IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

TED CRUZ FOR SENATE, et al., 

Plaintiffs, 

v. 

FEDERAL ELECTION COMMISSION, et al., 

Defendants. 

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Civil Action No. 19-908-NJR-APM-TJK 

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

Pursuant to FED. R. CIV. P. 56 and LCvR 7(h), Plaintiffs Ted Cruz for Senate and Rafael 

Edward (“Ted”) Cruz hereby move the Court to enter summary judgment in their favor on Counts 

I and II of their Complaint. For the reasons stated in the accompanying Memorandum of Points 

and Authorities and Statement of Undisputed Material Facts, Plaintiffs respectfully submit that 

there are no material facts in genuine dispute and that they are entitled to judgment as a matter of 

law on these claims. Plaintiffs pray that declaratory relief and a permanent injunction issue 

restraining Defendants, the Federal Election Commission and its current Commissioners, from 

enforcing 52 U.S.C. § 30116(j) in violation of the First Amendment. A proposed order is attached. 

Case 1:19-cv-00908-APM-TJK-NJR Document 61 Filed 06/09/20 Page 1 of 2
Dated: June 9, 2020 Respectfully submitted, 

Chris Gober 

 (D.C. Bar No. 975981) 

The Gober Group PLLC 

3595 RR 620 S., Suite 200 

Austin, TX 78738 

(512) 354-1787 

s/ Charles J. Cooper 

Charles J. Cooper 

 (D.C. Bar No. 248070) 

John D. Ohlendorf 

 (D.C. Bar. No. 1024544) 

J. Joel Alicea 

 (D.C. Bar. No. 1022784) 

COOPER & KIRK, PLLC 

1523 New Hampshire Avenue, N.W. 

Washington, D.C. 20036 

(202) 220-9600 

(202) 220-9601 (facsimile) 

ccooper@cooperkirk.com 

Attorneys for Plaintiffs 

Case 1:19-cv-00908-APM-TJK-NJR Document 61 Filed 06/09/20 Page 2 of 2
IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

TED CRUZ FOR SENATE, et al., 

Plaintiffs, 

v. 

FEDERAL ELECTION COMMISSION, et al., 

Defendants. 

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Civil Action No. 19-908-NJR-APM-TJK 

PLAINTIFFS’ MEMORANDUM OF POINTS 

AND AUTHORITIES IN SUPPORT OF THEIR 

MOTION FOR SUMMARY JUDGMENT 

Chris Gober 

 (D.C. Bar No. 975981) 

The Gober Group PLLC 

3595 RR 620 S., Suite 200 

Austin, TX 78738 

(512) 354-1787 

Charles J. Cooper 

 (D.C. Bar No. 248070) 

John D. Ohlendorf 

 (DC Bar. No. 1024544) 

J. Joel Alicea 

 (D.C. Bar. No. 1022784) 

COOPER & KIRK, PLLC 

1523 New Hampshire Avenue, N.W. 

Washington, D.C. 20036 

(202) 220-9600 

(202) 220-9601 (facsimile) 

ccooper@cooperkirk.com 

Attorneys for Plaintiffs 

June 9, 2020 

Case 1:19-cv-00908-APM-TJK-NJR Document 61-1 Filed 06/09/20 Page 1 of 40
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TABLE OF CONTENTS 

Page 

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

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

BACKGROUND .............................................................................................................................4 

I. BCRA Section 304’s Limit on the Repayment of Candidate Loans. ..................................4 

II. Senator Cruz’s 2018 Loans. .................................................................................................8 

III. Procedural History. ..............................................................................................................9 

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

I. The Loan-Repayment Limit Violates the First Amendment. ............................................11 

A. Because the Loan-Repayment Limit Burdens Core Political Speech, 

It Is Subject to Strict Scrutiny. ...............................................................................13 

B. The Loan-Repayment Limit Fails Even “Closely-Drawn” Scrutiny Because 

It Does Not Further Any Anti-Corruption Interest. ...............................................21 

C. The Loan-Repayment Limit Is Not Sufficiently Tailored. ....................................33 

II. Plaintiffs Are Entitled to Declaratory and Injunctive Relief. ............................................34 

CONCLUSION ..............................................................................................................................35 

Case 1:19-cv-00908-APM-TJK-NJR Document 61-1 Filed 06/09/20 Page 2 of 40
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TABLE OF AUTHORITIES 

Cases Page 

ACLU v. Mineta, 319 F. Supp. 2d 69 (D.D.C. 2004) .....................................................................34 

* Anderson v. Spear, 356 F.3d 651 (6th Cir. 2004) ..............................................8, 11, 14, 23, 27, 33 

* Arizona Free Enter. Club’s Freedom Club PAC v. Bennett, 

564 U.S. 721 (2011) ...................................................................1, 12, 13, 17, 21, 22, 23, 26, 33 

Beck v. Test Masters Educ. Servs. Inc., 

994 F. Supp. 2d 98 (D.D.C. 2014) ...........................................................................................34 

* Buckley v. Valeo, 424 U.S. 1 (1976) ............................................1, 4, 12, 13, 14, 18, 19, 20, 21, 22 

Citizens United v. FEC, 558 U.S. 310 (2010) ....................................................................24, 28, 29 

Colorado Republican Fed. Campaign Comm. v. FEC, 

518 U.S. 604 (1996) .................................................................................................................21 

* Davis v. FEC, 554 U.S. 724 (2008) .............................................1, 3, 13, 14, 16, 19, 20, 22, 23, 26 

Davis v. FEC, 501 F. Supp. 2d 22 (D.D.C. 2007) ...................................................................15, 16 

Dow Jones & Co. v. Ablaise Ltd., 606 F.3d 1338 (Fed. Cir. 2010) ...............................................35 

Elrod v. Burns, 427 U.S. 347 (1976) .............................................................................................34 

First Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765 (1978) ..............................................................18 

Glenn v. Thomas Fortune Fay, 222 F. Supp. 3d 31 (D.D.C. 2016) ...............................................35 

Gordon v. Holder, 721 F.3d 638 (D.C. Cir. 2013) ........................................................................35 

Libertarian Nat’l Comm., Inc. v. FEC, 

924 F.3d 533 (D.C. Cir. 2019) (en banc) .................................................................................20 

* McCutcheon v. FEC, 572 U.S. 185 (2014) ..........................3, 12, 21, 24, 25, 26, 27, 28, 33, 34, 35 

Nken v. Holder, 556 U.S. 418 (2009) ............................................................................................34 

Randall v. Sorrell, 548 U.S. 230 (2006) ........................................................................................24 

Scott v. Harris, 550 U.S. 372 (2007) .............................................................................................11 

United Mine Workers of America v. Illinois State Bar Ass’n, 

389 U.S. 217 (1967) .................................................................................................................15 

Statutes and Legislative Materials 

52 U.S.C. 

§ 30101(8)(A) ..........................................................................................................................29 

§ 30101(8)(B)(vii) ....................................................................................................................29 

§ 30101(9)(A) ..........................................................................................................................29 

§ 30101(9)(A)(i)...................................................................................................................4, 14 

§ 30109(a)(5)(A) ........................................................................................................................8 

§ 30109(a)(5)(B) ........................................................................................................................8 

Case 1:19-cv-00908-APM-TJK-NJR Document 61-1 Filed 06/09/20 Page 3 of 40
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§ 30109(d)(1)(A) ........................................................................................................................8 

§ 30114(b) ................................................................................................................................31 

§ 30116(a) ................................................................................................................................25 

§ 30116(a)(1)(A) ..........................................................................................................25, 26, 29 

§ 30116(j) ...............................................................................................................................2, 5 

ALASKA STAT. § 15.13.078(b)(1) ...................................................................................................28 

CAL. GOV’T CODE § 85307(b) .......................................................................................................28 

FLA. STAT. § 106.08(2)(c)(3) .........................................................................................................28

GA. CODE § 21-5-41(h) ..................................................................................................................28 

KAN. STAT. ANN. § 25-4157a(b) ....................................................................................................28 

MASS. GEN. LAWS ch. 55, § 7 ........................................................................................................28 

NEB. REV. STAT. § 49-1446.04 ......................................................................................................28 

N.Y. ELEC. LAW § 14-130(2) .........................................................................................................28 

17 R.I. GEN. LAWS §17-25-7.4 .......................................................................................................28 

S.C. CODE § 8-13-1328 ..................................................................................................................28 

TEX. ELEC. CODE § 253.042(a) ......................................................................................................28 

VA. CODE § 24.2-947.4:1 ...............................................................................................................28 

WASH. REV. CODE § 42.17A.445(3) ..............................................................................................28 

147 CONG. REC. 

S2459 (daily ed. Mar. 19, 2001) (statement of Sen. Feinstein) ...........................................6, 21 

S2460 (daily ed. Mar. 19, 2001) (statement of Sen. Domenici) ......................................6, 7, 21 

S2461 (daily ed. Mar. 19, 2001) (statement of Sen. Domenici) ..............................................22 

S2461 (daily ed. Mar. 19, 2001) (statement of Sen. Durbin) ...............................2, 7, 22, 32, 33 

S2462 (daily ed. Mar. 19, 2001) (statement of Sen. Durbin) ...........................................2, 7, 22 

S2462 (daily ed. Mar. 19, 2001) (statement of Sen. Domenici) ......................................2, 7, 32 

S2463 (daily ed. Mar. 19, 2001) (statement of Sen. DeWine) .........................................1, 6, 21 

S2464 (daily ed. Mar. 19, 2001) (statement of Sen. Sessions) ............................................7, 21 

S2465 (daily ed. Mar. 19, 2001) (statement of Sen. Sessions) ..............................................2, 7 

S2465 (daily ed. Mar. 19, 2001) (statement of Sen. Dodd) .................................................8, 23 

S2538 (daily ed. Mar. 20, 2001) (statement of Sen. DeWine) .............................................7, 22 

