No. 21-12

IN THE

Supreme Court of the United States

FEDERAL ELECTION COMMISSION, Appellant,

v.

TED CRUZ FOR SENATE and

SENATOR RAFAEL EDWARD “TED” CRUZ, Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA

BRIEF OF CAMPAIGN LEGAL CENTER, CITIZENS 

FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, COMMON CAUSE, AND DEMOCRACY 21 

AS AMICI CURIAE IN SUPPORT OF APPELLANT

FRED WERTHEIMER

DEMOCRACY 21

2000 Massachusetts Ave. NW

Washington, DC 20036

STUART C. MCPHAIL 

ADAM RAPPAPORT 

CITIZENS FOR RESPONSIBILITY 

AND ETHICS IN WASHINGTON

1331 F St NW, Suite 900, 

Washington, DC 20004

PAUL M. SMITH

 Counsel of Record

TARA MALLOY

MEGAN P. MCALLEN

CAMPAIGN LEGAL CENTER

1101 14th St. NW, Suite 400

Washington, DC 20005

(202) 736-2200

Psmith@campaignlegal.org

DONALD J. SIMON 

SONOSKY, CHAMBERS, SACHSE,

ENDRESON & PERRY, LLP

1425 K Street NW, Suite 600

Washington, DC 20005

Counsel for Amici Curiae
i

TABLE OF CONTENTS

Page

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

INTEREST OF AMICI CURIAE................................ 1

SUMMARY OF ARGUMENT .................................... 1

ARGUMENT............................................................... 4

I. Limiting Large Post-Election Payments that 

Personally Benefit Candidates Is Not a Burden 

on Campaign Speech Warranting Heightened 

Scrutiny.................................................................. 4

A. The loan-repayment limit does not operate

as a constraint on candidate campaign 

spending............................................................ 5

B. The Limit is functionally a ceiling on candidates’ acceptance of personal gifts aggregating above $250,000........................................... 8

C. Cruz has not identified a single candidate 

whose self-financing activity has been 

chilled by the Limit—not even himself......... 11

II. The Loan-Repayment Limit Is Amply Justified 

by the Compelling Anti-Corruption Interests It 

Serves................................................................... 15

A. The Limit alleviates the risk of quid pro quo

corruption in a setting where that concern is 

widely recognized and particularly acute ..... 15

B. The Limit’s anti-corruption objectives are 

borne out by the record, empirical evidence, 

and long experience........................................ 20

C. Congress’s unique expertise with respect to 

post-election fundraising entitles the Limit 

to deference..................................................... 30

CONCLUSION.......................................................... 33
ii

TABLE OF AUTHORITIES

Cases: Page

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

Cal. Med. Ass’n v. FEC, 453 U.S. 182 (1981)........... 31

Citizens United v. FEC, 558 U.S. 310 (2010)........... 20

Davis v. FEC, 554 U.S. 724 (2008)....................... 6, 31

FEC v. Beaumont, 539 U.S. 146 (2003) ................... 31

FEC v. Colo. Republican Fed. Campaign Comm., 

533 U.S. 431 (2001)................................................ 22

FEC v. Nat’l Conservative PAC, 

470 U.S. 480 (1985)............................................ 3, 20

FEC v. Nat’l Right to Work Comm., 

459 U.S. 197 (1982)................................................ 31

McConnell v. FEC, 540 U.S. 93 (2003) .......... 6, 20, 31

McCutcheon v. FEC, 572 U.S. 185 (2014).... 1, 7, 8, 23

Nev. Comm’n on Ethics v. Carrigan,

564 U.S. 117 (2011)................................................ 19

Nixon v. Shrink Mo. Gov’t PAC, 

528 U.S. 377 (2000)........................................ passim

Randall v. Sorrell, 548 U.S. 230 (2006)................... 31

Schickel v. Dilger, 925 F.3d 858 (6th Cir. 2019)........ 8

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

Williams-Yulee v. Fla. Bar, 

575 U.S. 433 (2015).......................................... 24, 32

Statutes, Regulations, and Rules:

2 U.S.C. § 4725............................................................ 9

5 U.S.C. § 7342............................................................ 9

5 U.S.C. § 7351............................................................ 9

5 U.S.C. § 7353............................................................ 9

52 U.S.C. § 30114(b) ....................................... 9, 16, 19
iii

52 U.S.C. § 30116(j) .................................... 2, 6, 11, 14

5 C.F.R. § 2635.203(b)............................................... 10

5 C.F.R. § 2635.204(a)........................................... 9, 10

11 C.F.R. § 113.1(g)................................................... 16

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

11 C.F.R. § 116.11(c)(1)............................................... 6

Alaska Stat. § 15.13.078(b)(1) .................................. 18

Cal. Gov’t Code § 85307(b) ....................................... 18

Fla. Stat. § 106.08(3)(b) ............................................ 18

Ga. Code Ann. § 21-5-41(h)....................................... 18

Mass. Gen. Laws ch. 55, § 7 ..................................... 18

Neb. Rev. Stat. § 49-1446.04 .................................... 18

17 R.I. Gen. Laws § 17-25-7.4 .................................. 18

S.C. Code § 8-13-1328 ............................................... 18

Tex. Elec. Code Ann. § 253.042(a)............................ 18

Wash. Rev. Code § 42.17A.445(3)............................. 18

Rules of the House of Representatives,

116th Cong. (2019) ......................................... 9, 10

Standing Rules of the Senate, 

113th Cong., 1st Sess. (2013).................... 9, 10, 11

Other Materials:

Alaska Governor Rejected; Hickel Loses GOP 

Primary, L.A. Times, Aug. 28, 1986...................... 27

Alexei Ovtchinnikov & Philip Valta, SelfFunding of Political Campaigns (HEC Paris, 

Research Paper No. FIN-2016-1165, 2021),

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2804474................................ 12, 13, 24, 26
iv

Andrew Zajac, Interest on campaign loan pays, 

L.A. Times (Feb. 14, 2009), https://www.la

times.com/archives/la-xpm-2009-feb-14-menapolitano14-story.html ........................................ 18

Bill Walsh & Jack Wardlaw, Campaign Debt 

Tactic Questioned: Lavish Fund-Raisers Pay 

Off Self Loans, New Orleans Times-Picayune, Oct. 9, 1995, 1995 WLNR 986185 ......... 28, 29

Catalina Camia, Hillary Clinton Pays off 2008 

Campaign Debt, USA Today (Jan. 23, 2013), 

https://www.usatoday.com/story/onpolitics/

2013/01/23/hillary-clinton-campaign-debtfree/1857991 ........................................................... 14

Contributions to Fischer Flow In, Courier-J. 

(Ky.), Dec. 5, 2011, 2011 WLNR 25299560........... 29

Craig Gustafson, Lobbyists See Benefit from 

Three City Officials: Fundraisers Followed 

by Favorable Votes, San Diego Union-Trib., 

June 13, 2009, 2009 WLNR 11433591.................. 28

Dan Hoover, Year After Election, Debt Lingers 

for Some, Greenville News, Nov. 28, 2003, 

2003 WLNR 18176238 ........................................... 13

Donnelly Finds PAC Money Flows to a Winner, 

Indianapolis Star, Feb. 19, 2013, 2013 

WLNR 4295436 ...................................................... 26

Editorial, Ethics Twist: Legislative Tactics 

Work Against Reform, Memphis Com. Appeal, Apr. 6, 1995, 1995 WLNR 3187063.............. 29

Editorial, Faircloth’s Fundraising Raises Ethical Question, Greensboro News & Rec., Apr. 

16, 1996, 1996 WLNR 5828596 ............................. 29
v

Editorial, Misplaced Generosity: Alabama Needs 

to End the Sleazy Practice of Giving Money to 

Candidates After the Election, Birmingham 

News, Nov. 15, 1994, 1994 WLNR 4812766 ......... 29

Editorial, Money Train Rolls Through Big 

Loopholes, Corpus Christi Caller Times, Dec. 

