UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

TED CRUZ FOR SENATE, et al., ) 

 ) 

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

 ) 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, et al., ) REPLY 

 ) 

 Defendants. ) 

 ) 

DEFENDANT FEDERAL ELECTION COMMISSION’S REPLY IN SUPPORT OF ITS 

MOTION TO DISMISS FOR LACK OF SUBJECT-MATTER JURISDICTION 

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

Acting General Counsel 

 

Kevin Deeley 

Associate General Counsel 

Harry J. Summers 

Assistant General Counsel 

Kevin P. Hancock 

Acting Assistant General Counsel 

Seth Nesin 

 Attorney 

 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

1050 First Street, N.E. 

 Washington, DC 20463 

July 12, 2019 (202) 694-1650 

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TABLE OF CONTENTS 

 Page 

 

I. A SINGLE-JUDGE COURT HAS THE AUTHORITY TO DISMISS THIS 

CASE FOR LACK OF SUBJECT-MATTER JURISDICTION ...................................2 

A. Governing Statutes and Binding Precedent Establish the Power of a 

Single Judge To Rule on Jurisdiction ................................................................3 

B. BCRA § 403’s Text Does Not Confine Jurisdictional Decisions to 

Three-Judge Courts ............................................................................................6 

C. Plaintiffs Concede That Single Judges Can Dismiss Claims Failing 

to Present a Substantial Federal Question ..........................................................7 

D. Review of a BCRA § 403 Dismissal Here By a Panel of the 

D.C. Circuit Would Minimize the Supreme Court’s Mandatory Docket ..........8 

II. A THREE-JUDGE COURT LACKS JURISDICTION OVER PLAINTIFFS’ 

CHALLENGES TO FEC REGULATIONS ..................................................................9 

III. PLAINTIFFS LACK STANDING ..............................................................................11 

A. Plaintiffs Needlessly Sequenced The Committee’s Finances 

To Place Senator Cruz’s $10,000 At Risk and Injure Themselves ..................11 

B. Plaintiffs’ Brief Cannot Change the Alleged Injury-in-Fact Stated in 

Plaintiffs’ Complaint ........................................................................................15 

C. Plaintiffs Are Not Injured By Suffering Any Burdens to Their Alleged 

Constitutional Rights .......................................................................................16 

1. Even if There Were a Constitutional Right to Repay Candidate 

Loans with Post-Election Contributions It Would Not Grant 

Plaintiffs Standing ................................................................................16 

2. Loan Repayments Reduce Candidate Spending On Their 

Campaigns and Limiting Repayments Does Not Limit 

Candidate Spending .............................................................................17 

3. Even if the Loan Repayment Limit Burdens the Constitutional 

Rights of Some Persons, Plaintiffs Are Not Among That Group ........19 

D. The Cruz Committee Has Not Suffered an Injury ...........................................20 

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E. Plaintiffs’ Lack of Standing for Their Own Claims Precludes 

Their Overbreadth Claims, Which Also Lack Merit .......................................21 

IV. PLAINTIFFS’ CLAIMS ARE INSUBSTANTIAL ....................................................21 

A. Rational Basis Is the Proper Level of Scrutiny for the Loan Repayment 

Limit Which Does Not Limit Political Speech ................................................21 

B. The Government Has an Important Interest in Diminishing Corruption 

and Its Appearance That Justifies the Loan Repayment Limit ........................22 

C. The Loan Repayment Limit is Not Overbroad ................................................24 

CONCLUSION ........................................................................................................................25 

 

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TABLE OF AUTHORITIES 

Page(s)

Cases 

Anderson v. Spear, 356 F.3d 651(6th Cir. 2004) .......................................................................... 22 

Arpaio v. Obama, 797 F.3d 11 (D.C. Cir. 2015) .......................................................................... 16 

Becker v. FEC, 230 F.3d 381 (1st Cir. 2000) ............................................................................... 14 

Bluman v. FEC, 766 F. Supp. 2d 1 (D.D.C. 2001) ....................................................................... 10 

Brown v. Board of Education of Topeka, Kan., 347 U.S. 483 (1954) .......................................... 14 

Buckley v. Valeo, 424 U.S. 1 (1976) ....................................................................................... 18, 20 

City of Jersey City v. Consolidated Rail Corp., 668 F.3d 741 (D.C. Cir. 2012) .......................... 14 

Davis v. FEC, 554 U.S. 724 (2008) ......................................................................................... 23-24 

Doe v. Va. Dep’t of State Police, 713 F.3d 745 (4th Cir. 2013) ................................................... 16 

Evers v. Dwyer, 358 U.S. 202 (1958) ........................................................................................... 15 

FCC v. Beach Commc’ns, Inc., 508 U.S. 307 (1993) ................................................................... 22 

FEC v. O’Donnell, 209 F. Supp. 3d 727 (D. Del. 2016) .............................................................. 22 

Feng Wang v. Pompeo, 354 F. Supp. 3d 13 (D.D.C. 2018) ............................................................ 7 

Gonzalez v. Automatic Employees Credit Union, 419 U.S. 90 (1974) .................................... 4-5, 8 

Hassan v. FEC, No. 12-5335, 2013 WL 1164506 (D.C. Cir. Mar. 11, 2013) ................................ 7 

Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982) ............................................................... 14 

Holmes v. FEC, 875 F.3d 1175 (D.C. Cir. 2018) ......................................................................... 25 

Huron v. Berry, 12 F. Supp. 3d 46 (D.D.C. 2013) ........................................................................ 13 

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Huron v. Cobert, 809 F.3d 1274 (D.C. Cir. 2016) ........................................................................ 13 

In re Slagle, 504 U.S. 952 (1992) ................................................................................................... 9 

Indep. Inst. v. FEC, 816 F.3d 113 (D.C. Cir. 2016) ........................................................ 3, 4, 6, 7, 9 

Libertarian Nat’l Comm. v. FEC, 924 F.3d 533 (D.C. Cir. 2019) .................................... 14, 17, 18 

Lorillard v. Pons, 434 U.S. 575 (1978) .......................................................................................... 7 

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ................................................................... 19 

McConnell v. FEC, 540 U.S. 93 (2003) ........................................................................................ 10 

McConnell v. FEC, 251 F. Supp. 2d 176 (D.D.C. 2003) .......................................................... 9, 10 

Midatlantic Nat’l Bank v. N.J. Dep’t of Envtl. Prot., 474 U.S. 494 (1986) .................................... 7 

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

 (D.C. Cir. 2006) ......................................................................................................................... 12 

O’Hair v. United States, 281 F. Supp. 815 (D.D.C 1968) .............................................................. 5 

Randall v. Sorrell, 548 U.S. 230 (2006) ....................................................................................... 20 

Republican Party of Louisiana v. FEC, 146 F. Supp. 3d 1 (D.D.C. 2015) ................................ 2, 4 

Reuss v. Balles, 584 F.2d 461 (D.C. Cir. 1978) .......................................................................... 2, 5 

Rufer v. FEC, 64 F. Supp. 3d 195 (D.D.C. 2014) ....................................................................... 4, 8 

Schonberg v. FEC, 792 F. Supp. 2d 14 (D.D.C. 2011)................................................................... 4 

Schonberg v. FEC, 792 F. Supp. 2d 20 (D.D.C. 2011), 

aff’d No. 11-5199, Document #1347776 (D.C. Cir. Dec. 15, 2011). .......................................... 4 

Sec’y of State of Md. v. Joseph H. Munson Co., Inc., 467 U.S. 947 (1984) ................................. 21 

Shapiro v. McManus, 136 S. Ct. 450 (2015) .......................................................................... 4, 6, 7 

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998)........................................................... 5 

Stop This Insanity, Inc. Emp. Leadership Fund v. FEC, 761 F.3d 10 (2014)................... 13, 14, 17 

Turner Broad. Sys. v. FCC, 810 F. Supp. 1308 (D.D.C. 1992) .................................................... 11 