S2540 (daily ed. Mar. 20, 2001) (statement of Sen. McCain) ...................................2, 8, 23, 24 

S2540 (daily ed. Mar. 20, 2001) (statement of Sen. Durbin) ...............................................6, 21 

S2544 (daily ed. Mar. 20, 2001) (statement of Sen. Daschle) .............................................7, 23 

S2548 (daily ed. Mar. 20, 2001) (statement of Sen. Levin) .......................................................8 

S2853 (daily ed. Mar. 26, 2001) (statement of Sen. Reid) ..................................................8, 23 

Rules and Administrative Materials 

11 C.F.R. 

§ 100.82....................................................................................................................................29 

§ 100.83....................................................................................................................................29 

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§ 100.110..................................................................................................................................14 

§ 100.111(a) .........................................................................................................................4, 14 

§ 100.111(b) .........................................................................................................................4, 14 

§ 100.142....................................................................................................................................4 

§ 100.143....................................................................................................................................4 

§ 110.1(b)(1) ..............................................................................................................................6 

§ 110.1(b)(3) ............................................................................................................................20 

§ 110.1(b)(3)(i) ....................................................................................................................6, 29 

§ 110.1(b)(3)(ii)(C) ..............................................................................................................6, 20 

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

§ 110.1(b)(3)(iii)(C) ...................................................................................................................6 

§ 116.2........................................................................................................................................5 

§ 116.3..................................................................................................................................5, 29 

§ 116.11(a) .................................................................................................................................5 

§ 116.11(b)(3) ............................................................................................................................5 

§ 116.11(c)(1) ............................................................................................................................5 

§ 116.11(c)(2) ............................................................................................................................5 

FED. R. CIV. P. 25(d) ......................................................................................................................10 

FED. R. CIV. P. 56 ...........................................................................................................................11 

84 Fed. Reg. 2504 (Feb. 7, 2019) ....................................................................................................6 

4 NEB. ADMIN CODE ch. 10, § 004(02) ..........................................................................................28 

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INTRODUCTION 

“[T]he concept that government may restrict the speech of some elements of our society 

in order to enhance the relative voice of others is wholly foreign to the First Amendment . . . .” 

Buckley v. Valeo, 424 U.S. 1, 48–49 (1976). After all, “[t]he Constitution . . . confers upon voters, 

not Congress, the power to choose [elected federal officials], and it is a dangerous business for 

Congress to use the election laws to influence the voters’ choices.” Davis v. FEC, 554 U.S. 724, 

742 (2008). Accordingly, the Supreme Court has repeatedly affirmed that an attempt to “level 

electoral opportunities for candidates of different personal wealth” is not “a legitimate government 

objective, let alone a compelling one.” Arizona Free Enter. Club’s Freedom Club PAC v. Bennett, 

564 U.S. 721, 749–50 (2011). 

When Congress enacted the Bipartisan Campaign Reform Act of 2002 (“BCRA”), it 

included a provision—the so-called “Millionaire’s Amendment”—that openly flouts this principle. 

The Millionaire’s Amendment avowedly sought to “level the playing field” between wealthy 

candidates and their less wealthy rivals, 147 CONG. REC. S2463 (daily ed. Mar. 19, 2001) 

(statement of Sen. DeWine), and it did so through two related mechanisms. First, the Millionaire’s 

Amendment created a complicated system of “asymmetrical contribution limits” designed to 

impose a “special and potentially significant burden” on candidates who used their own “personal 

funds to finance campaign speech.” Davis, 554 U.S. at 738, 739, 744. In Davis, the Supreme Court 

struck that scheme down as flatly contrary to the core First Amendment right of a candidate “to 

engage in the discussion of public issues and vigorously and tirelessly to advocate his own 

election.” Id. at 738. 

But the Millionaire’s Amendment contained another provision—the one at issue in this 

case. Rather than targeting candidates who directly spend their own money advocating their 

Case 1:19-cv-00908-APM-TJK-NJR Document 61-1 Filed 06/09/20 Page 6 of 40
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election, that provision, enacted as Section 304 of BCRA and now codified at 52 U.S.C. § 30116(j), 

seeks to deter candidates from loaning money to their authorized campaign committee. Section 

304 was based on the recognition by the supporters of the Millionaire’s Amendment that “a lot of 

people who are very wealthy do not give money to their campaign; they loan it and say they will 

be repaid later.” 147 CONG. REC. S2461 (daily ed. Mar. 19, 2001) (statement of Sen. Durbin). The 

legislative history of the Millionaire’s Amendment leaves no doubt that this provision, too, was 

expressly designed to “better balance the playing field.” Id. at S2460 (statement of Sen. Domenici). 

Indeed, the senators debating the Amendment simply did not distinguish between the spending that 

wealthy candidates engaged in and the loans they made to their campaigns, instead treating these 

two forms of self-funding as equal and equivalent threats to the ability of “nonmillionaire 

Member[s]” of Congress to “run for their seat” against “some multimillionaire.” 147 CONG. REC. 

S2540 (daily ed. Mar. 20, 2001) (statement of Sen. McCain); see, e.g., 147 CONG. REC. S2462 

(daily ed. Mar. 19, 2001) (statement of Sen. Durbin); id. at S2465 (statement of Sen. Sessions); id. 

at S2462 (statement of Sen. Domenici). 

Section 304 deters these candidate loans by making it more difficult for the candidate’s 

campaign committee to repay them: it caps, at $250,000, the amount of candidate loans that a 

committee may repay using funds raised after election day for the purpose of paying back 

campaign debt owed to the candidate. To be sure, the loans may still be repaid with funds raised 

prior to the election, but there can be no question that Section 304’s loan-repayment limit forces a 

candidate to think twice before making those loans in the first place—and, if he does choose to 

loan more than $250,000, to do so at the substantially increased risk that the loan will never be 

repaid in full. Indeed, that is precisely how Defendants described the effect of Section 304 in prior 

briefing in this case: because of Section 304, the FEC explained, “a candidate deciding to loan his 

Case 1:19-cv-00908-APM-TJK-NJR Document 61-1 Filed 06/09/20 Page 7 of 40
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or her campaign money in advance of the election [will] not be able to accurately determine the 

likelihood he or she might be repaid.” Def. FEC’s Opp’n to Pls.’ Appl. for a Three-Judge Ct. & 

Mot. to Dismiss at 44 (June 7, 2019), Doc. 26 (“FEC’s MTD Br.”). Section 304 thus puts 

candidates to the following unpalatable choice: either limit your financial support of your own 

candidacy to $250,000, or fund your campaign above that amount with “loans” that in reality are 

likely to become donations. And it is obvious that for candidates who can only afford to support 

their election effort beyond the $250,000-level if there is some likelihood that any funds above 

that amount will be repaid after election day, the function (and design) of Section 304 is to prevent 

them from self-funding their campaign above that level at all. 

That burden on a candidate’s right to speak freely in favor of his own election cannot be 

squared with the First Amendment. Just like the portion of the Millionaire’s Amendment struck 

down in Davis, Section 304 imposes “a special and potentially significant burden” on any 

candidate “who robustly exercises th[e] First Amendment right” to financially support their own 

campaign. 554 U.S. at 739. Just like the provisions invalidated in Davis, Section 304 “is not 

justified by any governmental interest in eliminating corruption or the perception of corruption,” 

id. at 740—for even if the loan-repayment limit actually served an anti-corruption interest (and it 

does not), it would merely provide an additional and redundant layer of protection sitting atop the 

$2,800 individual contribution limit already in place, which the Supreme Court has held eliminates

any “cognizable risk of corruption” in this context as a matter of law, McCutcheon v. FEC, 572 

U.S. 185, 210 (2014). So just like the scheme in Davis, Section 304 and its implementing 

regulations “violate the First Amendment” and must be struck down. 554 U.S. at 744. 

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BACKGROUND 

I. BCRA Section 304’s Limit on the Repayment of Candidate Loans. 

A. The provisions challenged in this lawsuit limit the ability of a federal campaign 

committee to use funds contributed after an election to repay “personal loans” that the candidate 

made or incurred in support of his election campaign. While the limit challenged in this litigation 

is itself fairly straightforward, it sits at the intersection of a complex web of rules governing 

political expenditures by federal candidates, expenditures by their authorized committees, and the 

contributions by third-party contributors used to fund that spending. The loan-repayment limit at 

issue in this case affects all three of these actors. 

Candidates. Ever since the landmark decision in Buckley v. Valeo, it has been a 

foundational principle of campaign finance law that a candidate may spend unlimited amounts of 

his own money in support of his own campaign for election. 424 U.S. at 54. This self-financing 

can take the form not only of direct monetary expenditures but also of loans—for under federal 

law, the “expenditure” of money generally includes the conveyance of “anything of value,” and 

specifically includes “any . . . loan.” 52 U.S.C. § 30101(9)(A)(i); see also 11 C.F.R. § 100.111(a) 

(defining expenditure to include a “loan”); id. §§ 100.142 & 100.143 (excepting certain bank loans 

and lines of credit made in the ordinary course of business). A candidate can engage in 

expenditures in the form of loans both by lending money directly to his campaign or by 

guaranteeing a loan from a third-party lender, such as a bank. See id. § 100.111(a) & (b) (defining 

expenditure to include both a “loan” and “any guarantee or endorsement of a loan”). 

However, Section 304 of BCRA imposes a $250,000 limit on a committee’s ability to repay 

those “candidate loans” with post-election money, i.e., money contributed by donors after the 

election: 

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Any candidate who incurs personal loans made after the effective date of the 

Bipartisan Campaign Reform Act of 2002 in connection with the candidate’s 

campaign for election shall not repay (directly or indirectly), to the extent such 

loans exceed $250,000, such loans from any contributions made to such candidate 

or any authorized committee of such candidate after the date of such election. 

