Litigators

Ted Cruz's Lawsuit Makes A Good Point For Bad Reasons

There's a point worth making here, if you can ignore who is making it and his proposed solution.

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Photo by Scott Olson/Getty

Even an odious, punchable, broken clock is right twice a day. Yesterday, Ted Cruz filed a complaint against the Federal Election Commission and… he has a point. The unlikable, craven hypocrite has a point.

Cruz is challenging an FEC rule that limits the amount of money candidates can reimburse themselves for personal loans given to their own campaigns. The Bipartisan Campaign Reform Act limits repayments candidates can give themselves from post-election fundraising to $250,000. Cruz claims he loaned his campaign $260,000 during his Texas Senate battle against Beto O’Rourke.

The fact that the numbers work out so conveniently should tip you off that this lawsuit isn’t about the money. Ted Cruz does not give a rat’s ass about being out $10,000. Cruz is in it to further weaken campaign finance laws to the point where they are entirely irrelevant.

There are two reasons for the law as it stands now: the best one is that limiting reimbursement limits the chances for corruption. I hate to break it to you, but there might come a day when somebody runs for office solely to make money. Limiting how much candidates can reimburse themselves limits the chances that somebody lies about their campaign expenditures and then uses the post-election fundraising to personally enrich themselves.

I know most of you can’t imagine what kind of person would run for high office just for personal financial gain, but it happens!

The second reason for this rule isn’t as good, but is still important. It’s a backdoor limit on how much candidates can spend on themselves to buy office. Wealthy candidates have a First Amendment right (so the story goes) to spend as much as they want to buy themselves an election. But limiting how much they can reimburse themselves arguably disincentivizes profligate personal financing of elections. After $250K, all additional “speech” is a sunk cost. If that means some candidates will not loan themselves quite as much “speech,” so be it.

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It’s this backdoor limitation on money-as-speech that Cruz wishes to tear down much more than he wishes to get an additional $10,000 back. From Courthouse News:

He claims the FEC interprets the statute to not only bar the repayment of personal loans guaranteed by a candidate for their campaign, but also restrict the repayment of a candidate’s own money.

The restriction further limits the time period a candidate can raise funds to communicate their political messages, Cruz says.

“Criminalizing the basic means of financing political communication infringes a candidate’s ‘fundamental…right to spend personal loans for campaign speech,” the lawsuit states, citing the 2008 Supreme Court ruling Davis v. FEC. “In addition, the post-election repayment limitation restricts the speech of those potential donors who would otherwise support a candidate financially by contributing after an election to fund pre-election political speech.”

I don’t agree with the fundamental premise here, as I don’t think money is speech. But even if I did think that, I don’t see how Cruz’s speech rights are violated given that he was allowed to spend all the “speech” he wanted to. Nobody is limiting what Ted Cruz can say (would that somebody could) or how much money he can spend on himself to say it. Cruz’s First Amendment rights are secure.

As are the rights of his donors. They can donate their “speech” to the candidate, after the election, in a totally corrupt process that hopefully one day Queen AOC will outlaw. His donors have no First Amendment right in how the campaign they are donating to is allowed to use their donations. I have a First Amendment right to “speech” all sorts of things. But I don’t have a First Amendment right to tell political campaigns how they should use my generous speech.

And while we’re here, Cruz has no standing to sue for the rights of his donors anyway.

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Moreover, even if there is a net-negative impact on speech, it’s not enough to overcome the compelling state interest in trying to keep corruption out of politics. Why should a sitting senator, newly invested with power for six years, be allowed to shameless raise money to pay himself back, especially if he won election in the first place by self-financing and (potentially) arguing that his wealth meant that he “couldn’t be bought”? Self-financing and then raising money after it’s over to reimburse yourself is closer to fraud that it is to speech.

But where Cruz does have a point is here:

“These arbitrary restrictions on core political speech by candidates, their campaign committees, and their supporters are invalid and must be struck down,” the complaint states.

The $250,000 cap is arbitrary. Once you accept the premise that there is some amount of candidate reimbursement that is allowable, restricting the amount stops making a whole lot of sense. Why cap it at $250K? Why not $260K? Or $1,000,000? What hat was this cap drawn out of? The compelling anti-corruption rationale for the law is frustrated by the arbitrary cap that seems to allow for some corruption but not too much corruption.

If it were me, I’d outlaw post-election reimbursement entirely. If Howard Schultz wants to spend his swill fortune getting ratio’d on Twitter, so be it, but he can’t pay himself back a dime.

But if we’re going to allow any of it, then (gulp) I think I kind of agree with Ted Cruz that the cap itself is an illegal restriction.

Also, Ted Cruz is a selfish prick who nobody likes and who sucks up to a man who insulted his wife.

Cruz Sues Over Limits on Reimbursing Campaign Loans [Courthouse News Service]

Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at [email protected]. He will resist.

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