21, 2002, 2002 WLNR 16097051 ........................... 29

Editorial, Mr. Shapp’s 1970 Funds: What Is

There to Hide?, Phila. Inq., Oct. 3, 1974 ............... 29

Eric Eyre, Morrisey Campaign Saddled with 

$1.28M Debt, Charleston Gazette & Daily 

Mail (W. Va.) (Apr. 20, 2015), https://www.

wvgazettemail.com/news/morrisey-cam

paign-saddled-with-1-28m-debt/article_1a43

c412-0483-5396-b13a-0871f40f1c98.html ............. 30

Fredreka Schouten, Repaying Campaign Debt 

Hard for Losing Side, ABC News (May 15, 

2008), https://abcnews.go.com/Politics/story?

id=4853292 ............................................................. 13

H.R. Con. Res. 175, 72 Stat. B12 (1958).................. 19

Judicial Conference, Code of Conduct for 

United States Judges, Canon 4(D)(4) ..................... 9

Kitty Eisele, Presidential Campaign Debt Can 

Linger for Decades, NPR (July 5, 2011), 

https://www.npr.org/2011/07/05/137615746/pres

idential-campaign-debt-can-linger-for-decades.... 13

Laurie Roberts, Opinion, Want to Put Money 

into Doug Ducey’s Pocket? You Can., Ariz. Republic (Sept. 9, 2014), https://www.azcentral.

com/story/laurieroberts/2014/09/09/doug-ducey-primary-debt-retirement-plan/15335053 ....... 29
vi

Legislator Gift Restrictions, Nat’l Conf. of

State Legislatures (Sept. 13, 2021), https://

www.ncsl.org/research/ethics/50-state-tablegift-laws.aspx ......................................................... 19

Leslie Wayne, The Nation; Raising Money for 

Losers, N.Y. Times (June 13, 1999), https://

www.nytimes.com/1999/06/13/weekinreview/

the-nation-raising-money-for-losers.html....... 13, 26

Memorandum from Ryan Krogen, Lead Auditor, to FEC (Nov. 3, 2021), https://www.fec.

gov/resources/cms-content/documents/mtg

doc_21-39-A.pdf...................................................... 23

Michael Luo, For Clinton, Millions in Debt 

and Few Options, N.Y. Times (June 10, 

2008), https://www.nytimes.com/2008/06/10/

us/politics/10clinton.html ...................................... 13

Patrick McGreevy, Lobbyists Help Mayor Retire Campaign Debt, Daily News (L.A.), Nov. 

11, 1993, 1993 WLNR 1294659 ............................. 29

Paul J. Nyden, Lawyers’ Fete for Workman 

Gets Criticism, Charleston Gazette (W. Va.), 

Dec. 17, 2008, 2008 WLNR 24179665 .................. 30

Phil Kuntz, Editorial, Sanford Leads Field in Recouping Investment, Greensboro News & Rec., 

July 21, 1991, 1991 WLNR 4287944..................... 30

Randy Ellis, Postelection Donors Help Henry 

Pay Debt, Oklahoman, Feb. 23, 2003, 2003 

WLNR 16553218 .............................................. 28, 29

Regulated Firms Help Pay Debt of DEQ Secretary, New Orleans Times-Picayune, Mar. 8, 

1993, 1993 WLNR 855015 ..................................... 29
vii

Stephen Rosenfeld, Campaign Debt, NPR 

(Feb. 14, 1999), https://www.npr.org/1999/02/

14/1045548/campaign-debt.................................... 14

Steven V. Roberts, Debt Retirement Party Becoming an Institution, N.Y. Times (Nov. 29, 

1982), https://www.nytimes.com/1982/11/29/

us/debt-retirement-party-becoming-an-institution.html ....................................................... 16, 26

Storer Rowley, New Heat on Alaska Governor, 

Chi. Trib., Aug. 2, 1985.......................................... 27

Thomas Burr, McMullin Owes Nearly 

$670,000 for His Failed Presidential Bid, 

Salt Lake City Trib. (Apr. 19, 2017), https://

archive.sltrib.com/article.php?id=5191365&

itype=cmsid ............................................................ 13

U.S. Courts, Guide to Judiciary Policy (July 

27, 2021) ............................................................. 9, 10

Wallace Turner, Impeachment Inquiry Begins 

in Alaska, N.Y. Times, July 23, 1985.................... 27
1

INTEREST OF AMICI CURIAE

This brief1 is filed by Campaign Legal Center,

Common Cause, Citizens for Responsibility and Ethics in Washington, and Democracy 21. Amici are nonpartisan, nonprofit organizations that work in the areas of campaign finance, ethics, and election law to 

ensure that government is accountable, accessible, 

and transparent.

Amici have a longstanding interest in the promotion and defense of measures that protect the integrity of government, and believe this challenge threatens to erode those protections. The amici have participated in numerous campaign finance cases relevant 

here, including, for example, McCutcheon v. FEC, 572 

U.S. 185 (2014).

SUMMARY OF ARGUMENT

“Democracy works only if the people have faith in 

those who govern, and that faith is bound to be shattered when high officials . . . engage in activities which 

arouse suspicions of malfeasance and corruption.” 

Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 390 

(2000) (internal quotation marks omitted). Accordingly, this Court has long recognized a compelling 

governmental interest in combating actual and apparent quid pro quo corruption. See, e.g., Buckley v. 

Valeo, 424 U.S. 1, 25-29 (1976) (per curiam). The 

question in this case is whether, in light of this compelling interest, Congress has the authority to limit 

1 This brief is filed with the written consent of all parties. The 

brief was not authored in whole or part by counsel for any party. 

No person or entity other than amici and their counsel made a 

monetary contribution to this brief’s preparation or submission.
2

the amount of money that candidates or their campaigns can solicit and convey directly to a candidate’s 

bank account post-election, after the campaign has 

come to an end. See 52 U.S.C. § 30116(j) (loan-repayment limit or “the Limit”). Precedent, experience, and 

common sense answer in the affirmative.

In holding the opposite, the district court committed two fundamental errors. 

First, the court misconstrued the Limit as a restriction on campaign contributions to a candidate, or 

self-financing by a candidate, and therefore subjected 

it to heightened scrutiny. But the Limit does not

meaningfully burden campaign speech or candidate 

self-financing, so strict scrutiny is inappropriate, and 

even a lesser, intermediate form of heightened scrutiny is unwarranted.

The Limit leaves candidates free to self-finance 

and loan personal funds to their campaigns in whatever sums they deem appropriate. And it imposes no 

restrictions whatsoever on contributors, who may still

donate funds at any time subject only to ordinary contribution limits. By merely regulating the times at 

which candidates can solicit and use contributions to 

repay personal loans, the Limit operates as a run-ofthe-mill regulation of personal gifts, not as one restricting political speech.

Indeed, the Limit is consistent with a host of state 

and federal laws regulating personal gifts to public officials. A payment that directly compensates a candidate—like a post-election contribution to repay a candidate’s personal loan—is effectively a gift, and raises

all of the same obvious corruption concerns associated 

with gifts to officeholders. 
3

And the factual record here demonstrates that any 

First Amendment burdens imposed by the Limit are

marginal at most. Few candidates lend more than 

$250,000 to their campaigns, and the notorious difficulty of post-election fundraising means that most 

who do generally cannot raise enough money after 

Election Day to repay the increment above $250,000. 

It is little surprise, then, that appellees could not

identify even one candidate whose self-financing was

chilled by the Limit. As applied to Senator Cruz here, 

in fact, the statute caused no harm at all. See Br. for 

Appellants (FEC Br.) 10-26.

Second, the district court failed to give due weight 

to the anti-corruption interests the Limit serves. 

Given the Limit’s modest burdens and compelling justifications, it readily passes muster under any standard of scrutiny.

