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As Ted Cruz wins at the Supreme Court, common sense loses

After Ted Cruz’s victory at the high court, Justice Elena Kagan wrote, “The politician is happy; the donors are happy. The only loser is the public.”


Slowly but surely, the Supreme Court has chipped away at campaign-finance reforms in recent years, most notably in the Citizens United ruling in 2010. But yesterday’s decision in FEC v. Cruz wasn’t just a loss for anti-corruption efforts, it was also a serious setback for common sense.

NBC News reported yesterday on Republican-appointed justices striking down limits on candidates who lend large amounts of money to their own campaigns.

In a 6-3 ruling, the court said the law, adopted in 2002, was a violation of political candidates’ free expression, applying long-standing rulings that said that because money buys the ability to spread political messages, limits on expenditures implicate the First Amendment. Under the law at issue, candidates who contributed money to their own campaigns could be paid back from the pool of other campaign contributions. But the repayments were capped at $250,000.

Sen. Ted Cruz recognized the legal limit, but deliberately ignored it, lending his re-election campaign $260,000. The point, of course, was to trigger a legal challenge that the Texas Republican expected to win, thanks to conservative justices’ overt hostility toward campaign-finance restrictions.

Those assumptions were correct: Each of the six Republican-appointed justices on the high court endorsed Cruz’s argument. The ruling was written by Chief Justice John Roberts, whose record on this issue is one of consistent opposition to reforms.

On the surface, this may seem like a relatively obscure legal controversy, and I’ll concede that this wasn’t exactly the highest profile case of the Supreme Court’s current term. How much candidates can lend their campaigns and be repaid for the loans is hardly the stuff of mass protests.

But just below the surface, there’s a larger point to consider.

In the wake of yesterday’s ruling, candidates can continue to loan themselves money during a campaign, using their own personal wealth. But after the election, those same candidates can now collect limitless repayments from donors who will be well aware of the outcome of the election — effectively putting money in the pockets of politicians who will be in positions of power and influence.

As Slate’s Mark Joseph Stern put it, “Pause for a moment to consider just how extraordinary Roberts’ claim is. Congress has no legitimate objective in preventing donors from putting cash straight into a candidate’s bank account after an election? Really?”

Writing for the minority, Justice Elena Kagan was similarly incredulous.

“The theory of the legislation is easy to grasp,” she wrote in a dissent. “Political contributions that will line a candidate’s own pockets, given after his election to office, pose a special danger of corruption. The candidate has a more-than-usual interest in obtaining the money (to replenish his personal finances), and is now in a position to give something in return. The donors well understand his situation, and are eager to take advantage of it. In short, everyone’s incentives are stacked to enhance the risk of dirty dealing.”

The center-left justice added that this will further undermine public confidence in the political system. “The politician is happy; the donors are happy. The only loser is the public.... In allowing those payments to go forward unrestrained, today’s decision can only bring this country’s political system into further disrepute,” Kagan added. “It takes no political genius to see the heightened risk of corruption.”