No. 21-12

In the Supreme Court of the United States

FEDERAL ELECTION COMMISSION, APPELLANT

v.

TED CRUZ FOR SENATE, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

BRIEF FOR THE FEDERAL ELECTION COMMISSION

IN OPPOSITION TO MOTION OF APPELLEES

TO AFFIRM OR DISMISS

BRIAN H. FLETCHER

Acting Solicitor General

Counsel of Record

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217
(I) 

TABLE OF CONTENTS

Page

A. Appellees lack Article III standing................................. 2

B. The loan-repayment limit complies with the First 

Amendment........................................................................ 8

Conclusion ................................................................................... 12

TABLE OF AUTHORITIES

Cases:

Board of Trustees v. Fox, 492 U.S. 469 (1989).................... 11

Buckley v. Valeo, 424 U.S. 1 (1976).................................. 9, 11

California v. Texas, 141. S. Ct. 2104 (2021).................... 5, 12

Christian Legal Society of the University of 

California v. Martinez, 561 U.S. 661 (2010)...................... 3

Clingman v. Beaver, 544 U.S. 581 (2005).............................. 9

Cutter v. Wilkinson, 544 U.S. 709 (2005).............................. 6

Evers v. Dwyer, 358 U.S. 202 (1958)...................................... 7

Exxon Mobil Corp. v. Allapattah Services, Inc., 

545 U.S. 546 (2005)................................................................ 6

FW/PBS, Inc. v. City of Dallas, 

493 U.S. 215 (1990)................................................................ 2

Havens Realty Corp. v. Coleman, 

455 U.S. 363 (1982)................................................................ 7

Maricopa County v. Lopez-Valenzuela, 

574 U.S. 1006 (2014)............................................................ 11

McConnell v. FEC, 540 U.S. 93 (2003) .................................. 5

TransUnion LLC v. Ramirez, 

141 S. Ct. 2190 (2021) ........................................................... 8

United States v. O’Brien, 391 U.S. 367 (1968).................... 10
II

Constitution, statutes, and regulation: Page

U.S. Const. Amend. I .......................................................... 1, 8

Bipartisan Campaign Reform Act of 2002, 

Pub. L. No. 107-155, 116 Stat. 81: 

§ 304, 116 Stat. 97-100....................................................... 1

§ 403(a), 116 Stat. 113-114 ................................................ 5

52 U.S.C. 30116(  j)......................................................... passim

11 C.F.R. 116.11(c)(2).......................................................... 4, 5

Miscellaneous:

147 Cong. Rec. (2001):

p. 3882............................................................................... 10

p. 3970............................................................................... 10

 
(1) 

In the Supreme Court of the United States

No. 21-12

FEDERAL ELECTION COMMISSION, APPELLANT

v.

TED CRUZ FOR SENATE, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA

BRIEF FOR THE FEDERAL ELECTION COMMISSION

IN OPPOSITION TO MOTION OF APPELLEES

TO AFFIRM OR DISMISS

Section 304 of the Bipartisan Campaign Reform Act 

of 2002 (BCRA), Pub. L. No. 107-155, 116 Stat. 97-100, 

prohibits a political campaign from using more than 

$250,000 in post-election contributions to repay a candidate’s personal loans. 52 U.S.C. 30116(j). The district 

court held that provision unconstitutional. Appellees 

have filed a motion to affirm the district court’s judgment or, in the alternative, to dismiss the appeal taken

by the Federal Election Commission (FEC or Commission). See Mot. to Affirm or Dismiss 1 (Mot.). 

The Court should deny that motion. As the jurisdictional statement explains, appellees lack standing to 

challenge the statutory loan-repayment limit, and that 

limit complies with the First Amendment. The Court 

should either vacate the judgment below or set the case 

for plenary consideration by postponing jurisdiction.
2 

A. Appellees Lack Article III Standing

1. The injury that appellees identify—i.e., the Cruz 

campaign’s current inability to repay Senator Cruz the 

remaining $10,000 of his $260,000 loan—is not traceable 

to the statutory provision they challenge. See J.S. 9-13. 