Concerns about the corruptive potential of postelection payments to candidates that function as personal gifts are neither “novel nor implausible,” Nixon, 

528 U.S. at 391; they are irrefutable. The same intuition animates numerous measures designed to avert

corruption in federal and state government, and the

Limit fits comfortably within this tradition. The district court failed to credit these concerns or accord appropriate weight to anti-corruption interests long recognized by this Court as both “legitimate and compelling.” FEC v. Nat’l Conservative PAC, 470 U.S. 480, 

496 (1985).

And the available evidence confirms that the Limit 

serves its objectives. The FEC substantiated the statute’s aim and effectiveness as an anti-corruption 
4

measure through its legislative history, historical experiences with post-election fundraising and corruption in the states, empirical scholarship, and polling 

data. Additional evidence abounds, and all points in 

the same direction. 

Congress’s predictive judgment that post-election 

contributions that directly and personally enrich candidates pose an acute threat of corruption aligns with 

both common sense and the record in this case, and is 

entitled to great weight. That Congress chose to regulate in this area with a relatively light hand—so as 

to strike an appropriate balance between the potentially competing First Amendment and anti-corruption interests at stake—is not a constitutional vulnerability but a strength.

At bottom, the Limit is a common-sense restraint 

on candidates’ acceptance of personally enriching 

cash payments after Election Day, a practice that 

magnifies the risk of a quid pro quo and is “bound 

to . . . arouse suspicions of malfeasance and corruption.” Nixon, 528 U.S. at 390. The First Amendment 

does not preclude such a basic reform.

ARGUMENT

I. Limiting Large Post-Election Payments 

that Personally Benefit Candidates Is Not a 

Burden on Campaign Speech Warranting 

Heightened Scrutiny.

Appellees’ calls for strict scrutiny or its equivalent 

turn on claims that the challenged Limit has both the 

intent and effect of circumscribing candidate self-financing in federal elections. But the Limit neither

regulates candidate self-financing nor restricts the

right to make and accept campaign contributions; it 
5

simply checks a candidate’s accrual of personal financial benefits in the post-election period. 

Appellees’ focus on the standard of review is thus 

a diversion. First, the district court invalidated the 

Limit under “closely drawn” scrutiny, J.S.App. 30, so

even if this Court elects to rule for appellees, it need 

not elevate the level of scrutiny to affirm the decision 

below.2 And appellees’ attempts to inflate the level of 

review also should not distract from their failure to 

show any appreciable burden imposed by the Limit on

speech or association. They have not demonstrated 

First Amendment injury either with respect to Senator Cruz—who repaid almost the entirety of his 

$260,000 loan with pre-election contributions, and 

consequently lacks standing to maintain this action, 

see FEC Br. 10-16—or as to any other candidate or 

contributor. A careful, functional analysis suggests 

that, far from meriting strict scrutiny, the Limit does 

not even warrant the closely drawn scrutiny applied 

below.

A. The loan-repayment limit does not operate as a constraint on candidate campaign 

spending.

The district court’s fundamental mistake was to 

analyze the Limit only in terms of the purpose for 

which the candidate ostensibly made the initial 

loan—to finance an election campaign, an action that 

indisputably receives First Amendment protection. 

See J.S.App. 11a-12a. In narrowly focusing on the pre2 There is certainly no basis for appellees’ suggestion that the 

Court contemplate a radical reconsideration of its longstanding 

multi-tiered approach to the review of campaign finance laws. 

Mot. to Affirm or Dismiss (Mot.) 28 n.1.
6

election dimensions of the transaction, the court ignored the Limit’s actual function: to regulate the solicitation and receipt of post-election contributions 

that directly accrue to the candidate’s financial benefit.

Section 304 of the Bipartisan Campaign Reform 

Act of 2002 (BCRA) provides that a federal candidate

may use up to $250,000 in contributions raised after 

the date of an election to repay the candidate’s outstanding personal loans incurred in the campaign. 52 

U.S.C. § 30116(j). The statute does not limit the use 

of funds raised pre-election to repay candidate loans, 

regardless of timing or amount. Id.3

In the district court’s estimation, the Limit “imposes a ‘drag’ on the candidate’s First Amendment activity by discouraging the personal financing of campaign speech.” J.S.App. 15a (quoting Davis v. FEC, 

554 U.S. 724, 739 (2008)). But the lower court arrived 

at that conclusion only because it failed to conduct a 

functional analysis of how the provision operates—

contrary to the instructions of this Court’s precedents.

When the Court analyzed BCRA’s ban on spending 

so-called “soft money” in McConnell v. FEC, 540 U.S. 

93 (2003), it assessed whether that regulatory “mechanism” functioned as a spending limit or a contribution limit. Id. at 138-39. Because it found the latter, 

the Court subjected what had initially appeared to be 

3 FEC regulations further provide that a campaign committee 

has 20 days after the election during which it can use pre-election funds to pay back the candidate’s loans without limitation,

11 C.F.R. § 116.11(c)(1); if Senator Cruz suffered any injury in 

connection with his loans, it was traceable exclusively to this 

regulation, depriving him of standing to challenge the statute. 

See FEC Br. 12-20.
7

a spending limit to the lesser form of scrutiny reserved for contribution limits. Id.

The same principle holds here. The Limit restricts

neither the expenditures a campaign committee may 

make, contra Buckley, 424 U.S. at 54-58 (striking 

down “limitations on overall campaign expenditures”), nor how much a candidate can spend on or 

loan to his campaign, contra id. at 51-54 (striking 

down limits on expenditures by a candidate “from his 

personal funds”). Likewise, the statute imposes no 

ceiling on the campaign’s use of funds raised before 

the election to repay candidate loans, regardless of 

the repayment’s amount or timing.

Functionally, the provision does not restrict candidate loans or their repayment; it just dictates when

candidate loan-repayment funds must be raised. And 

even that limitation is only partial. Campaigns still 

may raise and use up to $250,000 in aggregate postelection contributions to repay candidates’ personal 

loans. None of this limits the amount of money a candidate can raise or spend during a campaign.

Moreover, unlike the aggregate limit struck down 

in McCutcheon, 572 U.S. at 209-10, this provision

does not itself place any ceiling on the amount a contributor can give, whether to individual candidates or 

in aggregate; it does not regulate a would-be contributor at all.4 Section 304 thus cannot be said to represent a “prophylaxis-upon-prophylaxis approach” to 

4 Even if the Limit did burden the rights of contributors, Senator Cruz could not “identify a single potential contributor” 

whose giving was constrained by its operation here. J.A. 233. He 

should not be permitted to invoke the Court’s jurisdiction on the 

basis of a hypothetical injury to absent would-be contributors—

many of whom might well prefer that the Limit remain in place. 
8

contribution limits or their circumvention, as the district court opined. J.S.App. 34a (quoting McCutcheon, 

572 U.S. at 221). The Limit targets only a particular 

use of post-election contributions that heightens the 

risk of a corrupt quid pro quo, but it does so without

restricting what contributors can give to any one candidate, or to all candidates, in an election. 

Because the Limit does not restrain either candidate expenditures or donor contributions, it has no direct or even indirect bearing on “the amount of 

money” a candidate’s committee “can spend on political communication during a campaign.” Buckley, 424 

U.S. at 19. It is therefore doubtful that any form of 

heightened First Amendment scrutiny should apply. 

But at a minimum, appellees’ calls for strict scrutiny 

or its equivalent are unwarranted.

B. The Limit is functionally a ceiling on candidates’ acceptance of personal gifts aggregating above $250,000.

An unconditional reimbursement to a candidate 

personally—like any other item of value—is a gift. 

The Limit simply functions as a modest check on a 

candidate’s ability to accept gifts that reimburse personal campaign loans. 

“[I]f contribution restrictions ‘lie closer to the 

edges than to the core of political expression,’ gifts of 

value hug the fringe.” Schickel v. Dilger, 925 F.3d 858, 

869 (6th Cir. 2019) (citation omitted). This Court has 

See FEC Br. 36-38 (noting that the post-election context sharpens the risk that donors will be pressured or coerced into contributing). 
9

accordingly never held that a limitation on public officials’ acceptance of gifts imposes a constitutionally 

suspect burden on speech. There is no justification to 

so hold here with respect to BCRA’s limit.