52 U.S.C. § 30116(j). While the text of Section 304 reaches only loans that a candidate “incurs” 

in connection with his campaign, id. (emphasis added), Defendant FEC has promulgated 

regulations implementing Section 304’s loan-repayment limit, and those regulations apply not only 

to loans incurred by the candidate for the benefit of his campaign, but also to loans that a candidate 

makes directly to the campaign from his personal funds. See 11 C.F.R. § 116.11(a). 

Committees. Section 304’s limit also acts as a restriction on spending by campaign 

committees. The speech and political activities of a committee leading up to an election are often 

financed on credit, leaving the committee with a variety of debts it must repay after election day. 

See 11 C.F.R. § 116.3 (allowing vendors to extend credit to committees in the ordinary course of 

business). Committees therefore often spend money after an election to pay for speech that 

occurred before the election. See generally 11 C.F.R. § 116.2 (rules governing committees’ 

repayment of post-election debts). The FEC’s regulations implementing Section 304’s loanrepayment restriction, however, limit these post-election expenditures in two ways. First, the 

regulations, like Section 304 itself, cap at $250,000 the amount of money contributed after the 

election that committees may use to repay candidate loans. 11 C.F.R. § 116.11(b)(3). And second, 

to the extent a committee wishes to repay candidate loans with money contributed before election 

day, it must prioritize those repayments ahead of any other expenditures it may wish to make, since 

it must make any such repayments of candidate loans “within 20 days of the election.” Id. 

§ 116.11(c)(1). Any candidate loan in excess of 250,000 that is not repaid within those first 20 

days must be treated “as a contribution by the candidate.” Id. § 116.11(c)(2). 

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Contributors. Finally, the challenged loan-repayment limit also restricts the actions of 

contributors. Federal law generally allows an individual to contribute money in support of a federal 

candidate’s election after election day, so long as (a) each contribution is within the contributor’s 

inflation-adjusted $2,800 contribution limit with respect to that candidate and that election, see 11 

C.F.R. §§ 110.1(b)(1), (b)(3)(iii)(C); 84 Fed. Reg. 2504, 2506 (Feb. 7, 2019), and (b) the sum of 

post-election contributions received by the committee does not exceed its “net debts outstanding” 

from that election—that is, the “total amount of unpaid debts and obligations incurred with respect 

to [the] election” less its cash on hand and receivables as of election day. See 11 C.F.R. 

§ 110.1(b)(3)(i). However, Defendant FEC’s rules cap at $250,000 the amount of post-election 

contributions that contributors can donate for the repayment of candidate loans, by providing that 

the calculation of “net debts outstanding” must exclude the amount of any candidate loans “that in 

the aggregate exceed $250,000 per election.” 11 C.F.R. § 110.1(b)(3)(ii)(C). 

B. Section 304 and the FEC regulations implementing it thus impose limits on 

candidates, their campaign committees, and their contributors—all with the goal of preventing the 

repayment of more than $250,000 of candidate loans with post-election money. Adopted as part 

of the “Millionaire’s Amendment,” this limit was designed to “level the playing field” between 

self-funding candidates and their non-self-funding opponents. 147 CONG. REC. S2463 (daily ed. 

Mar. 19, 2001) (statement of Sen. DeWine); Plaintiffs’ Statement of Undisputed Material Facts 

¶¶ 2, 12 (June 9, 2020) (“SOF”). Indeed, the congressional debate that ensued when the provision 

was introduced is replete with statements that the Amendment was “an attempt to level the playing 

field.” 147 CONG. REC. S2459 (daily ed. Mar. 19, 2001) (statement of Sen. Feinstein); see also, 

e.g., id. at S2540 (statement of Sen. Durbin) (“What we are trying to address with this amendment 

is to level the playing field.”); id. at S2460 (statement of Sen. Domenici) (attempting to “better 

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balance the playing field”); id. at S2464 (statement of Sen. Sessions) (“I believe we have an unfair 

situation. It makes it difficult for candidates to run on a level playing field.”); see SOF ¶¶ 3–11. 

And this was not simply the purpose of the Millionaire’s Amendment as a whole: it was 

the purpose of the loan-repayment limit in particular. SOF ¶ 12. The debate over the provision 

simply did not distinguish between wealthy candidates spending money and loaning it, because, 

as its sponsors noted, “a lot of people who are very wealthy do not give money to their campaign; 

they loan it and say they will be repaid later.” 147 CONG. REC. S2461 (daily ed. Mar. 19, 2001) 

(statement of Sen. Durbin); see also id. at S2462 (statement of Sen. Durbin) (“Think about what 

this institution will become if that is what one of the rules is to be part of the game: That you have 

to be loaning or contributing literally millions of dollars in order to be a candidate for public 

office.”); id. at S2465 (statement of Sen. Sessions) (amendment “prohibits wealthy candidates, 

who incur personal loans in connection with their campaign that exceed $250,000, from repaying 

those loans from any contributions made to the candidate.”); id. at S2462 (statement of Sen. 

Domenici) (“it should be a condition to your putting up your own money, knowing right up front 

you are not going to get it back from your constituents”); see SOF ¶¶ 12–18. Accordingly, as one 

co-sponsor made clear, the loan-repayment limit on “personal loans or property used for collateral 

for a loan to the campaign” was merely a part of the Amendment’s effort to “create greater fairness 

and accountability in the Federal election process by addressing the inequity that arises when a 

wealthy candidate pays for his or her campaign with personal funds.” 147 CONG.REC. S2538 (daily 

ed. Mar. 20, 2001) (statement of Sen. DeWine). 

In addition to “leveling the playing field,” several legislators opposed to the Millionaire’s 

Amendment pointed out that the provision also had an even more sinister design—it “protects 

incumbents.” 147 CONG. REC. S2544 (daily ed. Mar. 20, 2001) (statement of Sen. Daschle); SOF 

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¶ 19. After all, while challengers often need to spend significant amounts of seed money to raise 

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

356 F.3d 651, 673 (6th Cir. 2004) (“[A] candidate may need to speak early in order to establish 

her position and garner contributions.”), incumbents “have a lot of advantages that do not come 

out of our personal checkbooks,” 147 CONG. REC. S2465 (daily ed. Mar. 19, 2001) (statement of 

Sen. Dodd); see also id. at S2548 (daily ed. Mar. 20, 2001) (statement of Sen. Levin) (“The 

incumbent who already has the financial advantage and the incumbency advantage is then also 

given the advantage of having the higher contribution limits.”); id. at S2853 (daily ed. Mar. 26, 

2001) (statement of Sen. Reid) (“[The Millionaire’s Amendment] is an incumbent advantage 

measure in this underlying bill.”); see SOF ¶¶ 10–25. Indeed, in a remarkably forthright statement, 

Senator McCain—a supporter of the Amendment—noted that the provision 

addresses, in all candor, a concern that literally every nonmillionaire Member of 

this body has, and that is that they wake up some morning and pick up the paper 

and find out that some multimillionaire is going to run for their seat, and that person 

intends to invest 3, 5, 8, 10, now up to $70 million of their own money in order to 

win. 

Id. at S2540 (daily ed. Mar. 20, 2001) (statement of Sen. McCain); SOF ¶ 26. 

The penalties for violating the $250,000 limit found in BCRA and Section 116.11 are 

serious, including both civil and criminal penalties. See 52 U.S.C. §§ 30109(a)(5)(A); 

30109(a)(5)(B); 30109(d)(1)(A). 

II. Senator Cruz’s 2018 Loans. 

Prior to the November 6, 2018 election, Senator Cruz made or incurred two loans totaling 

$260,000 to the Cruz Committee to help finance his reelection campaign for the United States 

Senate. SOF ¶ 32. One loan, in the amount of $255,000, came from a third-party-lender margin 

account secured by Senator Cruz’s personal assets. SOF ¶ 33. The other loan, for $5,000, was 

made directly from Senator Cruz’s personal bank account. SOF ¶ 34. 

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At the end of November 6, the Cruz Committee did not have sufficient funds to both repay 

these loans and satisfy the Committee’s other creditors. SOF ¶ 35. In fact, while the Committee 

ended the election campaign with approximately $2.38 million deposited in, or in transit to, its 

bank accounts, it also owed about $2.7 million in debts it incurred in connection with the election—

including the $260,000 it owed to Senator Cruz—leaving it with approximately $337,748 in “net 

debts outstanding,” as of election day. SOF ¶¶ 36–38. During the 20 days following the election, 

the Committee used its cash on hand to satisfy debts to other creditors rather than repay Senator 

Cruz’s loans. SOF ¶ 40. Only in December of 2018—after 11 C.F.R § 116.11(c)’s 20-day deadline 

had passed—did the Committee begin to repay Senator Cruz’s personal loans. SOF ¶ 41. And at 

that point, in compliance with the challenged limits, the Committee only repaid Senator Cruz 

$250,000, leaving a total of $10,000 unpaid ($5,000 of the margin loan and the entirety of the 

$5,000 loan from Senator Cruz’s own bank accounts). SOF ¶¶ 42–44. 

III. Procedural History. 

Plaintiffs brought suit on April 1, 2019, challenging both Section 304 of BCRA and the 

FEC’s implementing regulation, 11 C.F.R § 116.11, as unconstitutional under the First 

Amendment’s Free Speech Clause. Compl. ¶¶ 34–48 (April 1, 2019), Doc. 1. The Complaint also 

alleges that Section 116.11 of FEC’s implementing regulation is contrary to law and arbitrary and 

capricious because it extends the loan-repayment limit not only to loans “incurred” by a candidate 

but also loans the candidate directly makes to his campaign from his personal funds, an 

interpretation contrary to the plain text of Section 304. Compl. ¶¶ 49–51. Because Plaintiffs’ 

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complaint includes a constitutional challenge to a provision of BCRA, Plaintiffs simultaneously 

filed an application for the constitution of a three-judge court pursuant to Section 403 of BCRA.1

Defendants resisted the convening of a three-judge court, arguing that Plaintiffs lacked 

standing and that they needed to take discovery in support of their standing argument. Defendants 

served discovery requests on May 9, 2019, which Plaintiffs answered with written responses and 

the production of over 2,500 pages of documents. On June 7, Defendants moved to dismiss, 

arguing that Plaintiffs’ lacked standing, that their constitutional claims were wholly insubstantial 

(and consequently outside the scope of BCRA § 403’s three-judge-court provision), and that the 

jurisdiction of a three-judge court convened under BCRA would not in any event extend to 

Plaintiffs’ challenge to the FEC’s implementing regulation, 11 C.F.R. § 116.11. On December 24, 

the Court denied FEC’s motion to dismiss in its entirety, concluding that Plaintiffs had standing to 

challenge Section 304, that their constitutional claims were substantial, and that the three-judge 

court would have supplemental jurisdiction over Plaintiffs’ regulatory challenge. The Court 

accordingly called for the convening of a three-judge court. 