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Wagner v. FEC, 717 F.3d 1007 (D.C. Cir. 2013) ................................................................... 10, 14 

Wertheimer v. FEC, 268 F.3d 1070 (D.C. Cir. 2001) ................................................................. 5, 7 

Statutes and Regulations

Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, 116 Stat. 81 ............................. 2 

Federal Election Campaign Act, 52 U.S.C. §§ 30101-146 ........................................................... 10 

Act of June 25, 1948 ch. 646, 62 Stat. 869 ..................................................................................... 5 

BCRA § 212 .................................................................................................................................. 10 

BCRA § 403 .................................................................................................. 2, 3, 4, 5, 6, 7, 8, 9, 10 

BCRA § 403(a)(1)........................................................................................................................... 3 

26 U.S.C. § 9011(b)(1) ................................................................................................................... 7 

26 U.S.C. § 9011(b)(2) ............................................................................................................... 5, 7 

28 U.S.C. § 2281 ......................................................................................................................... 5, 6 

28 U.S.C. § 2282 ......................................................................................................................... 5, 6 

28 U.S.C. § 2283 ............................................................................................................................. 5 

28 U.S.C. § 2284 ............................................................................................................. 3, 4, 5, 6, 7 

28 U.S.C. § 2284 (1970) ................................................................................................................. 5 

28 U.S.C. § 2284(b) ........................................................................................................................ 6 

28 U.S.C. § 2284(b)(1) ................................................................................................................... 3 

28 U.S.C. § 2284(b)(1) (1978) ........................................................................................................ 5 

52 U.S.C. § 30101(6) .................................................................................................................... 13 

52 U.S.C. § 30102(e)(2) ................................................................................................................ 13 

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52 U.S.C. § 30110 (formerly 2 U.S.C § 437h) ............................................................................. 10 

52 U.S.C. § 30116(j) ....................................................................................................................... 1 

11 C.F.R. § 110.1(b)(3)(i) ............................................................................................................. 25

Miscellaneous

147 Cong. Rec. S2462 (daily ed. Mar. 19, 2001) ......................................................................... 23

Peter Irons, A People’s History of the Supreme Court (2006) ...................................................... 15

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The law that prohibits federal campaigns from using more than $250,000 in post-election 

contributions to repay candidate loans, 52 U.S.C. § 30116(j) (the “Loan Repayment Limit”), 

serves an important anti-corruption purpose without infringing any constitutional rights. 

Plaintiffs U.S. Senator Rafael Edward (“Ted”) Cruz and his campaign committee, Ted Cruz for 

Senate (“Committee”) have brought this challenge to strike the law down, arguing that it does in 

fact infringe their First Amendment rights and the rights of others. They have also requested the 

convening of a three-judge court. But this Court should instead dismiss the case for lack of 

jurisdiction because plaintiffs have no Article III standing, their claims are insubstantial, and the 

relevant three-judge court law does not apply to plaintiffs’ challenges to regulations promulgated 

by defendant Federal Election Commission (“FEC” or “Commission”).1

Plaintiffs make a dizzying array of arguments in an attempt to keep their case alive and 

get before a three-judge court, but none have merit. Plaintiffs argue that this single-judge Court 

lacks the authority to determine standing, but that position contradicts both clear statutory 

language and binding precedent. Plaintiffs lack standing since they fail to establish that Senator 

Cruz’s campaign committee faced any obstacles to repaying Senator Cruz the $10,000 that the 

law now prohibits from being repaid if they had simply done so within 20 days of the November 

2018 election. Plaintiffs also argue that they have standing because they have been injured by 

alleged burdens to their constitutional rights, but fail to identify an actual right of their own that 

is being infringed in connection with their effort to use fewer funds on campaign spending. 

Finally, plaintiffs have failed to demonstrate that their claims are substantial enough to 

warrant being heard by three judges with direct, mandatory review by the Supreme Court. Their 

 

1

 References to “defendant,” “FEC,” and “Commission” herein should be understood to 

include the agency’s four current commissioners as defendants in their official capacities. 

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argument that their claims are substantial relies upon the wrong standard of scrutiny, fails to 

identify a legitimate constitutional right being infringed, and ignores the compelling anticorruption interests underlying the Loan Repayment Limit. 

I. A SINGLE-JUDGE COURT HAS THE AUTHORITY TO DISMISS THIS CASE 

FOR LACK OF SUBJECT-MATTER JURISDICTION 

As discussed in the Commission’s earlier brief, a single-judge court plays a critical 

screening role in determining whether a case should be handled by a three-judge court under 

section 403 of the Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, 116 Stat. 81 

(“BCRA”) or be dismissed. (Def. FEC’s Opp’n to Pls.’ Appl. For a Three Judge Ct. and Mot. to 

Dismiss for Lack of Subject-Matter Jurisdiction (“FEC Br.”) at 11-12 (Docket No. 26).) Just two 

months ago, plaintiffs were in agreement with the FEC, stating that they were “aware of the 

precedent from this Court and the D.C. Circuit holding that a purely legal challenge to standing 

may be decided by a single judge before a three-judge court is convened.” (See Jt. Scheduling 

Report and Disc. Plan at 4 (Docket No. 21) (citing Reuss v. Balles, 584 F.2d 461, 464 n.8 (D.C. 

Cir. 1978) and Republican Party of La. v. FEC, 146 F. Supp. 3d 1, 8 (D.D.C. 2015)).) Further, 

plaintiffs “concede[d] that until those precedents are reversed, the Court has authority under 

them to dismiss a case before convening a three-judge court if it concludes that the plaintiff lacks 

standing as a matter of law.” (Id.) 

Those precedents have not been reversed in the last two months, yet plaintiffs now assert 

the opposite view that this Court lacks authority to dismiss this case for lack of standing, and 

only a three-judge court can do so. (Pls.’ Reply in Supp. of Their Appl. For a Three-Judge Ct. 

and Resp. to Defs.’ Mot. to Dismiss (“Pls.’ Br.”) at 8-14 (Docket No. 29).) Plaintiffs lack any 

support for this position other than a selective reading of statutory text that ignores language 

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contrary to their position and is internally inconsistent. By contrast, every court to have 

considered this question has disagreed with plaintiffs’ position, including the Supreme Court. 

A. Governing Statutes and Binding Precedent Establish the Power of a Single 

Judge To Rule on Jurisdiction 

BCRA’s judicial-review provision requires that qualifying challenges “shall be heard by 

a 3-judge court convened pursuant to section 2284 of Title 28.” BCRA § 403(a)(1) (emphasis 

added). Section 2284 in turn prescribes the procedures to be followed “[u]pon the filing of a 

request for three judges,” and allows a single district judge to decline an application if “he 

determines that three judges are not required.” 28 U.S.C. § 2284(b)(1). 

Recognizing that BCRA § 403 incorporates section 2284, plaintiffs filed their application 

for three judges not only under BCRA § 403 but also “[p]ursuant to 28 U.S.C. § 2284.” (Appl. 

for a Three-Judge Ct. at 1 (Docket No. 2).) Yet despite their own reliance on section 2284, 

plaintiffs now attempt to “dispose[] of the FEC’s reliance on 28 U.S.C. § 2284,” by incorrectly 

asserting that this Court’s “inquiry is at an end” after reading the text of BCRA § 403, except for 

that text’s direction to follow “section 2284 of [T]itle 28,” BCRA § 403(a)(1). (Pls.’ Br. at 12.) 

Consistent with the entire plain text of those provisions, binding D.C. Circuit precedent 

applying both BCRA § 403 and 28 U.S.C. § 2284 has held that a single judge may dismiss a case 

for lack of jurisdiction, despite plaintiffs’ claim to the contrary (see Pls.’ Br. 12). Plaintiffs 

admit, as they must, that just three years ago the D.C. Circuit in Independence Institute v. FEC

stated that “‘a three-judge court is not required where the district court itself lacks jurisdiction.’” 

