355. 

5. Unable to muster any meaningful evidence 

that Section 304 actually addresses a risk of corruption, Appellant asks the Court to defer to Congress’s 

supposed “legislative judgment” to that effect. FEC 

Br. 39. But even if such a “legislative judgment” actually supported Section 304—and it did not, see supra,

pp. 6-7, 46—Appellant’s plea for deference should be 

declined. Section 304 must be subjected to heightened 

scrutiny, and “[t]he whole point of strict scrutiny is to 

test the government’s assertions,” not defer to them. 

South Bay United Pentecostal Church v. Newsom, 592 

U.S. ---, 141 S. Ct. 716, 718 (2021) (Gorsuch, J., concurring). 

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

Even if the loan-repayment limit did somehow 

further an anti-corruption interest, it is not “narrowly 

tailored to achieve [that] objective.” McCutcheon, 572 

U.S. at 218. The premise of Appellant’s justifications 

for the limit—that a post-election donor knows “that 

the recipient will be in a position to do him official favors,” FEC Br. 35—obviously has no purchase with respect to losing candidates. J.S.App. 32a; see also Anderson, 356 F.3d at 673. Appellant argues that Appellees cannot raise this complaint because Cruz “won 

his election,” FEC Br. 45, but as noted, a plaintiff may 

bring a First Amendment challenge to a law that is 

“substantially overbroad” on its face whether or not 
55 

“their own rights of free expression are violated.” 

Broadrick, 413 U.S. at 612, 615. That standard is met 

here because there are far more losing candidates 

than winning ones, rendering Section 304’s overbreadth substantial even if “post-election contributions are much more often made to winning candidates than to losing ones.” FEC Br. 45. 

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 preand post-election contributions that are subject only 

to general base-contribution limits. See supra, pp. 49-

50. That underinclusiveness “raise[s] doubts about 

whether the law advances the interests invoked by the 

government,” J.S.App. 32a, and it also dooms Section 

304 under McCutcheon, by demonstrating that the 

specific post-election contributions it targets do not 

give rise to any special risk of quid pro quo corruption 

that is not addressed by the $2,900 limit on ordinary 

contributions. 572 U.S. at 210. 

CONCLUSION 

For the foregoing reasons, the Court should affirm the judgment of the district court. 
56 

December 15, 2021 

CHRIS GOBER

THE GOBER GROUP 

 PLLC 

14425 Falcon Head 

 Blvd. E-100 

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