UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

TED CRUZ FOR SENATE, et al., ) 

 ) 

 Plaintiffs, ) Civ. No. 19-908 (APM) 

 ) 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, et al., ) MOTION TO DISMISS 

 ) 

 Defendants. ) 

 ) 

FEDERAL ELECTION COMMISSION’S MOTION TO DISMISS FOR 

LACK OF SUBJECT-MATTER JURISDICTION 

Pursuant to Federal Rule of Civil Procedure 12(b)(1), the Federal Election Commission 

(“Commission” or “FEC”) hereby moves for an order dismissing plaintiffs’ complaint. Plaintiffs 

lack standing to bring this action because they have suffered no Article III injury. A supporting 

memorandum of points and authorities and a proposed order accompany this motion.

Respectfully submitted, 

Lisa J. Stevenson (D.C. Bar No. 457628) 

Acting General Counsel 

lstevenson@fec.gov 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 

Harry J. Summers 

Assistant General Counsel 

hsummers@fec.gov 

June 7, 2019 

Kevin P. Hancock 

Acting Assistant General Counsel 

khancock@fec.gov 

/s/ Seth Nesin 

Seth Nesin 

Attorney 

snesin@fec.gov 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

1050 First Street, N.E. 

Washington, DC 20463 

(202) 694-1650

Case 1:19-cv-00908-APM Document 25 Filed 06/07/19 Page 1 of 56
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

TED CRUZ FOR SENATE, et al., ) 

 ) 

 Plaintiffs, ) Civ. No. 19-908 (APM) 

 ) 

 v. ) 

 ) MOTION TO DISMISS 

FEDERAL ELECTION COMMISSION, et al., ) AND OPPOSITION 

 ) 

 Defendants. ) 

 ) 

DEFENDANT FEDERAL ELECTION COMMISSION’S OPPOSITION TO 

PLAINTIFFS’ APPLICATION FOR A THREE-JUDGE COURT AND 

MOTION TO DISMISS FOR LACK OF SUBJECT-MATTER JURISDICTION 

Lisa J. Stevenson (D.C. Bar No. 457628) 

Acting General Counsel 

 

Kevin Deeley 

Associate General Counsel 

Harry J. Summers 

Assistant General Counsel 

Kevin P. Hancock 

Acting Assistant General Counsel 

Seth Nesin 

 Attorney 

 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

1050 First Street, N.E. 

 Washington, DC 20463 

June 7, 2019 (202) 694-1650 

Case 1:19-cv-00908-APM Document 25 Filed 06/07/19 Page 2 of 56
i

TABLE OF CONTENTS 

 Page 

BACKGROUND ........................................................................................................................... 3 

I. STATUTORY AND REGULATORY BACKGROUND ........................................................ 3 

A. Defendant FEC and the Federal Election Campaign Act .................................................... 3 

B. Campaign Committees and Their Receipt of Contributions ............................................... 4 

C. FECA’s Limitation on Campaign Committees’ Post-Election Repayments of 

Personal Loans from Candidates ......................................................................................... 5 

D. FEC Regulations Implementing the Loan Repayment Limit .............................................. 6 

E. BCRA’s “Millionaire’s Amendment” and Davis v. FEC .................................................... 8 

II. FACTUAL BACKGROUND AND PLAINTIFFS’ CLAIMS ................................................ 9 

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

I. CLAIMS DO NOT QUALIFY FOR A THREE-JUDGE COURT UNDER BCRA § 403 

 IF THEY ARE NON-JUSTICIABLE, INSUBSTANTIAL, OR CHALLENGING A 

 REGULATION ....................................................................................................................... 11 

II. PLAINTIFFS’ CLAIMS ARE NOT JUSTICIABLE BECAUSE PLAINTIFFS LACK 

 STANDING ........................................................................................................................... 13 

A. Both Plaintiffs Lack Standing Because the Injuries They Allege Are 

 Self-Inflicted .................................................................................................................... 15 

B. The Committee Lacks Standing Because It Has No Injury ............................................. 21 

C. Plaintiffs Cannot Assert Standing for Potential Contributors ......................................... 21 

1. No Potential Contributors Are Plaintiffs in This Case and There is 

No Reason to Believe Any Exist ........................................................................... 22 

2. Potential Contributors Have No Injury Because Neither the Law Nor 

Regulation Prevent Them From Making Contributions to the Campaign ............. 24 

III. PLAINTIFFS’ CONSTITUTIONAL CLAIMS ARE WHOLLY 

 INSUBSTANTIAL ............................................................................................................... 25 

Case 1:19-cv-00908-APM Document 25 Filed 06/07/19 Page 3 of 56
ii 

A. Rational Basis Scrutiny Should Apply to the Loan Repayment Limit Because 

It Does Not Burden the First Amendment Rights of Candidates, Campaign 

Committees, or Contributors ............................................................................................. 27 

1. The Repayment of a Personal Loan Does Not Constitute Political Speech ............ 28 

2. The Loan Repayment Limit Does Not Impede a Candidate’s First 

Amendment Right to Make Unlimited Personal Expenditures to Pursue 

a Political Campaign ................................................................................................ 29 

3. Plaintiffs Fail to Allege that Cruz Desired to Loan Additional Funds or 

that the Loan Repayment Limit Prevents Campaigns From Amassing 

Resources for Effective Advocacy .......................................................................... 32 

4. Potential Contributors Do Not Have a Right to Have Their Contributions 

Used for Any Specific Purpose ............................................................................... 34 

B. Limiting the Use of Post-Election Contributions to Repay Personal Loans to 

$250,000 Easily Passes Constitutional Scrutiny ............................................................... 35 

1. The Government Has Not Just Legitimate, But Important and Compelling 

Interests in Lessening the Risk of Quid Pro Quo Corruption and Its 

Appearance .............................................................................................................. 37 

2. The Loan Repayment Limit Is Rationally Related to the Government’s AntiCorruption Interests and Not Overbroad ................................................................. 40 

IV. BECAUSE A THREE-JUDGE COURT COULD NOT INVALIDATE FEC 

REGULATIONS THE APPLICATION SHOULD BE DENIED AS TO 

COUNTS III, IV AND V ................................................................................................... 44 

CONCLUSION ........................................................................................................................... 45

 

Case 1:19-cv-00908-APM Document 25 Filed 06/07/19 Page 4 of 56
iii 

TABLE OF AUTHORITIES 

Page

Cases 

Afifi v. Lynch, 101 F. Supp. 3d 90 (D.D.C. 2015) ................................................................... 16, 18 

Al-Aulaqi v. Obama, 727 F. Supp. 2d 1 (D.D.C. 2010) ................................................................ 22 

Am. Soc. For Prevention of Cruelty to Animals v. Feld Entm’t, Inc., 659 F.3d 13 

 (D.C. Cir. 2011) ......................................................................................................................... 17 

Amato v. Wilentz, 952 F.2d 742 (3d Cir. 1991) ............................................................................ 22 

Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 564 U.S. 721 (2011) ......... 31, 32 

Arpaio v. Obama, 797 F.3d 11 (D.C. Cir. 2015) .......................................................................... 13 

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ......................................................................................... 13 

Baker v. Adler, No. 81-1779, 1982 WL 1396 (D.C. Cir. Apr. 8, 1982) ....................................... 21 

Bluman v. FEC, 766 F. Supp. 2d 1 (D.D.C. 2011) ................................................................. 12, 45 

Bluman v. FEC, 800 F. Supp. 2d 281 (D.D.C. 2011) ................................................................... 23 

Broadrick v. Oklahoma, 413 U.S. 601 (1973) .............................................................................. 42 

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

Cal. Med. Ass’n v. FEC, 453 U.S. 182 (1981) .............................................................................. 38 

Citizens United v. FEC, 558 U.S. 310 (2010) ............................................................................... 39 

Dandridge v. Williams, 397 U.S. 471 (1970) ............................................................................... 36 

Davis v. FEC, 554 U.S. 724 (2008) ............................................................ 8, 14, 26, 29, 31, 32, 39 

Dominguez v. UAL Corp., 666 F.3d 1359 (D.C. Cir. 2012) ......................................................... 13 

Ellis v. Comm’r of IRS, 67 F. Supp. 3d 325 (D.D.C. 2014) .......................................................... 14 

Ellis v. Comm’r of IRS, 622 F. App’x 2 (D.C. Cir. 2015) ............................................................ 14 

Case 1:19-cv-00908-APM Document 25 Filed 06/07/19 Page 5 of 56
iv 

FCC v. Beach Commc’ns, Inc., 508 U.S. 307 (1993) ................................................................... 36 

FEC v. Beaumont, 539 U.S. 146 (2003) ....................................................................................... 38 

FEC v. Colo. Repub. Fed. Campaign Comm., 533 U.S. 431, 457 (2001) .................................... 38 

FEC v. Craig for U.S. Senate, 70 F. Supp. 3d 82 (D.D.C. 2014) ................................................. 24 

FEC v. Craig for U.S. Senate, 816 F.3d 829 (D.C. Cir. 2016) ..................................................... 24 

FEC v. O’Donnell, 209 F. Supp. 3d 727 (D. Del. 2016) .......................... 27, 28, 35, 37, 38, 42, 43 

Feinberg v. FDIC, 522 F.2d 1335 (D.C. Cir. 1975) ..................................................................... 25 

Flores ex rel. J.F. v. District of Columbia, 437 F. Supp. 2d 22 (D.D.C. 2006) ........................... 13 

Georgia v. McCollum, 505 U.S. 42 (1992) ................................................................................... 23 

Gonzalez v. Automatic Emp. Credit Union, 419 U.S. 90 (1974) .................................................. 12 

Grocery Mfrs. Ass’n v. EPA, 693 F.3d 169 (D.C. Cir. 2012) ....................................................... 16 

Heller v. Doe, 509 U.S. 312 (1993) .............................................................................................. 36 

Holmes v. FEC, 823 F.3d 69 (D.C. Cir. 2016) ............................................................................. 26 

Holmes v. FEC, 875 F.3d 1153 (D.C. Cir. 2017) ............................................................. 25, 35, 38 

Huron v. Berry, 12 F. Supp. 3d 46 (D.D.C. 2013) ........................................................................ 18 

Huron v. Cobert, 809 F.3d 1274 (D.C. Cir. 2016) ........................................................................ 18 

J. Roderick MacArthur Foundation v. FBI, 102 F.3d 600 (D.C. Cir. 1996) ........................... 14-15 

Lewis v. Casey, 518 U.S. 343 (1996) ............................................................................................ 14 

Libertarian National Committee v. FEC, ___ F.3d ___, No. 18-5227, 

2019 WL 2180336 (D.C. Cir. May 21, 2019) .......................................................... 18-19, 33, 43 

L. A. Police Dep’t v. United Reporting Pub. Corp., 528 U.S. 32 (1999) ..................................... 42 

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ................................................................... 13 

McConnell v. FEC, 540 U.S. 93 (2003) ................................................................ 16, 37, 43, 44, 45 

McConnell v. FEC, 251 F. Supp. 2d 176 (D.D.C. 2003) ........................................................ 44, 45 

Case 1:19-cv-00908-APM Document 25 Filed 06/07/19 Page 6 of 56
v 

McCutcheon v. FEC, 572 U.S. 185 (2014) ....................................................................... 12, 23, 37 

Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456 (1981) ................................................... 36 

Nat’l Family Planning & Reprod. Health Ass’n, Inc. v. Gonzales, 468 F.3d 826 

 (D.C. Cir. 2006) .................................................................................................................... 14, 16 

Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377 (2000) ......................................................... 38 

Petro-Chem Processing, Inc. v. EPA, 866 F.2d 433 (D.C. Cir. 1989) ......................................... 17 

Powers v. Ohio, 499 U.S. 400 (1991) ..................................................................................... 22, 23 

Randall v. Sorrell, 548 U.S. 230 (2006) ................................................................................. 33, 34 

Republican Nat’l Comm. v. FEC, 698 F. Supp. 2d 150 (D.D.C. 2010) ........................................ 38 

Republican Nat’l Comm. v. FEC, 561 U.S. 1040 (2010) .............................................................. 38 

Republican Party of La. v. FEC, 146 F. Supp. 3d 1 (D.D.C. 2015) ........................... 11, 12, 13, 25 

Romer v. Evans, 517 U.S. 620 (1996)........................................................................................... 35 

Rufer v. FEC, 64 F. Supp. 3d 195 (D.D.C. 2014) ................................................................... 12, 23 

Schonberg v. FEC, 792 F. Supp. 2d 14 (D.D.C. 2011)..................................................... 12, 13, 25 

Shapiro v. McManus, 136 S. Ct. 450 (2015) .................................................................... 12, 13, 25 

Singleton v. Wulff, 428 U.S. 106 (1976) ....................................................................................... 22 

Stop This Insanity, Inc. Employee Leadership Fund v. FEC, 761 F.3d 10 (2014) ....................... 18 

Vance v. Bradley, 440 U.S. 93 (1979) .......................................................................................... 36 

Wagner v. FEC, 793 F.3d 1 (D.C. Cir. 2015) ................................................................... 14, 23, 38 

Statutes and Regulations

Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, 116 Stat. 81 ............................. 5 

BCRA § 403 ...................................................................................................................... 11, 12, 13 