(Pls.’ Br. at 13-14 (quoting 816 F.3d 113, 116 (D.C. Cir. 2016)).) In then-Judge Kavanaugh’s 

opinion, the Court of Appeals examined whether the plaintiff’s constitutional claim against a 

provision of BCRA qualified for a three-judge court under both BCRA § 403 and 28 U.S.C. § 

2284, which the court observed “is not absolute.” Indep. Inst., 816 F.3d at 115. Even though 

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BCRA § 403 applied, the D.C. Circuit analyzed whether the plaintiff’s claim cleared the 

“barrier” to a three-judge court of meeting the “general jurisdictional requirement” of raising a 

substantial federal question. Id. at 116. The single-judge district court had held that jurisdiction 

was lacking; the Court of Appeals disagreed, but never questioned the district judge’s authority 

to make a jurisdictional determination. See id. at 116-18. The D.C. Circuit’s statement that the 

single-judge court had the power to determine jurisdiction was essential to its holding and the 

opinion would have been completely different had the court simply reversed on the basis that 

single-judge district courts lack the power to determine jurisdiction. That statement was 

therefore not dicta as plaintiffs’ claim (see Pls.’ Br. at 13-14) and is binding on this Court. 

Consistent with Independence Institute, other courts considering BCRA challenges 

seeking three judges have uniformly held that a single judge has the power to determine 

jurisdiction. See Republican Party of La., 146 F. Supp. 3d at 8; Rufer v. FEC, 64 F. Supp. 3d 

195, 202 (D.D.C. 2014); Schonberg v. FEC, 792 F. Supp. 2d 14, 17 (D.D.C. 2011).2 

Supreme Court and D.C. Circuit precedent applying the three-judge court procedures of 

28 U.S.C. § 2284 in other contexts have also held that “a three-judge court is not required where 

the district court itself lacks jurisdiction.” Shapiro v. McManus, 136 S. Ct. 450, 455 (2015) 

(internal quotation marks omitted) (applying § 2284 in a reapportionment case). In several of 

those cases, three-judge court review was potentially available under statutes that, like BCRA § 

403, explicitly incorporate the procedures of 28 U.S.C. § 2284. See, e.g., Gonzalez v. Automatic 

 

2

 Indeed, in the Schonberg series of cases, after a three-judge court dissolved itself due to 

lack of jurisdication and left “final disposition of the complaint to a single judge,” 792 F. Supp. 

2d at 17 (citation and internal quotation marks omitted), the Court of Appeals did not question its 

jurisdiction over the subsequent appeal and found that the single-judge dismissal was so clear 

that it could be affirmed summarily. Schonberg v. FEC, 792 F. Supp. 2d 20, 23-25 (D.D.C. 

2011), aff’d No. 11-5199, Document #1347776 (D.C. Cir. Dec. 15, 2011).

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Employees Credit Union, 419 U.S. 90, 94, 100 (1974)) (holding that “[a] three-judge court is not 

required where the district court itself lacks jurisdiction” in a case brought under the three-judge 

statute at 28 U.S.C. § 2281, which incorporated § 2284); Wertheimer v. FEC, 268 F.3d 1070, 

1072 (D.C. Cir. 2001) (affirming dismissal for lack of standing by single judge in case brought 

under three-judge statute at 26 U.S.C. § 9011(b)(2), which incorporates § 2284); Reuss, 584 F.2d 

at 464 n.8 (holding that “a single judge may first determine whether the court has jurisdiction” in 

a case brought under the three-judge statute of 28 U.S.C. § 2282, which incorporated § 2284 

(quoting Gonzalez, 419 U.S. at 100).)3 This Court not only has the authority, but also the duty, 

to dismiss the case if it believes that the plaintiffs lack standing.4 

Given the common thread of section 2284’s applicability in all of these cases, the alleged 

“crucial textual distinctions” (Pls.’ Br. at 14) that plaintiffs strain to conjure between sections 

2281, 2282, and BCRA § 403 are all beside the point. Plaintiffs do not dispute that section 2284 

— which they have invoked in this case — states that a single judge may “determine[] that three 

judges are not required.” (Pls.’ Br. 12). The applicability of section 2284’s procedures here 

 

3

 Before their repeal in August 1976, sections 2281 and 2282 of Title 28 had provided that 

injunctions against the enforcement of allegedly unconstitutional state or federal laws “shall not 

be granted by any district court or judge thereof unless the application therefor is heard and 

determined by a district court of three judges under section 2284 of this title.” See Act of June 

25, 1948 ch. 646, 62 Stat. 869, 968 (codified at 28 U.S.C. §§ 2281-2284). Congress added the 

words “unless he determines that three judges are not required” to section 2284 in 1976, see 28 

U.S.C. § 2284(b)(1) (1978), but the predecessor version of that statute similarly stated that a 

single judge could convene a three-judge court only when “required” by federal law “to be heard 

and determined by a district court of three judges,” 28 U.S.C. § 2284 (1970). 

4

 See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998) (“Without jurisdiction 

the court cannot proceed at all in any cause. . . . [W]hen [jurisdiction] ceases to exist, the only 

function remaining to the court is that of announcing the fact and dismissing the cause.” (citation 

and internal quotation marks omitted)); O’Hair v. United States, 281 F. Supp. 815, 818 (D.D.C 

1968) (“The first duty of the sole judge is to pass on the sufficiency of the complaint specifically 

as to whether or not a justiciable controversy is presented over which he has adjudicatory 

powers, and if he determines that the Court lacks jurisdiction, he must dismiss the suit.”).

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fatally undermines plaintiffs’ arguments the above precedents are not binding on this Court 

because they allegedly involve “dicta,” statements made “in passing,” or statutes that are 

superficially distinguishable from BCRA § 403. (See Pls.’ Br. at 12-14.) 

B. BCRA § 403’s Text Does Not Confine Jurisdictional Decisions to ThreeJudge Courts 

Even if 28 U.S.C. § 2284 were not applicable in this case, plaintiffs’ argument that the 

text of BCRA § 403 alone precludes this Court from determining jurisdiction would still fail. 

Because BCRA § 403 states that an “action ... shall be heard by a 3-judge court” (emphases 

added), plaintiffs assert that a single-judge court is powerless to decide standing because 

determining standing is part of an “action.” (Pls.’ Br. at 8, 11.) On that basis, plaintiffs attempt 

to distinguish the above-cited precedent holding that single-judge courts can determine 

jurisdiction in cases applying statutes, like 28 U.S.C. §§ 2281, 2282, that allegedly require threejudge courts for something less than an entire “action.” (Pls.’ Br. at 11-13.) 

But plaintiffs have overlooked binding precedent holding that a single-judge district court 

may decide jurisdiction even where the statute at issue states that a three-judge court “shall” hear 

an “action.” First, the D.C. Circuit in Independence Institute held that a single-judge may 

determine jurisdiction under BCRA § 403 itself. 816 F.3d at 116. Second, the Supreme Court in 

Shapiro held that a single-judge may determine jurisdiction under section 2284, Shapiro, 136 S. 

Ct. at 455, which similarly states that it “shall” apply to “any action,” 28 U.S.C. § 2284(b). 

Third, the D.C. Circuit has held that single-judge district courts may determine jurisdiction in 

cases applying the three-judge statute of the Presidential Campaign Fund Act (“Fund Act”), 5 

 

5

 The Fund Act — which created a program of public financing of presidential campaigns 

— specifies that eligible parties may “institute such actions, including actions for declaratory 

judgment or injunctive relief” to enforce or interpret the Fund Act, and that “[s]uch proceedings 

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which like BCRA § 403 states that three-judge courts “shall” hear applicable “actions.” 