Section 30116(j) prohibits a campaign from using more 

than $250,000 in post-election contributions to repay a 

candidate’s personal loans. But the summary-judgment 

record does not indicate that the committee has yet 

used any post-election funds, much less the maximum 

of $250,000, to repay Senator Cruz’s personal loan. For 

that reason, Section 30116(j) does not preclude appellees from raising additional post-election contributions 

and using those contributions to repay the remaining 

debt to Senator Cruz. J.S. 10-11. Appellees’ responses 

to that argument lack merit. 

a. Appellees contend (Mot. 14-18) that the FEC’s 

standing argument contradicts the summary-judgment 

record. That is incorrect. “[S]tanding cannot be ‘inferred argumentatively’ * * * but rather ‘must affirmatively appear in the record.’” FW/PBS, Inc. v. City of 

Dallas, 493 U.S. 215, 231 (1990) (citations omitted). Appellees have not cited any record evidence that they 

used post-election contributions for the $250,000 increment of Senator Cruz’s personal loan that the committee previously repaid. And appellees admitted below 

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

was from contributions raised after the election.” D. Ct. 

Doc. 67-1 ¶ 64 (Aug. 11, 2020) (FEC Statement of Undisputed Material Facts); see J.S. 10-11. If appellees 

believed that paragraph 64 of the FEC’s Statement of 

Undisputed Material Facts reflected a misunderstanding of the pertinent deposition testimony (see Mot. 16-
3 

17), they could have denied (in whole or in part) the factual proposition stated in that paragraph; but appellees 

admitted that proposition instead. That factual stipulation is “binding and conclusive” on the parties. Christian Legal Society of the University of California v. 

Martinez, 561 U.S. 661, 677 (2010) (citation omitted). 

Appellees explain that, although Senator Cruz’s

committee designated the funds that it raised after the 

2018 election for Senator Cruz’s 2024 campaign, that 

designation did not preclude the committee from subsequently using the funds to retire 2018 campaign debts. 

See Mot. 16-17. Appellees assert that “those contributions were available to pay 2018 election debts.” Mot. 

17 (emphasis added); see Mot. 18 (“these contributions 

were available * * * to repay all of the Committee’s 

2018 debts including $250,000 of Senator Cruz’s loans”) 

(emphasis added). But to establish that Section 

30116(j) has injured appellees by barring them from using post-election contributions to pay the remaining 

$10,000 owed to Senator Cruz, it is not sufficient to show

that post-election funds were available to pay off the 

first $250,000. Rather, appellees must establish that 

they actually used $250,000 in post-election funds for 

that purpose. Appellees identify no record evidence 

showing that they did, and they admitted below that, 

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

Committee continued receiving post-election contributions, but rather than using those contributions * * * 

to pay any of Senator Cruz’s debt, the campaign designated the contributions for Senator Cruz’s 2024 re-election effort.” D. Ct. Doc. 67-1 ¶ 60 (emphases added). 

Appellees assert (without record citation) that postelection funds “could be and were used to pay 2018 election debts.” Mot. 16; see Mot. 17. But Section 30116(j) 
4 

would cause appellees injury only if appellees had previously used $250,000 in post-election funds to repay the 

campaign’s debt to Senator Cruz. Evidence that appellees used post-election contributions to repay “election 

debts” would not prove that that they had used such 

funds to repay that specific loan. 

Appellees also suggest (Mot. 16, 17) that the conduct 

of FEC trial counsel reflected an awareness that postelection funds had been used to repay $250,000 of the 

committee’s debt to Senator Cruz. That suggestion is 

inconsistent with paragraphs 60 and 64 of the FEC’s 

Statement of Undisputed Material Facts (quoted above), 

which expressed the opposite understanding, and with 

the Commission’s summary-judgment filings, which 

likewise asserted that pre-election funds had been used. 

See J.S. 12. And while appellees’ own Statement of Undisputed Material Facts identified the dates when various increments of Senator Cruz’s loan were repaid, it 

did not specify whether those repayments were made 

with pre- or post-election funds. See D. Ct. Doc. 61-2 

¶¶ 41-44 (June 9, 2020). 

b. There likewise is no merit to appellees’ legal objections (Mot. 6-14) to the FEC’s standing argument. 