Funds raised to repay a candidate’s personal loans 

in a past campaign go to the candidate and thus do 

not finance any electoral speech. And because such 

funds flow directly from a patron’s wallet into the candidate’s pocket, the corruption risk is acute.5 Indeed, 

whereas every other dollar raised by the campaign is 

subject to FECA’s prohibition on the conversion of 

campaign funds to personal use, 52 U.S.C. § 30114(b), 

the reimbursements here are functionally personal 

gifts that evade this rule.

Properly understood in this light, the Limit does 

nothing more than complement the gift rules to which 

federal officials in all three branches of government 

are already subject. Members of Congress, the Judiciary, and the Executive Branch are generally prohibited from accepting gifts worth more than $50. See

Standing Rules of the Senate, 113th Cong., 1st Sess. 

46-56 (2013) (Rule XXXV) (Senate Rules); Rules of the 

House of Representatives, 116th Cong. 42-46 (2019) 

(Rule XXV.5) (House Rules); U.S. Courts, Guide to Judiciary Policy, Vol. 2C, Ch. 6, § 620.35(b)(8) (July 27, 

2021); 5 C.F.R. § 2635.204(a) ($20 Executive Branch 

limit).6 Moreover, the rules of each branch define a 

5 To be sure, contributions raised for this purpose are first deposited into the candidate’s campaign committee, but they are 

then disbursed to the candidate’s personal account. 

6 See also, e.g., 2 U.S.C. § 4725; 5 U.S.C. §§ 7342, 7351, 7353; 

Judicial Conference, Code of Conduct for United States Judges, 

Canon 4(D)(4).
10

gift as anything of value, including the “reimbursement” of many officeholder expenses. Senate Rules, 

supra, at 47 (Rule XXXV(1)(b)(1)); House Rules, supra, at 42-43 (Rule XXV.5(a)(2)(A)); 5 C.F.R. 

§ 2635.203(b); see U.S. Courts, supra, Vol. 2C, Ch. 6,

§ 620.25.

BCRA’s limit targets the same concern: it caps

payments that reimburse candidates after an election 

and add to their personal wealth. Compared to analogous gift limits applicable to federal and state officeholders, the $250,000 ceiling this law imposes on postelection repayments is generous. But the safeguards 

it provides are no less vital. Like the ethics rules, it

prevents the actual and apparent impropriety that inheres when a candidate pockets excessive reimbursements from outside sources.

Many officeholder gift rules go much farther. 

Whereas the repayment limit applies narrowly to reimbursements to candidates for their personal loans, 

and even there, offers a generous ceiling, federal ethics rules impose stringent limits and sweep broadly. 

Under federal congressional and judicial ethics rules, 

for instance, officials may accept no more than $100 

in reimbursements from a single source in a calendar 

year; for the Executive Branch, that limit sinks to 

$50. Senate Rules, supra, at 47 (Rule 

XXXV(1)(a)(2)(A)); House Rules, supra, at 42 (Rule 

XXV.5(a)(1)(B)(i)); U.S. Courts, supra, Vol. 2C, Ch. 6,

§ 620.35(b)(8); 5 C.F.R. § 2635.204(a).

In contrast, the BCRA provision permits candidates to accept up to $250,000 in post-election reimbursements—a threshold most candidates never 

reach. See J.A. 238-39. And unlike the officeholder gift 
11

rules, which apply to a broad range of reimbursements, see, e.g., Senate Rules, supra, at 47 (Rule 

XXXV(1)(b)(1)), this Limit is confined to a single category of repayments that Congress recognized were 

particularly ripe for abuse. 

C. Cruz has not identified a single candidate

whose self-financing activity has been

chilled by the Limit—not even himself.

Although the First Amendment injury asserted by 

appellees and accepted below rests entirely on the 

Limit’s purported chilling effect on candidate self-financing, the record lacks any evidence of such chill. 

Instead, the evidence indicates that the Limit imposes at most a minor burden on a very small handful 

of candidates, and nothing of a constitutional magnitude. Appellees have not identified any candidates 

dissuaded from self-financing their campaigns because of the Limit. Even Senator Cruz himself was 

not, as the FEC’s standing argument makes clear.

1. There is no evidence that the loan-repayment 

limit appreciably chills candidate self-financing. The 

Limit—and any chilling effect it potentially produces—affects only those candidates who lend their 

campaigns $250,000 or more. See 52 U.S.C. § 30116(j); 

11 C.F.R. § 116.11. Candidates who lend less than 

that amount experience no First Amendment burden, 

even under appellees’ theory of injury. Moreover, absent the Limit, there is no reason to believe that candidates who currently engage in self-lending in 

amounts under $250,000 would choose instead to lend 

their campaigns more than $250,000. Current law already allows those candidates to increase their self-
12

lending to $250,000 without any limitation on repayment; that they have chosen not to do so necessarily 

means they were motivated by reasons other than the 

Limit.

But candidates who engage in that magnitude of 

self-lending are rare. Among House and Senate campaigns from 1983 to 2014, the average amount of total 

borrowing—including both personal and outside 

loans—was $87,137, well short of the $250,000 

threshold even including outside lending, to which the 

Limit does not apply. Alexei Ovtchinnikov & Philip 

Valta, Debt in Political Campaigns (May 2020), D. Ct. 

Doc. 65-1, at 10 (“Ovtchinnikov & Valta (2020)”). 

Loans of $250,000 or more are the exception even in 

the subset of candidates who engage in self-lending: 

from 2010 to 2018, just 11.4% of loans by House candidates and 22.8% of loans by Senate candidates 

reached that threshold. See J.A. 237-39. The Limit is 

therefore entirely irrelevant to the vast majority of 

campaigns.

Likewise, even for the sliver of candidates who 

might lend their campaigns more than $250,000, a 

larger deterrent than the Limit is the sheer difficulty 

of post-election fundraising. Most candidates cannot 

hope to raise anywhere near $250,000 after an election. Empirical research shows that most campaigns 

fail to pay off candidates’ personal loans in any 

amount at any time: from 2003 to 2018, only 15.6% of 

losing campaigns and 49.5% of winning campaigns 

did so. Alexei Ovtchinnikov & Philip Valta, SelfFunding of Political Campaigns, 16-17 (HEC Paris, 

Research Paper No. FIN-2016-1165, 2021), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2804474
13

(“Ovtchinnikov & Valta (2021)”). Among the few losing campaigns that managed to repay candidate 

loans, 86% did so before the election; after Election 

Day, repayment becomes nearly impossible. See id. at 

17. The majority of campaigns, especially losing campaigns, simply do not have the post-election fundraising capacity to trigger the $250,000 limit.

Conventional wisdom supports this conclusion—

post-election fundraising is considered notoriously 

difficult, especially for losing candidates.7 Even highprofile candidates can struggle to fundraise after 

Election Day. John Glenn, the astronaut and former 

U.S. Senator, spent 20 years attempting to pay off 

debt from a 1984 presidential campaign; the FEC 

eventually allowed him to terminate his campaign 

committee without repaying the full amount. See Michael Luo, For Clinton, Millions in Debt and Few Options, N.Y. Times (June 10, 2008), https://www.nytimes.com/2008/06/10/us/politics/10clinton.html. Hillary Clinton similarly needed years to pay off debt 

from her 2008 presidential campaign; lower-profile 

7 See, e.g., Kitty Eisele, Presidential Campaign Debt Can Linger for Decades, NPR (July 5, 2011), https://www.npr.org/2011/

07/05/137615746/presidential-campaign-debt-can-linger-fordecades; Thomas Burr, McMullin Owes Nearly $670,000 for His 

Failed Presidential Bid, Salt Lake City Trib. (Apr. 19, 2017), 

https://archive.sltrib.com/article.php?id=5191365&itype=cmsid; 

Dan Hoover, Year After Election, Debt Lingers for Some, Greenville News, Nov. 28, 2003, at B1, 2003 WLNR 18176238; Fredreka Schouten, Repaying Campaign Debt Hard for Losing Side, 

ABC News (May 15, 2008), https://abcnews.go.com/Politics/

story?id=4853292; Leslie Wayne, The Nation; Raising Money for 

Losers, N.Y. Times (June 13, 1999), https://www.nytimes.com/

1999/06/13/weekinreview/the-nation-raising-money-for-losers.html. 
14

candidates face even steeper hurdles.8 Campaigns 

simply cannot count on being able to raise $250,000 

after an election to repay loans.