Wertheimer, 268 F.3d at 1072 (“[A]n individual district court judge may consider threshold 

jurisdictional challenges prior to convening a three-judge panel”); Hassan v. FEC, No. 12-5335, 

2013 WL 1164506, at *1 (D.C. Cir. Mar. 11, 2013) (“Because appellant lacked standing to bring 

a Fund Act claim, the district court properly declined to convene a three-judge court.”). 

Furthermore, section 2284 had been interpreted as allowing for single-judge 

determinations of jurisdiction long before BCRA was even passed into law. When Congress 

refers to an already-enacted provision in a new statute, it “normally can be presumed to have had 

knowledge of the interpretation given to [that] law, at least insofar as it affects the new statute.” 

Lorillard v. Pons, 434 U.S. 575, 581 (1978); see, e.g. Feng Wang v. Pompeo, 354 F. Supp. 3d 

13, 21 (D.D.C. 2018) (“Congress did not adopt this virtually identical language in a vacuum.”). 

If Congress had aimed to deviate from the well-established judicial interpretation of 28 U.S.C. 

§ 2284 in enacting BCRA § 403, therefore, it would have done so explicitly. See Midatlantic 

Nat’l Bank v. N.J. Dep’t of Envtl. Prot., 474 U.S. 494, 501 (1986). 

C. Plaintiffs Concede That Single Judges Can Dismiss Claims Failing to Present 

a Substantial Federal Question 

Plaintiffs undermine their own faulty position that BCRA § 403’s text “demands” that 

jurisdiction be decided by the three-judge court (Pls.’ Br. at 11), when, just a few pages later, 

plaintiffs concede that “a litigant cannot help himself to a three-judge court by asserting a 

facially frivolous claim challenging the constitutionality of BCRA” (Pls.’ Br. at 14). Just like 

standing, the determination of substantiality is jurisdictional. See Indep. Inst., 816 F.3d at 116 

(“As the Supreme Court explained in Shapiro [, 136 S. Ct. at 455]: ‘Absent a substantial federal 

 

shall be heard and determined by a court of three judges.” 26 U.S.C. § 9011(b)(1), (2) 

(emphases added). 

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question, even a single-judge district court lacks jurisdiction, and a three-judge court is not 

required . . . .’”). Plaintiffs do not explain why a single-judge court can enforce its jurisdiction 

by weeding out insubstantial claims but not by weeding out plaintiffs without standing. Neither 

the language of BCRA nor any caselaw makes this arbitrary distinction. Under plaintiffs’ textual 

arguments, the determination of substantiality, like standing, should be part of the “action” that 

BCRA § 403 states “shall” be decided by a three-judge court, but plaintiffs nonsensically argue 

that the statutory language prohibits one while conceding that it allows for the other. This 

inconsistency further undermines plaintiffs’ incorrect reading of BCRA § 403. 

D. Review of a BCRA § 403 Dismissal Here by a Panel of the D.C. Circuit 

Would Minimize the Supreme Court’s Mandatory Docket 

As the FEC explained in its opening brief, “district courts are to narrowly construe 

statutory provisions providing for three-judge courts,” including BCRA § 403, given the 

Supreme Court’s “‘overriding policy . . . of minimizing the mandatory docket of [the Supreme] 

Court in the interests of sound judicial administration.’” Rufer, 64 F. Supp. 3d at 202 (quoting 

Gonzalez, 419 U.S. at 98). Plaintiffs nevertheless assert that BCRA requires that any appeal in 

this case — including one from a decision by this Court — would go directly to the Supreme 

Court, and therefore this Court can convene a three-judge court without concern for the Supreme 

Court’s mandatory docket. (Pls.’ Br. at 10.) But there is no merit to this position, and again, 

plaintiffs fail to cite any applicable case to support it. 

To the contrary, the Supreme Court has held that if a single-judge court declines to 

convene a three-judge court and dismisses for lack of jurisdiction, that decision will be reviewed 

under the ordinary judicial procedures by a panel of the D.C. Circuit. See Gonzalez, 419 U.S. at 

100 (“It is now well settled that refusal to request the convention of a three-judge court, 

dissolution of a three-judge court, and dismissal of a complaint by a single judge are orders 

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reviewable in the court of appeals, not here.”); In re Slagle, 504 U.S. 952 (1992) (“[W]e 

narrowly view our appellate jurisdiction in three-judge court cases . . . [and] have thus declined 

to review the actions, orders, and rulings of a single judge sitting on a three-judge court.”) 

Plaintiffs fail to successfully distinguish Gonzalez (see Pls. Br. at 13), but in any event, 

they again overlook Independence Institute, which is binding precedent on this question. See, 

e.g., Indep. Inst., 816 F.3d at 116. If this Court concludes that plaintiffs lack standing, dismissal 

at this stage would reduce the mandatory docket of the Supreme Court while still permitting 

appeal to a panel of the D.C. Circuit. In contrast, under plaintiffs’ misguided view, a person with 

absolutely no redressable injury that is fairly traceable to BCRA could nevertheless require the 

Supreme Court to hear his or her case by forcing the convening of a three-judge court simply by 

bringing a hypothetical non-frivolous BCRA challenge. 

II. A THREE-JUDGE COURT LACKS JURISDICTION OVER PLAINTIFFS’ 

CHALLENGES TO FEC REGULATIONS 

The FEC demonstrated in its opening brief that under the text of BCRA § 403 and 

Supreme Court precedent, the three-judge court provision of BCRA applies only to constitutional 

challenges to the statute, not to challenges to Commission regulations. (FEC Br. at 44-45.) 

Contrary to plaintiff’s misleading characterization of its ruling, the three-judge court in 

McConnell v. FEC did not entertain a regulatory challenge only to deny it on ripeness grounds. 

(See Pls.’ Br. at 32.) The McConnell three-judge district court explicitly stated that “its 

jurisdiction does not extend to the FEC’s BCRA regulations, see BCRA 403 . . . and therefore it 

makes no determination on their validity or proper construction.” 251 F. Supp. 2d 176, 239 

(D.D.C. 2003). It was not the regulatory challenge, but a vagueness challenge to BCRA § 

214(c), that the three-judge court found unripe because the pertinent FEC regulations could 

“have clarified the [statutory] vagueness Plaintiffs contend would chill their rights” but had only 

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10 

been promulgated after briefing and oral argument. Id. at 239 n.72, 261-64. The Supreme Court 

affirmed, holding that the statutory challenge was not ripe and that “issues concerning the 

regulations . . . must be pursued in a separate proceeding.” McConnell v. FEC, 540 U.S. 93, 223 

(2003); see also Bluman v. FEC, 766 F. Supp. 2d 1, 4 (D.D.C. 2001) (following McConnell). 

Plaintiffs cite no BCRA authority to the contrary. Instead, plaintiffs argue that 

supplemental jurisdiction is appropriate because BCRA § 403 requires a three-judge court to 

hear an “action” involving a BCRA as a whole. (Pls.’ Br. at 29.) Not only does McConnell

dispose of this argument as a matter of law, but plaintiffs’ approach is unworkable and contrary 

to Supreme Court and Congressional policy for a couple of additional reasons. 

First, supplemental jurisdiction under BCRA § 403 would be incompatible with the 52 

U.S.C. § 30110 (formerly 2 U.S.C § 437h), another special judicial review provision in the 

Federal Election Campaign Act (“FECA”), 52 U.S.C. §§ 30101-46. As plaintiffs acknowledge 

(Pls.’ Br. at 11), that provision requires many constitutional challenges to non-BCRA provisions 

of FECA to be certified directly to the D.C. Circuit sitting en banc. 52 U.S.C. § 30110. 

However, unlike BCRA § 403, which is optional, section 30110 is mandatory and so when it 

applies it “deprive[s] both the district court and panels of the court of appeals of authority to hear 

the merits of constitutional challenges to the provisions of FECA.” Wagner v. FEC, 717 F.3d 

1007, 1011-12 (D.C. Cir. 2013). Yet under plaintiffs’ incorrect reading of BCRA § 403, such 

FECA claims would also have to be heard by a three-judge district court if asserted in the same 

action as a qualifying BCRA claim. This cannot be under Wagner. Interpreting BCRA § 403 

not to allow for supplemental jurisdiction reconciles the two provisions. 

