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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)