BCRA § 403(a) ....................................................................................................................... 11, 44 

Case 1:19-cv-00908-APM Document 25 Filed 06/07/19 Page 7 of 56
vi 

BCRA § 403(d)(2) ........................................................................................................................ 11 

BCRA § 403(d)(3) ........................................................................................................................ 11 

Federal Election Campaign Act, 52 U.S.C. §§ 30101-146 (formerly 2 U.S.C. §§ 431-57) ........... 3 

11 C.F.R. § 110.1(b)(2)(i) ............................................................................................................... 4 

11 C.F.R. § 110.1(b)(2)(ii) .............................................................................................................. 4 

11 C.F.R. § 110.1(b)(3)(i) ......................................................................................................... 4, 24 

11 C.F.R. § 110.1(b)(3)(ii)(A) ........................................................................................................ 4 

11 C.F.R. § 110.1(b)(3)(ii)(B) ........................................................................................................ 5 

11 C.F.R. § 110.1(b)(3)(ii)(C) .................................................................................................... 5, 7 

11 C.F.R. § 116.11 .......................................................................................................... 6, 9, 10, 44 

11 C.F.R. § 116.11(a)................................................................................................................ 6, 11 

11 C.F.R. § 116.11(b) ..................................................................................................................... 7 

11 C.F.R. § 116.11(b)(1) ........................................................................................................... 7, 32 

11 C.F.R. § 116.11(b)(2) ..................................................................................................... 7, 24, 32 

11 C.F.R. § 116.11(b)(3) ........................................................................................................... 7, 32 

11 C.F.R. § 116.11(c)...................................................................................................................... 7 

11 C.F.R. § 116.11(c)(1) ..................................................................................................... 7, 10, 17 

11 C.F.R. § 116.11(c)(2) ......................................................................................................... 10, 21 

18 U.S.C. § 201(b)(1) ................................................................................................................... 41 

28 U.S.C. § 2284 ..................................................................................................................... 11, 25 

28 U.S.C. § 2284(b)(1) ................................................................................................................. 11 

52 U.S.C. § 30101(5) ...................................................................................................................... 4 

52 U.S.C. § 30101(6) ...................................................................................................................... 4 

Case 1:19-cv-00908-APM Document 25 Filed 06/07/19 Page 8 of 56
vii 

52 U.S.C. § 30102(e)(1) .................................................................................................................. 4 

52 U.S.C. § 30102(e)(2) .................................................................................................................. 4 

52 U.S.C. § 30104 ........................................................................................................................... 3 

52 U.S.C. § 30110 ......................................................................................................................... 11 

52 U.S.C. § 30116(a) .................................................................................................................. 3, 4 

52 U.S.C. § 30118 ........................................................................................................................... 3 

52 U.S.C. § 30119 ........................................................................................................................... 3 

52 U.S.C. § 30121 ........................................................................................................................... 3 

52 U.S.C. § 30116(j) ................................................................................................................... 5, 6

Miscellaneous

Federal Rule of Civil Procedure 12(b)(1) ................................................................................. 1, 13

Advisory Opinion 2008-09 (Lautenberg) ....................................................................................... 9

13A Charles Alan Wright et al., Federal Practice and Procedure § 3531.5 (3d ed. 

April 2019 Update) .................................................................................................................... 17 

Peter Overby, How Will Clinton Resolve Campaign Debt?, National Public Radio 

(May 14, 2018, 6:00 AM) .......................................................................................................... 42 

147 Cong. Rec. S2451 (daily ed. Mar. 19, 2001) ........................................................................... 6 

147 Cong. Rec. S2462 (daily ed. Mar. 19, 2001) ..................................................................... 5, 39 

147 Cong. Rec. S2537 (daily ed. Mar. 20, 2001) ..................................................................... 5, 39 

Increased Contribution and Coordinated Party Expenditure Limits for Candidates 

Opposing Self-Financed Candidates, 68 Fed. Reg. 3970 (Jan. 27, 2003) ............................... 6, 7 

Price Index Adjustments for Contribution and Expenditure Limitations and Lobbyist 

Bundling Disclosure Threshold, 84 Fed. Reg. 2504 (Feb. 7, 2019) ............................................ 4 

Case 1:19-cv-00908-APM Document 25 Filed 06/07/19 Page 9 of 56
viii 

Repeal of Increased Contribution and Coordinated Party Expenditure Limits for Candidates 

Opposing Self-Financed Candidates, 73 Fed. Reg. 79,597 (Dec. 30, 2008) ............................... 8 

The Senate Code of Official Conduct, Select Committee on Ethics (March 2015) ..................... 41 

Case 1:19-cv-00908-APM Document 25 Filed 06/07/19 Page 10 of 56
1

In this case, plaintiffs U.S. Senator Rafael Edward (“Ted”) Cruz and his campaign 

committee, Ted Cruz for Senate (“Committee”), challenge critical anti-corruption election laws 

that prevent federal campaigns from using in excess of $250,000 in contributions received after 

an election to repay a newly elected officeholder’s personal loans. For three reasons, this Court 

should deny plaintiffs’ request for a three-judge district court to hear those claims. 

First, plaintiffs lack Article III standing and so their claims should be dismissed under 

Federal Rule of Civil Procedure 12(b)(1). Neither plaintiff suffered a cognizable injury because 

self-inflicted injuries are not sufficient to confer standing. As the complaint and public 

campaign finance reports make obvious, plaintiffs attempted to engineer an injury for the 

purpose of bringing this lawsuit. The plaintiffs’ contrived attempt to create a burden began when 

— on the day before the election — Senator Cruz loaned $10,000 in excess of the $250,000 limit 

to the Committee, even though at that time the Committee had $2.2 million in cash on hand. 

Plaintiffs could have then avoided their self-inflicted injury by simply using the Committee’s 

abundant election-day cash on hand to pay $10,000 back to Cruz within 20 days after the 

election. But plaintiffs chose to forego that option. Instead, plaintiffs preferred a more 

burdensome and illegal option: to use contributions raised after the election to repay Cruz in 

excess of the $250,000 legal limit. But this mere preference is legally insufficient to confer 

standing since plaintiffs’ injuries must be fairly traceable to the challenged laws, and not 

plaintiffs’ voluntary choices. In any event, publicly available facts undermine the complaint’s 

suggestion that plaintiffs in fact preferred to repay their vendors before paying Cruz’s $10,000. 

Even if the alleged injury created by plaintiffs were cognizable, that injury would apply 

only to Senator Cruz and not the Committee, which lacks any injury whatsoever because its 

inability to repay Senator Cruz made it $10,000 richer. Plaintiffs also lack standing to bring 

Case 1:19-cv-00908-APM Document 25 Filed 06/07/19 Page 11 of 56
2 

claims on behalf of alleged potential contributors, both because they lack the criteria necessary 

for third-party standing and because such potential contributors, if they exist, have not been 

injured either. 

Second, plaintiffs’ claims are not substantial enough to be heard by a three-judge court, 

the ruling of which would be subject to mandatory direct review by the U.S. Supreme Court. 

Because the $250,000 limit applies to loan repayments, not political speech, mere rational basis 

review applies to the law. Plaintiffs’ constitutional theory is entirely foreclosed by Supreme 

Court precedent, which makes clear that the provisions at issue are constitutional because they 

do not infringe on a candidate’s right to make unlimited campaign expenditures. Despite a 

complete lack of impediment to Senator Cruz spending as much of his personal funds as he 

wished to pay for his campaign’s speech, plaintiffs suggest that they have a colorable claim 

based on an infringement of that very constitutional right. 

In truth, plaintiffs are attempting to create new constitutional rights for candidates to have 

their personal loans repaid, and for contributors to direct how their campaign contributions are 

spent. No such rights exist. Plaintiffs’ claims not only fail to identify a cognizable right that is 

being infringed, they also ignore that a modest burden on any such right would obviously be 

justified by the government’s interests in diminishing corruption and its appearance. Plaintiffs’ 

constitutional claims therefore fail to meet the substantiality threshold necessary for the 

convening of a three-judge court. 

Third, and lastly, the special-review procedure plaintiffs have attempted to invoke only 

creates three-judge court jurisdiction for claims that challenge the constitutionality of the 

relevant statute, and not any regulations promulgated by defendant Federal Election Commission 

(“FEC” or “Commission”). As a result, even if plaintiffs had standing to assert their three 

Case 1:19-cv-00908-APM Document 25 Filed 06/07/19 Page 12 of 56
3 

regulatory claims (Counts III, IV, and V), and even if those claims were substantial, the Court 

should nevertheless deny plaintiffs’ application for a three-judge court with respect to those 

claims and dismiss them. 

BACKGROUND 

I. STATUTORY AND REGULATORY BACKGROUND 

A. Defendant FEC and the Federal Election Campaign Act 

Defendant FEC1

 is an independent agency of the United States with exclusive jurisdiction 

to administer, interpret, and civilly enforce the Federal Election Campaign Act (“FECA” or “the 

Act”), 52 U.S.C. §§ 30101-46 (formerly 2 U.S.C. 431-57).2

In 1974, Congress created the FEC and substantially revised FECA in response to the 

Watergate scandal and the “deeply disturbing” reports from the 1972 federal elections of 

contributors giving large amounts of money to candidates “to secure a political quid pro quo.” 

Buckley v. Valeo, 424 U.S. 1, 26-27 (1976) (per curiam). With FECA, Congress primarily 

intended to “limit the actuality and appearance of corruption resulting from large individual 

financial contributions.” Id. at 26. To that end, the Act limits the dollar amounts and 

permissible sources of contributions to candidates for federal office, political parties, and 

political committees, and requires those entities to disclose what they spend and receive through 

reports filed with the FEC. 52 U.S.C. §§ 30104, 30116(a), 30118-19, 30121. 

 

1

 In addition to the FEC, plaintiffs’ complaint names each of the agency’s four current 

commissioners as defendants in their official capacities. (Compl. For Declaratory and Injunctive 

Relief (“Compl.”) (Docket No. 1).) References to “defendant,” “FEC,” and “Commission” 

herein should be understood to refer all defendants. 

2

 In 2014, FECA was moved from Title 2 to Title 52 of the United States Code. See 

Editorial Reclassification Table, http://uscode.house.gov/editorialreclassification/t52/ 

Reclassifications_Title_52.html (last visited June 4, 2019). 

Case 1:19-cv-00908-APM Document 25 Filed 06/07/19 Page 13 of 56
4 

In 1976, the Supreme Court generally upheld FECA’s contribution limits and disclosure 

requirements against a facial challenge, but the Court struck down FECA’s limits on 

expenditures by individuals and candidates. Buckley, 424 U.S. at 43-44. In denying the 

challenge to contribution limits, the Court explained that “[t]o the extent that large contributions 

are given to secure a political quid pro quo from current and potential officeholders, the integrity 

of our system of representative democracy is undermined.” Id. at 26-27. 

B. Campaign Committees and Their Receipt of Contributions 

The Act requires federal candidates to designate at least one “authorized committee,” 

which may receive contributions and make expenditures on the candidate’s behalf, to serve as its 

“principal campaign committee.” 52 U.S.C. §§ 30101(5)-(6), 30102(e)(1)-(2). 

FECA limits the amount individual contributors may give to a campaign committee to an 

inflation-adjusted $2,800 per election. 52 U.S.C. § 30116(a); FEC, Price Index Adjustments for 

Contribution and Expenditure Limitations and Lobbyist Bundling Disclosure Threshold, 84 Fed. 

Reg. 2504, 2506 (Feb. 7, 2019). Under the Commission’s regulations, contributors may 

designate their contributions for a particular election. 11 C.F.R. § 110.1(b)(2)(i). In the absence 

of a designation, a contribution is presumed to be for the recipient’s next election. Id. § 

110.1(b)(2)(ii). A contribution designated for a previous election may be accepted by a 

campaign committee only to the extent that the contribution does not exceed the committee’s 

“net debts outstanding” from that election. Id. § 110.1(b)(3)(i). In general, a campaign 

committee’s “net debts outstanding” equals its total amount of unpaid debts and obligations for 

an election, less its total resources from that election available to pay those debts and obligations, 

including cash on hand available and amounts owed to the committee. Id. § 110.1(b)(3)(ii)(A)-

Case 1:19-cv-00908-APM Document 25 Filed 06/07/19 Page 14 of 56
5 

(C). Thus, a campaign may accept post-election contributions only to the extent necessary to pay 

down a net shortfall from that election. 

C. FECA’s Limitation on Campaign Committees’ Post-Election Repayments of 

Personal Loans from Candidates 

In 2002, Congress enacted the Bipartisan Campaign Reform Act of 2002, Pub. L. No. 

107-155, 116 Stat. 81 (“BCRA”), which amended FECA. One change added a modest limit on a 

campaign committee’s ability to use post-election contributions to repay its net debts 

outstanding. Under 52 U.S.C. § 30116(j) (the “Loan Repayment Limit”), a campaign committee 

may use contributions raised after an election to repay “personal loans” that a candidate “incurs 

. . . in connection with the candidate’s campaign” only up to $250,000.3 Neither the Loan 

Repayment Limit nor any other law prevents a campaign committee from using contributions 

raised before or on the date of an election to repay candidate personal loans in any amount. 