2. The insubstantial, hypothetical nature of the 

“burden” posited by appellees is underscored by their 

own experience: the statute did not injure them. The

panel below assumed appellees’ standing based on the 

single-judge district court’s conclusion that “the Cruz 

Committee’s inability to repay the $10,000 balance is 

due to the law’s restrictions on the amount of postelection contributions a campaign can use to repay a 

candidate’s loans.” J.S.App. 51a. But as the FEC has 

explained (Br. 12-16), the Cruz campaign did not use 

post-election contributions to repay Senator Cruz’s

$260,000 loan. Rather, appellees admitted below that 

“[n]one of the $250,000 of the loan that was repaid 

was from contributions raised after the election,” J.A. 

329, and FEC filings confirm that it was “mathematically impossible” for the campaign to have repaid 

Cruz with $250,000 in post-election funds. FEC Br. 

15. As a result, the statute did not prevent appellees 

from repaying the remaining $10,000 with post-election contributions. See 52 U.S.C. § 30116(j). Appellees 

accordingly lack standing to raise their constitutional 

claim here.

This material error in the district court’s findings 

not only undermines appellees’ standing but also undercuts their claims of undue “burden” arising from 

8 See, e.g., Catalina Camia, Hillary Clinton Pays off 2008 Campaign Debt, USA Today (Jan. 23, 2013), https://www.usatoday.

com/story/onpolitics/2013/01/23/hillary-clinton-campaign-debtfree/1857991; Stephen Rosenfeld, Campaign Debt, NPR (Feb. 14, 

1999), https://www.npr.org/1999/02/14/1045548/campaign-debt.
15

the Limit. Senator Cruz could safely lend his campaign $260,000 immediately before the election because he knew his campaign had sufficient pre-election funds to pay off the debt; he was not himself subject to the vagaries of post-election fundraising, which 

would likely deter most candidates from making a 

loan of that size regardless of the Limit. As appellees 

have admitted, Senator Cruz made the loan and the 

campaign failed to fully repay him only to manufacture this test challenge. J.A. 325-27. To the extent the 

Limit affected Senator Cruz’s self-lending at all, 

therefore, it appears to have increased it. 

II. The Loan-Repayment Limit Is Amply Justified by the Compelling Anti-Corruption Interests It Serves. 

The risk of corruption posed by what is functionally a personal gift to a candidate is not only self-evident, but also confirmed by experiences across the 

states, empirical evidence, and the record here. Congress wisely chose to ameliorate that risk by limiting 

candidate loan repayments in the post-election period, when the risk is most pronounced, and its decision is due substantial deference.

A. The Limit alleviates the risk of quid pro 

quo corruption in a setting where that 

concern is widely recognized and particularly acute. 

BCRA Section 304 regulates a kind of transaction 

that forms the heartland of most public corruption 

and conflict-of-interest laws—prospective and current 

public officials accepting money for their own personal benefit. Nevertheless, the lower court deemed 

the FEC’s asserted anti-corruption interest novel and 
16

unfounded, and concluded that the Commission had 

failed to meet its “burden of demonstrating that the 

loan-repayment limit serves a sufficiently important 

interest.” J.S.App. 21a. This conclusion contradicts 

both precedent and common sense.

Post-election funds raised solely to reimburse candidates for their personal campaign loans pose an obvious and acute danger of quid pro quo corruption. 

There is copious evidence that contributors direct 

post-election funding to winners who can advance 

their agendas, and bypass losing candidates because

they “don’t legislate.” Steven V. Roberts, Debt Retirement Party Becoming an Institution, N.Y. Times (Nov. 

29, 1982), https://www.nytimes.com/1982/11/29/us/

debt-retirement-party-becoming-an-institution.html.

See infra Part II.B. And these payments go directly 

into a candidate’s pocket for personal use—not into

campaign coffers to fund political communications. 

Whereas candidates and their campaigns are strictly 

prohibited from using campaign funds for personal, 

non-campaign expenses, see 52 U.S.C. § 30114(b); 11 

C.F.R. § 113.1(g), a candidate may immediately use 

loan repayments to pay down a personal mortgage or 

underwrite “personal expenses for a new outfit and a 

gym membership.” J.S.App. 18a n.6. While the district court saw candidate loan repayments as categorically distinct from a candidate’s personal use of campaign funds, see id., the practices are functionally

identical.

The notion that a payment that personally benefits a candidate in this way might give rise to actual 

or apparent corruption is neither “novel nor implausible.” Nixon, 528 U.S. at 391. The government’s evidentiary burden should have been correspondingly 
17

light. Yet the lower court required the FEC to substantiate its anti-corruption interest as if working 

from a blank slate, divorced from four decades of campaign finance precedents establishing that contribution restrictions further a compelling interest in combating quid pro quo corruption and its appearance.

See J.S.App. 21a-24a.

Indeed, Buckley itself recognized as a matter of 

law that a campaign finance system reliant on private 

contributions created an “inherent” problem of actual

or apparent corruption. 424 U.S. at 27-28. If contributions to a candidate’s campaign treasury present an 

inherent risk, then it is beyond dispute that contributions to a candidate’s personal bank account present 

an even greater inherent risk. 

And it is hardly novel to recognize in this context 

that donating money or other items of value to candidates and officeholders for their personal benefit 

poses corruption risks. The same rationale animates 

a wide range of state and federal laws, from regulations of gifts and loans to officeholders to prohibitions 

on the personal use of campaign funds—reflecting the 

strength of Congress’s determination that providing 

direct financial benefits to a candidate or officeholder 

creates a serious and inherent risk of abuse.

Numerous states have adopted provisions that

closely parallel the Limit or otherwise target the same

concerns about candidate loan repayments, casting 

serious doubt on the lower court’s characterization of 

the Limit as “obscure.” J.S.App. 6a.

At least one fifth of the states regulate candidate 

loans and loan repayments in a manner that equals

or goes beyond the federal provision. Georgia and 
18

South Carolina follow the BCRA model precisely: both

cap post-election contributions to repay candidate 

loans, with Georgia employing the same $250,000 

limit and South Carolina setting lower limits. Ga. 

Code Ann. § 21-5-41(h); S.C. Code § 8-13-1328. Florida prohibits post-election contributions for any purpose, Fla. Stat. § 106.08(3)(b), and Alaska, Rhode Island, Texas, and Washington limit candidate loan repayment not only in the post-election context, but preelection as well, Alaska Stat. § 15.13.078(b)(1); 17 R.I. 

Gen. Laws § 17-25-7.4; Tex. Elec. Code Ann. 

§ 253.042(a); Wash. Rev. Code § 42.17A.445(3).

Lastly, California, Massachusetts, and Nebraska 

tackle the problem by directly limiting the amounts

that candidates may lend their campaigns. Cal. Gov’t 

Code § 85307(b); Mass. Gen. Laws ch. 55, § 7; Neb. 

Rev. Stat. § 49-1446.04. Unlike their federal counterpart, many states also bar candidates from charging 

interest on loans to their campaigns. See, e.g., Cal. 

Gov’t Code § 85307(b).9

Concerns about corruption and its appearance are 

also the basis for state and federal rules limiting officeholders’ acceptance of gifts. Legislative gift and 

9 While FEC rules strictly regulate commercial loans—which 

must, inter alia, bear the lender’s “usual and customary interest 

rate” and be made “on a basis that assures repayment,” 11 C.F.R. 