Second, even if supplemental jurisdiction were permissible under BCRA § 403, this 

Court should decline to exercise it here to avoid unnecessarily burdening this District and the 

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11 

Supreme Court’s mandatory docket. Cf. Turner Broad. Sys. v. FCC, 810 F. Supp. 1308, 1312 

(D.D.C. 1992) (three-judge court) (declining to exercise supplemental jurisdiction pursuant to a 

three-judge court statute in part because “[h]aving three judges rule on every single procedural or 

substantive issue that may arise triples the normal cost of a case for the district court”). 

Plaintiffs’ case is top heavy with regulatory challenges. The complaint challenges one provision 

of BCRA (the Loan Repayment Limit) in Counts I and II (Compl. ¶¶ 34-44), but asserts both 

constitutional and Administrative Procedure Act claims against three different Commission 

regulations in Counts III, IV, and V (id. ¶¶ 45-51). Those six distinct regulatory claims 

challenge provisions that do not merely parrot the Loan Repayment Limit. (See Compl. ¶ 48 

(attacking the 20-Day Repayment Period), ¶¶ 50-51 (challenging the FEC’s interpretation of 

“personal loans”). Even plaintiffs concede that if a BCRA claim were joined with a “sufficient 

number of sufficiently unrelated claims,” that at some point, supplemental jurisdiction would no 

longer make sense. (Pls.’ Br. at 30 n.5.) That point is reached in this case. 

III. PLAINTIFFS LACK STANDING 

 

A. Plaintiffs Needlessly Sequenced The Committee’s Finances to Place Senator 

Cruz’s $10,000 at Risk and Injure Themselves 

As described in the Commission’s earlier brief, “self-inflicted harm doesn’t satisfy the 

basic requirements for standing” because it is neither “cognizable under Article III,” nor “fairly 

traceable to the defendant’s challenged conduct.” Nat’l Family Planning & Reprod. Health 

Ass’n, Inc. v. Gonzales, 468 F.3d 826, 831 (D.C. Cir. 2006); FEC Br. at 14-20.7 The Committee 

did not pay back $10,000 of Senator Cruz’s loan due to deliberate choices made by plaintiffs — 

 

7

 Accordingly, the FEC has not conceded that either plaintiff has alleged an injury that is 

cognizable under Article III, as plaintiffs claim (Pls.’ Br. at 32-33). (See FEC Br. at 21 

(explaining that even if plaintiffs’ alleged injury was not self-inflicted, the Committee itself 

would still lack an injury in fact).) 

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both the decision to make an unnecessary loan on the eve of the election that slightly exceeded 

the $250,000 threshold, and the voluntary decision of the Committee not to repay $10,000 of that 

loan to Cruz using pre-election funds within 20 days of the election. 

Plaintiffs do not dispute the absence of a genuine campaign-related reason why Senator 

Cruz loaned the Committee $260,000 the day before the election or why the campaign failed to 

pay him back $10,000 using pre-election contributions. Additionally, they all but explicitly 

concede that Cruz’s decision to make the loan, and the Committee’s decision not to pay back 

$10,000 within the 20-day window were both calculated to bring this lawsuit. (See Pls.’ Br. at 

36 (“[I]t matters not at all why Senator Cruz loaned money to his campaign, even assuming the 

loans were designed to bring a test case.”); id. at 37 (asserting, incorrectly, that plaintiffs suffered 

First Amendment harm “even if, in this particular instance, they could have fully reimbursed the 

Senator’s loans without transgressing [the Loan Repayment Limit]”).) 

Plaintiffs assert that “the Senator’s injection of funds into his campaign helped to ensure 

that the Committee’s creditors would be paid” (Pls.’ Br. at 33), but that factually incorrect 

statement would not rescue plaintiffs’ allegations of injury even if true. First, plaintiffs’ injury 

was self-imposed because they chose to prioritize paying back other creditors over paying back 

Senator Cruz, and plaintiffs do not contend otherwise. (See Pls. Br. at 41.) Plaintiffs themselves 

cite authority stating that if a plaintiff has an opportunity to avoid an alleged injury but chooses 

not to for financial or budgetary reasons, then that injury is imputed to the plaintiff, not the law. 

(See Pls.’ Br. at 43 n.9 (“‘[E]conomic considerations that cause an individual to reject a certain 

option because it is less favorable in some ways and more favorable in others does not transform 

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13 

an otherwise voluntary decision into a coerced one.’” (quoting Huron v. Berry, 12 F. Supp. 3d 

46, 53 (D.D.C. 2013), aff’d sub nom. Huron v. Cobert, 809 F.3d 1274 (D.C. Cir. 2016)).)8 

Second, plaintiffs’ suggestion that Cruz was compelled to loan the Committee money to 

ensure payment of creditors is inconsistent with the publicly available facts. Those facts 

demonstrate, and plaintiffs do not dispute, that the Committee (1) donated $200,000 to the Texas 

Republican Party on the same day as Cruz’s loan (FEC Br. at 15), (2) was legally able to raise 

post-election contributions to repay its creditors other than Cruz up to the total amount of its net 

debts outstanding from the election (id. at 17), and (3) did in fact pay the vast majority of Cruz’s 

loan back to him before repaying all of its vendors (id. at 19-20). 

Plaintiffs’ failure to avoid their alleged injury due to their mere preference not to utilize a 

legal and non-injurious way to repay Cruz’s $10,000 precludes their standing. (See FEC Br. at 

17-19; Huron, 12 F. Supp. 3d at 53 (holding that a family’s “cost considerations” did not grant 

them standing to challenge a health insurance plan for lacking certain coverage because they 

could have enrolled in another plan with the coverage they needed); Stop This Insanity, Inc. Emp. 

Leadership Fund v. FEC, 761 F.3d 10 (2014) (holding that a corporation’s preference to engage 

in a barred method of electoral spending through a PAC did not create a constitutional injury 

when the corporation could have legally engaged in the same spending itself).9

 

8

 Plaintiffs do not dispute that Senator Cruz controls his own campaign committee and is 

thus responsible for its choices. (See Pls.’ Br. at 37 n.7.) As required by FECA, Cruz authorized 

the Cruz Committee to receive contributions and make expenditures on his behalf, see 52 U.S.C. 

§ 30101(6), and he is an agent of the Cruz Committee, id. § 30102(e)(2). In any event, if the 

Committee had acted independently when it decided not to pay Senator Cruz $10,000 from preelection funds, Cruz’s alleged injury would have been caused by the Committee, not BCRA. 

9

 Plaintiffs claim this case is unlike Huron because their own injury “cannot be redressed 

by pointing to other sources of funds that could have been used to reimburse the Senator.” (Pls.’ 