According to the sponsor of the Loan Repayment Limit, the purpose of the law is to 

mitigate the heightened risk of quid pro quo corruption and its appearance resulting from already 

elected officeholders soliciting contributions for their own personal benefit. See 147 Cong. Rec. 

S2537 (daily ed. Mar. 20, 2001) (statement of Sen. Domenici) (‘‘If you incur debt from a 

personal loan and then you get elected as Senator, and then you go around and say, now I am 

Senator, I want you to get my money so I can pay back what I used of my own money to run for 

election. It is clear in this amendment that you cannot do that in the future.’’); id. at S2462 (daily 

ed. Mar. 19, 2001) (statement of Sen. Domenici) (explaining that a candidate who incurred 

 

3

 The Loan Repayment Limit states that a candidate “who incurs personal loans . . . 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). 

Case 1:19-cv-00908-APM Document 25 Filed 06/07/19 Page 15 of 56
6 

personal loans for his campaign should not be able “to get it back from [his or her] constituents 

under fundraising events that [he or she] would hold and then ask them: How would you like me 

to vote now that I am a Senator?”). 

D. FEC Regulations Implementing the Loan Repayment Limit 

Following the passage of BCRA, the Commission issued regulations implementing the 

new law. With respect to the Loan Repayment Limit, the Commission promulgated 11 C.F.R. 

§ 116.11. That regulation contains three general provisions. 

First, paragraph (a) of section 116.11 defines the “personal loans” to which the Loan 

Repayment Limit applies to include “not only loans made by candidates to their authorized 

committees, but also loans made by other persons to the authorized committees that are endorsed 

or guaranteed by the candidate or that are secured by the personal funds of the candidate.” 

Increased Contribution and Coordinated Party Expenditure Limits for Candidates Opposing SelfFinanced Candidates, 68 Fed. Reg. 3970, 3973 (Jan. 27, 2003). The Loan Repayment Limit 

applies to “[a]ny candidate who incurs personal loans,” 52 U.S.C. § 30116(j), which the 

Commission construed to apply to “loans made by candidates” in addition to “loans made to 

candidates” for two reasons. First, the provision’s legislative history repeatedly states that the 

Loan Repayment Limit would apply to a candidate’s loan of personal funds to his or her 

campaign.4

 Second, the result of any other interpretation “would be that similarly situated 

candidates may be treated differently.” 68 Fed. Reg. at 3974. It would make little sense, the 

Commission pointed out, to apply the Loan Repayment Limit to a candidate who “takes out a 

 

4

 For example, the Loan Repayment Limit’s sponsor stated that “anything more than [the 

$250,000 threshold], they cannot repay it by going out and having fundraisers once they are 

elected with their own money.” 68 Fed. Reg. 3970, at 4002 n.2 (quoting 147 Cong. Rec. S2451 

(daily ed. Mar. 19, 2001) (statement of Sen. Domenici) (emphasis added)). 

Case 1:19-cv-00908-APM Document 25 Filed 06/07/19 Page 16 of 56
7 

loan from a lending institution and then lends the loan proceeds to his or her authorized 

committee” but not to “a candidate who liquidates an asset and loans the proceeds from the sale 

to his or her authorized committee.” Id. 

Second, paragraph (b) of section 116.11 clarifies the limited nature of the Loan 

Repayment Limit. Under paragraph (b)(1), “[r]epayment of the entire loan amount is permitted 

under BCRA and FECA even if the total loan amount exceeds $250,000 and as long as these 

contributions were made on or before the date of the election.” 68 Fed. Reg. at 3974. Under 

paragraphs (b)(2) and (3), the committee may repay only up to a maximum of $250,000 using 

contributions that were received after the date of the election. 11 C.F.R. § 116.11(b)(2), (3).5

 

Third, paragraph (c) of the regulation establishes a 20-day period following an election 

during which a committee can use the cash it had on hand as of the day after the election to pay 

back all or part of the candidate’s personal loans (“20-Day Repayment Period”). 11 C.F.R. 

§ 116.11(c)(1). After a general election, a campaign committee must file a report with the FEC 

reporting its receipts and disbursements for a period expiring 20 days after the election. 68 Fed. 

Reg. at 3974. Thus, after the 20-day post-election period has elapsed, a campaign committee 

must “treat the remaining balance of the candidate’s personal loan that exceeds $250,000 as a 

contribution from the candidate to the authorized committee, given that this amount could never 

be repaid, and given that the amount must be accounted for on the authorized committee’s next 

report.” Id. (citing 11 C.F.R. § 116.11(c)).

 

5

 Given this limit, the “net debts outstanding” calculation discussed above, see supra p. 4, 

does not include the amount of a candidate’s personal loans in excess of $250,000, see 11 C.F.R. 

§ 110.1(b)(3)(ii)(C). 

Case 1:19-cv-00908-APM Document 25 Filed 06/07/19 Page 17 of 56
8 

E. BCRA’s “Millionaire’s Amendment” and Davis v. FEC

Separate from the Loan Repayment Limit, BCRA’s amendments to FECA included a 

provision known as the “Millionaire’s Amendment” that applied only to Congressional 

candidates. See Davis v. FEC, 554 U.S. 724, 729-30 (2008). Under that part of the law, if a 

candidate for Congress spent in excess of a certain amount of personal funds in support of his or 

her campaign and additional criteria were met, the law would increase the contribution limits for 

the self-funding candidate’s opponent to help the opponent keep pace. See id. at 729. In 2008, 

the Supreme Court struck down the Millionaire’s Amendment in Davis v. FEC. Id. at 744. The 

Davis Court found that the law’s “asymmetrical” contribution limits burdened a candidate’s First 

Amendment right to make “unlimited expenditures of his personal funds” by “enabling his 

opponent to raise more money and to use that money to finance speech that counteracts and thus 

diminishes the effectiveness of [the self-funder’s] speech.” Id. at 734, 736. 

In the Commission’s subsequent rulemaking, the agency concluded that neither the Loan 

Repayment Limit nor its implementing regulation had been impacted by Davis. See Repeal of 

Increased Contribution and Coordinated Party Expenditure Limits for Candidates Opposing SelfFinanced Candidates, 73 Fed. Reg. 79,597, 79,600 (Dec. 30, 2008). The Commission noted that 

Davis did not address the validity of the Loan Repayment Limit, nor had it been challenged in 

that case. Id. The Commission also considered various factors indicating that Davis did not 

undermine the validity of the Loan Repayment Limit, since that limit: (1) had been codified in a 

different subsection of the U.S. Code than the Millionaire’s Amendment; (2) “has a wider 

application” than the provision struck down in Davis in that it applied to all federal candidates, 

not just House candidates opposing a self-funded candidate; (3) “can operate effectively without” 

the Millionaire’s Amendment because it does not rely in any way on that provision; and (4) was 

Case 1:19-cv-00908-APM Document 25 Filed 06/07/19 Page 18 of 56
9 

not intended by Congress to be “inextricably tied” to the Millionaire’s Amendment, given its 

distinct text, function, and legislative history. See also Advisory Opinion 2008-09 (Lautenberg) 

(concluding that 11 C.F.R. § 116.11 remained valid and applicable after Davis).

II. FACTUAL BACKGROUND AND PLAINTIFFS’ CLAIMS 

By a significant margin, the 2018 Texas Senate campaign between Senator Cruz and Beto 

O’Rourke was the most expensive Senate campaign in U.S. history.6

 Cruz declared his 

candidacy for re-election on May 4, 2016. Letter from Cabell Hobbs, Assistant Treasurer for the 

Committee, to Mr. Bradley Matheson, Reports Analysis Division, FEC (May 11, 2016).7 Cruz 

funded his campaign “in large part by contributions from individual supporters” (Compl. for 

Declaratory and Injunctive Relief (“Compl.”) ¶ 12 (Docket No. 1)), and indeed, during the 2018 

election cycle, the Committee raised more than $35 million — $29.2 million of which came from 

individual contributions, see FEC, Ted Cruz for Senate Financial Summary.8

On the day before the November 6, 2018 general election, Senator Cruz loaned his 

campaign $260,000. See Ted Cruz for Senate, FEC Form 3 at 401-02 (Jan. 31, 2019).9

 This was 

the only loan received by the Cruz campaign. FEC, Ted Cruz for Senate Financial Summary.10 

Of the total loan amount, $255,000 originated from Cruz’s margin-approved brokerage account, 

and $5,000 originated from Cruz’s personal bank accounts. (Compl. ¶ 28.) At the end of 

election day, the Committee had approximately $2.2 million cash on hand. (Id. ¶ 29.) 

 

6

 Most Expensive Races, OpenSecrets.org, https://www.opensecrets.org/overview/ 

topraces.php?cycle=2018&display=allcands (last viewed June 4, 2019). 

7

 https://docquery.fec.gov/pdf/557/201605110200177557/201605110200177557.pdf. 

8

 https://www.fec.gov/data/committee/C00492785/?cycle=2018. 

9

 http://docquery.fec.gov/pdf/325/201901319145235325/201901319145235325.pdf. 

10 https://www.fec.gov/data/committee/C00492785/?cycle=2018. 

Case 1:19-cv-00908-APM Document 25 Filed 06/07/19 Page 19 of 56
10 

Pursuant to the 20-Day Repayment Period, the Committee had until November 26, 2018 

to use its $2.2 million in cash on hand to repay Senator Cruz all or part of the $260,000 he had 

loaned it the day before the election. See 11 C.F.R. § 116.11(c)(1). During the 20-Day 

Repayment Period, however, the Committee “used the funds it had on hand to pay vendors and 

meet other obligations instead of repaying CRUZ’s loans.” (Compl. ¶ 29.) After the conclusion 

of the 20-day window, on November 27, 2018, the Committee was required to treat the $10,000 

of Cruz’s personal loans that exceeded the $250,000 Loan Repayment Limit, and which the 

Committee did not use its cash on hand to repay during the 20-Day Repayment Period, as a 

contribution from Cruz to his Committee. See 11 C.F.R. § 116.11(c)(2). 

Subsequently, using “money raised after the election,” the Committee repaid the statutory 

maximum of $250,000 of Cruz’s personal loans in four payments in December 2018. (Compl. 

¶¶ 30-31.) The entirety of those payments went toward Cruz’s personal loan that originated from 

his margin account. (Id. ¶ 30.) As a result, of the remaining $10,000 of Cruz’s personal loan 

that was converted to a contribution to his Committee, $5,000 originated from Cruz’s personal 

bank account and $5,000 originated from his margin loan. (Id. ¶¶ 31-32.) 

On April 1, 2019, plaintiffs filed a five-count complaint. (Compl. ¶¶ 34-51.) The first 

two counts challenge the constitutionality of the statute and the remaining three counts challenge 

the regulation. Plaintiffs’ statutory claims, Counts I and II, assert that that the Loan Repayment 

Limit violates the First Amendment on its face and as applied to plaintiffs and to “potential postelection donors to Plaintiffs.” (Id. ¶¶ 34-44). In Count III, plaintiffs claim that 11 C.F.R. § 

116.11 is likewise unconstitutional and violates the Administrative Procedure Act (APA”). (Id.

¶¶ 45-46.) In Count IV, plaintiffs claim that the 20-Day Repayment Period of section 116.11(c) 

is both unconstitutional and arbitrary and capricious in violation of the APA. (Id. ¶¶ 47-48.) 

Case 1:19-cv-00908-APM Document 25 Filed 06/07/19 Page 20 of 56
11 

Finally, in Count V, plaintiffs claim that the Commission’s regulation defining “personal loan” at 

section 116.11(a) violates the APA. (Id. ¶¶ 49-51.) Plaintiffs seek declaratory and injunctive 

relief. (Id. ¶ 52.) 

With their complaint, plaintiffs also filed an application for a three-judge court under 

BCRA’s special judicial review provision. (Pls.’ Appl. For a Three Judge Ct. (Docket No. 2).) 

ARGUMENT 

I. CLAIMS DO NOT QUALIFY FOR A THREE-JUDGE COURT UNDER BCRA 

§ 403 IF THEY ARE NON-JUSTICIABLE, INSUBSTANTIAL, OR 

CHALLENGING A REGULATION 

Section 403 of BCRA provides that a plaintiff may request the convening of a three-judge 

court pursuant to 28 U.S.C. § 2284, for actions challenging the constitutionality of “any 

provision” of BCRA or “any amendment made by” it. BCRA § 403(a), (d)(2) (reprinted at 52 

U.S.C. § 30110 (note)). A final decision by a three-judge court under BCRA § 403 “shall be 

reviewable only by appeal directly to the Supreme Court of the United States.” Id. § 403(a)(3). 

At this stage of the proceedings under BCRA § 403, it is the role of this Court “to 

determine how and by whom this case will be heard.” Republican Party of La. v. FEC, 146 F. 

Supp. 3d 1, 8 (D.D.C. 2015). While BCRA’s judicial-review provision states that a 

constitutional challenge to BCRA “shall” be heard by a three-judge court in this District, courts 

have established that the single-court judge to which the case is assigned plays a critical 

gatekeeper role. See Republican Party of La., 146 F. Supp. 3d at 8 (explaining that even though 

“BCRA’s judicial-review provision appears straightforward . . . [n]ot just any constitutional 

challenge needs to be heard by a three-judge court”). Indeed, the federal three-judge court 

statute, which BCRA 403 incorporates, explicitly gives a single district judge the authority to 

“determine[] that three judges are not required.” 28 U.S.C. § 2284(b)(1). 