§ 100.82—candidate loans are generally free of these requirements. Interest rates charged by candidates must be commercially reasonable, but that has not been a meaningful constraint 

in practice. E.g., Andrew Zajac, Interest on campaign loan pays, 

L.A. Times (Feb. 14, 2009), https://www.latimes.com/archives/laxpm-2009-feb-14-me-napolitano14-story.html (noting self-lending candidate who charged 18% interest and repaid herself almost twice the original principal in interest alone over more than 

a decade).
19

conflict-of-interest rules are a “long-established tradition” at both the federal and state levels. Nev.

Comm’n on Ethics v. Carrigan, 564 U.S. 117, 122 

(2011) (citation omitted). Indeed, when Congress in 

1958 adopted a government service code of ethics for 

the first time, a gift rule was one of only ten requirements included. See H.R. Con. Res. 175, 72 Stat. B12

(1958). To this day, the federal government strictly 

limits the gifts that officials in all three branches may 

accept. See supra at 9-11 (describing federal gift restrictions). And state ethics laws have evolved in parallel; like the federal government, at least 40 states 

restrict gifts to legislators.10 Federal campaign finance law, too, evinces concern for self-dealing in provisions independent of the Limit, including the prohibition on candidates’ personal use of campaign funds. 

52 U.S.C. § 30114(b).

The prevalence and range of these laws—spanning

jurisdictions across the country—bespeaks a shared 

recognition of their importance in combating corruption and self-dealing by elected officials. BCRA’s limit

fits comfortably among these counterparts. That the 

financial benefit here takes the form of a campaign 

contribution to repay a candidate’s loans does not render it any less potentially corruptive. 

Moreover, as this mosaic of anti-corruption laws 

attests, the concerns underlying the Limit are “neither novel nor implausible,” Nixon, 528 U.S. at 391, 

but well established and widely shared. The district 

10 See Legislator Gift Restrictions, Nat’l Conf. of State Legislatures (Sept. 13, 2021), https://www.ncsl.org/research/ethics/50-

state-table-gift-laws.aspx.
20

court failed to credit these concerns or accord the appropriate weight to anti-corruption interests long recognized by this Court as both “legitimate and compelling.” Nat’l Conservative PAC, 470 U.S. at 496; see 

also Buckley, 424 U.S. at 26-27.

B. The Limit’s anti-corruption objectives 

are borne out by the record, empirical evidence, and long experience.

The district court’s unreasonable demand for evidence of rampant quid pro quo bribery tied to loan repayments demonstrates a broader disregard for anticorruption measures that target a patent threat of 

abuse and are designed to be “preventative.” Citizens

United v. FEC, 558 U.S. 310, 357 (2010). The validity 

of contribution limits, for example, does not rest on a 

factual showing that all or even most contributions 

amount to illicit bribes; on the contrary, “few if any 

contributions to candidates will involve quid pro quo 

arrangements.” Id. But the Court has nevertheless repeatedly accepted Congress’s determination, based on 

“common sense” and the “ample record” compiled over 

time, that contribution limits prevent corruption and 

its appearance. McConnell, 540 U.S. at 145. So too 

here.

And regardless, there was such a record. The district court not only set an unduly onerous standard 

for the evidentiary showing it required, but also then 

disregarded, without justification, the legislative record and other evidence offered by the FEC to substantiate the law’s anti-corruption purposes. See J.S.App.

21a-30a. Other publicly available information further 

demonstrates the important ends the Limit serves.
21

1. First, BCRA’s legislative history supports the 

Limit’s anti-corruption objectives and does not evince 

any improper legislative purpose. As the FEC’s evidence below showed, multiple members of Congress 

explained during debate on BCRA that the Limit 

aimed to address the obvious risk of quid pro quo corruption inherent in candidates’ acceptance of postelection contributions that go directly into their bank 

accounts. See J.A. 233-34. Senator Hutchison, for example, described the Limit as codifying the principle 

that candidates “have a constitutional right to try to 

buy the office, but they do not have a constitutional 

right to resell it.” J.A. 234 (quoting 147 Cong. Rec. 

S2541 (daily ed. Mar. 20, 2001)). Senator Domenici 

similarly observed that “a candidate who incurred 

personal loans for his campaign should not be able ‘to 

get it back from [his or her] constituents . . . [by] 

ask[ing] them: How would you like me to vote now 

that I am a Senator?’” J.A. 233 (quoting 147 Cong. 

Rec. at S2462). 

The district court failed to credit this legislative 

history, instead focusing on the background of 

BCRA’s “Millionaire’s Amendment,” a separate provision addressing a distinct area of campaign finance 

law. J.S.App. 27a. Importing the motivations behind 

one legislative provision into the evaluation of a

wholly separate provision was clear error.

Second, abundant record evidence drawn from jurisdictions across the country substantiates the reality and seriousness of Congress’s judgment that the 

post-election context heightens the risk of quid pro 

quo corruption, and certainly of its appearance. See 

J.A. 249-54. In Ohio, former Attorney General and 
22

current Governor Mike DeWine drew significant media scrutiny by repeatedly making substantial personal campaign loans and then reimbursing himself 

with millions of dollars of post-election contributions 

from entities seeking—and often obtaining—state 

contracts administered by DeWine’s office. J.A. 249-

51. News outlets and good-government organizations 

expressed concern that DeWine’s activities involved 

corruption, or at least generated an appearance 

thereof. See id.

Ohio was not alone in this regard: the summary 

judgment record also evidenced concerns about corruption tied to candidate loan repayment in other 

states, including Oklahoma, Kentucky, and Alaska. 

J.A. 251-54. For example, after winning office in 2018, 

Oklahoma Governor Kevin Stitt, who had personally 

loaned his campaign over $5 million, recouped over 

$800,000 in post-election contributions, including at 

least $100,000 from state-regulated industries and 

special interests. J.A. 251-52.

Moreover, “[d]espite years of enforcement” under 

the Limit, the record makes clear that candidates and 

donors continue to “test the limits of the current law,”

demonstrating “beyond serious doubt” how a system 

of unlimited post-election reimbursements to candidates might be abused. FEC v. Colo. Republican Fed. 

Campaign Comm., 533 U.S. 431, 457 (2001). The FEC 

showed that inappropriate uses of personal loans persist in federal races, including apparent attempts to

structure loans so as to evade individual contribution 
23

limits.11 The Limit mitigates the risk of such manipulation in the post-election context, where concerns 

about quid pro quo corruption and its appearance are 

naturally heightened.

Although the district court failed to accord them 

much weight, these examples from other jurisdictions

evidence the corruptive potential of candidate loans

and justify Congress’s decision to limit their post-election repayment. A jurisdiction may defend its contribution restrictions by “rel[ying] on the evidence and 

findings accepted in Buckley,” Nixon, 528 U.S. at 393, 

or “[t]he experience of states with and without similar 

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

(citing McCutcheon, 572 U.S. at 209 n.7). Here, the 

FEC pointed to a long, multistate history of struggles 

with corruption or the appearance of corruption. The 

district court’s demands for a more exhaustive record 

overstated the government’s burden.

Third, an empirical study in the summary judgment record shows not only that indebted candidates 

display a systematically greater likelihood of “selling” 

their legislative votes to special-interest contributors,

but also that the loan-repayment provision has ameliorated that tendency. Based on an analysis of con11 During the 2018 election cycle, Senate candidates Matt 

Rosendale and Mike Braun accepted contributions to repay earlier personal campaign loans, then loaned their current campaigns additional funds, thereby effectively allowing donors to 

circumvent the base contribution limits. J.A. 248-49. An FEC audit later found that Braun’s campaign violated the Limit. Memorandum from Ryan Krogen, Lead Auditor, to FEC 33-35 (Nov. 

