The Supreme Court heard two different portrayals of Sen. Ted Cruz in his campaign finance lawsuit on Wednesday: similar to a civil rights activist, or more like someone who bought hot coffee just to pour it on himself.
The oral argument focused on Cruz’s challenge to an obscure provision of a 2002 campaign finance law that he says violates the constitutional free speech rights of candidates.
The Bipartisan Campaign Reform Act — also known as the McCain-Feingold law for its principal sponsors, the late Sen. John McCain and former Sen. Russ Feingold — put a $250,000 limit on candidates using campaign contributions made after the election to repay a candidate’s personal campaign loans.
The Texas Republican lent his campaign committee $260,000 the day before the 2018 general election, and filed a lawsuit that argues the law prevents his campaign from repaying him the final $10,000, which he contends burdens candidates’ ability to fund political speech.
Malcolm Stewart, the deputy solicitor general, told the justices they should toss out the lawsuit without ruling on whether the law’s limit is unconstitutional since Cruz acted in a way he wouldn’t have if he weren’t aiming to take down the provision in the law.
“Imagine a tort suit in which a plaintiff said: ‘It came to my attention that McDonald’s was selling dangerously hot coffee. And so I went to McDonald’s and bought a cup of coffee and poured it upon myself. And I’m suing for costs of medical treatment and for pain and suffering. And I stipulate that my only reason for buying the coffee, and my only reason for pouring it on myself, was to facilitate this lawsuit,’” Stewart said.
Stewart said that means Cruz doesn’t have the legal right to pursue the lawsuit, known as standing. “I think we’d all have the strong reaction, that suit can’t go forward,” Stewart said.
But Charles Cooper, who argued on behalf of Cruz, compared his client’s situation to Homer Plessy, who was arrested for refusing to leave a “whites only” car of a Louisiana train. Plessy challenged the law, and the subsequent 1896 decision that upheld “separate but equal” laws as constitutional has become known as one of the Supreme Court’s most infamous decisions.
“At least since Mr. Plessy sat down in the train car reserved for whites, this court has repeatedly held that a plaintiff who deliberately subjects himself to the injury of unconstitutional government action for the admitted purpose of challenging it has created his standing, not defeated it,” Cooper said.
Cooper was not the first to bring up Plessy at Wednesday’s argument. Justice Clarence Thomas, the court’s only Black member, challenged Stewart’s contention that a self-inflicted injury couldn’t be the basis for a lawsuit. “What would you say about Plessy sitting in the wrong car?” Thomas asked Stewart.
Stewart replied that Plessy was attempting to do “something in the real world that presumably he would do” if there hadn’t been a segregationist transportation law. “It’s a different case when plaintiffs stand on their rights and insist on doing what they would do if the law were not in effect and experienced injury as a result of it,” Stewart said.
The Supreme Court will decide by the end of the term at the end of June what to do with Cruz’s challenge, which pits the free speech rights of candidates against a law meant to limit the influence of money in politics.
The majority of justices appeared ready to rule that Cruz had a right to file the lawsuit and that the provision he challenged was unconstitutional. The Federal Election Commission and backers of campaign finance laws warn that removing it could open the door to corruption of elected officials because the donations go directly back in the candidate’s pocket.
But conservative justices hinted that the $2,900 limits on donations already limit corruption and that post-election donations would be more like a repayment, not a gift. Justice Brett M. Kavanaugh said the provision is a “chill” on the ability of candidates to fund their campaign at crunch time, just before the election, when they’ve spent all their preelection contributions.
“In that instance, the candidate coming down in the last few days is quite a bit chilled from using his or her own resources above $250,000, because there’s no possibility of repayment under this statute, even in $2,900 chunks,” Kavanaugh said.
Cooper agreed, referring to the number of people who would have to donate to get to the $250,000 limit. “According to the government, Congress effectively gives a corruption hall pass to the first 86 donors who max out after an election, but abruptly closes the corruption window on donor number 87,” Cooper said.
Justice Elena Kagan, in her questions, suggested that Congress put in the limit to balance out concerns about how much a successful candidate might be tempted to “start thinking about how he can sell his votes.”
“Congress, here, came in, and said these are hard things, we’re striking balances, we’re picking $250,000 as the time where candidates really start worrying about the kind of debt that they have and the kinds of things that they can do to reduce that debt,” Kagan said.
The court has an expanded 6-3 conservative majority, and the case is among several that the court has taken up this term that closely align with long-standing Republican political priorities such as abortion and gun rights.
A three-judge panel of the U.S. District Court for the District of Columbia, in siding with Cruz in the litigation last year, leaned on a previous Supreme Court ruling that extended free speech protections to campaign financing because “effective speech requires spending money.”
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