Bribing members of Congress is generally thought of as a bad thing. That’s why there was widespread support for the Bipartisan Campaign Reform Act of 2002, which contained a provision specifically designed to crack down on corruption. The act set a cap on the amount of money a member of Congress can collect from special-interest donors to pay off personal debts that were accumulated while running for office.
But in a jarring 6-3 decision issued Monday in the case of Federal Election Commission v. Ted Cruz for Senate, the US Supreme Court eliminated the cap and cleared the way for a new age of campaign corruption.
Promoted by Senators Russ Feingold (D-Wis.) and John McCain (R-Ariz.), the 2002 law set a $250,000 limit on loan repayments that candidates could obtain from donors after they were elected. The law didn’t stop wealthy individuals from financing their own campaigns, unfortunately. But it did say that candidates could not run up big debts financing their bids and then turn to big donors to replenish their personal funds.
Makes sense, right? Because a candidate who went into heavy personal debt in order to get elected might feel beholden to the billionaires and political action committees that, though their contributions, effectively eliminated that debt.
But sensible strategies to fight corruption of elected officials have for decades been under attack by an increasingly conservative US Supreme Court, going back to the 1976 Buckley v. Valeo decision that struck down limits on campaign spending. More recently, the 2010 Citizens United v. Federal Election Commission struck down restrictions of corporate spending to influence elections and the 2014 McCutcheon v. Federal Election Commission decision removed limits on the number of campaigns a wealthy donor could finance. The last of those rulings summed up the philosophy of the court’s conservative majority in asserting that “the proper focus is on an individual’s right to engage in political speech, not a collective conception of the public good.”
What the court has now done can and should be seen as the most glaring example yet of just how far it will go to upend democracy.
The decision represents “another victory for right-wing donors in their assault on our campaign finance system, and another step toward unlimited special-interest spending in our elections,” declared Senator Sheldon Whitehouse (D-R.I.).
It also rewards the kind of politician who should never get anywhere near a US Senate seat. Faiz Shakir, the former political director for the American Civil Liberties Union who managed the 2020 Bernie Sanders for President campaign, explained the scenario succinctly when he said:
SCOTUS decided today that if you want to run for office, do this:
1) find a really rich person to back you,
2) take out a giant loan to pay for campaign
3) get that rich person to pay you back later.
I wonder what kinds of candidates this might generate
Meet Ted Cruz.
The scandal-plagued Republican senator from Texas, who has made it his mission to upend campaign and ethics laws, manufactured the latest case. In 2018, when he almost lost his seat to Democrat Beto O’Rourke, Cruz lent his reelection campaign $260,000 on the day before the election. The campaign repaid him up to the $250,000 cap, but he was out $10,000. So he sued to get it back.
Just as the Citizens United case was managed by foes of corporate influence on politics to give a sympathetic conservative majority an opportunity to weigh in, the Cruz case was a setup. And it worked.
Chief Justice John Roberts Jr., a driving force behind the Citizens United and McCutcheon rulings, wrote for the majority in the Cruz decision that provision of the 2002 law that placed limits on the repayment of campaign loans “burdens core political speech without proper justification.” As in the past, Roberts and the conservative justices who aligned with him—Clarence Thomas, Samuel Alito, Brett Kavanaugh, Neil Gorsuch, and Amy Coney Barrett—embraced the notion that the Constitution is primarily a rich man’s document that “safeguards the ability of a candidate to use personal funds to finance campaign speech.”
Never mind the fact that this decision, like so many before it, privileges candidates who have the ability to loan themselves more than $250,000. And never mind the obvious openings it creates for self-dealing donors, who bundle contributions and direct political action committees, to buy influence with candidates who win elections and then declare themselves to be open for business.
Arguing that the chief justice and his allies have been working for many years at “destroying the foundational anti-corruption laws in our country,” law professor and longtime anti-corruption campaigner Zephyr Teachout said Monday, “Roberts is still on his reckless course, untying the knot between the public and the elected, legalizing bribery.”
Justice Elena Kagan made much the same point in a scathing dissent that began:
A candidate for public office extends a $500,000 loan to his campaign organization, hoping to recoup the amount from benefactors’ post-election contributions. Once elected, he devotes himself assiduously to recovering the money; his personal bank account, after all, now has a gaping half-million-dollar hole. The politician solicits donations from wealthy individuals and corporate lobbyists, making clear that the money they give will go straight from the campaign to him, as repayment for his loan. He is deeply grateful to those who help, as they know he will be—more grateful than for ordinary campaign contributions (which do not increase his personal wealth). And as they paid him, so he will pay them. In the coming months and years, they receive government benefits—maybe favorable legislation, maybe prized appointments, maybe lucrative contracts. The politician is happy; the donors are happy. The only loser is the public. It inevitably suffers from government corruption.
The latest demolition of the guardrails against corruption of our politics and our governance creates a new road map for how campaigns will be run. In the past five election cycles, Senate candidates made 588 loans to their campaigns, while House candidates made 3,444 campaign loans. You can bet that those numbers will spike in 2020, and that the loans that are for more than $250,000—historically only a small percentage of the overall number of loans—will jump dramatically, as candidates and their fund-raising managers chart a new course for filling campaign coffers with special-interest money.
Kagan’s dissent, in which she was joined by Justices Stephen Breyer and Sonia Sotomayor, spells out where things are headed: “It takes no political genius to see the heightened risk of corruption—the danger of ‘I’ll make you richer and you’ll make me richer’ arrangements between donors and officeholders.”