Case 1:19-cv-00908-APM Document 25 Filed 06/07/19 Page 21 of 56
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This gatekeeper role is crucial because the Supreme Court has no discretion of its own to 

refuse adjudication on the merits in direct appeal cases. McCutcheon v. FEC, 572 U.S. 185, 196 

(2014). As a result, courts in this District have followed the Supreme Court’s direction that “due 

to an ‘overriding policy . . . of minimizing the mandatory docket of [the Supreme] Court in the 

interests of sound judicial administration,’ district courts are to narrowly construe statutory 

provisions providing for three-judge courts.” Rufer v. FEC, 64 F. Supp. 3d 195, 202 (D.D.C. 

2014) (quoting Gonzalez v. Automatic Emp. Credit Union, 419 U.S. 90, 98 (1974)). 

Consistent with that narrow construction mandate, applications for three-judge courts 

made pursuant to BCRA § 403 are subject to at least three important restrictions. First, the 

plaintiff’s claims must present a “‘justiciable controversy,’” including by satisfying Article III’s 

standing requirement. Republican Party of La., 146 F. Supp. 3d at 8 (quoting Schonberg v. FEC, 

792 F. Supp. 2d 14, 17 (D.D.C. 2011)). Second, the plaintiff’s case also “must present a 

‘substantial claim.’” Id. (quoting Schonberg, 792 F. Supp. 2d at 17); see also Shapiro v. 

McManus, 136 S. Ct. 450, 456 (2015) (explaining that “constitutional insubstantiality” is equated 

to concepts such as “wholly insubstantial” and “obviously without merit” (internal quotation 

marks omitted)). Third, the plaintiff’s claims must challenge statutory provisions of BCRA, and 

not Commission regulations. See, e.g., Bluman v. FEC, 766 F. Supp. 2d 1, 4 (D.D.C. 2011). 

As detailed below, these three restrictions on BCRA § 403 render all five of plaintiffs’ 

claims in this case ineligible for a three-judge court. First, plaintiffs lack standing. Second, even 

if plaintiffs had standing, all of their claims are so obviously foreclosed by Supreme Court 

precedent that they are not substantial enough for three-judge court review and direct appeal to 

the Supreme Court. Finally, Counts III, IV, and V of the complaint suffer from the additional 

flaw that they challenge the validity of Commission regulations, not BCRA. 

Case 1:19-cv-00908-APM Document 25 Filed 06/07/19 Page 22 of 56
13 

II. PLAINTIFFS’ CLAIMS ARE NOT JUSTICIABLE BECAUSE PLAINTIFFS 

LACK STANDING 

To qualify for a three-judge court under BCRA 403, the plaintiff’s claims must present a 

“‘justiciable controversy.’” Republican Party of La., 146 F. Supp. 3d at 8 (quoting Schonberg, 

792 F. Supp. 2d at 17). For example, “claims should not be heard by a three-judge court if 

Plaintiffs lack standing.” Id.; see also Shapiro, 136 S. Ct. at 455 (“[A] three-judge court is not 

required where the district court itself lacks jurisdiction.” (internal quotation marks omitted)). 

Plaintiffs cannot carry their burden of establishing that they have Article III standing. 

See Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015). To survive the FEC’s motion to dismiss 

under Rule 12(b)(1), plaintiffs’ complaint “must contain sufficient factual matter, accepted as 

true, to ‘state a claim [of standing] that is plausible on its face.’” Arpaio, 797 F.3d at 19 (quoting 

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Although the Court must accept as true all of the 

plaintiff’s well-pled factual allegations and draw all reasonable inferences in favor of the 

plaintiff, the Court need not accept the plaintiff’s legal conclusions as true. Id. The Court also 

need not “accept inferences that are unsupported by the facts set out in the complaint.” Id.

(internal quotation marks omitted). Also, this Court “may look beyond the allegations contained 

in the complaint” to “materials outside the pleadings” to determine whether plaintiffs can carry 

their burden of proving they have standing. Flores ex rel. J.F. v. District of Columbia, 437 F. 

Supp. 2d 22, 28-29 (D.D.C. 2006) (internal quotation marks omitted). 

“Every plaintiff in federal court bears the burden of establishing the three elements that 

make up the ‘irreducible constitutional minimum’ of Article III standing: injury-in-fact, 

causation, and redressability.” Dominguez v. UAL Corp., 666 F.3d 1359, 1362 (D.C. Cir. 2012) 

(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). Each of the two plaintiffs 

in this case must therefore have a distinct, actual injury that is connected to the relief requested 

Case 1:19-cv-00908-APM Document 25 Filed 06/07/19 Page 23 of 56
14 

for the case to be a “proper object of this District Court’s remediation.” Lewis v. Casey, 518 

U.S. 343, 358 (1996) (observing that the district court had found “actual injury on the part of 

only one named plaintiff”); Wagner v. FEC, 793 F.3d 1, 4 (D.C. Cir. 2015) (en banc) (explaining 

that claims of two of three plaintiffs had become moot). 

In addition, “‘[s]tanding is not dispensed in gross.’” Davis, 554 U.S. at 734 (quoting 

Lewis, 518 U.S. at 358 n.6); Wagner, 793 F.3d at 5 (same). It is therefore required that “a 

plaintiff must demonstrate standing for each claim he seeks to press and for each form of relief 

that is sought.” Davis, 554 U.S. at 734 (internal quotation marks omitted and emphasis added). 

A. Both Plaintiffs Lack Standing Because the Injuries They Allege Are SelfInflicted 

The D.C. Circuit has “consistently held that self-inflicted harm doesn’t satisfy the basic 

requirements for standing.” Nat’l Family Planning & Reprod. Health Ass’n, Inc. v. Gonzales, 

468 F.3d 826, 831 (D.C. Cir. 2006). Self-inflicted injuries are neither “cognizable under Article 

III,” nor “fairly traceable to the defendant’s challenged conduct.” Id. (finding no standing 

because “the association’s asserted injury appears to be largely of its own making”). Plaintiffs’ 

claimed injury — that the Committee now cannot repay Cruz’s $10,000 loan balance (Compl. ¶¶ 

32-33) — was self-inflicted in two independent ways. 

First, there is no rational explanation for Senator Cruz’s personal loans to the Committee 

other than as an attempt to manufacture an injury so plaintiffs could bring this lawsuit. Such an 

injury is self-inflicted, however, and thus cannot confer standing, because it was “substantially 

caused by the plaintiff’s own conduct.” Ellis v. Comm’r of IRS, 67 F. Supp. 3d 325, 336-37 

(D.D.C. 2014), aff’d, 622 F. App’x 2 (D.C. Cir. 2015) (per curiam). 

For example, in J. Roderick MacArthur Foundation v. FBI, a foundation had claimed that 

the FBI’s practice of maintaining records on the foundation would discourage grantees from 

Case 1:19-cv-00908-APM Document 25 Filed 06/07/19 Page 24 of 56
15 

seeking its grants and make it more difficult for the foundation’s employees to find future work. 

102 F.3d 600, 606 (D.C. Cir. 1996). The D.C. Circuit held that the foundation lacked standing 

because these alleged injuries were only possible if the FBI’s files were publicly known, and 

they were only publicly known when the foundation made the information public. Id. 

In this case, the timing, amount, and circumstances surrounding Cruz’s personal loans 

show that they could have served no purpose for the Cruz campaign other than to support this 

suit, and the complaint does not claim otherwise. The $260,000 loans were made to the 

Committee the day before the election. By that point, Senator Cruz had already been a candidate 

for more than two-and-a-half years. Not only had the Committee raised approximately $35 

million in contributions by that time, but on the date of the election, the Committee still had $2.2 

million in cash on hand. See FEC Form 3 (Report of Receipts and Disbursements), Ted Cruz for 

Senate, Post-General 2018 at 7791-92 (“Post-General Report”).11 Thus, Senator Cruz’s 

$260,000 loan amounted to barely more than one-tenth of the cash the Committee already 

possessed with less than 24 hours to go before the election. Any notion that the loan might have 

been helpful for paying the campaign’s other debts is undermined by the Committee’s 

contemporaneous spending: on the same day Cruz made his loan to the Committee, the 

Committee donated $200,000 to the Texas Republican Party. See id. at 7790. 

Additionally, the amount and structure of the $260,000 loan are transparently tailored for 

a challenge to the validity of the Loan Repayment Limit and its regulation. A loan of $10,000 

less would not have been impacted by the $250,000 Loan Repayment Limit, and therefore 

plaintiffs would have no injury to bring this lawsuit. The excess $10,000 that represents 

plaintiffs’ alleged injury is also neatly divided between a $5,000 loan that Senator Cruz 

 

11 http://docquery.fec.gov/pdf/477/201812069134977477/201812069134977477.pdf 

Case 1:19-cv-00908-APM Document 25 Filed 06/07/19 Page 25 of 56
16 

originated from a margin loan and $5,000 that originated from Cruz’s personal bank account. 

The complaint does not attempt to explain why Senator Cruz saw fit to loan $5,000 in personal 

funds to a campaign that already had more than $2.2 million on the day before the election. But 

by doing so, it gave plaintiffs an alleged basis upon which to challenge the regulation’s 

determination that the statute applies to both types of personal loans. (See Compl. ¶¶ 49-51.) 

Plaintiffs’ litigation-driven machinations should not be permitted to provide a potential 

foundation for invalidating important, corruption-fighting election laws. 

Second, plaintiffs’ alleged injury was self-inflicted for the additional reason that, after 

they unnecessarily constructed the conditions necessary for their alleged injury, plaintiffs then 

chose not to take legally available steps to avoid that injury. A plaintiff has impermissibly selfinflicted its own injury where it “has within its grasp an easy means for alleviating the alleged 

[injury]” and yet “has chosen to remain in the lurch.” Gonzales, 468 F.3d at 831. 

For example, in Gonzales, the D.C. Circuit held that a family planning association lacked 

standing to sue a government agency where it claimed that uncertainty over how to comply with 

a purportedly conflicting statute and regulation might cause it to lose funding. Gonzales, 468 

F.3d at 829, 831. The association could have resolved this alleged uncertainty on its own, the 

D.C. Circuit explained, since the APA would have allowed it to simply ask the relevant agency 

to clarify the alleged uncertainty. Id. at 831. Because the plaintiff did not do so, it lacked 

standing. Id.12 

 

12 See also McConnell v. FEC, 540 U.S. 93, 228 (2003) (finding any injury to political 

candidates challenging law increasing limits on “hard money” contributions stemmed from their 

own choice not to accept such contributions); Grocery Mfrs. Ass’n v. EPA, 693 F.3d 169, 177 

(D.C. Cir. 2012) (concluding that costs and risks associated with producing a 15% ethanol blend 

was not traceable to the EPA’s decision to allow that blend on the market for fuel manufactures 

who chose to switch for financial reasons rather than any regulatory compulsion); Petro-Chem 

Processing, Inc. v. EPA, 866 F.2d 433, 438 (D.C. Cir. 1989) (holding that hazardous waste 

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17 

Here, after the election, plaintiffs could have avoided their alleged injury by repaying at 

least $10,000 to Cruz within 20 days from their $2.2 million in election-day cash on hand. See 

11 C.F.R. § 116.11(c)(1). Plaintiffs’ choice to allow the 20-Day Repayment Period to expire 

without repaying $10,000 to Cruz directly resulted in that amount being converted into an 

unrepayable contribution from Cruz to the committee. 

Plaintiffs’ choice to remain in the lurch was completely voluntary. The complaint admits 

that after the election the Committee “used the funds it had on hand to pay vendors and meet 

other obligations instead of repaying CRUZ’s loans.” (Compl. ¶ 29.) The complaint appears to 

suggest that plaintiffs were required to make this choice because the Committee ended the 

election with $406,194 in net debts outstanding. Id. But the Committee could have satisfied all 

of its obligations by using its $2.2 million in cash on hand to pay down its $2.5 million in debt — 

including $10,000 to Cruz. And then the Committee could have raised $406,194 in post-election 

contributions to repay the remaining $250,000 it owed to Cruz (as the Committee later did (see

Compl. ¶¶ 30-31)), and to repay the remaining $156,194 of its net debts outstanding. 

Plaintiffs’ preference to use post-election contributions to repay Cruz’s $10,000 in 

violation of federal law instead does not constitute an injury that confers standing. It was a mere 

“self-inflicted budgetary choice.” Am. Soc. For Prevention of Cruelty to Animals v. Feld Entm’t, 

Inc., 659 F.3d 13, 25 (D.C. Cir. 2011) (citation and internal quotation marks omitted). For 

 

disposal companies that chose geologic repositories over safer methods did so in their own 

economic self-interest, breaking the causal chain between the threatened injury and EPA’s 

regulations); Afifi v. Lynch, 101 F. Supp. 3d 90, 110 (D.D.C. 2015) (finding a lack of standing to 

bring claim that the FBI’s investigation of plaintiff cost him employment opportunities because 

potential employers only knew about the investigation due to plaintiff’s decision to publicize it in 

the media); 13A Charles Alan Wright et al., Fed. Practice and Procedure § 3531.5 (3d ed. April 

2019 Update) (“At some point, standing may be denied because the injury seems solely—or 

almost solely—attributable to the plaintiff.”). 