3, 2021), https://www.fec.gov/resources/cms-content/documents/

mtgdoc_21-39-A.pdf. 
24

gressional fundraising and voting data, the study concluded that “indebted politicians, relative to their 

debt-free counterparts, are significantly more likely 

to switch their votes if they receive contributions from 

those special interests between the votes.” J.A. 247

(quoting Ovtchinnikov & Valta (2020), supra, at 29).12

In other words, the data show that post-election contributions to officeholders—that is, winning candidates—with outstanding personal campaign loans 

pose a measurably greater susceptibility to quid pro 

quo corruption. 

The study’s analysis shows that the loan-repayment limit directly addresses this risk: after BCRA’s 

passage in 2002, legislators with outstanding personal loans of $250,000 or less, whom the Limit does 

not affect, remained particularly responsive to postelection contributions, while officeholders with loans 

over $250,000 lost their contribution sensitivity and 

effectively behaved like their debt-free peers. J.A. 247 

(citing Ovtchinnikov & Valta (2020), supra, at 26). 

The analysis thus offers empirical proof of the Limit’s 

effectiveness in serving the anti-corruption interest. 

Arguably, it suggests that the Limit could have been 

set even lower—but courts do not strike down laws 

because they “conceivably could have restricted even 

greater amounts of speech in service of their stated 

interests.” Williams-Yulee v. Fla. Bar, 575 U.S. 433, 

449 (2015). See also infra at 32-33. 

12 More recent scholarship confirms that these conclusions 

hold for self-lending candidates in particular, in addition to indebted candidates generally. See Ovtchinnikov & Valta (2021), 

supra, at 20-23, 26-27.
25

The district court, however, dismissed the study 

for not specifically proving that its findings were the 

result of widespread, illicit quid pro quo exchanges. 

See J.S.App. 25a. In so doing, it erroneously ignored 

the analysis’s clear implications and held the government to an impossibly high standard of proof. Cf. 

Nixon, 528 U.S. at 393 n.6 (noting that “[t]he First 

Amendment does not require . . . conduct[ing] new 

studies or produc[ing] evidence independent of that 

already generated” elsewhere) (citation omitted);

Buckley, 424 U.S. at 27 (acknowledging that “the 

scope of such pernicious practices [as quid pro quo exchanges] can never be reliably ascertained”).

Fourth, the FEC demonstrated the Limit’s role in 

reducing the appearance of corruption through survey 

results showing that a broad majority of the public 

perceives use of post-election campaign contributions 

as corruptive. See J.A. 257-61. Most notably, “67% of 

respondents believed that, if a candidate loan repayment limit did not exist, donors would be more likely 

to expect political favors from candidates to whom 

they make contributions.” J.A. 259. This empirical evidence directly and affirmatively answers the key factual question of whether the conduct proscribed by 

the Limit creates the appearance of corruption. Yet 

the district court failed to recognize as much, dismissing the polling data as “generic.” J.S.App. 28a. This 

disregard of direct factual evidence was clear error.

2. Although the record in this case alone makes 

clear that the Limit serves compelling anti-corruption 

interests, other publicly available information buttresses that conclusion. 
26

First, differences in winning and losing campaigns’ fundraising capacity show the risk of corruption inherent in post-election contributions used to repay candidates’ personal loans. While post-election 

fundraising is often challenging for any candidate, 

victorious ones usually find the process much easier.

As noted supra in Part I.C, from 2003 to 2018, 49.5% 

of winning campaigns successfully repaid candidates’ 

personal loans, while only 15.6% of losing campaigns 

did so (almost exclusively through pre-election contributions). Ovtchinnikov & Valta (2021), supra, at 16-

17; see also, e.g., Wayne, supra note 7 (contrasting 

post-election fundraising experiences of winning and 

losing candidates). At minimum, this stark difference 

in repayment rates creates the appearance that postelection contributors target winning candidates with 

personal debts to achieve policy influence by potentially illicit means.13 See also, e.g., Donnelly Finds 

PAC Money Flows to a Winner, Indianapolis Star, 

Feb. 19, 2013, at B1, 2013 WLNR 4295436 (discussing 

common practice among lobbyists of funneling contributions to winning candidates after Election Day); 

Roberts, Debt Retirement Party Becoming an Institution, supra (same). The Limit moderates the risk of 

13 This differential fundraising ability also undermines appellees’ speculation that the Limit benefits incumbents. See Mot. 

30-31. The evidence shows that it does the opposite: the Limit 

primarily restrains winning candidates, disproportionately incumbents, as to whom the risk of quid pro quo exchanges is most 

acute. Because losing candidates are much less likely to succeed 

in repaying personal loans after an election—particularly in any 

amount approaching $250,000—the Limit is practically irrelevant to them.
27

actual and apparent corruption in this context by capping the amount that victorious candidates can 

pocket from post-election contributors.

In addition, while the FEC provided a sampling of 

corruption concerns arising from post-election fundraising to repay candidates’ personal loans, additional 

instances abound. States and localities across the 

country have long grappled with the dangers of actual 

and apparent corruption in this context, amply justifying Congress’s decision to enact the Limit.

In Alaska, for example, corruption concerns arising from post-election fundraising led to a 1985 impeachment inquiry into Governor Bill Sheffield. A

grand jury recommended impeachment after concluding that Sheffield’s office had steered a $9 million 

state contract to a group including a lobbyist who had 

raised $92,000 to help the Governor repay personal 

campaign loans after his election. See Wallace 

Turner, Impeachment Inquiry Begins in Alaska, N.Y. 

Times, July 23, 1985, at A12; Storer Rowley, New 

Heat on Alaska Governor, Chi. Trib., Aug. 2, 1985, at 

10. Although legislators ultimately declined to impeach Sheffield, voters considered the matter serious 

enough to remove him from office, declining to renominate him in 1986 in a result observers attributed to 

the scandal. See, e.g., Alaska Governor Rejected; 

Hickel Loses GOP Primary, L.A. Times, Aug. 28, 1986, 

at A24.

Similarly, in Oklahoma in 2003, media and watchdog organizations raised concerns about a new Governor retiring personal campaign loans with post-election contributions from interest groups with business 
28

before him, state officers potentially seeking reappointment, and individuals who later accepted positions in his office or state agencies. See Randy Ellis, 

Postelection Donors Help Henry Pay Debt, Oklahoman, Feb. 23, 2003, at 1, 2003 WLNR 16553218. In 

particular, the Governor appointed one post-election 

donor Secretary of State and named another to a highranking policy post. Id. Press reports questioned the 

timing of, and motivations behind, the contributions. 

See id.

In Louisiana, reporters highlighted “lavish” fundraisers following the election of Governor Edwin Edwards that allowed him to retire personal campaign 

loans “in a spray of champagne,” with “[m]any participants turn[ing] up in subsequent Edwards administrations.” Bill Walsh & Jack Wardlaw, Campaign 

Debt Tactic Questioned: Lavish Fund-Raisers Pay Off 

Self Loans, New Orleans Times-Picayune, Oct. 9, 

1995, at A1, 1995 WLNR 986185. 

Similar concerns have arisen at the local level. In 

San Diego, for example, local media noted questions 

about corruption or the appearance of corruption after 

three City Council members cast decisive votes in favor of interests whose lobbyists had fundraised to retire their campaign debts. See Craig Gustafson, Lobbyists See Benefit from Three City Officials: Fundraisers Followed by Favorable Votes, San Diego UnionTrib., June 13, 2009, at A1, 2009 WLNR 11433591. 

Two of the candidates used the funds to repay personal loans. See id. As the chair of the city’s Ethics 

Commission observed, even “[i]n the best scenario,” 

the councilmembers’ actions “look[ed] bad and 

erode[d] public confidence.” Id. Similarly, post-election fundraising by lobbyists to help the Mayor of Los 
29

Angeles repay campaign debts including personal 

loans provoked conflict-of-interest concerns in the local press. See Patrick McGreevy, Lobbyists Help 

Mayor Retire Campaign Debt, Daily News (L.A.), Nov. 

11, 1993, at N8, 1993 WLNR 1294659.