Br. at 42.) But Huron rejected a similar argument by a plaintiff who claimed that his injury 

could not be redressed by choosing other health care plans that could have been used to provide 

the coverage he needed. 12 F. Supp. 3d at 53. Plaintiffs also argue that Stop This Insanity is 

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14 

The fact that Senator Cruz could have avoided any injury by repaying himself in accord 

with the law distinguishes this case from the various rulings upon which plaintiffs rely. (Pls.’ Br. 

at 34-40.) In those cases, the relevant plaintiffs faced an actual, concrete injury as a result of 

complying with the law. In Libertarian National Committee v. FEC, the court concluded that the 

plaintiff political party could not have accepted the entire amount of a donor’s $235,000 bequest 

free from restraints on how it could use the money while still complying with FECA. 924 F.3d 

533, 538 (D.C. Cir. 2019) (en banc). In Becker v. FEC, the plaintiff candidate had no legal way 

to participate in a debate while still running a campaign that did not accept corporate 

contributions due to the FEC’s regulations permitting corporate debate sponsorship. 230 F.3d 

381, 388 (1st Cir. 2000). In Brown v. Board of Education, the plaintiff African-American 

schoolchildren could not have obtained a desegregated public education by any then-lawful 

means. 347 U.S. 483, 495 (1954). In Evers v. Dwyer, the African-American plaintiff was “[a] 

resident of [Memphis] who cannot use transportation facilities therein without being subjected by 

statute to” racial segregation. 358 U.S. 202, 204 (1958).10 Similarly, civil rights pioneer Rosa 

Parks (see Pls.’ Br. at 2-3) had no legal way to take a desegregated city bus ride on December 1, 

 

“irrelevant” because it is not about standing (Pls.’ Br. at 43), but Stop This Insanity was a ruling 

about whether plaintiffs had suffered a constitutional injury, the same question at issue in this 

motion (id. at 37). Furthermore, plaintiffs are simply wrong when they claim that the Stop This 

Insanity plaintiff “did not assert a constitutional right to choose its more-restrictive form of 

organization” (id.). See Stop This Insanity, 761 F. 3d. at 14 (stating that the plaintiff “claims 

there is a constitutional right to do things the hard way”). 

10 Havens and City of Jersey City (see Pls.’ Br. at 34, 36, 38-39), also offer plaintiffs no 

help since they feature the distinguishable situation where an Article III injury “exist[s] solely by 

virtue of ‘statutes creating legal rights, the invasion of which creates standing.” Havens Realty 

Corp. v. Coleman, 455 U.S. 363, 373-74 (1982) (internal quotation marks omitted) (intention to 

buy or rent a home not necessary for right to truthful housing information); City of Jersey City v. 

Consol. Rail Corp., 668 F.3d 741, 745 (D.C. Cir. 2012) (procedural right of first refusal to buy 

property). 

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1955 in Montgomery, Alabama without having to stand for white passengers. See Peter Irons, A 

People’s History of the Supreme Court at 222-23 (2006). 

Senator Cruz’s self-created inability to repay himself $10,000 after a campaign in which 

he received $29.2 million in contributions bears no resemblance to the plight of Rosa Parks or 

any of the plaintiffs described above. The Cruz plaintiffs identify no harm that would befall 

Cruz or his campaign if the Committee had simply repaid Cruz’s $10,000 loan using fungible 

contributions raised pre- rather than post-election. 

B. Plaintiffs’ Brief Cannot Change the Alleged Injury-in-Fact Stated in 

Plaintiffs’ Complaint 

Faced with the reality that the injury stated in the complaint was self-inflicted, plaintiffs 

twist their purported injury: Plaintiffs’ injury is not a “financial injury,” they claim, but instead 

the “constitutional injury of being denied the use of post-election contributions to fully 

reimburse the Senator’s loans.” (Pls.’ Br. at 37; see also id. (claiming a “constitutional right to 

use post-election funds to reimburse Senator Cruz”). Plaintiffs’ attempt to evade the selfinflicted nature of their injury fails because this purported focus of their injury is not stated in 

their complaint. 

 At no point does the complaint state that pre- and post-election contributions are not 

fungible and thus plaintiffs are harmed by their inability to fully repay Cruz using contributions 

raised post-election. Instead, the complaint alleges that FECA and its regulations have harmed 

them because they “prevent CRUZ COMMITTEE from making any additional payments toward 

the remaining balance due on the debts originating from CRUZ[] . . . even if such payments are 

from contributions specifically raised . . . for the retirement of debts.” (Compl. ¶ 32 (emphases 

added).) Although plaintiffs also allege that absent the Loan Repayment Limit, they would “use 

post-election contributions to defray the remaining $10,000 loan balance” (id. ¶ 33), at this point 

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in time they have no other choice, since they unnecessarily waited out the 20-Day Repayment 

Period. The Complaint does not allege that plaintiffs would have been injured or in any way 

worse off had they used the Committee’s cash on hand the day after the election to repay Cruz. 

Whether plaintiffs have standing must be based on the allegations of their complaint, and not any 

later, shifting characterizations contained in a brief. See Arpaio v. Obama, 797 F.3d 11, 19 (D.C. 

Cir. 2015); see also, e.g., Doe v. Va. Dep’t of State Police, 713 F.3d 745, 755 (4th Cir. 2013) 

(explaining that a plaintiff’s alleged injury “[a]s pled” determines whether standing exists, not a 

later “shifting characterization” in briefing or argument). 

C. Plaintiffs Are Not Injured By Suffering Any Burdens to Their Alleged 

Constitutional Rights 

Even if plaintiffs could recharacterize their injury as stated in the complaint, they would 

still lack standing. This Court need not accept as true plaintiffs’ legal conclusion that their 

inability to raise more than $250,000 in post-election contributions to repay Cruz imposes a 

“constitutional injury” upon them. (E.g., Compl. ¶ 33.) On a motion to dismiss, courts “do not 

assume the truth of legal conclusions or accept inferences that are unsupported by the facts 

alleged in the complaint.” Arpaio, 797 F.3d at 19. 

1. Even if There Were a Constitutional Right to Repay Candidate Loans 

with Post-Election Contributions It Would Not Grant Plaintiffs 

Standing 

Plaintiffs’ attempt to invent a new purported “constitutional right” to repay candidate 

loans using post-election contributions (see, e.g., Pls.’ Br. at 37) fails to grant them standing. 

Plaintiffs cite no case supporting the existence of such a right, and that is because no such case 

exists. See infra Part IV.A; FEC Br. at 28-29. Even if such a right existed, however, it would 

fail to support plaintiffs’ standing. As previously explained, because money is fungible, courts 

have found that limits imposed on one method of spending do not injure the plaintiff’s 

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constitutional rights if the plaintiff could have accomplished the same spending in an easier and 

less burdensome way. (FEC Br. at 18, 18-19 n.13.) For example, in Stop This Insanity, a 

corporation claimed that it had a constitutional right to use a certain type of political committee 

to solicit funds in a manner that was restricted by law for that type of political committee. 761 

F.3d at 11. The D.C. Circuit held that the corporation suffered no constitutional injury because 

FECA would have allowed the corporation itself to engage in the unrestricted spending it desired 

without the need for creating a political committee. Id. at 14. By contrast, in Libertarian 

National Committee, Inc., the D.C. Circuit held that the plaintiff political party had alleged an 

injury in fact because under FECA the party could not accept the entire amount of a bequest and 

still spend it on its desired purposes. 924 F.3d at 538. This case is a situation like Stop This 

Insanity because the Committee could have accomplished its goals of fully paying back Cruz and 

all the vendors by paying Cruz $10,000 in pre-election funds within 20 days. 

2. Loan Repayments Reduce Candidate Spending on Their Campaigns 

and Limiting Repayments Does Not Limit Candidate Spending 

Although candidates do have a First Amendment right to make unlimited personal 

expenditures to advocate for their election, the Loan Repayment Limit does not infringe on this 

right because candidates remain free to spend as much as they wish to promote their campaigns. 

(FEC Br. 29-32.) The provision merely limits the manner in which such loans may be paid back. 

(Id. at 30.) Nonetheless, plaintiffs assert repeatedly that this constitutional right is burdened by 

the Loan Repayment Limit. (See, e.g., Pls.’ Br. at 3, 33). Yet loan repayments operate to reduce 

candidate spending on campaigns and the Loan Repayment Limit’s regulation of how an 

authorized committee may repay a loan plainly does not prevent a candidate from spending as 

much as he or she wants on a campaign. 

