OPINION: This article may contain commentary which reflects the author's opinion.
Republican Texas Sen. Ted Cruz is headed to the Supreme Court and the decision in his case could change campaign finance laws in politics.
The court is et to hear arguments on Wednesday on the Bipartisan Campaign Reform Act, commonly referred to as the McCain-Feingold law for the late Sen. John McCain and former Sen. Russ Feingold, who sponsored the bill, Roll Call reported.
That includes the conservative majority’s 5-4 decision in Citizens United v. Federal Election Commission in 2010, which is criticized as opening the door to large political action groups spending unlimited amounts on elections from undisclosed sources.
Cruz’s challenge, related to candidates who make personal campaign loans, doesn’t appear to hold as much potential for such a consequential change in election money. But the FEC and backers of campaign finance laws warn that removing it could open the door to corruption of elected officials.
That’s because the provision Cruz challenged puts a $250,000 limit on candidates for the use of campaign contributions, made after the election has happened, for the sole purpose of repaying the candidate’s personal campaign loans.
“And because such funds flow directly from a patron’s wallet into the candidate’s pocket, the corruption risk is acute,” the group Campaign Legal Center said in a brief in the case. “An unconditional reimbursement to a candidate personally—like any other item of value—is a gift.”
But Republican Senate Minority Leader and Kentucky Sen. Mitch McConnell believes that this would be an ideal case for the court to use to get of the entire law which has been stripped over the decades.
“This Court’s decisions over the past decade have rendered BCRA the Humpty Dumpty of campaign-finance law, a patchwork of provisions that Congress never would have approved standing alone and that can never be put back together again,” he said in his brief to the court.
“There is no reason to let BCRA limp along, no need for further piecemeal surgery by this Court: the Court should strike the entire statute. This case presents the ideal opportunity to do so. If this Court holds the loan-repayment limit unconstitutional, the key provision that made BCRA politically viable (the ‘Millionaire’s Amendment’) will be completely scuttled,” he said.
“The absence of that amendment would have doomed BCRA at a roll call vote in 2002; it should certainly doom what is left of BCRA twenty years later. It is time to put BCRA out to pasture,” the leader said.
He argued that “Constitutional doubts have plagued BCRA since its inception. In turn, those doubts have required this Court again and again to adjudicate BCRA’s provisions. Although in McConnell the Court initially upheld much of BCRA on its face (though even then inflicting some flesh wounds to the law), Senator McConnell’s original critique has proven prescient. And the Court’s subsequent decisions have inflicted fatal blows to BCRA, resulting in a legislative regime that looks nothing like the one Congress passed.”
And Sen. Cruz is arguing Section 304 of the Bipartisan Campaign Reform Act unconstitutionally infringes on the free speech rights of candidates because it does not allow federal candidates who made personal loans to their campaign before the election from paying themselves back with more than $250,000 in post-election contributions.
“Even a child knows the difference between lending a toy to a playmate and gifting the toy, and when the loaned toy is returned, the child knows that he has not received a gift and that his ‘personal assets’ have not increased,” the brief to the court from the senator said.
A three-judge panel in district court sided with Sen. Cruz and the decision can only be appealed to the Supreme Court.