The Wall Street Journal
Imagine a successful small business owner who wants to run for Congress. To relaunch his campaign, he could lend him money. Once the fundraiser has started, she can pay it back. But the law says donations arriving after Election Day can only pay off $250,000 in candidate debt. If the businessman lends more than this amount to his campaign, he is taking a real financial risk.
That was true until Monday, when the Supreme Court ruled 6-3 in FEC v. Cruz that the reimbursement cap, passed as part of the 2002 McCain-Feingold mess, is unconstitutional. Senator Ted Cruz advanced his 2018 campaign by $260,000, leaving him $10,000 less after Election Day. As Chief Justice John Roberts wrote for the majority of the Court, this restriction “prevents candidates from lending money to their campaigns in the first place, which weighs down grassroots discourse.”
That’s more than a theoretical concern: More than 90% of campaign debt is candidate loans, according to the Federal Election Commission. Since 2002, according to Chief Justice Roberts, “the percentage of loans granted by Senate candidates for exactly $250,000 has increased tenfold,” suggesting that people are trying to stay below the cap. Political competition is in the public interest, and the leader adds that self-funding is “particularly important for new candidates and challengers”.
Judge Elena Kagan, writing in dissent for the Court’s three liberals, defends the merits of the law. “Political contributions that will line a candidate’s pockets, given after their election, present a particular danger of corruption,” she said. “The candidate has a greater than usual interest in obtaining money (to replenish his personal finances) and is now able to give something back.” She also argues that the reimbursement limit does not affect Mr. Cruz’s ability to support himself, only his ability to recover money from donors.
Yet Chief Justice Roberts responds that the government “is unable to identify a single instance of quid pro quo corruption in this context”. Individual donations are “capped at $2,900 per election” and large sums are made public. The leader quotes outgoing senators who originally debated the reimbursement limit, saying lofty things such as, “I wish I could have a level playing field so I could stay in the ball game.”
Justice Kagan’s perspective on the perception of corruption in politics is broad. She cites a YouGov poll, commissioned by the government, in which 81% of Americans said they thought post-election donors would likely expect political favors in return. OK, but would the public feel the same way about regular pre-election donors? The survey did not ask.
The leader’s opinion is a logical extension of the court’s many precedents on free speech and campaign finance. But the court’s liberals can’t seem to recognize this as a matter of stare decisis. It is clear that they are ready to overturn these precedents at the first opportunity, which we hope, for the sake of free political expression, will be a long way off.