On January 7, 2020, Defendants Answered Plaintiffs’ Complaint. On January 9, the Chief 

Judge of the D.C. Circuit Court of Appeals convened a three-judge court to hear and determine the 

case. On March 30, 2020, the Court assumed supplemental jurisdiction over Plaintiffs’ regulatory 

claims, rejecting the FEC’s objection that those claims were not sufficiently related to Plaintiffs’ 

constitutional challenge to support supplemental jurisdiction. On April 14, however, the Court held 

1

 Plaintiffs’ Complaint names as defendants both the FEC and its four Commissioners as 

of the date of filing. One of those named defendants, then-Commissioner Matthew Peterson, left 

office in August of 2019, and on May 19, 2020, the Senate confirmed the appointment of a new 

Commissioner, Trey Trainor, to the Commission. Under FED. R. CIV. P. 25(d), Mr. Peterson has 

been automatically terminated as a defendant in this action, and Mr. Trainor has been automatically 

added, without the need for any further action by the Parties or the Court. 

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those regulatory claims in abeyance, pending its decision on the claims challenging the 

constitutionality of Section 304. Plaintiffs now move for summary judgment on those 

constitutional claims. 

ARGUMENT 

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as 

to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56. 

There is no genuine issue of material fact if “the record taken as a whole could not lead a rational 

trier of fact to find for the nonmoving party.” Scott v. Harris, 550 U.S. 372, 380 (2007). Here, 

there are no material facts genuinely in dispute, and Plaintiffs are entitled as a matter of law to a 

judgment establishing that the loan-repayment limit violates the First Amendment, and that 

Defendants may not enforce that unconstitutional and invalid limit against Plaintiffs. 

I. The Loan-Repayment Limit Violates the First Amendment. 

Section 304 represents a remarkable intrusion on the rights of candidates and their 

campaign committees to make constitutionally protected decisions about how and when to speak 

during an election. During the heat of a campaign, a candidate may determine that she must give 

or loan her own money to her campaign to fund additional speech. That is particularly true of a 

challenger, who “may need to speak early in order to establish her position and garner 

contributions.” Anderson, 356 F.3d at 673. And in the critical days before an election, a campaign’s 

creditors are in an especially precarious position, since any debts they are owed as of election night 

are inherently subject to a risk of default. After all, the campaign may close out the election without 

sufficient cash on hand to cover all of its outstanding debts; and a candidate’s ability to raise money 

to repay debts after an election is far from assured. Indeed, a candidate may be forced to loan her 

campaign additional money just so that it can repay its other creditors—and avoid the legal and 

reputational risks of defaulting on its obligations to those who spoke on its behalf. 

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Section 304 intensifies and distorts these inherent risks, deliberately curbing the funding, 

and thus the speech, of both candidates and their campaigns. By barring the repayment of candidate 

loans greater than $250,000 from money raised after the election, the challenged limit necessarily

increases the risk that these loans will not be repaid in full, or perhaps at all. Section 304 thus has 

the design and effect of deterring a candidate from making loans in excess of $250,000—directly 

burdening his First Amendment right “to speak without legislative limit on behalf of his own 

candidacy.” Buckley, 424 U.S. at 54. And Section 304 burdens the speech of committees, too. If a 

committee ends an election owing both debts to creditors and more than $250,000 in debt to the 

candidate, Section 304 forces the committee to use its cash on hand, if any, to pay the candidate 

first (or default on that portion of the candidate’s loan outright), and if there is any money left over, 

then to repay debts to other creditors, including the vendors who engaged in core political speech 

on behalf of the campaign. 

Because Section 304 intrudes upon the heartland of the First Amendment, it must be 

subjected to strict scrutiny. See Bennett, 564 U.S. at 734. And because “[the Supreme] Court has 

identified only one legitimate governmental interest for restricting campaign finances,” that means 

the loan-repayment limit may be upheld only if the Government demonstrates that it furthers the 

interest in “preventing [quid pro quo] corruption or [its] appearance” and is narrowly tailored to 

that goal. McCutcheon, 572 U.S. at 206; see also Bennett, 564 U.S. at 734. Section 304 and its 

implementing regulations cannot clear these hurdles. 

A. Because the Loan-Repayment Limit Burdens Core Political Speech, It Is 

Subject to Strict Scrutiny. 

1. “[T]he First Amendment has its fullest and most urgent application to speech 

uttered during a campaign for political office.” Bennett, 564 U.S. at 734 (quotation marks omitted). 

And as the Supreme Court has repeatedly made clear, there is no more sacred First Amendment 

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liberty than the right of a candidate “to engage in the discussion of public issues and vigorously 

and tirelessly to advocate his own election.” Davis, 554 U.S. at 738. 

While the Supreme Court’s campaign finance jurisprudence has ebbed and flowed over the 

decades following its landmark decision in Buckley, one principle has endured without change: 

any governmental burden placed “on personal expenditures by a candidate in furtherance of his 

own candidacy . . . clearly and directly interferes with constitutionally protected freedoms” and 

may be upheld only if it satisfies the strictest judicial scrutiny. Buckley, 424 U.S. at 53. “Indeed, it 

is of particular importance that candidates have the unfettered opportunity to make their views 

known so that the electorate may intelligently evaluate the candidates’ personal qualities and their 

positions on vital public issues before choosing among them on election day.” Id. at 53–54. 

Accordingly, “the First Amendment simply cannot tolerate [a] restriction upon the freedom of a 

candidate to speak without legislative limit on behalf of his own candidacy.” Id. at 54. 

A candidate who makes or incurs loans for the benefit of his campaign is exercising this 

core First Amendment freedom. When Senator Cruz, for example, loaned $5,000 of his own 

money to his Committee for expenditure on behalf of his reelection, he was using his personal 

financial means to “vigorously and tirelessly . . . advocate his own election,” id. at 52—and that 

was no less true because of the Committee’s commitment, when he loaned this money, that it 

would reimburse the sum after the election. Likewise, when Senator Cruz pledged his own 

personal assets to secure a $255,000 loan that he, in turn, loaned to his Committee, he was engaged 

in “the vigorous exercise of the right to use personal funds to finance campaign speech,” Davis, 

554 U.S. at 739—notwithstanding the Committee’s commitment to later repay the loan so that 

Senator Cruz, in turn, could discharge the security interest on his assets. After all, those loans went 

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to fund pure political speech—either directly or by repaying debts to vendors and other campaign 

creditors. 

While making or incurring loans on behalf of one’s own candidacy is different in some 

respects not relevant here from spending personal funds outright, it is nonetheless the conveyance 

of a “[ ]thing of value,” so it plainly qualifies as an “expenditure.” 52 U.S.C. § 30101(9)(A)(i); see 

also 11 C.F.R. § 100.110. In fact, both BCRA and Defendants’ implementing regulations explicitly 

define “expenditure” to include loans. See 52 U.S.C. § 30101(9)(A)(i) (“The term ‘expenditure 

includes . . . any . . . loan . . . made by any person for the purpose of influencing any election for 

Federal office . . . .”); see also 11 C.F.R. § 100.111(a) & (b) (defining “expenditure” to include a 

“loan” or “any guarantee or endorsement of a loan by a candidate”). As the Sixth Circuit held in a 

directly analogous case, “[a]s a matter of campaign finance law, . . . limitations on candidate loans 

are limitations on campaign expenditures.” Anderson, 356 F.3d at 673. Moreover, they “are 

particularly onerous” limitations “because they limit when a party can speak (or how much he can 

say at a given time),” by preventing him from speaking “prior to contributions arriving.” Id. 

Accordingly, under both common sense and Congress’s and the FEC’s own definitions, a 

candidate who (like Senator Cruz) lends money to his own campaign is exercising his core First 

Amendment right of using his own financial resources “to engage in the discussion of public issues 

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

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

First Amendment right. By significantly limiting the sources of funding that committees can use 

to repay candidate loans, the $250,000 cap necessarily increases the risk that these loans will not 

be repaid in full, or perhaps at all. Indeed, in prior briefing the FEC itself acknowledged that when 

Section 304 applies, “a candidate deciding to loan his or her campaign money in advance of the 

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election [will] not be able to accurately determine the likelihood he or she might be repaid.” FEC’s 

MTD Br. 44. For a candidate who wishes to spend more than $250,000 on behalf of his own 

election but can afford to do so only if he is reasonably assured of repayment after Election Day, 

the loan-repayment limit, by design and inevitable effect, will deter the candidate from making the 

expenditure at all. 

To be sure, while Section 304 burdens a candidate’s right to spend his own money, in the 

form of loans, to fund his election, it does not prohibit its exercise: candidates remain free to make 

such loans at their own risk. But it is far too late in the day to argue that the Government is free to 

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

expenditures. After all, the First Amendment would “be a hollow promise if it left government free 

to destroy or erode its guarantees by indirect restraints so long as no law is passed that prohibits 

free speech, press, petition, or assembly as such.” United Mine Workers of America v. Illinois State 

Bar Ass’n, 389 U.S. 217, 222 (1967). Accordingly, the Supreme Court has repeatedly held that the 

Government may no more burden and impede a candidate’s right to spend his own money than it 

may ban it outright. 