Appellees do not appear to dispute that, if pre-election 

funds were used to repay the $250,000, appellees would 

lack standing to bring a freestanding constitutional 

challenge to Section 30116(j). They point out, however, 

that the FEC regulation that directly injures them—

i.e., 11 C.F.R. 116.11(c)(2), which required the committee to recharacterize $10,000 of its debt to Senator Cruz 

as a contribution from the Senator once the 20-day postelection period had expired, see J.S. 12—was promulgated to implement Section 30116(j). See Mot. 8-9. Ap-
5 

pellees argue that, “where a statutory provision is invalid and unenforceable, any implementing regulations 

that were promulgated under its authority are likewise 

invalid and unenforceable.” Mot. 8.

Appellees contend on that basis (Mot. 8) that, in adjudicating their challenge to 11 C.F.R. 116.11(c)(2), the 

district court could assess the validity of the statute itself, on the theory that invalidation of the statute would 

lead to invalidation of the implementing regulation and 

thus redress appellees’ injury. Cf. California v. Texas, 

141 S. Ct. 2104, 2122 (2021) (Thomas, J., concurring) (discussing an analogous “standing-through-inseverability

argument”). That argument is mistaken.

Even if appellees’ approach were otherwise sound, 

but cf. California, 141 S. Ct. at 2116 (characterizing the 

standing-through-inseverability argument as a “novel 

alternative theory”), this basis for standing would be 

unavailable here, since the three-judge district court 

lacked independent subject-matter jurisdiction to hear 

appellees’ challenge to 11 C.F.R. 116.11(c)(2). Congress 

has empowered a three-judge court to hear “any action 

* * * brought for declaratory or injunctive relief to 

challenge the constitutionality of any provision of this 

Act or any amendment made by this Act.” BCRA 

§ 403(a), 116 Stat. 113-114 (emphasis added). Challenges to the FEC’s implementing regulations, by contrast, “are not appropriately raised in [a] facial challenge to BCRA, but must be pursued in a separate proceeding.” McConnell v. FEC, 540 U.S. 93, 223 (2003). 

The district court held that it had supplemental jurisdiction over appellees’ challenges to the FEC’s regulations. See J.S. App. 9a n.2, 59a-63a; 451 F. Supp. 3d 

92, 100. “In order for a federal court to invoke supple-
6 

mental jurisdiction,” however, “it must first have original jurisdiction over at least one claim in the action.” 

Exxon Mobil Corp. v. Allapattah Services, Inc., 545 

U.S. 546, 554 (2005). The three-judge court lacked original jurisdiction over appellees’ claim that the statutory 

loan-repayment limit violated the Constitution because, 

as explained above and in the jurisdictional statement, 

appellees lacked standing to bring a freestanding challenge to Section 30116(j) itself. Because the court 

lacked original jurisdiction over the challenge to the 

statute, it had no basis for exercising supplemental jurisdiction over the challenge to the regulation. And because it lacked jurisdiction over the challenge to the 

regulation, it could not consider the alleged unconstitutionality of the statute as a ground for invalidating the 

regulation. 

c. As the above discussion shows, the standing issue 

raises fact-bound questions about the import of appellees’ admissions, the deposition testimony, and the rest 

of the summary-judgment evidence. It also raises complex, case-specific questions about the interaction of 

standing, subject-matter jurisdiction, and supplemental 

jurisdiction. The district court has not yet addressed 

any of those factual or legal issues. Because this Court 

is “a court of review, not of first view,” Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005), it should vacate the 

judgment and remand the case so that the district court 

may consider those issues in the first instance.

Appellees contend (Mot. 17-18) that vacatur and remand would be inequitable because the government 

failed to raise its present standing argument in the district court. The FEC argued at the motion-to-dismiss 

stage that appellees lacked standing, but it could not 

raise its present argument about traceability because 
7 

appellees’ complaint alleged that the committee had 

used $250,000 in post-election funds to repay Senator 

Cruz. See J.S. 9-10. The FEC subsequently argued

during discovery that the court’s earlier ruling on 

standing was “based on the review that is undertaken 

‘at the motion to dismiss stage,’” and that discovery 

could reveal evidence that would “help th[e] three-judge 

Court * * * fulfill the obligation to satisfy itself that it 

possesses jurisdiction * * * at the summary judgment 

stage.” D. Ct. Doc. 39, at 11 (Jan. 24, 2020) (citations 

omitted). The three-judge court, however, “reject[ed] 

outright [the Commission’s] assertion.” 451 F. Supp. 3d 

at 98.