Given this history, it is little wonder that legislators, media, and other commentators across the nation have been troubled by the corruptive potential of 

post-election fundraising for loan repayment. A Philadelphia Inquirer editorial, for example, opined that 

the practice “offends our sense of democracy.” Editorial, Mr. Shapp’s 1970 Funds: What Is There to Hide?, 

Phila. Inq., Oct. 3, 1974, at 8-A. A North Carolina paper explained that “when a U.S. Senator puts the bite 

on lobbyists for money that is to go into his personal 

bank account, the implication of a quid pro quo is 

simply unavoidable.” Editorial, Faircloth’s Fundraising Raises Ethical Question, Greensboro News & Rec., 

Apr. 16, 1996, at A4, 1996 WLNR 5828596.14

14 See also, e.g., Laurie Roberts, Opinion, Want to Put Money 

into Doug Ducey’s Pocket? You Can., Ariz. Republic (Sept. 9, 

2014), https://www.azcentral.com/story/laurieroberts/2014/09/

09/doug-ducey-primary-debt-retirement-plan/15335053; Contributions to Fischer Flow In, Courier-J. (Ky.), Dec. 5, 2011, at A1, 

2011 WLNR 25299560; Ellis, supra; Editorial, Money Train 

Rolls Through Big Loopholes, Corpus Christi Caller Times, Dec. 

21, 2002, at A15, 2002 WLNR 16097051; Walsh & Wardlaw, supra; Editorial, Ethics Twist: Legislative Tactics Work Against Reform, Memphis Com. Appeal, Apr. 6, 1995, at A6, 1995 WLNR 

3187063; Editorial, Misplaced Generosity: Alabama Needs to 

End the Sleazy Practice of Giving Money to Candidates After the 

Election, Birmingham News, Nov. 15, 1994, at 8, 1994 WLNR 

4812766; Regulated Firms Help Pay Debt of DEQ Secretary, New 

Orleans Times-Picayune, Mar. 8, 1993, at B8, 1993 WLNR 

855015.
30

Both sides of the aisle have recognized these dangers. In West Virginia, for instance, Democrats and 

Republicans alike have raised concerns about postelection fundraising to repay personal campaign 

loans. See Eric Eyre, Morrisey Campaign Saddled 

with $1.28M Debt, Charleston Gazette & Daily Mail 

(W. Va.) (Apr. 19, 2015), https://www.wvgazettemail.

com/news/morrisey-campaign-saddled-with-1-28mdebt/article_1a43c412-0483-5396-b13a-0871f40f1c98.

html; Paul J. Nyden, Lawyers’ Fete for Workman Gets 

Criticism, Charleston Gazette (W. Va.), Dec. 17, 2008, 

at 1C, 2008 WLNR 24179665. And Senator Mitch 

McConnell once referred to post-election fundraising 

to retire personal debts as an “unethical practice of 

shaking down special interests.” Phil Kuntz, Editorial, Sanford Leads Field in Recouping Investment, 

Greensboro News & Rec., July 21, 1991, at D3, 1991 

WLNR 4287944. These diverse actors all agree that 

use of post-election contributions to repay candidates’ 

personal campaign loans creates an inherent and severe risk of abuse.

Congress shared those concerns—and crafted this 

narrowly targeted Limit to alleviate them. The record

in this case, empirical literature, historical experience, and common sense all confirm the soundness of 

that judgment. 

C. Congress’s unique expertise with respect 

to post-election fundraising entitles the 

Limit to deference. 

“Where a legislature has significantly greater institutional expertise . . . the Court in practice defers to 

empirical legislative judgments.” Nixon, 528 U.S. at 

402. The issues addressed by the Limit fall squarely 
31

within Congress’s institutional expertise and outside 

of this Court’s: post-election debt and efforts to retire 

debt have no federal judicial analogues yet are commonplace on Capitol Hill, rendering legislators 

uniquely familiar with the risks and pressures of 

post-election fundraising. Their judgment that addressing that risk requires a limit on post-election 

fundraising therefore merits the Court’s respect.

Indeed, this Court has long recognized that, in establishing contribution limits or solicitation restrictions, legislators must make empirical judgments 

about how best to balance the government’s compelling anti-corruption interest with candidates’ ability 

to finance their campaigns—judgments within Congress’s institutional expertise to which courts must 

show deference. See Davis, 554 U.S. at 737; Randall 

v. Sorrell, 548 U.S. 230, 248 (2006); McConnell, 540 

U.S. at 137; FEC v. Beaumont, 539 U.S. 146, 155 

(2003); Nixon, 528 U.S. at 391, 397; Cal. Med. Ass’n v. 

FEC, 453 U.S. 182, 201 (1981); Buckley, 424 U.S. at 

30. That deference is no less warranted here, where 

Congress performed the same legislative balancing 

act.

That Congress chose to tackle the problem with a 

compromise measure, rather than a blanket ban on 

post-election contributions, does not undermine the 

need for deference—rather, it reinforces it. The “careful legislative adjustment of . . . federal election laws, 

in a ‘cautious advance, step by step,’ . . . warrants considerable deference.” FEC v. Nat’l Right to Work 

Comm., 459 U.S. 197, 209 (1982) (citation omitted). In 

crafting the Limit, Congress employed exactly such a 

“step by step” approach, seeking to accommodate 

First Amendment interests while still addressing the 
32

corruption risks inherent in post-election fundraising. 

The Limit facilitates electoral participation by allowing candidates to repay substantial amounts of loans 

with post-election funds, but heads off the most egregious risks of corruption associated with officeholders 

desperate to unburden themselves of deep personal 

debt. 

This compromise approach merits judicial deference. The district court erred in characterizing Congress’s careful balancing as a strike against the 

Limit’s constitutionality, and in finding a First 

Amendment problem in legislators’ decision not to 

regulate more broadly than was necessary. See

J.S.App. 32a-33a (describing the Limit as “substantially underinclusive”). As this Court has repeatedly

observed, “the First Amendment imposes no freestanding ‘underinclusiveness limitation,’” and “policymakers may focus on their most pressing concerns.” 

Williams-Yulee, 575 U.S. at 449 (citation omitted). 

Congress did so in formulating this Limit, and its empirical judgments about how best to balance the competing interests involved are entitled to great weight.

* * *

Under the challenged law, candidates remain free 

to spend personal funds without limit in support of 

their campaigns for federal office. They are likewise 

free to provide personal loans of any amount to their 

campaigns, and to have those loans repaid in full before the election. What they cannot do is mortgage the 

public offices they aspire to hold in the expectation 

that their personal campaign loans aggregating above 

$250,000 can be repaid entirely after the election—
33

with contributions raised not to facilitate any campaign messaging but to line their own pockets. This 

Limit, in other words, operates in a setting where the 

candidate’s expressive interests are marginal and the 

threat of abuse is profound. The First Amendment 

does not compel citizens to tolerate such risks to the 

integrity of their representative institutions.

CONCLUSION

The judgment below should be vacated and the 

case remanded with instructions to dismiss for lack of 

standing, or in the alternative, it should be reversed

on the merits.

Respectfully submitted,

PAUL M. SMITH

Counsel of Record

TARA MALLOY 

MEGAN P. MCALLEN

CAMPAIGN LEGAL CENTER

1101 14th St. NW, Suite 400

Washington, DC 20005

(202) 736-2200

psmith@campaignlegal.org

FRED WERTHEIMER

DEMOCRACY 21

2000 Massachusetts Ave. NW

Washington, DC 20036

DONALD J. SIMON 

SONOSKY, CHAMBERS, SACHSE,

ENDRESON & PERRY, LLP

1425 K Street NW, Suite 600

Washington, DC 20005
34

STUART C. MCPHAIL 

ADAM RAPPAPORT

CITIZENS FOR RESPONSIBILITY 

AND ETHICS IN WASHINGTON

1331 F St NW, Suite 900, 

Washington, DC 20004

Counsel for Amici Curiae

November 22, 2021