Case 1:19-cv-00908-APM Document 25 Filed 06/07/19 Page 27 of 56
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example, in Huron v. Berry, a district court dismissed a family’s challenge to the federal 

government’s decision to approve certain health insurance plans for its employees that lacked 

coverage for devices that aid communication-impaired individuals. 12 F. Supp. 3d 46, 47 

(D.D.C. 2013), aff’d sub nom. Huron v. Cobert, 809 F.3d 1274 (D.C. Cir. 2016). The family had 

a self-inflicted injury, and therefore lacked standing, because it had elected to enroll in an 

allegedly offending plan rather than selecting a different plan offering the coverage needed. Id.

at 53. It “makes no difference,” the court stated, that the family’s choice of plan was “motivated 

by cost considerations and other family members’ healthcare needs.” Id. 

Similarly, in the campaign finance context, the D.C. Circuit has held that plaintiffs cannot 

impose First Amendment harm on themselves by foregoing legally available options for their 

desired spending in lieu of more burdensome and illegal spending options. See Stop This 

Insanity, Inc. Emp. Leadership Fund v. FEC, 761 F.3d 10 (2014). In Stop This Insanity, the 

Court of Appeals rejected a corporation’s argument that its connected political committee should 

be free from FECA’s restrictions on its ability to solicit funds to pay for electoral speech. Id. at 

11. The D.C. Circuit pointed out that the corporation itself already had the ability under FECA 

to freely solicit funds to pay for its speech. Id. at 11, 14. As a result, the plaintiff had passed up 

a “less burdensome” and “more robust option” for its desired spending, and then, “trapped in a 

snare it has fashioned for itself,” the plaintiff “claim[ed] there is a constitutional right to do 

things the hard way.” Id. at 14. The D.C. Circuit’s response: “We cannot sanction such an 

illogical conclusion.” Id. Likewise, this Court should reject plaintiffs’ attempt to repay Cruz 

using “the hard way.”13

 

13 Plaintiffs desire to repay Cruz’s $10,000 the “hard way” distinguishes this case from the 

D.C. Circuit’s recent ruling in Libertarian National Committee, Inc. v. FEC, ___ F.3d ___, No. 

18-5227, 2019 WL 2180336 (D.C. Cir. May 21, 2019) (en banc). There, the D.C. Circuit held 

Case 1:19-cv-00908-APM Document 25 Filed 06/07/19 Page 28 of 56
19 

Additionally, the complaint’s suggestion that plaintiffs needed “to pay vendors and meet 

other obligations instead of repaying CRUZ’s loans” due to concerns unrelated to the statute 

(Compl. ¶ 29), not only fails to establish standing, but is also unsupported by the alleged and 

publicly available facts. As an initial matter, the Committee’s own disclosures to the FEC reveal 

that it could have made a $10,000 payment to Cruz within the 20-Day Repayment Period without 

altering its other spending at all. The Committee made only $1,977,738.60 in total 

disbursements within the 20-Day Repayment Period, meaning that it still had over $200,000 cash 

on hand at the end of the 20-day window with which it could have made a $10,000 payment to 

Cruz. See Post-General Report at 7725-7790 (date).14 

Furthermore, within the 20-day period the Committee made disbursements that make 

evident that the Committee could not have been motivated by a desire to pay vendors and other 

obligations before repaying Cruz. For example, on November 26, 2018, the Committee made a 

$2,000 donation to the Texas Pastor Council, undermining any suggestion that it could not repay 

Cruz any of his $10,000 debt because it had to “pay vendors and meet other obligations.” 

Compl. ¶ 29; Post-General Report at 7790.15 On the same day, the Committee also made a 

$886.60 payment to Senator Cruz for “Travel – Mileage/Per Diem” and a $63.66 payment to his 

wife for “Travel.” Id. at 7768-69. Unlike the repaying of Cruz’s loan, neither the donation to the 

 

that a political party had not caused its own injury by refusing to accept an entire bequeathed 

contribution at once because FECA required it “to choose between immediate access to the 

money [that had been contributed to the party] and long-term flexibility in spending it.” Id. at 

*3. That court said that when the “committee chose the lesser of two evils” and refused to accept 

the entire contribution subject to restrictions on how it could be spent, that choice did not 

“transform[] FECA’s limitation into a self-imposed restriction.” Id. In contrast here, plaintiffs 

voluntarily chose to forego an option with no “evil” attached to it at all: using its cash on hand to 

repay Cruz’s $10,000 debt. 

14 http://docquery.fec.gov/pdf/477/201812069134977477/201812069134977477.pdf. 

15 Id.

Case 1:19-cv-00908-APM Document 25 Filed 06/07/19 Page 29 of 56
20 

Texas Pastor Council nor the travel reimbursements to the Cruzes needed to be made during the 

20-Day Repayment Period. In other words, the Committee could have paid back $950.26 of 

Cruz’s loan within the 20-day window on November 26, 2018, instead of using that same money 

to reimburse Cruz and his wife for travel expenses, thereby putting all parties in the same exact 

financial position but allowing that additional $950.26 to be paid outside the 20-day window 

using other cash on hand or post-election contributions. It chose not to do so. 

Finally, the Committee’s ability to repay $10,000 to Cruz before paying its vendors 

within the 20-day window is further demonstrated by its commencement of repayments to Cruz 

as soon as the 20-day period ended, before payment of all vendors. On December 4, 2018, the 

Committee used post-election contributions to make a $25,000 payment to Cruz (and an 

additional $225,000 in payments over the following three weeks). (Compl. ¶¶ 30-31.) But from 

December 5, 2018 to the end of 2018, the Committee paid an additional $263,765.60 to vendors, 

payroll, and other obligations. See FEC Form 3 (Report of Receipts and Disbursements), Ted 

Cruz for Senate, Year-End 2018 at 351-97 (Jan. 31, 2019).16 If the Committee were truly 

concerned about its ability to pay vendors, it would have waited to pay back Cruz until all such 

vendors had been paid. The facts therefore do not support the complaint’s suggestion that the 

Loan Repayment Limit forced plaintiffs into a Hobson’s choice whereby they could not pay Cruz 

back $10,000 and also meet their obligations to vendors. 

 Plaintiffs’ pretense for their self-inflicted injury lacks legal merit and is inconsistent with 

the facts. Plaintiffs lack standing because any such injury was entirely due to their own choices. 

 

16 http://docquery.fec.gov/pdf/325/201901319145235325/201901319145235325.pdf. 

Case 1:19-cv-00908-APM Document 25 Filed 06/07/19 Page 30 of 56
21 

B. The Committee Lacks Standing Because It Has No Injury 

Even if this Court were to find that Senator Cruz was injured by involuntarily having 

made a $10,000 contribution to his winning Senate campaign, it should nonetheless find that the 

Committee lacks standing. The Committee has $10,000 more as a result of Cruz’s loan-turnedcontribution, and therefore lacks any injury. As discussed above, each plaintiff in this case bears 

its own burden of establishing standing. In this case, because plaintiffs’ chose not to repay 

$10,000 of Cruz’s personal loans during the 20-Day Repayment Period, 11 C.F.R. § 116.11(c)(2) 

requires that $10,000 be characterized as a contribution to the Committee. Therefore, as a result 

of the laws that plaintiffs challenge, the Committee has benefitted by $10,000. Being in a better 

financial position as a result of a law cannot constitute an “injury.” See, e.g., Baker v. Adler, No. 

81-1779, 1982 WL 1396, at *2 (D.C. Cir. Apr. 8, 1982) (stating that a plaintiff lacks standing 

where “rather than being injured” it “has actually benefited” from the challenged action by 

receiving “monies involved” (internal quotation marks omitted)). 

C. Plaintiffs Cannot Assert Standing for Potential Contributors 

Plaintiffs not only claim to have suffered an injury themselves as a result of the Loan 

Repayment Limit, they also claim that it “restricts the speech of those potential donors who 

would otherwise support a candidate financially by contributing after an election to fund preelection political speech.” (Compl. ¶¶ 3, 44.) But plaintiffs do not have standing to assert 

constitutional claims on behalf of these hypothetical potential donors that are not plaintiffs in this 

case. Furthermore, it seems highly unlikely that any such potential donors even exist and 

plaintiffs have identified none. And even if such donors did exist, they would not have suffered 

any injury as a result of the Loan Repayment Limit. 

Case 1:19-cv-00908-APM Document 25 Filed 06/07/19 Page 31 of 56
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1. No Potential Contributors Are Plaintiffs in This Case and 

There is No Reason to Believe Any Exist 

Plaintiffs lack standing to make a claim on behalf of potential post-election donors. “In 

the ordinary course, a litigant must assert his or her own legal rights and interests, and cannot 

rest a claim to relief on the legal rights or interests of third parties.” Powers v. Ohio, 499 U.S. 

400, 410 (1991). The Supreme Court has described some limited exceptions where litigants can 

assert claims of third parties. Id. at 411. However, “[b]ecause third party standing is the 

‘exception’ rather than the norm, the burden is on the plaintiff ‘to establish that [he] has third 

party standing, not on the defendant to rebut third party standing.’” Al-Aulaqi v. Obama, 727 F. 

Supp. 2d 1, 23 (D.D.C. 2010) (quoting Amato v. Wilentz, 952 F.2d 742, 750 (3d Cir.1991)). 

Plaintiffs here have made no effort to establish that such third party standing is 

warranted, nor could they. A plaintiff may qualify for the exception to the rule against thirdparty standing only if “three important criteria are satisfied.” Powers, 499 U.S. at 411. Plaintiffs 

in this case cannot satisfy at least two of these requirements. 

The first criterion is that “the litigant must have suffered an ‘injury in fact,’ thus giving 

him or her a ‘sufficiently concrete interest’ in the outcome of the issue in dispute.” Powers, 499 

U.S. at 411 (quoting Singleton v. Wulff, 428 U.S. 106, 112 (1976)). As discussed in Parts II.A 

and II.B, supra, the plaintiffs lack standing and therefore cannot bring a claim on behalf of any 

third parties. 

The third criterion is also absent in this case — “there must exist some hindrance to the 

third party’s ability to protect his or her own interests.” Powers, 499 U.S. at 411. The Supreme 

Court has indicated that this prong may be met, for example, in the context of a criminal 

defendant asserting the rights of an improperly excluded juror because although “individuals 

excluded from jury service on the basis of race have a right to bring suit on their own behalf, 

Case 1:19-cv-00908-APM Document 25 Filed 06/07/19 Page 32 of 56
23 

the ‘barriers to a suit by an excluded juror are daunting.’” Georgia v. McCollum, 505 U.S. 42, 56 

(1992) (quoting Powers, 499 U.S. at 414). 

But there are no such daunting barriers to a suit here. If there are potential contributors 

that believe that their First Amendment rights are being infringed due to the Loan Repayment 

Limit, there is no reason why such individuals are incapable of attempting to join with plaintiffs 

in this case or attempting to bring their own litigation. Numerous contributors or would-be 

contributors have brought suit to challenge provisions of FECA, either on their own or with 

committee or party plaintiffs. See, e.g., McCutcheon, 572 U.S. at 194 (potential contributor 

brought suit along with national party to challenge FECA’s aggregate contribution limits); 

Wagner, 793 F.3d at 3 (three federal contractors brought suit to challenge FECA ban on federal 

contractor contributions); Bluman, 800 F. Supp. 2d at 282 (two foreign nationals challenged 

FECA’s prohibition on contributions and expenditures by foreign nationals); Rufer, 64 F. Supp. 

3d. at 200 (individual contributor and political parties challenged FECA’s limitations on 

contributing and spending “soft money”).17

In addition, plaintiffs have failed to plead that there actually are any “potential postelection donors” to the Cruz Committee that have been injured by the Loan Repayment Limit. 

The chances that any such donors exist is vanishingly small. Because the Committee still had 

net debts outstanding after election day, individuals interested in expressing their support for 

Senator Cruz’s candidacy were already legally able to make post-election contributions to the 

 

17 For many of the same reasons, plaintiffs also lack standing to bring a claim that the Loan 

Repayment Limit is unconstitutional as applied to losing candidates. (Compl. ¶ 40.) There is no 

losing candidate that is a party to this case, and plaintiffs have made no attempt to meet their 

burden of establishing third-party standing with respect to losing candidates. Nor could they, 

because even if plaintiffs themselves have standing here, they lack a “close relation” to any 

losing candidate and there is no reason why losing candidate could not bring his or her own 

lawsuit. See Powers, 499 U.S. at 411. 

Case 1:19-cv-00908-APM Document 25 Filed 06/07/19 Page 33 of 56
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Committee to pay off that net debt, see 11 C.F.R. § 110.1(b)(3)(i), including the portion of that 

net debt attributable to $250,000 of Cruz’s personal loan, see id. § 116.11(b)(2). As a result, the 

Loan Repayment Limit would only be a hindrance to someone who wanted to give a postelection contribution to the Committee, but only if that contribution would be used to repay the 

$10,000 portion of Senator Cruz’s personal loans that exceeded $250,000, rather than to repay 

the $250,000 or any other campaign obligations, which the law allows. 