In Davis, for example, a self-funding candidate challenged another portion of the 

Millionaire’s Amendment, which asymmetrically raised the contribution limits for the supporters 

of a self-funding candidate’s opponent when the candidate spent more than a certain amount of his 

personal funds. This Court upheld the challenged provision, contending that it “does not limit in 

any way the use of a candidate’s personal wealth in his run for office.” Davis v. FEC, 501 F. Supp. 

2d 22, 29 (D.D.C. 2007), see also Davis, 554 U.S. at 753 (Stevens, J., dissenting) (“The 

Millionaire’s Amendment quiets no speech at all”). The Supreme Court disagreed, reasoning that 

“[w]hile BCRA does not impose a cap on a candidate’s expenditure of personal funds, it imposes 

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an unprecedented penalty on any candidate who robustly exercises that First Amendment right,” 

by limiting him to “two choices: abide by a limit on personal expenditures or endure the burden 

that is placed on that right by the activation of a scheme of discriminatory contribution limits.” Id. 

at 738–39, 740 (majority opinion). And that “special and potentially significant burden” on core 

First Amendment rights, the Court concluded, could be upheld only if it satisfied strict scrutiny. 

Id. at 739, 740. 

The portion of the Millionaire’s Amendment challenged here triggers strict scrutiny under 

the very same reasoning. As in Davis, Section 304 subjects a candidate who wishes to “robustly 

exercise[ ]” his right to spend his own money on his campaign, in the form of loans, to a “special 

and potentially significant burden.” Id. at 739. For as in Davis, this provision limits such a 

candidate “[to] two choices,” id. at 740: loan more than $250,000 under the significantly enhanced 

risk that such a loan will not be repaid in full, or simply decline to loan money in excess of this 

sum at all. And as in Davis, Section 304 “does not provide any way in which a candidate can 

exercise that right without abridgment.” Id. Accordingly, “that provision cannot stand unless it is 

justified by a compelling state interest.” Id. (quotation marks omitted). 

The Supreme Court’s decision in Bennett is to the same effect. That case involved an 

Arizona law that granted publicly financed candidates extra funding when their privately financed 

competitor spent more than a certain amount of personal funds—a similar mechanism to the one 

struck down in Davis, though the burden on candidate-spending came in the form of direct public 

funds, rather than asymmetrically heightened contribution limits. As in Davis, the defenders of the 

law argued that it “imposes no ceiling on speech and does not prevent anyone from speaking.” 564 

U.S. at 763 (Kagan, J., dissenting) (brackets omitted). But in Bennett, too, the Supreme Court 

emphatically rejected this argument. Under Arizona’s scheme, the Court reasoned, “[t]he direct 

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result of the speech of privately financed candidates . . . is a state-provided monetary subsidy to a 

political rival,” and because that scheme “plainly forces the privately financed candidate to 

shoulder a special and potentially significant burden when choosing to exercise his First 

Amendment right to spend funds on behalf of his candidacy,” it “must be justified by a compelling 

state interest.” Id. at 737, 740, 742 (majority opinion) (quotation marks omitted). So too here. 

2. In addition to significantly burdening the First Amendment rights of candidates, 

Section 304’s loan-repayment limit also burdens the right of their campaign committees to speak 

freely, by effectively forcing them to choose which First Amendment rights to sacrifice. Consider 

a committee, like the Cruz Committee, that closes out election day owing money to its vendors, 

owing more than $250,000 to its candidate, and without sufficient cash on hand to fully satisfy 

both sets of debts. By requiring the committee to use only pre-election funds to repay the candidate 

loans—and to do so within the first 20 days—the loan-repayment limit effectively forces the 

committee to choose between two horns of an intolerable dilemma: using its limited cash on hand 

to (1) repay the over-$250,000 balance of candidate loans, or (2) repay other vendors (or engage 

in other constitutionally-protected political expenditures). Whichever choice it makes, it suffers 

First Amendment harm. 

If the Committee chooses to repay the candidate loans, it will have been forced to forego—

or at least delay—funding core First Amendment expression. When a committee spends money 

during the first 20 days after an election to repay vendors who produced campaign advertisements, 

for instance, it is exercising a right that lies at the core of the First Amendment’s protective sweep: 

the right to “spend [money] on political communication during a campaign.” Buckley, 424 U.S. at 

19. Similarly, when a committee transfers its own funds to advocacy organizations who share its 

worldview, it is engaging in speech that is “at the heart of the First Amendment’s protection”: “the 

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liberty to discuss publicly and truthfully all matters of public concern.” First Nat’l Bank of Bos. v. 

Bellotti, 435 U.S. 765, 776 (1978). When a campaign committee is forced to refrain from spending 

money in these constitutionally protected ways so that it may avoid defaulting on its candidate 

loans, it has suffered a real and tangible infringement of its First Amendment right to engage in 

political speech: Section 304 has “necessarily reduce[d] the quantity of expression,” thereby 

“restricting the number of issues discussed, the depth of their exploration, and the size of the 

audience reached.” Buckley, 424 U.S. at 19. 

That is no less true because the payments Section 304 pressures committees to forego take 

place after the election is over—for the speech those payments go to fund occurred during the 

campaign. To reason otherwise would be to draw a wholly arbitrary and unjustifiable line between 

committees that fund speech in advance or on delivery and those that fund speech through credit. 

Campaign committees, like ordinary commercial entities, often fund their operations in part by 

taking on debt. According to one recent study, “[a]lmost half of all campaigns (46.75 percent) rely 

on some form of debt,” which constitutes “the second largest source of campaign funds trailing 

only total individual contributions.” SOF ¶ 39. They presumably do so because in many cases, this 

method of funding their operations is the most efficient one, resulting in greater speech overall 

than if committees were forced to pay for speech up-front or contemporaneously. By forcing 

committees to delay paying down any ordinary debts in favor of repaying candidate loans (on pain 

of defaulting on the candidate), Section 304 distorts this calculation, exacting what is in effect a 

surcharge on a committee’s access to credit, and inevitably forcing some committees at the margin 

to forego speech they would engage in if they were free to finance it in the way they deemed most 

efficient. As a matter of economic reality, that is a limit on political expenditures. There is nothing 

in Buckley’s holding that a law limiting expenditures imposes “severe restrictions on protected 

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freedoms of political expression and association,” 424 U.S. at 19, 23, to suggest that those burdens 

melt away if they are imposed on the back end rather than the front end. 

To be sure, Section 304 leaves a committee with the option of choosing the second horn of 

the dilemma: defaulting on its candidate’s loans so that it may spend its cash on hand paying (or 

repaying) for the types of protected expression just discussed. But that choice, too, involves an 

infringement of its First Amendment rights. When a committee chooses this alternative, it 

necessarily deters the candidate from loaning money to his campaign in the future, for all the 

reasons discussed above. Just as from the candidate’s point of view, the loan-repayment limit 

functions as a “special and potentially significant burden” on his right to spend money on his own 

campaign, Davis, 554 U.S. at 739, from the campaign’s point of view, the limit functions as a 

burden on its right to raise money to fund political speech. It is exactly as though Congress had 

provided that for every $1,000 a committee spends on repaying its campaign vendors in the first 

20 days after an election, the base contribution limit for its donors in the next election will be 

reduced by $1 per donor. 

Accordingly, the loan-repayment limit burdens the rights of campaign committees to spend 

money on political speech, and it must be subjected to strict scrutiny for that reason, too. Buckley, 

424 U.S. at 44–45. Indeed, that is once again the only conclusion consistent with the Supreme 

Court’s decision in Davis. For just as the provision of the Millionaire’s Amendment struck down 

there burdened a candidate’s right to fund his own campaign by asymmetrically allowing his 

opponent to raise more money if he exercised the right, the provision at issue here burdens a 

committee’s right to fund speech with its cash-on-hand after an election by impeding it from raising 

as much money, from candidate loans in future elections, if it exercises that right. That 

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“unprecedented penalty” on the right of committees to spend money on core political speech must 

be subjected to the strictest scrutiny. Davis, 554 U.S. at 739.2

3. Finally, in addition to burdening the rights of candidates and their authorized 

committees to spend money on political speech, the loan-repayment limit burdens the expressive 

and associational right of individuals to contribute money in support of the candidate of their 

choice. An individual who wishes to contribute money to a candidate in connection with an 

election but is unable to do so before the election may still exercise his expressive and associational 

rights by contributing money after the election to help pay down the candidate’s “net debts 

outstanding” from the election. 11 C.F.R. § 110.1(b)(3). However, by barring more than $250,000 

in post-election contributions from going towards repayment of the candidate’s loans—and 

excluding that amount of those loans from the calculation of net debts outstanding, id. 

§ 110.1(b)(3)(ii)(C)—Section 304 effectively prohibits individuals from making such postelection contributions once the candidate’s other outstanding debts have been paid off. Indeed, 

that is the whole purpose of the loan-repayment limit: to prevent individuals from contributing 

post-election money to pay off any candidate loans above the $250,000 cap. The loan-repayment 

limit thus directly burdens the “right to participate in the public debate through political expression 

2

 Accordingly, although Section 304 in some respects functions as a limit on the ability of 

campaign committees to receive contributions—in the form of candidate loans—because that 

restriction on contributions operates as a burden on the committee’s ability to freely spend money 

to fund speech, as described in the text above, it must be subject to strict scrutiny, not the “closely 

drawn” scrutiny that Buckley applied to contribution limits. See Davis, 554 U.S. at 737–40. For 

the same reason, Plaintiff Cruz Committee need not show that Section 304 prevents it “from 

amassing the resources necessary for effective advocacy,” since that requirement at most applies 

when a committee claims it is unable to freely raise money—not when it claims that it is unable 

to freely spend money on political speech. Buckley, 424 U.S. at 636; see also Libertarian Nat’l 

Comm., Inc. v. FEC, 924 F.3d 533, 541 (D.C. Cir. 2019) (en banc) (holding that “Buckley and its 

progeny hardly foreclose application of closely drawn scrutiny” to contribution limits challenged 

by a committee, even if the limits do not prevent it from amassing the necessary resources for 

effective advocacy). 