Under these circumstances, the FEC should not be 

faulted for failing to contest appellees’ standing yet 

again after discovery concluded. That is particularly so 

because this Court’s decision in California, which emphasized the need for a plaintiff to show injury traceable to the specific provision of law that is alleged to be 

unconstitutional, was issued after the proceedings below ended. See J.S. 13. This Court routinely vacates 

lower-court judgments to facilitate reconsideration of 

contested issues in light of intervening decisions, and 

that approach would be appropriate here. 

2. Appellees cannot establish the traceability component of standing for a second reason: their injuries 

were self-inflicted. See J.S. 14-16. Appellees’ responses 

to that argument (Mot. 18-25) are incorrect. 

Appellees cite (Mot. 19-20) decisions such as Havens 

Realty Corp. v. Coleman, 455 U.S. 363 (1982), and Evers 

v. Dwyer, 358 U.S. 202 (1958) (per curiam), to show that 

a plaintiff may have standing even if he acts with the 

purpose of instituting litigation. The problem here, 

however, is not simply that Senator Cruz sought to lay 
8 

the groundwork for a lawsuit when he lent his campaign 

committee $260,000 the day before the election. Rather, 

the crucial point is that, even after the election, appellees could have repaid Senator Cruz in full without violating either the statute or the regulation, simply by using available pre-election funds to repay Senator Cruz 

$10,000 or more during the 20-day post-election window

rather than waiting until just after the deadline had 

lapsed. See J.S. 14. Appellees’ injury resulted from 

their own decision to forgo that course. 

Appellees also contend that the FEC’s standing argument “would require Senator Cruz to avoid an injury 

by subjecting himself to the very framework he alleges 

is unconstitutional.” Mot. 20 (citation omitted). But this 

Court’s standing jurisprudence focuses on whether the 

defendant has caused the plaintiff concrete injury, not 

on whether the defendant has violated the law. See, e.g., 

TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2205 

(2021) (“[A]n injury in law is not an injury in fact.”). To 

establish standing, appellees therefore must show that 

using the FEC’s proposed alternative (repaying Senator Cruz at least $10,000 with pre-election funds during 

the 20-day post-election window) would have caused

them concrete harm. See J.S. 15. Appellees have not 

made that showing. 

B. The Loan-Repayment Limit Complies With The First 

Amendment

Appellees also defend (Mot. 25-38) the district 

court’s holding that the loan-repayment limit violates 

the First Amendment. Appellees’ merits arguments are 

incorrect. 

1. Appellees argue that Section 30116(j)’s loanrepayment limit is subject to strict scrutiny because it 

“burdens First Amendment expression.” Mot. 29. But 
9 

“not every electoral law that burdens associational 

rights is subject to strict scrutiny.” Clingman v. Beaver, 544 U.S. 581, 592 (2005). “Instead, as [the Court’s] 

cases * * * have clarified, strict scrutiny is appropriate 

only if the burden is severe.” Ibid.

Contrary to appellees’ suggestion (Mot. 25-28), the 

loan-repayment limit does not severely burden candidates, campaigns, or contributors. It does not restrict 

the amount of money that a candidate may spend, the 

amount he may donate or lend to his campaign, or the 

amount of money campaigns may raise from donors. It 

instead imposes a narrow timing restriction, capping 

the campaign’s ability to use a specific set of funds 

(post-election contributions) for a specific purpose (repaying the candidate’s personal loans). See J.S. 17. Appellees argue (Mot. 26-27) that Section 30116(j) could 

deter some candidates from lending money to their 

campaigns in some circumstances. But in the absence 

of a severe burden, the prospect of some discernible impact on a campaign’s fundraising capabilities is not a 

sufficient basis for applying strict scrutiny. The Court 

has declined to subject contribution limits to strict scrutiny, for example, even though those laws foreseeably 

affect the ability of federal candidates to finance their 

campaigns. See Buckley v. Valeo, 424 U.S. 1, 20-23 

(1976) (per curiam).

