Federal Election Comm’n v. Ted Cruz

P R E L I M I N A R Y P R I N T
Volume 596 U. S. Part 1
Pages 289–327
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
May 16, 2022
REBECCA A. WOMELDORF
reporter of decisions
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289
Syllabus
FEDERAL ELECTION COMMISSION v. TED CRUZ
FOR
SENATE et al.
appeal from the united states district court for the
district of columbia
No. 21–12. Argued January 19, 2022—Decided May 16, 2022
During his 2018 Senate reelection campaign and consistent with federal
law, see 11 CFR § 110.10; 52 U. S. C. § 30101(9)(A)(i), appellee Ted Cruz
loaned $260,000 to his campaign committee, Ted Cruz for Senate (Com-
mittee). To repay these and other campaign debts, campaigns may
continue to receive contributions after election day. See 11 CFR
§ 110.1(b)(3)(i). Section 304 of the Bipartisan Campaign Reform Act of
2002 (BCRA) restricts the use of post-election contributions by limiting
the amount that a candidate may be repaid from such funds to $250,000.
52 U. S. C. § 30116( j). Relevant here, the Federal Election Commission
(FEC) has promulgated regulations establishing three rules to imple-
ment that limitation: First, a campaign may repay up to $250,000 in
candidate loans using contributi ons made “at any time. ” 11 CFR
§ 116.12(a). Second, to the extent the loans exceed $250,000, a campaign
may use pre-election funds to repay the portion exceeding $250,000 only
if the repayment occurs “within 20 days of the election.” § 116.11(c)(1).
Third, when the 20-day post-election deadline expires, the campaign
must treat any portion above $250,000 as a contribution to the campaign,
precluding later repayment. § 116.11(c)(2).
The Committee began repaying Cruz's loans after the 20-day post-
election window for repaying amounts over $250,000 had closed. It ac-
cordingly repaid Cruz only $250,000, leaving $10,000 of his personal
loans unpaid. Cruz and the Committee fled this action in Federal Dis-
trict Court, alleging that Section 304 of BCRA violates the First
Amendment and raising challenges to the FEC's implementing regula-
tion, § 116.11. The District Court granted Cruz and his Committee
summary judgment on their constitutional claim, holding that the loan-
repayment limitation burdens political speech without suffcient justif-
cation, and dismissed as moot their challenges to the regulation.
Held:
1. Appellees have standing to challenge the threatened enforcement
of Section 304. Pp. 295–302.
(a) The Government recognizes that the Committee's present in-
ability to repay the fnal $10,000 of Cruz's loans constitutes an injury in
fact both to Cruz and his Committee. It maintains, however, that ap-

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pellees lack Article III standing because these injuries are not traceable
to
the threatened enforcement of Section 304, see Lujan v. Defenders of
Wildlife, 504 U. S. 555, 560–561. First, the Government argues that
appellees knowingly triggered the application of the loan-repayment
limitation and thus their injuries are traceable to themselves, not the
Government. This Court has never recognized an exception to Article
III standing 's traceability requirement for injuries that a party pur-
posely incurs. Moreover, this Court has made clear that an injury re-
sulting from the application or threatened application of an unlawful
enactment remains fairly traceable to such application, even if the injury
could be described in some sense as willingly incurred. See Evers v.
Dwyer, 358 U. S. 202, 204 (per curiam). Cases cited by the Govern-
ment—Clapper v. Amnesty Int'l USA, 568 U. S. 398, and Pennsylvania
v. New Jersey, 426 U. S. 660 (per curiam)—do not alter that conclusion.
In contrast to those cases, here the appellees' injuries are directly in-
ficted by the FEC's threatened enforcement of the provisions they now
challenge. That appellees chose to subject themselves to those provi-
sions does not change the fact that they are subject to them, and will
face genuine legal penalties if they do not comply. Finally, the Govern-
ment's observation that it should not be blamed for appellees' injuries
because the Committee had a legally available alternative—i. e., re-
paying Cruz's loans in full with pre-election funds, within 20 days of
the election—misses the point. Demanding that the Committee do so
would require it to forgo the exercise of the First Amendment right the
Court must assume it has when assessing standing—the right to repay
its campaign debts in full, at any time. Pp. 295–298.
(b) The Government next argues that although appellees would
have standing to challenge the FEC's implementing regulation, § 116.11,
they do not have standing to challenge Section 304 itself. The Govern-
ment contends that the Committee used pre-election funds to repay the
frst $250,000, and thus Section 304's cap on using post-election funds to
repay a candidate's loan does not prohibit repayment of the fnal $10,000
here. Instead, it is the agency's regulation—with its 20-day limit—that
prevents repayment. Appellees insist that they used post-election
funds—in the form of overlimit contributions to the 2018 campaign that
were “redesignated” as contributions to the 2024 campaign—to repay
Cruz's loans. Ordinarily, it would not matter whether a plaintiff was
challenging the statute's enforcement or instead the enforcement of a
regulation. Here, however, the parties assume that the distinction
makes a difference because the subject-matter jurisdiction of the three-
judge District Court is limited to actions challenging the enforcement
of the statute. See BCRA § 304(a). Even under the Government's ac-
count, the present inability of the Committee to repay and Cruz to re-