Plaintiffs’ complaint does not state that such a person exists, even though it does allege 

that the Committee used “money raised after the election” to repay $250,000 of Cruz’s loan. 

(Compl. ¶ 31.) Many contributors presumably intend that their donations be used for campaignrelated purposes. Cf. FEC v. Craig for U.S. Senate, 70 F. Supp. 3d 82, 99 (D.D.C. 2014) 

(discussing donor intent in the context of FECA’s personal use prohibition), aff’d 816 F.3d 829 

(D.C. Cir. 2016). Nothing in the complaint states that any of those post-election contributors 

insisted that their contributions be used to repay any portion of Cruz’s personal loan, let alone 

the $10,000 portion of that loan exceeding the Loan Repayment Limit. 

2. Potential Contributors Have No Injury Because Neither the Law Nor 

Regulation Prevent Them From Making Contributions to the 

Campaign 

Even if plaintiffs could identify a potential post-election contributor to the Committee 

who would contribute only if the contribution were specifically used to pay back Cruz’s $10,000 

— that person still would not have suffered any legally cognizable injury if the Committee used 

the contribution to pay vendors rather than Senator Cruz. The Supreme Court has explained that 

the First Amendment value of a contribution is that it constitutes a “symbolic expression of 

support” for a candidate and serves to “affiliate a person with a candidate.” Buckley, 424 at 21-

22. A contributor’s First Amendment rights are not dependent upon the timing of the 

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25 

contribution or the manner in which a campaign actually uses that contribution. Id. at 21 

(“While contributions may result in political expression if spent by a candidate or an association 

to present views to the voters, the transformation of contributions into political debate involves 

speech by someone other than the contributor.”). Indeed, since contributors have no right to 

direct the use of funds, each spending decision is generally “an independent one on the part of 

the campaign.” Holmes v. FEC, 875 F.3d 1153, 1167 (D.C. Cir. 2017) (en banc). Potential 

contributors therefore would lack any cognizable injury because they would be able to give a 

symbolic expression of support to Senator Cruz and affiliate themselves with him by making 

contributions — regardless of whether the contribution was made pre- or post-election or how 

the Committee spent the money. The Loan Repayment Limit does not prevent any person from 

making a contribution, and therefore no potential contributor could possibly be harmed by it. 

III. PLAINTIFFS’ CONSTITUTIONAL CLAIMS ARE WHOLLY INSUBSTANTIAL 

Even if the Court finds that any plaintiff has standing, it should deny plaintiffs’ 

application for a three-judge court for the separate and independent reason that plaintiffs have 

failed to “present a ‘substantial claim,’” as they must. Republican Party of La., 146 F. Supp. 3d 

at 8 (quoting Schonberg, 792 F. Supp. 2d at 17). Claims fall short of this standard if they are 

“‘obviously without merit,’ or if their ‘unsoundness so clearly results from the previous decisions 

of [the Supreme Court] as to foreclose the subject and leave no room for the inference that the 

question sought to be raised can be the subject of controversy.’” Id. (quoting Feinberg v. FDIC, 

522 F.2d 1335, 1338 (D.C. Cir. 1975)); see also Shapiro, 136 S. Ct. at 456 (explaining that 

claims do not qualify for a three-judge court under 28 U.S.C. § 2284 if they are “obviously 

without merit” (internal quotation marks omitted)). 

Case 1:19-cv-00908-APM Document 25 Filed 06/07/19 Page 35 of 56
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Plaintiffs’ constitutional claims against BCRA’s Loan Repayment Limit are foreclosed 

by Supreme Court precedent, most notably by Buckley v. Valeo and Davis v. FEC. And to the 

extent that this case is an implicit effort to overturn Supreme Court precedent, plaintiffs have 

asserted no “non-frivolous argument in favor of overturning [Supreme Court] precedent” as 

would be required to clear the insubstantiality bar. Holmes v. FEC, 823 F.3d 69, 74 (D.C. Cir. 

2016). 

Plaintiffs make no effort in their application for a three-judge court to explain why their 

challenge to the Loan Repayment Limit is not foreclosed. (See Docket No. 2.) Plaintiffs’ 

complaint generally asserts that the Loan Repayment Limit restricts core political speech and 

that the Supreme Court in other cases has invalidated unrelated campaign finance laws that also 

“restricted core political speech.” (Compl. ¶ 7.) But of course, the fact that some parts of FECA 

have been struck down as unconstitutional is not sufficient to make a colorable claim that the 

Loan Repayment Limit is similarly unconstitutional. 

For the reasons detailed below, plaintiffs’ claims are insubstantial. First, mere rational 

basis scrutiny should apply to the Loan Repayment Limit since it does not limit political speech. 

Neither Cruz nor any other candidate will have his or her First Amendment right to spend 

unlimited amounts on a political campaign hindered by the Loan Repayment Limit. The limit 

also does not burden the First Amendment rights of potential donors to Cruz or other candidates, 

who are free to contribute to candidates with whom they wish to support and affiliate. Second, 

even assuming plaintiffs could identify a burdened speech right, the Loan Repayment Limit 

Case 1:19-cv-00908-APM Document 25 Filed 06/07/19 Page 36 of 56
27 

would easily pass constitutional scrutiny given that the law limits the risk of corruption and its 

appearance in narrow circumstances where such concerns are at their zenith.18 

A. Rational Basis Scrutiny Should Apply to the Loan Repayment Limit Because 

It Does Not Burden the First Amendment Rights of Candidates, Campaign 

Committees, or Contributors 

Not every transaction made by a candidate or committee involves the exercise of political 

expression, and so not every transaction by a candidate or committee implicates the First 

Amendment. See, e.g., FEC v. O’Donnell, 209 F. Supp. 3d 727, 739-40 (D. Del. 2016). 

Plaintiffs’ complaint attempts to get around this reality by characterizing transactions that do not 

involve speech in a manner that purportedly suggests that they do. Plaintiffs’ complaint states 

that the Loan Repayment Limit violates the First Amendment because it “restricts political 

speech of candidates and their campaign committees,” while it also “restricts the speech of those 

potential donors who would otherwise support a candidate financially by contributing after an 

election to fund pre-election speech.” (Compl. ¶ 3.) But these generalities, which gloss over the 

actual mechanics of the Loan Repayment Limit, do not establish that the law restricts the speech 

rights of either candidates, their committees, or their potential donors. Rather, the provision 

merely sets conditions on a candidate having his or her loans repaid, which is not a constitutional 

right at all. 

 

18 Plaintiffs’ claims challenging Commission regulations in Claims III, IV, and V are 

similarly insubstantial; however, the Commission need not separately address the insubstantiality 

of those claims here, since BCRA § 403 reserves three-judge court consideration only for 

constitutional challenges to BCRA provisions. See infra, Part IV. 

Case 1:19-cv-00908-APM Document 25 Filed 06/07/19 Page 37 of 56
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1. The Repayment of a Personal Loan Does Not Constitute Political 

Speech 

Where a FECA spending restriction “does not regulate or affect speech or speech-related 

activities,” the law “does not implicate First Amendment concerns” and mere rational basis 

scrutiny applies. O’Donnell, 209 F. Supp. 3d at 739-40. 

In FEC v. O’Donnell, the court rejected a First Amendment claim against FECA’s 

provision banning campaigns from spending campaign funds on a candidate’s personal use. Id.

at 739. That law prohibits the use of campaign funds to pay expenses that would exist 

irrespective of the candidate’s campaign, such as for a mortgage or clothing. Id. The court held 

that heightened scrutiny did not apply to the law even though it limits the ability of a candidate 

and its committee to spend funds received from campaign contributors. Id. As the court 

explained, since the law “does not restrict the content of one’s message” or “limit the amount of 

speech or political activity in which one can engage,” the law “does not implicate First 

Amendment concerns.” Id. at 739. The court therefore upheld the law under rational basis 

scrutiny. Id.

Like money spent on a candidate’s personal use, money that repays a candidate’s 

personal loan after an election effectively goes into the candidate’s pocket, and not to fund 

speech or speech-related activities. The facts of this case are illustrative. If the Committee were 

able to raise an additional $10,000 in post-election contributions to repay Cruz, $5,000 of that 

amount would replenish “personal bank accounts” and the other $5,000 would satisfy Cruz’s 

obligation on the “margin loan that is secured with CRUZ’s personal assets.” (See Compl. ¶ 28.) 

Either way, no political speech is involved. 

As a result, plaintiffs are incorrect when they claim that the Loan Repayment Limit 

restricts political speech by “limiting the time period in which the candidate may raise money to 

Case 1:19-cv-00908-APM Document 25 Filed 06/07/19 Page 38 of 56
29 

communicate his or her political message.” (Compl. ¶ 3.) Again, repaying a candidate so their 

personal funds increase is not the communication of a political message. And it makes little 

sense to equate the two because when a candidate raises money after an election, by that time 

any political message has already been communicated. For example, if plaintiffs were to obtain 

the relief they seek here, the additional post-election contributions they may receive to repay 

$10,000 to Cruz would not result in any additional speech; rather, those contributions would be 

simply given to Cruz, who could then replenish his own bank account and repay his margin loan. 

Plaintiffs would have engaged in the same amount of speech with or without the Loan 

Repayment Limit, and they do not allege otherwise in their complaint.19 

2. The Loan Repayment Limit Does Not Impede a Candidate’s First 

Amendment Right to Make Unlimited Personal Expenditures to 

Pursue a Political Campaign 

The Loan Repayment Limit does not “infringe a candidate’s ‘fundamental . . . right to 

spend personal funds for campaign speech,’” as plaintiffs claim. (See Compl. ¶ 3 (quoting 

Davis, 554 U.S. at 738).) 

Dating back to 1976 in Buckley v. Valeo, the Supreme Court has established a clear 

constitutional line between restrictions on a candidate’s use of his or her own money to finance a 

campaign, and on a candidate’s use of other people’s money. FECA as originally drafted set 

“limits on expenditures by a candidate ‘from his personal funds, or the personal funds of his 

immediate family.’” Buckley, 424 U.S. at 51. The Court found that this limit on self-funding 

was an infringement on a candidate’s “First Amendment right to engage in the discussion of 

 

19 Not only that, but the Complaint contains no allegation that the Committee in fact used 

the $260,000 in personal loans it received from Cruz on political speech in the first place. In fact, 

the campaign’s publicly available campaign finance reports suggest that the Committee did not 

use the personal loans at all. See supra at pp. 15-16. 

Case 1:19-cv-00908-APM Document 25 Filed 06/07/19 Page 39 of 56
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public issues and vigorously and tirelessly to advocate his own election and the election of other 

candidates.” Id. at 52. Because Buckley also found that this infringement on a candidate’s First 

Amendment rights was not supported by a sufficient government interest, it held that the 

“restriction on a candidate’s personal expenditures is unconstitutional.” Id. at 54. But at the 

same time the Supreme Court held that candidates have the right to contribute and spend their 

own money without limit, it also upheld FECA’s individual contribution limits in part because 

such a contribution limit “entails only a marginal restriction upon the contributor’s ability to 

engage in free communication.” Id. at 20. 

The Loan Repayment Limit in no way “limit[s] the candidate’s ability to lend the 

campaign necessary funds,” as plaintiffs incorrectly allege. (Compl. ¶ 3.) While the Loan 

Repayment Limit was not yet law at the time of the Buckley decision, the analysis in Buckley

leaves no doubt about its constitutionality. Unlike the candidate expenditure limit struck down 

in Buckley, the Loan Repayment Limit does not infringe on a candidate’s ability to spend as 

much as he or she wants to engage in discussion of issues or on to advocate in an election. 

Senator Cruz was free to contribute or loan as much money as he wished to the Committee for 

such speech. The Loan Repayment Limit sets a narrow restriction only on how a campaign may 

repay such loans, and even then, only when such loans exceed $250,000, and even then, only 

after an election. The Loan Repayment Limit therefore is not even a “marginal restriction” on 

speech like the contribution limits upheld in Buckley, because while individual contributors are 

limited in the amount they can contribute to a campaign ($2,800 per election), a candidate like 

Senator Cruz has no such limit on the amount he can contribute or loan. The Loan Repayment 

Limit therefore does not directly infringe on candidate speech at all. 

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31 

Effectively conceding that the Loan Repayment Limit places no actual limit on a 

candidate’s ability to self-fund a campaign, plaintiffs argue that speech is only “effectively”

limited by the Loan Repayment Limit. (See Compl. ¶¶ 3, 7.) But there is no actual or effective 

infringement on speech in this case, and plaintiffs’ reliance on Davis v. FEC, 554 U.S. 724 

(2008) and Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 564 U.S. 721 (2011) 

is misplaced. Id. Just like the self-funding limit struck down in Buckley, both of the cases 

referenced by plaintiffs involved infringements on speech that are not present in this case. 

