This article is part of TPM Cafe, TPM’s home for opinion and news analysis.
On Monday, thanks to a case brought by Senator Ted Cruz (R-TX), the Supreme Court struck down another aspect of the Bipartisan Campaign Reform Act (BCRA). At issue in this case was a limit on how much a candidate could loan themselves and have donors repay them after an election. The limit had been a generous $250,000. Following yesterday’s ruling, even that fig leaf is gone, leaving elected officials free to ask donors for money that will go right into their own pockets.
The case is FEC v. Ted Cruz for Senate. Senator Ted Cruz loaned $260,000 to his campaign committee and then sought reimbursement from political donors to make himself whole. This was $10,000 over the then-legal limit, suggesting the violation was ginned up as a test case to challenge another aspect of BCRA. (It also undermines any everyman image Cruz might be trying to portray — how many of us could loan anyone, including a political campaign, over $250k?)
The Bipartisan Campaign Reform Act (BCRA) was the brain child of Republican Senator John McCain (AZ) and Democratic Senator Russ Feingold (WI), and it was passed in part as reaction to the implosion of Enron. The Rehnquist Court in 2003 upheld nearly every aspect of the BCRA as constitutional against a facial challenge in McConnell v. FEC.
The Act is now only 20 years old, but it has had a hell of a time before the Roberts Supreme Court. As I wrote about here, the Roberts Supreme Court has been deregulating corruption since its very first term by kicking big holes in campaign finance laws and by making white collar crime harder to prosecute as it lets shady politicians — from Bob McDonnell to Bridget Anne Kelly — off the hook for corrupt acts.
The Roberts Supreme Court took its first chunk out of BCRA in Davis v. FEC — striking down a law called the millionaire’s amendment which had allowed candidates running against super rich self-financed candidates to raise more money. The Court, in Davis, came perilously close to ruling that it was unconstitutional to discriminate against the rich. As Justice Alito wrote in his majority opinion:
“Different candidates have different strengths. Some are wealthy; others have wealthy supporters who are willing to make large contributions. … Leveling electoral opportunities means making and implementing judgments about which strengths should be permitted to contribute to the outcome of an election. …it is a dangerous business for Congress to use the election laws to influence the voters’ choices.”
Later, in 2007’s FEC v. Wisconsin Right to Life, the Roberts Court limited what ads could be regulated under BCRA.
Then, in 2010’s Citizens United v. FEC, the Roberts Court really took a hatchet to BCRA, finding that the law’s ban on corporate-funded political ads was unconstitutional. This opinion caught the attention of lots of Americans, from the President to average citizens who decried this turn of events as worthy of amending the Constitution. President Obama called out the Supreme Court in his first State of the Union declaring, “[w]ith all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests — including foreign corporations — to spend without limit in our elections.” In the audience, Justice Alito (now famous for his leaked opinion overturning Roe v. Wade) shook his head and mouthed the words “not true.” History has shown Obama was right as “corporations gave $301 million to super PACs and hybrid PACs from the 2012 to 2018 cycles, 87 percent of which went to conservative groups” and there was an additional $100 million in corporate spending in the 2020 election.
In the new case authored by Chief Justice John Roberts, there is enormous sympathy shown for Senator Cruz in passages like “Cruz, of course, suffers a $10,000 pocketbook harm.” Roberts also continues his longstanding hostility to campaign finance reform stating “we have denied attempts to reduce the amount of money in politics, to level electoral opportunities by equalizing candidate resources, and to limit the general influence a contributor may have over an elected official.” In the end Roberts concludes: “the Government has not shown that Section 304 [of BCRA] furthers a permissible anticorruption goal, rather than the impermissible objective of simply limiting the amount of money in politics… We also conclude that this provision burdens core political speech without proper justification.”
In her dissent in Cruz, Justice Elena Kagan had several choice words for the majority including in the opening paragraph, where she described an elected politician getting made whole after a huge loan to his campaign is repaid by political donors: “The politician is happy; the donors are happy. The only loser is the public. It inevitably suffers from government corruption.”
So now the Cruz case — decided 6 to 3 — sticks another dagger in the law that hoped to protect federal elections from the corrupting influence of money in politics. This is deeply unfortunate. Perhaps those seeking a Constitutional Amendment to permit reasonable campaign finance reform have a point.
Ciara Torres-Spelliscy is a Visiting Professor at American University Washington College of Law and the author of the book Political Brands.