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cover the fnal $10,000 is traceable to the operation of Section 304 itself.
An
agency's regulation cannot “operate independently of ” the statute
that authorized it. California v. Texas, 593 U. S. –––, –––. Here, the
FEC's 20-day rule was expressly promulgated to implement Section 304.
Thus, if Section 304 is invalid and unenforceable, the agency's 20-day
rule is as well, and the remedy appellees sought in the District Court
wou ld redress appel lees' har m by preventi ng enforcement of the
agency's 20-day rule. See Lujan, 504 U. S., at 561. In challenging
the FEC's threatened enforcement of the loan-repayment limitation,
through its implementing regulation, appellees may raise constitutional
claims against Section 304, the statutory provision that, through the
agency's regulation, is being enforced. Cf. Collins v. Yellen, 594 U. S.
–––, ––– – –––. And because they are challenging “the constitutionality
of [a] provision of [BCRA],” § 403(a), jurisdiction was proper in the
three-judge District Court. Pp. 298–302.
2. Section 304 of BCRA burdens core political speech without proper
justifcation. Pp. 302–313.
(a) The loan-repayment limitation abridges First Amendment
rights by burdening candidates who wish to make expenditures on be-
half of their own candidacy through personal loans. Restricting the
sources of funds that campaigns may use to repay candidate loans in-
creases the risk that such loans will not be repaid in full, which, in turn,
deters candidates from loaning money to their campaigns. This burden
is no small matter. Debt is a ubiquitous tool for fnancing electoral
campaigns, especially for new candidates and challengers. By inhibit-
ing a candidate from using this critical source of campaign funding, Sec-
tion 304 raises a barrier to entry—thus abridging political speech.
Pp. 302–305.
(b) The Government has not demonstrated that the loan-repayment
limitation furthers a permissible goal. Any law that burdens First
Amendment freedoms, even slightly, must be justifed by a permissible
interest. Pp. 305–313.
(i) The only permissible ground for restricting political speech
recognized by this Court is the prevention of “quid pro quo” corruption
or its appearance. See McCutcheon v. Federal Election Comm'n, 572
U. S. 185, 207. Here, the Government argues that the contributions at
issue raise a heightened risk of corruption because they are used to
repay a candidate's personal loans. But given that these contributions
are already capped at $2,900 per election in order to prevent corruption
or its appearance, the approach of adding an additional layer of regula-
tion is a signifcant indicator that the regulation may not be necessary
for the interest it seeks to protect. See id, at 221. Because the Gov-
ernment is defending a restriction on speech, it must do more than “sim-

