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Federal Election Commission v. Ted Cruz for Senate, et al.

Federal Election Commission v. Ted Cruz for Senate, et al. is a First Amendment challenge to a provision of the Bipartisan Campaign Reform Act (BCRA) that limits how much a candidate can raise after an election to recoup loans they have made to their own campaign. The Brennan Center filed an amicus brief in support of the law’s constitutionality.

Last Updated: November 22, 2021
Published: November 22, 2021

Case Back­ground

The Bren­nan Center for Justice, work­ing with pro bono coun­sel from the law firm Allen & Overy, filed an amicus brief in the United States Supreme Court to defend the consti­tu­tion­al­ity of a Federal Elec­tion Commis­sion (FEC) self-loan repay­ment limit.

Senator Ted Cruz and his campaign commit­tee, Ted Cruz for Senate, chal­lenged the consti­tu­tion­al­ity of Section 304 of the Bipar­tisan Campaign Reform Act (also known as McCain-Fein­gold), which limits the amount of money candid­ates can raise after an elec­tion to recoup loans they have made to their own campaign to $250,000. A special three judge federal court in Wash­ing­ton, D.C. inval­id­ated this provi­sion on the grounds that it supposedly places an indir­ect burden on elect­oral speech in viol­a­tion of the First Amend­ment. The Supreme Court has gran­ted plen­ary review in this case.

The Bren­nan Center’s amicus brief argues that Section 304 is consti­tu­tional, making two key points. First, Section 304 places a minimal if any burden on speech. The brief includes analysis of FEC data show­ing that very few candid­ates rely on personal loans of $250,000 or more, and that limit­ing candid­ates’ abil­ity to recoup those loans does not signi­fic­antly impact campaign activ­ity. Second, the brief notes the govern­ment’s profound interest in combatting corrup­tion, which is heightened in this case due to the poten­tial for campaign contri­bu­tions to flow directly into a candid­ate’s pocket.

To read the Bren­nan Center’s brief in this case, as well as other mater­i­als, see below.

Supreme Court:

Amicus Brief of the Bren­nan Center for Justice (Novem­ber 22, 2021)

Amicus Brief of the Campaign Legal Center, Citizens for Respons­ib­il­ity and Ethics in Wash­ing­ton, Common Cause, and Demo­cracy 21 (Novem­ber 22, 2021)

Amicus Brief of the Consti­tu­tional Account­ab­il­ity Center (Novem­ber 22, 2021)

Amicus Brief of Public Citizen (Novem­ber 19, 2021)

Appel­lant’s Brief (Novem­ber 15, 2021)

Appel­lant’s Oppos­i­tion to Motion to Affirm or Dismiss (August 25, 2021)

Appellee’s Motion to Affirm or Dismiss (August 6, 2021)

Amicus Brief of the Campaign Legal Center in Support of Summary Reversal (August 6, 2021)

Amicus Brief of the Insti­tute of Free Speech in Support of Summary Affirm­ance (August 5, 2021)