Davis is inapposite here because it involved a BCRA provision that penalized candidates 

for spending their own money in support of their campaigns. Prior to the enactment of BCRA, 

limits on contributions by individuals to campaigns were uniform across all races. Davis, 554 

U.S. at 728. The passage of BCRA’s “Millionaire’s Amendment” changed this, and according to 

that provision, if a candidate spent more than a certain amount of his or her own personal funds 

and certain other criteria were met, that candidate’s opponent could accept larger individual 

contributions, while the self-funding candidate’s contribution limits would remain the same. Id.

at 729. The Supreme Court struck down these “asymmetrical” limits because they “impose[d] an 

unprecedented penalty on any candidate who robustly exercises [the] First Amendment right” to 

self-finance. Id. at 739. Davis explained that a candidate considering self-funding “must 

shoulder a special and potentially significant burden if they make that choice,” because doing so 

would not only increase his or her quantity of speech, but also that of his or her opponent. Id. 

Similarly, Arizona Free Enterprise also has no bearing here because, like the law in 

Davis, the Arizona law at issue there also impermissibly imposed an asymmetrical penalty on 

self-funding candidates. The Arizona law provided that a candidate accepting public financing 

would receive additional public monies if his or her privately-financed opponent spent money 

Case 1:19-cv-00908-APM Document 25 Filed 06/07/19 Page 41 of 56
32 

above a certain threshold. Ariz. Free Enter., 564 U.S. 728-32. The Supreme Court struck down 

the Arizona law using the same reasoning as it did in Davis, citing the “‘special and potentially 

significant burden’” that a privately financed candidate faced in exercising his or her 

constitutional right to spend funds. Id. at 737 (quoting Davis, 554 U.S. at 739). 

The Loan Repayment Limit imposes no similar penalty on a self-funding candidate. 

Although neither of the above cases even mentions the Loan Repayment Limit, plaintiffs assert 

that the reasoning in these two cases supports their legal theory. (Compl. ¶¶ 3, 7.) But in fact 

these cases, consistent with Buckley, foreclose plaintiffs’ legal theory. Unlike the provisions at 

issue in Davis and Arizona Free Enterprise, the Loan Repayment Limit is not asymmetrical — it 

applies equally to all candidates and grants no special advantages to the opponent of a candidate 

who loans money to his or her campaign. The limit thus does not force candidates into a choice 

whether to help an opponent by exercising his or her constitutional rights or forego those rights. 

It also does not impermissibly “diminish the effectiveness of [the self-funder’s] speech” by 

amplifying the speech of the self-funder’s opponents. Davis, 554 U.S. at 736. 

3. Plaintiffs Fail to Allege that Cruz Desired to Loan Additional Funds 

or that the Loan Repayment Limit Prevents Campaigns from 

Amassing Resources for Effective Advocacy 

Plaintiffs’ claim that the Loan Repayment Limit effectively limits a candidate’s ability to 

lend his or her campaign necessary funds (Compl. ¶ 3) is further undermined by the absence of 

any allegation in the complaint that Cruz himself would have loaned additional funds to his 

campaign committee but for the Loan Repayment Limit.20 And nor could they because, as 

 

20 Even if they had made that allegation, the Loan Repayment Limit does not prevent a 

campaign from repaying a candidate’s personal loans in full. See 11 C.F.R. § 116.11(b)(1). 

Campaigns are free to fully repay personal loans before the election using any of its funds and 

within 20 days after the election using the campaign’s cash on hand as of the day after the 

election. Id. The Loan Repayment Limit applies only to a small subset of funds that present the 

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33 

demonstrated earlier, Cruz’s loans were transparently offered in the minimum amounts needed to 

attempt to manufacture standing. See supra pp 15-16. 

In any event, plaintiffs’ complaint suffers from a more fundamental defect in its 

hypothetical discussion of candidates loaning less money due to the Loan Repayment Limit. The 

complaint fails to make the allegation that campaigns will lack sufficient resources, a showing 

that would be necessary for a violation of First Amendment rights to occur. (See Compl. ¶ 3.) 

“Receiving money facilitates speech, to be sure, but a bank account balance becomes speech 

only when spent for expressive purposes.” Libertarian Nat'l Comm., Inc. v. FEC, No. 18-5227, 

2019 WL 2180336, at *11 (D.C. Cir. May 21, 2019) (en banc). Because the receipt of funds is 

not in and of itself speech, the Supreme Court has stated that contribution limits only 

unconstitutionally infringe on speech if they prevent a campaign from “amassing the resources 

necessary for effective [campaign] advocacy,” Randall v. Sorrell, 548 U.S. 230, 248 (2006) 

(quoting Buckley, 424 U.S. at 21). “That is because contribution limits that are too low can also 

harm the electoral process by preventing challengers from mounting effective campaigns against 

incumbent officeholders, thereby reducing democratic accountability.” Id. at 248-49 

(invalidating limits “amount[ing] to $200 per election per candidate”); see also Buckley, 424 

U.S. at 21 (“Given the important role of contributions in financing political campaigns, 

contribution restrictions could have a severe impact on political dialogue if the limitations 

prevented candidates and political committees from amassing the resources necessary for 

 

highest risk of quid pro quo corruption — those contributed after an election to repay a former 

candidate’s large personal debt. See id. §§ 116.11(b)(2)-(3). In fact, plaintiffs in this case lack 

standing for the very reason that the Loan Repayment Limit did not prevent the Committee from 

fully repaying Cruz’s personal loans. See supra p. 17, 19-20. 

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34 

effective advocacy.”) A law does not unconstitutionally infringe on the First Amendment rights 

of a campaign merely because it makes it more difficult to raise money. 

Yet that is exactly the plaintiffs’ theory. The mere possibility that the Committee might 

receive less money in loans as a result of the Loan Repayment Limit is not a constitutional 

infringement. After all, the Loan Repayment Limit is far from unique in this respect. Many 

campaign finance laws that have been upheld by the courts make it more difficult for campaigns 

to raise money given Congress’s important interest in preventing quid pro quo corruption and its 

appearance. For example, laws prohibiting campaign contributions from corporations, foreign 

nationals, and government contractors all make it harder for a campaign to raise funds. As do 

individual contribution limits, for example, but those limits are nonetheless constitutional as long 

as they continue to allow candidates to effectively speak. Randall, 548 U.S. at 248; Buckley, 424 

U.S. at 21. 

Given the millions of dollars raised by the Committee during the 2018 campaign, 

plaintiffs have understandably not asserted that the Loan Repayment Limit makes it impossible 

to engage in effective advocacy. Because the Committee was obviously capable of raising 

enough money to engage in effective advocacy, the allegation that the Committee’s rights could 

have been infringed if Senator Cruz loaned it less money than he preferred is wholly 

insubstantial. 

4. Potential Contributors Do Not Have a Right to Have Their 

Contributions Used for Any Specific Purpose 

Finally, plaintiffs argue that the Loan Repayment Limit “restricts the speech of those 

potential donors who would otherwise support a candidate financially by contributing after an 

election to fund pre-election political speech.” (Compl. ¶¶ 3, 44.) But this argument also fails to 

describe an infringement of speech. 

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35 

The Supreme Court explained in Buckley that contributions implicate the First 

Amendment rights of contributors in two ways. First, a “contribution serves as a general 

expression of support for the candidate and his views.” Buckley, 424 U.S. at 21. Second, 

contributions “serve[] to affiliate a person with a candidate.” Id. at 22. The contributor’s 

expression of support and act of affiliation are complete at the time he or she makes the 

contribution, and do not depend on what a campaign then does with the money. Id. at 21 

(“While contributions may result in political expression if spent by a candidate or an association 

to present views to the voters, the transformation of contributions into political debate involves 

speech by someone other than the contributor.”) 

This framework articulated in Buckley forecloses plaintiffs’ argument. The Loan 

Repayment Limit does not prevent any individual from making a contribution, either before or 

after an election. Contributors remain entirely free to make “a general expression of support for 

the candidate and his views” and to “affiliate . . . with a candidate.” Id. at 21-22. But an 

individual has no constitutional right to direct how her contribution is used after it leaves her 

hands. Such spending decisions belong to campaigns, not contributors. Holmes, 875 F.3d at 

1167. So there is no restriction on speech if a contribution that might otherwise be used to repay 

a candidate’s loan is directed to another purpose. And if an individual chooses not to contribute 

because he only wants his contribution to be used to repay a candidate’s loan, then it is not the 

Loan Repayment Limit preventing that speech, rather, it is the contributor’s own 

decisionmaking. 

B. Limiting the Use of Post-Election Contributions to Repay Personal Loans to 

$250,000 Easily Passes Constitutional Scrutiny 

Because the Loan Repayment Restriction does not burden any fundamental right, the 

Court should apply rational basis review when determining its constitutionality. Romer v. 

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36 

Evans, 517 U.S. 620, 631 (1996) (“[I]f a law neither burdens a fundamental right nor targets a 

suspect class, we will uphold the [law] so long as it bears a rational relation to some legitimate 

end.”); O’Donnell, 209 F. Supp. 3d at 740 (applying rational basis to FECA’s ban on the 

personal use of campaign funds because it does not implicate a First Amendment harm). 

Under rational basis review, a court is not to judge the “wisdom, fairness, or logic of 

legislative choices.” FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993). Instead, “those 

challenging the legislative judgment must convince the court that the legislative facts on which 

the classification is apparently based could not reasonably be conceived to be true by the 

governmental decisionmaker.” Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464 

(1981) (quoting Vance v. Bradley, 440 U.S. 93, 111 (1979)). Claimants attacking a legislative 

classification on rational-basis review have the burden “to negative every conceivable basis 

which might support it.” Beach Commc’ns, 508 U.S. at 315 (citation and quotation marks 

omitted). “[C]ourts are compelled under rational-basis review to accept a legislature’s 

generalizations even when there is an imperfect fit between means and ends.” Heller v. Doe, 509 

U.S. 312, 321 (1993) (“A classification does not fail rational-basis review because it ‘is not made 

with mathematical nicety or because in practice it results in some inequality.’” (quoting 

Dandridge v. Williams, 397 U.S. 471, 485 (1970))). 

 Here, the Loan Repayment Limit so clearly bears a rational relation to a legitimate 

government end that plaintiffs’ claims are wholly insubstantial. The Supreme Court has 

repeatedly held that the government has not just a legitimate, but an important and even 

compelling interest in lessening the risk that contributions to candidates and officeholders will 

result in quid pro quo corruption or its appearance. The Loan Repayment Limit here bears, at the 

very least, a rational relation to that important interest, given the heightened corruption risks 

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present when a campaign gives hundreds of thousands of dollars received after an election to a 

candidate or officeholder who can then essentially pocket those funds and use them for any 

purpose. 

1. The Government Has Not Just Legitimate, But Important and 

Compelling Interests in Lessening the Risk of Quid Pro Quo 

Corruption and Its Appearance 

Plaintiffs cannot show that the government lacks any legitimate interest to support the 

Loan Repayment Limit. Since the Supreme Court’s 1976 ruling in Buckley, federal courts have 

reaffirmed over and over again that even restrictions on political speech can be justified by the 

important governmental interests in preventing quid pro quo corruption or the appearance of quid 

pro quo corruption. For example, in Buckley, the Supreme Court upheld, under heightened 

scrutiny, FECA’s $1,000 per-election limit on contributions by individuals to candidates because 

that limit furthered the government’s anti-corruption interests. 424 U.S. at 26-27. As Buckley

explained, “‘[t]o the extent that large contributions are given to secure a political quid pro quo 

from current and potential office holders, the integrity of our system of representative democracy 

is undermined.” Id.

Similarly in 2003, citing the anti-corruption interests, the Supreme Court in McConnell

upheld BCRA’s ban on national political parties spending any donations they received that were 

not subject to FECA’s rules regarding permissible amounts and sources of contributions. 540 

U.S. at 143 (“Our cases have made clear that the prevention of corruption or its appearance 

constitutes a sufficiently important interest to justify political contribution limits.”). In 

McCutcheon, the opinion of the Court went so far as to note that the interest is “compelling” and 

“would satisfy even strict scrutiny.” 572 U.S. at 199. In O’Donnell, the district court relied upon 

the anti-corruption interests in holding that FECA’s ban on campaign funds being spent on 

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38 

personal use passed rational basis scrutiny. 209 F. Supp. 3d at 740-41. As that court explained, 

the personal use ban not only “reduces corruption and promotes public confidence in the 

campaign finance and political system,” but also has the added benefit of “increas[ing] 

participation in the political process by allowing contributors to support a campaign without 

worrying that their funds will be converted to personal use.” Id. at 740. 

These are but a few examples. For decades, the Supreme Court and other courts have 

reiterated that the government’s interest in preventing corruption and its appearance is important 

enough to sustain even FECA provisions that — unlike the Loan Repayment Limit — burden 

political speech and association. See, e.g., FEC v. Beaumont, 539 U.S. 146, 159-60 (2003) 

(upholding federal ban on contributions by corporations to candidates); FEC v. Colo. Repub. 

Fed. Campaign Comm., 533 U.S. 431, 457 (2001) (upholding federal limits on the amounts that 

national political parties could spend in coordination with their candidates on political speech); 

Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377, 390 (2000) (upholding state limits on 

contributions to candidates); Cal. Med. Ass’n v. FEC, 453 U.S. 182, 184-85 (1981) (upholding 

limits as applied to an association’s contributions to a multicandidate political committee); 

Holmes, 875 F.3d at 1156 (explaining that FECA’s contribution limits “aim to prevent the 

appearance or actuality of corruption” and that “[Buckley] rejected a constitutional challenge to 

those ceilings and that holding remains undisturbed”); Wagner v. FEC, 793 F.3d 1, 3 (D.C. Cir. 