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and political association,” McCutcheon, 572 U.S. at 203, and it may be upheld only “if the State 

demonstrates a sufficiently important interest and employs means closely drawn to avoid 

unnecessary abridgment of associational freedoms,” Buckley, 424 U.S. at 25.3 

B. The Loan-Repayment Limit Fails Even “Closely-Drawn” Scrutiny Because It 

Does Not Further Any Anti-Corruption Interest. 

Because Section 304 burdens the First Amendment expression of candidates, committees, 

and contributors, it is subject to strict scrutiny, see Bennett, 564 U.S. at 748—or, at a minimum, 

Buckley’s “closely drawn” scrutiny, see McCutcheon, 572 U.S. at 199. It flunks either standard as 

a matter of law, because it does not further the “only . . . legitimate governmental interest for 

restricting campaign finances”—preventing “ ‘quid pro quo’ corruption” or its appearance. Id. at 

206–07. 

1. Section 304 was never designed as an anti-corruption measure, so if it did function 

to serve that interest, it would be pure happenstance. Instead, the provision’s legislative history 

leaves no doubt about the purpose it was actually designed to serve: burdening the ability of 

wealthy candidates to loan large sums to their campaign and thereby “level[ling] the playing field” 

between competing candidates. 147 CONG. REC. S2463 (daily ed. Mar. 19, 2001) (statement of 

Sen. DeWine); see also, e.g., id. at S2459 (statement of Sen. Feinstein); id. at S2540 (statement of 

Sen. Durbin); id. at S2460 (statement of Sen. Domenici); id. at S2464 (statement of Sen. Sessions). 

In Davis, the Government affirmatively stated, and the Court accepted, that the purpose of 

the Millionaire’s Amendment was to “level electoral opportunities for candidates of different 

personal wealth.” 554 U.S. at 741. And the legislative history demonstrates that this purpose 

3

 Plaintiffs reserve the right to argue before the Supreme Court that Buckley’s prescription 

of “closely drawn” scrutiny for contribution limits either is tantamount to strict scrutiny or is itself 

inconsistent with fundamental First Amendment principles. See, e.g., Colorado Republican Fed. 

Campaign Comm. v. FEC, 518 U.S. 604, 635–44 (1996) (Thomas, J., dissenting). 

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extended to Section 304 in particular, for as one of its co-sponsor’s recognized, “a lot of people 

who are very wealthy do not give money to their campaign; they loan it and say they will be repaid 

later.” 147 CONG. REC. S2461 (daily ed. Mar. 19, 2001) (statement of Sen. Durbin); see SOF ¶ 14. 

Indeed, the congressional debate—just like campaign finance law more generally, see supra, p. 

14—repeatedly equated candidate loans with candidate spending, treating the two as functionally 

equivalent (and as posing the same threat to “a level playing field and . . . fairness in . . . election 

campaigns”). Id. at S2461 (statement of Sen. Domenici); see id. at S2462 (statement of Sen. 

Durbin); 147 CONG. REC. S2538 (daily ed. Mar. 20, 2001) (statement of Sen. DeWine); see SOF 

¶¶ 14–18. 

 As the Supreme Court has repeatedly stressed, because “[l]eveling electoral opportunities 

means making and implementing judgments about which strengths should be permitted to 

contribute to the outcome of an election, . . . it is not legitimate for the government to attempt to 

equalize electoral opportunities in this manner.” Bennett, 564 U.S. at 749–50 (quotation marks 

omitted) (emphasis added). After all, “[d]ifferent candidates have different strengths. Some are 

wealthy; others have wealthy supporters who are willing to make large contributions. Some are 

celebrities; some have the benefit of a well-known family name.” Davis, 554 U.S. at 742. 

Accordingly, any attempt at “the equalization of permissible campaign expenditures might serve 

not to equalize the opportunities of all candidates, but to handicap a candidate who lacked 

substantial name recognition or exposure of his views before the start of the campaign.” Buckley, 

424 U.S. at 56–57. Ultimately, “[t]he Constitution . . . confers upon voters, not Congress, the power 

to choose [elected federal officials], and it is a dangerous business for Congress to use the election 

laws to influence the voters’ choices.” Davis, 554 U.S. at 742. Congress’s attempt to “intru[de] 

into the debate over who should govern,” Bennett, 564 U.S. at 750, by preventing “self-funding 

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wealthy candidates” from “loaning or contributing literally millions of dollars” to their own 

campaign, 147 CONG. REC. S2462 (daily ed. Mar. 19, 2001) (statement of Sen. Durbin), “goes to 

the heart of First Amendment values.” Bennett, 564 U.S. at 750. 

In addition to “leveling the playing field,” several legislators opposed to the Millionaire’s 

Amendment pointed out that the provision also had an even more sinister design—it “protects 

incumbents.” 147 CONG. REC. S2544 (daily ed. Mar. 20, 2001) (statement of Sen. Daschle); see 

SOF ¶ 19. After all, challengers often need to spend significant amounts of seed money to raise 

name recognition even before they start to receive significant contributions. See Anderson, 356 

F.3d at 673 (“[A] candidate may need to speak early in order to establish her position and garner 

contributions.”). Incumbents, by contrast, “have a lot of advantages that do not come out of our 

personal checkbooks,” 147 CONG. REC. S2465 (daily ed. Mar. 19, 2001) (statement of Sen. Dodd); 

see also id. at S2548 (daily ed. Mar. 20, 2001) (statement of Sen. Levin) (“The incumbent who 

already has the financial advantage and the incumbency advantage is then also given the advantage 

of having the higher contribution limits.”); id. at S2853 (daily ed. Mar. 26, 2001) (statement of 

Sen. Reid) (“[The Millionaire’s Amendment] is an incumbent advantage measure in this 

underlying bill.”); see SOF ¶¶ 20–25. Indeed, in a remarkably forthright statement, Senator 

McCain—a supporter of the Amendment—noted that the provision 

addresses, in all candor, a concern that literally every nonmillionaire Member of 

this body has, and that is that they wake up some morning and pick up the paper 

and find out that some multimillionaire is going to run for their seat, and that person 

intends to invest 3, 5, 8, 10, now up to $70 million of their own money in order to 

win. 

Id. at S2540 (daily ed. Mar. 20, 2001) (statement of Sen. McCain); see SOF ¶ 26. The Supreme 

Court has consistently cautioned that campaign finance restrictions may not “magnify the 

advantages of incumbency to the point where they put challengers to a significant disadvantage,” 

and that “where there is strong indication in a particular case, i.e., danger signs, that such risks 

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exist (both present in kind and likely serious in degree), courts . . . must review the record 

independently and carefully with an eye toward assessing the statute’s ‘tailoring.’ ” Randall v. 

Sorrell, 548 U.S. 230, 248, 249 (2006) (opinion of Breyer, J.). Those “danger signs” are present 

here. 

2. Because Congress did not design Section 304 to combat corruption or its 

appearance, it can come as no surprise that it in fact fails to do so. As the Supreme Court has stated 

repeatedly and emphatically, “while preventing corruption or its appearance is a legitimate 

objective, Congress may target only a specific type of corruption—‘quid pro quo’ corruption.” 

McCutcheon, 572 U.S. at 207. “And because the Government’s interest in preventing the 

appearance of corruption is equally confined to the appearance of quid pro quo corruption, the 

Government may not seek to limit the appearance of mere influence or access.” Id. at 208. It is 

thus not enough for the Government to invoke generalized concerns that donors have outsized 

influence in the halls of Congress, or that there is “too much money in politics.” Rather, its 

legitimate interest in this area is strictly confined to preventing the actual or apparent 

“financial quid pro quo: dollars for political favors.” Citizens United v. FEC, 558 U.S. 310, 359 

(2010) (quoting FEC v. National Conservative Political Action Comm., 470 U.S. 480, 497 (1985)). 

Section 304 does nothing to advance the goal of preventing quid pro quo corruption. For 

to the extent that the use of post-election contributions to refund personal loans does pose any 

potential risk of corruption, the federal contribution limits already serve to adequately address that 

risk. The base limit of $2,800 per contributor (as adjusted for inflation, see Price Index 

Adjustments for Contribution and Expenditure Limitations and Lobbyist Bundling Disclosure 

Threshold, 84 Fed. Reg. 2504, 2506 (Feb. 7, 2019)) applies to all contributions “with respect to 

any election,” 52 U.S.C. § 30116(a)—so it governs post-election contributions “with respect to 

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[that] election” in the same measure of pre-election contributions. Id.; see also 11 C.F.R. § 

110.1(b)(3)(iii) (noting that post-election contributions may “not exceed the contribution 

limitations in effect on the date of such election”). The only effect of striking down the loanrepayment limit would thus be to place post-election contributions on equal footing with preelection contributions—such that both sets of contributions, when added together, must still total 

$2,800 or less per contributor. And under the Supreme Court’s holding in McCutcheon, that $2,800 

limit eliminates any “cognizable risk of corruption,” rendering an additional layer of restrictions 

on contributions unnecessary and unjustified. McCutcheon, 572 U.S. at 210. 