2. Based on the legislative history of the loan-repayment limit, appellees argue (Mot. 30-31) that Members 

of Congress voted to enact the limit to protect incumbents and to equalize electoral opportunities, not to prevent the reality and appearance of corruption. As an 

initial matter, appellees’ account of the legislative history is highly selective. Members of Congress invoked 
10

the public and governmental interest in fighting corruption as a justification for the provision. See, e.g., 147 

Cong. Rec. 3882 (2001) (statement of Sen. Domenici) 

(explaining that a candidate who loans his campaign 

money should not be able “to get it back from [his] constituents under fundraising events that [he] would hold 

and then ask them: How would you like me to vote now 

that I am a Senator?”); id. at 3970 (statement of Sen. 

Hutchison) (“[Candidates] have a constitutional right to 

try to buy the office, but they do not have a constitutional right to resell it. That is what my part of this 

amendment attempts to prevent.”). 

In any event, “[i]t is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an * * * illicit 

legislative motive.” United States v. O’Brien, 391 U.S. 

367, 383 (1968). “What motivates one legislator to make 

a speech about a statute is not necessarily what motivates scores of others to enact it.” Id. at 384. BCRA’s

loan-repayment limit is constitutional on its face, and 

the snippets of legislative history cited by appellees do 

not undermine that conclusion. 

3. Appellees argue (Mot. 31-37) that post-election 

contributions used to repay personal loans pose no 

greater threat of corruption than any other contributions. They contend (Mot. 32), for example, that a contribution used to repay a candidate’s personal loan to 

his campaign operates “in precisely the same manner” 

as any other contribution. But that is not so: a contribution used to repay a personal loan made by the candidate directly increases the candidate’s personal wealth, 

while a contribution used for campaign purposes does 

not. 
11

Appellees also argue that post-election contributions 

used to repay personal loans can serve the legitimate 

purposes of expressing “‘support for the candidate and 

his views’” and “free[ing] up money that the candidate 

can spend on the next campaign.” Mot. 34 (quoting 

Buckley, 424 U.S. at 21). But the “symbolic act of contributing” as an expression of support, Buckley, 424 

U.S. at 21, has its primary value before the election occurs, when it may potentially sway other voters. A postelection contribution can neither influence voters nor 

facilitate additional electoral advocacy by the campaign. 

See J.S. 20-21. And the most straightforward way to 

help a candidate spend money on his next campaign is

to donate money to that campaign—not to donate 

money for use in repaying the candidate’s personal loan 

to his previous campaign. 

4. Appellees contend (Mot. 37-38) that the loanrepayment limit is not narrowly tailored to the government’s asserted interest in combating corruption. But 

this Court’s decisions require “a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope 

is ‘in proportion to the interest served.’” Board of Trustees v. Fox, 492 U.S. 469, 480 (1989) (citation omitted). 

The loan-repayment limit satisfies that standard because it restricts only a narrow category of speech that 

poses a particularly serious risk of corruption. See J.S. 

19-22. 

5. At a minimum, this Court should not decide the 

foregoing issues summarily. Out of respect for a coordinate branch of government, the Court has “recognized a strong presumption in favor of granting writs of 

certiorari to review decisions of lower courts holding 

federal statutes unconstitutional.” Maricopa County v. 
12

Lopez-Valenzuela, 574 U.S. 1006, 1007 (2014) (statement of Thomas, J., respecting the denial of the application for a stay). The same respect that underlies that 

presumption also supports plenary review of threejudge courts’ decisions holding federal statutes unconstitutional. Appellees identify no case in which this 

Court has summarily upheld a lower-court decision 

striking down an Act of Congress. 

CONCLUSION

This Court should summarily vacate the judgment of 

the district court and remand the case for further consideration of standing in light of California v. Texas, 

141 S. Ct. 2104 (2021). Alternatively, the Court should 

postpone jurisdiction. 

Respectfully submitted.

BRIAN H. FLETCHER

Acting Solicitor General

AUGUST 2021