2015) (en banc) (upholding ban on contributions by federal contractors to candidates); 

Republican Nat’l Comm. v. FEC, 698 F. Supp. 2d 150, 158-59 (D.D.C.) (three-judge court) 

(upholding BCRA’s ban on political parties spending donations not subject to FECA where the 

party promises not to link its officeholders with the donors), aff’d, 561 U.S. 1040 (2010). 

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Like these provisions, the Loan Repayment Limit’s purpose is also to mitigate the 

heightened risk of quid pro quo corruption and its appearance resulting from campaigns spending 

contributions they received after an election for the personal benefit of their candidate. As the 

sponsor of the Loan Repayment Limit explained, a candidate who incurred personal loans for his 

campaign should not be able “to get it back from [his or her] constituents under fundraising 

events that [he or she] would hold and then ask them: How would you like me to vote now that I 

am a Senator?” See 147 Cong. Rec. S2462 (daily ed. Mar. 19, 2001) (statement of Sen. 

Domenici); see also id. S2537 (daily ed. Mar. 20, 2001) (statement of Sen. Domenici) (‘‘If you 

incur debt from a personal loan and then you get elected as Senator, and then you go around and 

say, now I am Senator, I want you to get me money so I can pay back what I used of my own 

money to run for election. It is clear in this amendment that you cannot do that in the future.’’). 

Plaintiffs’ complaint suggests that their legal theory claims support from cases such as 

Citizens United v. FEC and Davis v. FEC, in which the Supreme Court struck down campaign 

finance laws as unconstitutional. (Compl. ¶ 7.) But the laws in those cases were struck down 

specifically because they were predicated on interests other than the government’s interest in 

preventing corruption and its appearance. See Davis, 554 U.S.at 740 (striking down law 

motivated by leveling electoral opportunities for candidates of different wealth rather than being 

“justified by any governmental interest in eliminating corruption or the perception of 

corruption”); Citizens United v. FEC, 558 U.S. 310, 348 (2010) (holding that infringement on 

speech could not be justified by an interest in “the corrosive and distorting effects of immense 

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aggregations of wealth”). By contrast, the Loan Repayment Restriction is motivated by the 

legitimate governmental interest in preventing corruption and its appearance.21 

2. The Loan Repayment Limit Is Rationally Related to the 

Government’s Anti-Corruption Interests and Not Overbroad 

Plaintiffs also cannot demonstrate, as they must, that the Loan Repayment Limit is an 

irrational means for Congress to address concerns about corruption and its appearance stemming 

from campaigns using funds received from contributors after an election to give directly to the 

candidate. Even if there are better means by which Congress could have addressed its anticorruption interests, the Loan Repayment Restriction would nonetheless easily pass 

constitutional muster under rational basis review. 

The Loan Repayment Limit does not restrict political spending. And courts have 

repeatedly held that even laws that do limit political contributions or spending (or even prohibit 

certain types of such spending) are not overbroad and are sufficiently tailored to the anticorruption interests where those restrictions target the types of contributions or spending most 

likely to result in corruption while leaving open other avenues for political speech and 

association. See, e.g., Buckley, 424 U.S. at 28, 29, 33-35 (contribution limits closely drawn to 

anticorruption interests because they focus on “the narrow aspect of political association where 

the actuality and potential for corruption have been identified”). 

For two reasons, the Loan Repayment Limit is tailored to apply in situations when the 

strength of the government’s already important interests are at their peak. First, the limit applies 

where a campaign has spent hundreds of thousands of dollars received after an election, at a time 

 

21 As a result, even if the Court were to find that the provision infringes on political speech 

and applied heightened scrutiny, the law would nonetheless be constitutional under the long line 

of cases identifying the prevention of corruption and its appearance as not just legitimate, but 

important and compelling government interests. 

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when the winner is already known and thus in a better position than a mere candidate to 

guarantee legislative favors to big donors. Second, the Loan Repayment Limit applies to funds 

given by a campaign to a candidate or officeholder who can then essentially pocket those funds 

and use them for any purpose. 

Given these two aspects of the Loan Repayment Limit, in the absence of the provision, an 

individual interested in obtaining legislative favor with a newly elected Senator or 

Representative could give up to a total of $5,600 ($2,800 for the primary and general elections) 

that would go directly into the pocket of that officeholder. Even when used for campaign-related 

purposes, large contributions that are “given to secure a political quid pro quo from current and 

potential office holders” undermine the “integrity of our system of representative democracy.” 

Buckley, 424 U.S. at 26-27. That system is threatened even further when federal candidates use 

contributions to subsidize their own personal expenses. At the very least, it appears corrupt to 

the public when candidates use contributions for their personal projects. And as the Supreme 

Court has explained, “the avoidance of the appearance” of corruption is “critical” to prevent the 

public’s “confidence in the system of representative Government” from being “eroded to a 

disastrous extent.” Buckley, 424 U.S. at 27 (internal quotation marks omitted).22 

 

22 In other contexts, the law recognizes the particular danger of elected officials receiving 

funds that they can use for any purpose from constituents. Giving something of value to a public 

official for the purpose of influencing an official act under other circumstances constitutes 

bribery. 18 U.S.C. § 201(b)(1). Similarly, the Senate Ethics Rules prohibit Senators from 

receiving gifts over $50, and limit the total amount of gifts a Senator may receive in an entire 

year to $100. See The Senate Code of Official Conduct, Select Committee on Ethics (March 

2015), Rule XXXV(2)(A), https://www.ethics.senate.gov/public/index.cfm/files/

serve?File_id=EFA7BF74-4A50-46A5-BB6F-B8D26B9755BF (last visited on June 5, 2019). The Loan 

Repayment Restriction is another means by which such quid pro quo corruption and its 

appearance are diminished. 

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 The Loan Repayment Limit is well-tailored for the additional reason that it does not 

restrict any avenues for independent political speech by candidates and campaign committees, or 

for contributions by candidate supporters. See supra pp. 29-35. Nor does the Loan Repayment 

Limit prevent campaigns from repaying candidate personal loans in full by using any funds 

before an election or by using their election-day cash on hand within 20 day of the election. See 

supra pp. 6-7. 

 Finally, the Loan Repayment Limit is not overbroad because it applies equally to all 

candidates, including candidates who lost an election, as plaintiffs claim (see Compl.¶ 40). As 

previously discussed, the Loan Repayment Limit does not infringe on speech, and the 

overbreadth doctrine would only be applicable if the First Amendment were implicated. See 

O’Donnell, 209 F. Supp. 3d at 740 (rejecting overbreadth challenge against the personal-use ban 

because defendants “fail to identify even one fact pattern in which a prohibited expense would 

interfere with political speech”). But even if the Court finds some infringement of speech, “the 

overbreadth doctrine is not casually employed.” L.A. Police Dep’t v. United Reporting Pub. 

Corp., 528 U.S. 32, 39-40 (1999). To strike down a statute for being overbroad, “the 

overbreadth of a statute must not only be real, but substantial as well, judged in relation to the 

statute’s plainly legitimate sweep.” Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973). 

Any overbreadth of the Loan Repayment Restriction would be insubstantial in relation to 

its legitimate sweep. First, the statute’s “plainly legitimate sweep” includes application to 

winning candidates and is thus extensive. Broadrick, 413 U.S. at 615. Though both winning and 

losing candidates carry debt from personal loans, winning candidates do possess a greater 

capacity to retire that debt through payment from contributions over time. See, e.g., Peter 

Overby, How Will Clinton Resolve Campaign Debt?, National Public Radio (May 14, 2018, 6:00 

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AM), https://www.npr.org/templates/story/story.php?storyId=90425733 (noting the comment of 

a former FEC Commissioner and counsel to a losing presidential campaign that “only winners 

have an easy time dealing with debt” and that debt retirement in the context of those not taking 

office “‘is the hardest task in American politics’”). 

But even so, winning candidates do not mark the full extent of the Loan Repayment 

Limit’s legitimate sweep, because incumbent candidates that lose are still officeholders for some 

time after their loss and other candidates who lose an election may be elected to federal office in 

the future.23 In any case, courts have repeatedly upheld FECA restrictions that apply to all 

candidates against overbreadth challenges, even if the justification applied more to some 

candidates than others. Buckley, 424 U.S. at 29 (even though “most large contributors do not 

seek improper influence over a candidate’s position or an officeholder’s action,” it is nonetheless 

justified as a “prophylactic” to limit the risk and appearance of corruption arising inherently 

from large contributions because it is “difficult to isolate suspect contributions”); McConnell, 

540 U.S. at 158-59 (restrictions on minor parties closely drawn despite unlikelihood of success 

because “[i]t is . . . reasonable to require that all parties and candidates follow the same set of 

rules designed to protect the integrity of the electoral process.”); Libertarian Nat’l Comm., 2019 

WL 2180336 at *6 (“Because the First Amendment does not require Congress to ignore the fact 

that candidates, donors, and parties test the limits of the current law, prophylactic contribution 

limits are permissible — even vital — to forestall the worst forms of political corruption.” 

(internal quotation marks and citations omitted)). 

 

23 The number of losing candidates who will never hold federal office to whom the Loan 

Repayment Restriction could apply is lessened even further by the fact that a substantial number 

of candidates for federal office are either not able to loan their campaign $250,000 or not able to 

raise $250,000 in campaign contributions. 

Case 1:19-cv-00908-APM Document 25 Filed 06/07/19 Page 53 of 56
44 

Indeed, if the Loan Repayment Limit did only apply to winning candidates, it would risk 

creating the very type of “asymmetrical” limit that the Supreme Court condemned in Davis, the 

primary case upon which plaintiffs’ rely. And such a law would be administratively problematic 

for candidates, because a candidate deciding to loan his or her campaign money in advance of 

the election would not be able to accurately determine the likelihood he or she might be repaid. 

Cf. O’Donnell, 209 F. Supp. 3d at 740-41 (suggesting that under rational basis review, the 

personal-use ban’s application to expenses “almost always personal in nature” would be 

constitutional even if justified only by “administrative efficiency”). 

Because plaintiffs have failed to identify any legitimate constitutional rights that are 

being infringed, and because plaintiffs cannot show that the Loan Repayment Limit fails to 

rationally serve government’s legitimate interest in diminishing quid pro quo corruption and its 

appearance, the Court should deny plaintiffs’ application for a three-judge court for failure to 

present a substantial question. 

IV. BECAUSE A THREE-JUDGE COURT COULD NOT INVALIDATE FEC 

REGULATIONS, THE APPLICATION SHOULD BE DENIED AS TO COUNTS 

III, IV AND V 

The Plaintiffs’ last three claims for relief all seek to invalidate the Commission’s 

regulation at 11 C.F.R. § 116.11, rather than the Loan Repayment Limit in the statute. (Compl. 

¶ 46 (claiming regulation is unconstitutional in its entirety); id. ¶ 48 (claiming 20-day limit in 

regulation is unconstitutional and unlawful under the APA); id. ¶ 51 (claiming that the 

regulation’s definition of “personal funds” is unlawful under the APA). But because these 

“alleged constitutional infirmities are found in the implementing regulations rather than the 

statute itself,” McConnell, 540 U.S. at 223, these constitutional claims cannot be heard by a 

three-judge court. Nor can the APA challenges to the Commission’s regulations be brought 

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45 

before a three-judge court, because BCRA only provides for three-judge court jurisdiction for 

actions challenging “the constitutionality of any provision of this Act or any amendment made by 

this Act.” BCRA § 403(a) (emphases added). The district court in McConnell held that the 

plaintiffs’ challenges to FEC regulations were unripe and that the proper venue to challenge them 

was a single-judge court under the Administrative Procedure Act, rather than in a three-judge 

court. McConnell v. FEC, 251 F. Supp. 2d 176, 264 (D.D.C. 2003). The Supreme Court 

affirmed this point: “As the District Court explained, issues concerning the regulations are not 

appropriately raised in this facial challenge to BCRA, but must be pursued in a separate 

proceeding.” 540 U.S. at 223. Because a three-judge court would “lack[] the jurisdiction to rule 

on the regulations,” McConnell, 251 F. Supp. 2d at 264, this Court should deny plaintiffs’ 

request for a three-judge court “insofar as it requests that a three-judge court hear its claim[s] that 

[the regulations are] unconstitutional,” Bluman, 766 F. Supp. 2d at 4. 

CONCLUSION 

For the foregoing reasons, the Court should deny plaintiffs’ application for a three-judge 

court and dismiss the case. 

Respectfully submitted, 

Lisa J. Stevenson (D.C. Bar No. 457628) 

Acting General Counsel 

lstevenson@fec.gov 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 

Harry J. Summers 

Assistant General Counsel 

hsummers@fec.gov 

June 7, 2019 

Case 1:19-cv-00908-APM Document 25 Filed 06/07/19 Page 55 of 56
2 

Kevin P. Hancock 

Acting Assistant General Counsel 

khancock@fec.gov 

/s/ Seth Nesin 

Seth Nesin 

Attorney 

snesin@fec.gov 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

1050 First Street, N.E. 

Washington, DC 20463 

(202) 694-1650 

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