The plaintiffs in McCutcheon challenged FECA’s “aggregate” contribution limits. While 

the “base” limit of $2,800 restricts the amount any individual may contribute to a particular 

candidate or committee, the challenged “aggregate” limits capped how much any individual could 

“contribute in total to all candidates or committees”—even if each individual contribution within 

the aggregate total was $2,800 or less. Id. at 192. The Government defended the aggregate limits 

as an additional layer of protection against the same risk of corruption targeted by the base limits, 

but the Court rejected this “prophylaxis-upon-prophylaxis approach.” Id. at 221. The “base limits 

remain the primary means of regulating campaign contributions,” the Court explained, and 

“Congress’s selection of a [$2,800] base limit indicates its belief that contributions of that amount 

or less do not create a cognizable risk of corruption.” Id. at 209, 210 (emphasis added). And “[i]f 

there is no corruption concern” in donating the maximum allowable amount to each candidate until 

the aggregate limit is met, there can be no anti-corruption interest in preventing any further 

donations that also comply with the limit selected by Congress—donations that cannot be 

“regarded as corruptible” as a matter of law. Id.

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While McCutcheon is the Supreme Court’s clearest articulation of this principle, the Court 

had relied on the same reasoning even before that case. In Davis, for example, the Court reasoned 

that “given Congress’ judgment that liberalized limits for non-self-financing candidates do not 

unduly imperil anticorruption interests, it is hard to imagine how the denial of liberalized limits to 

self-financing candidates can be regarded as serving anticorruption goals sufficiently to justify the 

resulting constitutional burden.” 554 U.S. at 741. And similarly in Bennett, one of the reasons the 

Court found Arizona’s differential public-financing scheme unnecessary to prevent corruption was 

that “Arizona already has some of the most austere contribution limits in the United States” and 

“[i]n the face of such ascetic contribution limits, strict disclosure requirements, and the general 

availability of public funding, it is hard to imagine what marginal corruption deterrence could be 

generated by the matching funds provision.” 564 U.S. at 751–52. Indeed, the FEC itself appears 

to view the present contribution limits as sufficient to address any cognizable risks of quid pro quo 

corruption based on individual contributions. The FEC regularly recommends to Congress certain 

amendments to the federal campaign finance laws, but it has never included any recommendation, 

from the enactment of BCRA’s inflation-adjusted limits down to the present day, that the base 

limits on individual campaign contributions must be lowered in order to adequately guard against 

quid pro quo corruption or its appearance. SOF ¶¶ 30–31. 

Accordingly, under settled law, Congress’s selection of a $2,800 base limit for all 

contributions “with respect to any election,” 52 U.S.C. § 30116(a)(1)(A), indicates its judgment 

that “contributions of that amount or less do not create a cognizable risk of corruption.” 

McCutcheon, 572 U.S. at 210. As in McCutcheon, all Plaintiffs ask is that contributors be free to 

make contributions, with respect to each election, in this non-corrupting amount—free from 

Section 304’s “prophylaxis-upon-prophylaxis” limit preventing contributions “of any amount” 

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that go to repay candidate loans in excess of $250,000. Id. at 210, 221. Under current law, if an 

individual contributes $2,800 to a candidate before an election, “there is no corruption concern.” 

Id. at 210. Further, if an individual contributes $2,800 to a candidate after an election—so long as 

the candidate has $2,800 or more of outstanding debts—there again “is no corruption concern.” 

Id. And further yet, if an individual contributes $2,800 to a candidate to help repay the first 

$250,000 of candidate loans, current law still deems there to be “no corruption concern.” Id. Given 

all of that, “it is difficult to understand” how contributing even a dime to help pay off the 250,001st

dollar of outstanding candidate loans suddenly poses a “cognizable risk of corruption.” Id.

The Sixth Circuit adopted precisely this reasoning in Anderson, 356 F.3d 651, a directly 

analogous case addressing Kentucky campaign finance law. The provision at issue in Anderson 

“prohibit[ed] candidates from loaning their respective campaigns more than $50,000 in a given 

election.” Id. at 672. The district court had upheld that limit as preventing the “risks of quid pro 

quo corruption” posed by accepting contributions for the “repayment [of candidate loans] after the 

election.” Id. at 673. The Sixth Circuit reversed, explaining that the limit on candidate loans could 

not be justified as an anti-corruption measure because “the risk of quid pro quo is substantially 

mitigated by [Kentucky’s $1,000] individual contribution limits.” After all, “[i]f a $1000 

contribution has been found by the Kentucky legislature to be sufficiently low to avoid the 

appearance or fact of corruption, then a $1000 contribution to a campaign that is indebted to the 

candidate should also be found to be non-corrupting.” Id. Accordingly, the Sixth Circuit struck the 

Kentucky provision down as unconstitutional. Anderson’s reasoning—which precisely anticipates 

the Supreme Court’s reasoning in McCutcheon—is highly persuasive authority, and Section 304’s 

loan-repayment limit must meet the same fate. 

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The absence of any legitimate anti-corruption interest in limiting the repayment of 

candidate loans is underscored by the overwhelming preponderance of States that do not impose 

any such limit. Forty States and the District of Columbia allow candidate loans in unlimited 

amounts and impose no separate monetary restriction on their repayment, either before or after an 

election.4

 And only six States impose a repayment limit akin to Section 304.5 Unless the FEC can 

demonstrate that the political process has been corrupted, either in reality or in appearance, in the 

overwhelming majority of States that do not impose a restriction analogous to Section 304, its 

contention that the challenged limit is a necessary anti-corruption measure is wholly unpersuasive. 

Cf. McCutcheon, 572 U.S. at 209 n.7 (rejecting anti-corruption justification because “[j]ust eight 

of the 38 States that have imposed base limits on contributions from individuals to candidates have 

also imposed aggregate limits” and “[t]he Government presents no evidence concerning the 

circumvention of base limits from the 30 States with base limits but no aggregate limits”); Citizens 

United, 558 U.S. at 357 (“The anticorruption interest is not sufficient to displace the speech here 

in question. Indeed, 26 States do not restrict independent expenditures by for-profit corporations. 

The Government does not claim that these expenditures have corrupted the political process in 

those States.”). 

4

 Three of these States freely allow the making and repayment of candidate loans without 

limit but proscribe the payment of interest on the loan to the candidate. See KAN. STAT. ANN. § 25-

4157a(b); N.Y. ELEC. LAW § 14-130(2); VA. CODE § 24.2-947.4:1. 

5 See ALASKA STAT. § 15.13.078(b)(1); GA. CODE § 21-5-41(h); 17 R.I. GEN. LAWS §17-

25-7.4; S.C. CODE § 8-13-1328; TEX. ELEC. CODE § 253.042(a); WASH. REV. CODE

§ 42.17A.445(3). Florida allows the making and pre-election repayment of candidate loans but 

generally bans all post-election contributions to candidates. FLA. STAT. § 106.08(2)(c)(3). The 

remaining three States impose no special limit on the repayment of candidate loans but do cap the 

amount of such loans outright. See CAL. GOV’T CODE § 85307(b); MASS. GEN. LAWS ch. 55, § 7; 

NEB. REV. STAT. § 49-1446.04; 4 NEB. ADMIN. CODE ch. 10, § 004(02). 

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3. As just shown, the loan-repayment limit does not further any cognizable anticorruption interest, and it therefore fails either strict or “closely-drawn” scrutiny. The FEC has 

resisted this conclusion, arguing in prior briefing that Section 304 is justified for two reasons: (1) 

because it applies to contributions “received after an election, at a time when the winner is already 

known and thus in a better position than a mere candidate to guarantee legislative favors to big 

donors”; and (2) because contributions used to repay candidate loans flow directly “to a candidate 

or officeholder who can then essentially pocket those funds and use them for any purpose.” FEC’s 

MTD Br. 40–41. Both justifications fail as a matter of law. 

FEC’s suggestion that contributions made “after an election,” id., are especially corrupting 

cannot conceivably justify the loan-repayment limit, because Congress has seen fit to freely allow

such contributions, except when the go to pay off more than $250,000 of candidate loans. Apart 

from Section 304 itself, Congress has placed no limits on an individual’s ability to contribute 

$2,800 or less “with respect to any election for Federal office” after election day has passed. 52 

U.S.C. § 30116(a)(1)(A); see also 11 C.F.R. § 110.1(b)(3)(i) (allowing post-election 

contributions). And BCRA repeatedly countenances the fact that election campaigns may be 

partially financed on credit—such that candidates and their committees may pay after an election 

campaign for speech that occurred during the campaign. See 52 U.S.C. § 30101(8)(A) (defining 

“contribution” to include a “loan [or] advance”); id. § 30101(8)(B)(vii) (exempting certain types 

of loans); id. § 30101(9)(A) (defining “expenditure” to include a “loan [or] advance”); see also 11 

C.F.R. § 116.3 (discussing vendor extensions of credit); id. § 100.82 (discussing bank loans); id. 

§ 100.83 (discussing other lines of credit). By the FEC’s lights, any post-election contribution—

including one used to pay debts a committee owes, say, to the vendor that produced its TV 

commercials—must pose “heightened corruption risks.” FEC’s MTD Br. 36. Yet federal law 

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generally allows those post-election contributions, up to $2,800—so this supposedly heightened 

risk of corruption cannot justify Section 304’s limit on a small, arbitrary subset of those 

contributions. 

Even more fundamentally, the FEC’s indictment of post-election contributions would also 

doom all contributions to incumbent officeholders. These, no less than loan-repayment 

contributions, take place “after an election, at a time when the winner is already known.” Id. at 

40–41. Yet Congress has placed no additional limits on contributions to incumbents. Accordingly, 

there is no dispute that any given contributor could have given Senator Cruz $2,800 on November 

7, 2018, if he had designated it for the upcoming election cycle. The notion that the same 

contribution would have suddenly become corrupting if it were instead designated for the 2018

election is farcical. 

The FEC’s second justification—that contributions used to repay candidate loans “go 

directly into the [candidate’s] pocket,” id. at 41—fares no better. As an initial matter, this argument 

fundamentally misunderstands what happens when contributions are used to repay a candidate’s 

loan. Such payments do not go into the candidate’s “pocket[s],” or to fund his “personal projects.” 