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There are several logical flaws in plaintiffs’ claim that the Loan Repayment Limit 

nevertheless burdens a candidate’s right to spend because it allegedly “diminishes the likelihood 

that such a loan, and the core political speech it would have funded, will be made in the first 

place.” (Pls.’ Br. at 3.) First, plaintiffs’ argument proves too much, since if correct, then every 

limit on contributions to candidates, as well as numerous other campaign finance laws, would 

also burden a candidate’s right to spend unlimited amounts on his or her campaign. It would be 

far easier for a campaign to raise money, and thereby pay back candidate loans if, for example, 

there were no limits on the amounts individuals may contribute to campaigns, or if corporations 

were permitted to make contributions from their general treasury funds. But none of those laws 

constitutes an infringement upon the right of a candidate to spend his own money. See, e.g.,

Buckley v. Valeo, 424 U.S. 1, 35, 54 (1976) (upholding FECA’s then-$1,000 limit on individual 

contributions to candidates while striking down any limits on candidate spending). 

Second, a candidate that wishes to fund the maximum amount of political speech can 

either make a contribution to his committee, rather than a loan, or decline repayment. Campaign 

funds are increased if repayment does not occur. Speech is not diminished when candidate loans 

become contributions. A fully repaid candidate’s loan does not fund additional political speech, 

because in the absence of such a loan that speech could simply have been funded by the 

contributions that were used to repay the candidate — as illustrated by the two “alternative 

transactions” that plaintiffs’ describe (see Pls.’ Br. at 27) where in both scenarios a campaign has 

$1,000 to spend on speech regardless of whether a person contributed that money during the 

campaign or afterward to repay a candidate loan. 

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The possibility that some candidates might contribute more to their campaigns due to the 

presence of the Loan Repayment Limit results in an increased amount of political speech and 

does not infringe the candidate’s First Amendment Rights to fund the campaign. 

3. Even if the Loan Repayment Limit Burdens the Constitutional Rights 

of Some Persons, Plaintiffs Are Not Among That Group 

Plaintiffs’ brief incorrectly assumes that if the Loan Repayment Limit infringes on the 

constitutional rights of anyone, then plaintiffs here have standing. But the “irreducible 

constitutional minimum of standing” requires that “the plaintiff must have suffered an ‘injury in 

fact’” that is “concrete and particularized” and “actual or imminent, not ‘conjectural’ or 

‘hypothetical.’” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (emphasis added; 

internal quotation marks omitted). This is true even for overbreadth claims. See infra Part III.E. 

Here, plaintiffs argue that the Loan Repayment Limit burdens the First Amendment 

because it “diminishes the likelihood that [a candidate’s] loan, and the core political speech it 

would have funded, will be made in the first place.” (Pls.’ Br. at 3.) But as the FEC previously 

pointed out, the complaint lacks any allegation that Cruz himself would have loaned his 

Committee more than the $260,000 he did loan but for a fear of not being repaid due to the Loan 

Repayment Limit. (FEC Br. at 32.) Indeed, plaintiffs have not and could not allege that in the 

absence of the law, Cruz would have even made a loan exceeding the $250,000 repayment limit 

given that the facts of this case illustrate that Cruz lacked any non-litigation motivation for 

loaning his Committee money. (Id. at 14-15.) Thus, even accepting as true plaintiffs’ claim that 

the Loan Repayment Limit diminishes the likelihood that candidates will loan their campaigns 

money, plaintiffs lack standing because the Loan Repayment Limit did not diminish the 

likelihood that Cruz would loan his campaign money. See Lujan, 504 U.S. at 564 (holding that 

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20 

plaintiffs lacked standing to challenge environmental rule that harms wildlife since they had no 

concrete plans to visit the area where the wildlife was being endangered). 

D. The Cruz Committee Has Not Suffered an Injury 

The Committee lacks standing for the additional reason that it did not suffer injury by 

gaining $10,000 as a result of the Loan Repayment Limit. (FEC Br. at 21.) The Committee’s 

arguments in response are lacking. First, the Committee states new alleged injuries not 

appearing in the complaint. It claims that it wants to repay Cruz’s $10,000 to “incentivize 

Senator Cruz, no less than others, to extend credit to the Committee in the future” (Pls. Br. at 33 

(citing Compl. ¶ 33)), but the complaint says nothing to that effect, nor does it allege that Cruz 

was disincentivized from loaning money due to the Loan Repayment Limit. Even if the 

Committee had alleged that, its First Amendment rights would only have been infringed if it had 

difficulty “amassing the resources necessary for effective [campaign] advocacy,” Randall v. 

Sorrell, 548 U.S. 230, 248 (2006) (quoting Buckley, 424 U.S. at 21), which it did not, see FEC 

Br. at 9 (“[T]he Committee raised more than $35 million.”). Second, the Loan Repayment Limit 

could not “burden the Committee’s right to spend money on campaign speech,” as plaintiffs’ 

claim. (Pls.’ Br. at 33.) Loan repayments are not campaign speech. (See FEC Br. at 28-29.) 

Furthermore, even if the Loan Repayment Limit creates such a disincentive, the Committee does 

not explain how it can have a constitutional right to spend money a candidate did not loan, or 

how the Limit would disincentivize the Committee’s spending. 

There is also no merit to plaintiffs’ arguments that the Loan Repayment Limit infringes 

on the Committee’s purported constitutional rights to “make constitutionally protected decisions 

about how and when to speak during an election,” or to “prioritize its spending of pre-election 

contributions by paying vendors and other creditors rather than reimbursing Senator Cruz.” 

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21 

(Pls.’ Br. at 15, 41.) The former is simply not at issue in this case regarding the Committee’s 

post-election efforts to have fewer funds available for election spending. As to their latter 

asserted interest, plaintiffs had a means by which they could have easily accomplished their 

goals of paying Cruz back fully and paying off vendors. (See FEC Br. at 17.) 

E. Plaintiffs’ Lack of Standing for Their Own Claims Precludes Their 

Overbreadth Claims, Which Also Lack Merit 

Plaintiffs concede that they are not asserting third-party standing on behalf of potential 

campaign contributors or on behalf of losing candidates. (Pls.’ Br. at 44, 45 n.11.) Rather, their 

arguments made in connection with those two groups are merely an overbreadth challenge to the 

Loan Repayment Provision. As an initial matter, plaintiffs must have their own “injury-in-fact” 

to bring an overbreadth claim to protect the First Amendment rights of others not before this 

Court. Sec’y of State of Md. v. Joseph H. Munson Co., Inc., 467 U.S. 947, 958 (1984). As 

described above, plaintiffs lack any cognizable injury in fact and therefore they lack standing for 

their overbreadth claim. Even if plaintiffs did have standing to make these arguments, they have 

failed to establish that the law is overbroad. See infra Part IV.C. 

IV. PLAINTIFFS’ CLAIMS ARE INSUBSTANTIAL 

Even if this Court concluded that plaintiffs have standing, it should nonetheless dismiss 

the case without convening a three-judge court because plaintiffs’ claims are not substantial. 

A. Rational Basis Is the Proper Level of Scrutiny for the Loan Repayment Limit 

Which Does Not Limit Political Speech 

 

As discussed above and in the Commission’s previous brief, the Loan Repayment Limit 

does not infringe on any constitutional rights. Because the Loan Repayment Limit does not 

burden political speech, a Court deciding this case on the merits must apply rational-basis 

scrutiny to determine its constitutionality. (FEC Br. at 27.) The level of scrutiny is a critical 

Case 1:19-cv-00908-APM Document 32 Filed 07/12/19 Page 28 of 33
22 

factor for the Court to consider in determining whether this case is substantial enough to warrant 

a three-judge court. Under rational-basis scrutiny, plaintiffs have the burden “to negative every 

conceivable basis which might support it.” FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 315 

(1993) (citation and quotation marks omitted). Plaintiffs do not even attempt to argue that they 

could meet this burden. Because rational-basis scrutiny is appropriate here, plaintiffs’ claims 

have no chance of success and the entire challenge is insubstantial. 

The Commission’s prior brief cited FEC v. O’Donnell, 209 F. Supp. 3d 727, 740 (D. Del. 