Id. They go to reimburse the candidate for money he spent on political speech furthering his 

election campaign, just like any other contribution. Where a candidate wishes to spend an extra 

$1,000 on his election campaign, the following two alternative transactions are, for all intents and 

purposes, completely identical: 

(1) the candidate makes a $1,000 loan to his campaign before the election, which 

is paid back by the campaign after the election because a contributor has made a 

$1,000 post-election donation; 

(2) the contributor makes a $1,000 contribution before the election, which relieves 

the candidate of the need of loaning the campaign $1,000 of his own money. 

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In both cases, the candidate is able to spend the needed $1,000 on core political speech, and in 

both cases, the contribution allows the Candidate to spend $1,000 of his own money for purposes 

other than the campaign. In neither case can there be any suggestion that the candidate has 

pocketed $1,000 for his “personal use.” Id. at 38. That is why Section 304 itself allows such loan 

repayments without limit, if they are made with pre-election money. That is why repaying 

candidate loans (either before or after election day) does not fall afoul of the federal law’s separate 

prohibition, not challenged here, on the conversion of campaign funds to personal use. See 52 

U.S.C. § 30114(b). And that is why when a committee repays the loans it owes to its vendors, no 

one thinks the money is going to fund the vendor’s “own personal expenses” or “personal 

projects.” FEC’s MTD Br. 41. 

Even setting this threshold problem aside, the supposedly heightened corruption risk the 

FEC thinks is associated with contributions used to repay candidate loans once again cannot justify 

Section 304’s loan-repayment limit, because Congress has deliberately allowed contributions to 

be used for that very purpose, without limit, so long as the contributions come in before election 

day. A pre-election contribution used to repay a candidate loan, no less than a post-election one, 

goes “directly into the [candidate’s] pocket” on FEC’s (flawed) reasoning. Id. Yet under the plain 

terms of Section 304 itself, pre-election contributions may be used this way without limit. 

Nor could there be any argument that it is somehow the union of these two arguments that 

justifies Section 304—that is, that the supposedly “heightened risk of quid pro quo corruption and 

its appearance,” is only present where contributions both (1) are “received after an election” and 

(2) go to “the personal benefit of the[ ] candidate.” Id. at 39. For both of these factors are present 

to exactly the same degree whenever an incumbent officeholder loans money to his reelection 

campaign and those loans are repaid with contributions received before Election Day. Just like the 

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repayments capped by Section 304, a contribution to such a candidate is both (1) received when 

the recipient is already in office “and thus in a better position than a mere candidate to guarantee 

legislative favors to big donors,” and (2) goes (by FEC’s reasoning) directly to the “officeholder 

who can then essentially pocket those funds and use them for any purpose.” Id. at 41. Yet so long 

as the contributions come in before the officeholder’s re-election campaign has concluded, Section 

304 allows them to be used to repay his loans without limit. 

Once again, there is no dispute that a contributor could have given Senator Cruz $2,800 on 

November 5, 2018, and that this contribution could have been used to pay off Senator Cruz’s 2018 

candidate loans without limit, even though Senator Cruz was already a federal officeholder. And 

once again, the FEC’s justification of Section 304 thus depends on a completely untenable 

proposition: that the very same contribution would have suddenly become especially corrupting if 

it were instead made two days later—when nothing about Senator Cruz’s status as an officeholder, 

or the use to which the contribution could be put, had changed. 

In the end, the FEC’s complaint that without Section 304, candidates could use postelection contributions “to subsidize their own personal expenses,” id., appears to be based on little 

more than the same justification that Congress offered for the loan-repayment limit: leveling the 

playing field between wealthy and non-wealthy candidates. The legislative debate over Section 

304, too, found fault with the idea of a wealthy candidate “putting up [his] own money” and then 

“get[ting] it back from [his] constituents” after the election. 147 CONG. REC. S2462 (daily ed. Mar. 

19, 2001) (statement of Sen. Domenici). But the legislative debate also makes clear the source of 

this discomfort: the fact that the Constitution “allows individuals to spend literally millions of their 

own money while mere mortals running for office are trying to keep up.” Id. at S2461 (statement 

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of Sen. Durbin). And that concern is not “a legitimate government objective, let alone a compelling 

one.” Bennett, 564 U.S. at 750 (quotation marks omitted). 

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

Even if the loan-repayment limit did somehow further the Government’s interest in curbing 

quid pro quo corruption and its appearance, the limit would still fail constitutional muster—under 

both strict and “closely drawn” scrutiny—because it is not “narrowly tailored to achieve [that] 

objective.” McCutcheon, 572 U.S. at 218. “In the First Amendment context, fit matters,” id., and 

Section 304 is a poor fit for the Government’s asserted anti-corruption interest because it is 

seriously overinclusive, sweeping in far more conduct protected by the First Amendment than 

reasonably necessary. 

Recall that on the FEC’s theory, the contributions limited by Section 304 pose a 

“heightened risk of quid pro quo corruption” in part because they are received “after an election, 

at a time when the winner is already known and thus in a better position than a mere candidate to 

guarantee legislative favors to big donors.” FEC’s MTD Br. 39, 40–41. Even if this consideration 

had force as to candidates who prevailed in the election in question (and for the reasons already 

discussed, it does not), it obviously has no purchase with respect to losing candidates—who no 

longer have the power to grant political favors in a quid pro quo return for post-election 

contributions. Indeed, the Sixth Circuit’s persuasive decision in Anderson struck down the 

Kentucky limit on candidate loans in part for this very reason: “the risk of quid pro quo is virtually 

non-existent where the contribution is made to a losing candidate who seeks to recoup some of his 

debt.” 356 F.3d at 673. Section 304 is thus “poorly tailored to the Government’s interest,” and 

“impermissibly restricts participation in the political process.” McCutcheon, 572 U.S. at 218. It 

must be struck down. Id. at 227. 

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II. Plaintiffs Are Entitled to Declaratory and Injunctive Relief. 

Because Section 304 is unconstitutional, Plaintiffs are entitled to an injunction restraining 

Defendants from enforcing it. To obtain permanent injunctive relief, a plaintiff must show that 

“(1) it will suffer an irreparable injury in the absence of an injunction; (2) legal remedies are 

insufficient to compensate for that injury; (3) considering the balance of hardships between the 

parties, an equitable remedy is warranted; and (4) the injunction is in the public interest.” Beck v. 

Test Masters Educ. Servs. Inc., 994 F. Supp. 2d 98, 101 (D.D.C. 2014). Each of these factors is 

met. 

As demonstrated above, the loan-repayment limit inflicts ongoing constitutional harm on 

Plaintiffs: it unconstitutionally prevents both Senator Cruz and his committee from exercising their 

core First Amendment right to fund political speech supporting Senator Cruz’s election. It is well 

settled that the infliction of First Amendment harm constitutes irreparable injury that cannot be 

remedied by a damages judgment at law. As the Supreme Court plurality opinion in Elrod v. Burns 

explained, “[t]he loss of First Amendment freedoms, for even minimal periods of time, 

unquestionably constitutes irreparable injury.” 427 U.S. 347, 373 (1976); accord ACLU v. Mineta, 

319 F. Supp. 2d 69, 87 (D.D.C. 2004), appeal dismissed, 2005 WL 263924 (D.C. Cir. Feb. 2, 

2005). And no damages judgment can remedy this ongoing infringement of Plaintiffs’ Free Speech 

rights. See Elrod, 427 U.S. at 373. 

The balance of the equities and the public interest—factors that “merge when the 

Government is the opposing party,” Nken v. Holder, 556 U.S. 418, 435 (2009)—also favor entry 

of a permanent injunction putting a stop to Defendants’ ongoing constitutional violation. As shown 

above, the loan-repayment limit does not further the Government’s interest in curbing quid pro 

quo corruption or its appearance—and that is the “only . . . legitimate governmental interest for 

restricting campaign finances” that the Supreme Court has identified. McCutcheon, 572 U.S. at 

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206. Enjoining these unconstitutional provisions would thus inflict no cognizable harm on 

Defendants. And as the D.C. Circuit has held, “enforcement of an unconstitutional law is always 

contrary to the public interest.” Gordon v. Holder, 721 F.3d 638, 653 (D.C. Cir. 2013). 

In addition to enjoining the enforcement of Section 304, the Court should also issue a 

declaration making clear that this provision violates the First Amendment and is thus invalid. 

Declaratory relief is appropriate where “there is a substantial controversy, between parties having 

adverse legal interests, of sufficient immediacy and reality to warrant the issuance of 

a declaratory judgment.” Dow Jones & Co. v. Ablaise Ltd., 606 F.3d 1338, 1345 (Fed. Cir. 2010). 

Here, a declaration that the challenged provision is unconstitutional and invalid would “terminate 

and afford relief from the uncertainty, insecurity, and controversy” between the parties over the 

constitutionality of the loan-repayment limit. Glenn v. Thomas Fortune Fay, 222 F. Supp. 3d 31, 

36 (D.D.C. 2016). 

CONCLUSION 

For the foregoing reasons, the Court should grant Summary Judgment to the Plaintiffs and 

strike down BCRA § 304 as unconstitutional, both as applied to Plaintiffs and on its face. 

Dated: June 9, 2020 Respectfully submitted, 

Chris Gober 

 (D.C. Bar No. 975981) 

The Gober Group PLLC 

3595 RR 620 S., Suite 200 

Austin, TX 78738 

(512) 354-1787 

s/ Charles J. Cooper 

Charles J. Cooper 

 (D.C. Bar No. 248070) 

John D. Ohlendorf 

 (D.C. Bar. No. 1024544) 

J. Joel Alicea 

 (D.C. Bar. No. 1022784) 

COOPER & KIRK, PLLC 

1523 New Hampshire Avenue, N.W. 

Washington, D.C. 20036 

(202) 220-9600 

(202) 220-9601 (facsimile) 

ccooper@cooperkirk.com 

Attorneys for Plaintiffs 

Case 1:19-cv-00908-APM-TJK-NJR Document 61-1 Filed 06/09/20 Page 40 of 40