2016), for, among other reasons, the proposition that rational basis is the appropriate level of 

scrutiny for a challenge to a campaign finance law that limits spending other than political 

speech. (FEC Br. at 36.) Just like the personal-use prohibition, which restricts the use of 

campaign funds for non-speech expenses such as a candidate’s rent, the Loan Repayment Limit 

restricts the use of campaign funds for the non-speech purpose of paying back candidate loans in 

excess of $250,000. Plaintiffs’ attempt to distinguish O’Donnell because loan repayments are 

not illegal personal-use expenditures under FECA (Pls.’ Br. at 19-20) is beside the point.11 

B. The Government Has an Important Interest in Diminishing Corruption and 

Its Appearance That Justifies the Loan Repayment Limit 

In its opening brief, the FEC demonstrated that the Loan Repayment Limit is rationally 

related to a legitimate government interest and plaintiffs could not prove otherwise. (See FEC 

Br. at 37-40.) The Loan Repayment Limit applies in a narrow circumstance where the risks of 

corruption and its appearance are at their apex: when a campaign gives hundreds of thousands of 

 

11 Because loan repayments do not constitute political speech, the Sixth Circuit’s decision 

in Anderson v. Spear (see Pls. Br. at 15, 18, 26, 28) has no bearing on this case, since there the 

court examined state laws banning all post-election contributions and candidate loans in excess 

of $50,000. 356 F.3d 651, 670-72 (6th Cir. 2004). The Loan Repayment Limit limits neither the 

amount candidates can loan and give campaigns nor post-election contributions. 

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23 

dollars received after an election to an officeholder who can legally use the funds for any 

purpose. In response, plaintiffs make three misleading arguments, each of which lacks merit. 

First, Congress enacted the Loan Repayment Limit to limit the risks of corruption and its 

appearance (FEC Br. at 5-6, 39), despite plaintiffs’ misleading quotations of legislative history 

relating to BCRA’s Millionaire’s Amendment, struck down in Davis v. FEC, 554 U.S. 724 

(2008) (see Pls.’ Br. at 4-5, 24-25). The Millionaire’s Amendment was struck down in part 

because it functioned to level the playing field between rich and poor candidates. Davis, 554 

U.S. at 741-42. Although the Loan Repayment Limit was also enacted as part of BCRA, it is not 

constitutionally faulty by association (FEC Br. at 8-9), as plaintiffs claim. None of the 

legislative history recited by plaintiffs related at all to the Loan Repayment Limit, which has a 

distinct purpose. As quoted in the FEC’s prior brief, the legislative history that actually 

discussed the Loan Repayment Limit makes clear that the provision was at least in part intended 

to combat quid pro quo corruption and its appearance. (FEC Br. at 5-6 (quoting 147 Cong. Rec. 

S2462 (daily ed. Mar. 19, 2001) (statement of Sen. Domenici) (explaining that a candidate who 

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

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

you like me to vote now that I am a Senator?”)).) 

 Second, plaintiffs incorrectly argue that the Loan Repayment Limit does not prevent 

corruption because “the right of a candidate to spend his own money, in the form of a personal 

loan, to advance his candidacy — actually reduces the possibility of corruption.” (Pls.’ Br. at 

25.) But this argument relies on cases such as Buckley and Davis, which had nothing to do with 

candidate loans. In Davis, the Supreme Court explained that a candidate’s expenditure of 

personal funds on a campaign “reduces the candidate’s dependence on outside contributions.” 

Case 1:19-cv-00908-APM Document 32 Filed 07/12/19 Page 30 of 33
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554 U.S at 738. But here, loan repayment reduces candidate campaign spending and Cruz’s 

loaning of $260,000 to his campaign increased his dependence on outside contributions. (See

Compl. ¶¶ 30-31 (explaining how the Committee received $250,000 from contributors after the 

election to repay Cruz).) Indeed, the precise result sought by plaintiffs’ lawsuit is a further 

increase in their dependence on outside contributions. (See Compl. ¶ 33.) 

Finally, the application of the base limits on individual contributions to candidates are 

insufficient on their own to account for the unique risks of corruption and its appearance that 

result from post-election contributions that are given directly to a candidate for his or her own 

use. Because the government’s anti-corruption interests are at their peak in this situation, 

Congress was justified in using the Loan Repayment Limit to limit the number of post-election 

contributors from whom an officeholder could receive personal funds. A comparison of 

plaintiffs’ two hypothetical transactions (Pls.’ Br. at 27) illustrates the point. The transactions 

are not “completely identical,” as plaintiffs claim (id.), when it comes to corruption risk, since 

when a candidate makes a loan, the candidate has taken a risk that he or she might not be repaid, 

and a post-election contribution that repays that debt would provide direct, personal benefits to 

the candidate. From that post-election contributor’s perspective, he or she is not making a 

contribution in the hopes that it will help the candidate win, but is instead putting money directly 

into the winner’s pocket. By contrast, in the second transaction involving pre-election funds 

from a contributor without any candidate loan, the candidate takes no personal financial risk and 

he or she cannot spend the $1,000 contribution on personal expenses. 

C. The Loan Repayment Limit is Not Overbroad 

Even if plaintiffs had standing to claim that the Loan Repayment Limit violates the rights 

of potential contributors and losing candidates, that claim would fail too. With respect to 

Case 1:19-cv-00908-APM Document 32 Filed 07/12/19 Page 31 of 33
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potential contributors, plaintiffs argue that the Loan Repayment Limit is unconstitutional because 

it prevents contributions from those who “wish to contribute, after an election, to a candidate 

whose only ‘net debts outstanding’ are comprised of personal loans in excess of the $250,000 

limit.” (Pls.’ Br. at 45.) But this is no more of an infringement on these contributors’ rights than 

the “net debts outstanding” regulation itself, which plaintiffs do not challenge, and which 

enforces the per-election limits by barring post-election contributions to a campaign in excess of 

its net debts from the relevant election. 11 C.F.R. § 110.1(b)(3)(i); FEC Br. at 4-5. Courts have 

repeatedly upheld the per-election limits, see, e.g., Holmes v. FEC, 875 F.3d 1175 (D.C. Cir. 

2018), and the circumstances of contributions to retire candidate debt pose a heightened danger 

of corruption, providing no substantial basis for distinguishing those cases. 

Similarly, plaintiffs’ arguments regarding losing candidates fail to establish that the Loan 

Repayment Limit is overbroad. Plaintiffs suggest that the number of losing candidates impacted 

by the Loan Repayment Limit is vast because, for example, “there are currently 737 declared 

candidates for President in the 2020 election.” (Pls.’ Br. at 28-29.) But it is not every candidate 

that is impacted by the Loan Repayment Limit, only those that are willing and able to loan their 

campaign over $250,000, and whose campaigns are capable of raising over $250,000 in postelection contributions. As plaintiffs acknowledge “a candidate’s ability to raise money to repay 

debts after an election is far from assured.” (Pls.’ Br. at 15.) Winning candidates have a far 

easier time retiring debt, and the number of affected losing candidates is small in relation to the 

legitimate sweep of the law. (See FEC Br. at 42-43.) 

CONCLUSION 

For the foregoing reasons and those stated in the Commission’s earlier brief, the Court 

should dismiss the case. 

Case 1:19-cv-00908-APM Document 32 Filed 07/12/19 Page 32 of 33
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Respectfully submitted, 

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

Acting General Counsel 

lstevenson@fec.gov 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 

Harry J. Summers 

Assistant General Counsel 

hsummers@fec.gov 

July 12, 2019 

Kevin P. Hancock 

Acting Assistant General Counsel 

khancock@fec.gov 

/s/ Seth Nesin 

Seth Nesin 

Attorney 

snesin@fec.gov 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

1050 First Street, N.E. 

Washington, DC 20463 

(202) 694-1650 

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