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ply posit the existence of the disease sought to be cured”; it must instead
poi
nt to “record evidence or legislative fndings” demonstrating the need
to address a special problem. Colorado Republican Federal Campaign
Comm. v. Federal Election Comm'n, 518 U. S. 604, 618. “[M]ere con-
jecture” is “[in]adequate to carry a First Amendment burden.” Mc-
Cutcheon, 572 U. S., at 210. Yet the Government is unable to identify
a single case of quid pro quo corruption in this context, even though
most States do not impose a limit on the use of post-election contribu-
tions to repay candidate loans. Pp. 305–308.
(ii) In the absence of direct evidence, the Government turns to a
scholarly article, a poll, and statements by Members of Congress to show
that the contributions used to repay candidate loans carry a heightened
risk of at least the appearance of corruption. All of this evidence, how-
ever, concerns the sort of “corruption,” loosely conceived, that this
Court has repeatedly explained is not legitimately regulated under the
First Amendment. Nor is it equivalent to “legislative fndings” that
demonstrate the need to address a special problem. Pp. 308–311.
(iii) As a fallback argument, the Government analogizes post-
election contributions used to repay a candidate's loans to gifts because
they enrich the candidate as opposed to the campaign's treasury. But
this analogy is meaningful only if the baseline is that the campaign will
default. The record suggests, however, that winning candidates are
commonly repaid in full. For these candidates, post-election contribu-
tions bear little resemblance to a gift; they instead restore the candidate
to the status quo ante. As for losing candidates, the Government does
not provide any anticorruption rationale to explain why contributions
to those candidates should be restricted. Finally, the Government ar-
gues for deference to Congress's “legislative judgment” that Section 304
furthers an anticorruption goal. Given scant evidence of corruption,
deference to Congress would be especially inappropriate where, as here,
the legislative act may have been an effort to “insulate[ ] legislators
from effective electoral challenge.” Nixon v. Shrink Missouri Govern-
ment PAC, 528 U. S. 377, 404 (Breyer, J., concurring). In the end, it
remains the role of this Court to decide whether a particular legislative
choice is constitutional. Sable Communications of Cal., Inc. v. FCC,
492 U. S. 115, 129. Pp. 311–313.
542 F. Supp. 3d 1, affrmed.
Roberts, C. J., delivered the opinion of the Court, in which Thomas,
Alito, Gorsuch, Kavanaugh, and Barrett, JJ., joined. Kagan, J.,
fled a dissenting opinion, in which Breyer and Sotomayor, JJ., joined,
post, p. 314.

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Opinion of the Court
Deputy Solicitor General Stewart argued the cause for
appel
lant. With him on the briefs were Solicitor General
Prelogar, Vivek Suri, Kevin Deeley, Harry J. Summers, and
Haven G. Ward.
Charles J. Cooper argued the cause for appellees. With
him on the brief were John D. Ohlendorf and Chris Gober.*
Chief Justice Roberts delivered the opinion of the
Court.
In order to jumpstart a fedgling campaign or fnish strong
in a tight race, candidates for federal offce often loan money
to their campaign committees. A provision of federal law
reg u lates the repayment of such loans. Among other
things, it bars campaigns from using more than $250,000 of
funds raised after election day to repay a candidate's per-
sonal loans. This limit on the use of post-election funds in-
creases the risk that candidate loans over $250,000 will not
be repaid in full, inhibiting candidates from making such
loans in the frst place. The question is whether this restric-
*Briefs of amici curiae urging reversal were fled for the Brennan Cen-
ter for Justice at N. Y. U. School of Law by Claire Rajan and Daniel I.
Weiner; for the Campaign Legal Center et al. by Paul M. Smith, Tara
Malloy, Megan P. McAllen, Fred Wertheimer, Stuart C. McPhail, and
Adam Rappaport; and for the Constitutional Accountability Center by
Elizabeth B. Wydra, Brianne J. Gorod, and David H. Gans.
Briefs of amici curiae urging affrmance were fled for the Institute for
Free Speech by Donald A. Daugherty, Jr.; for the New Civil Liberties
Alliance by Richard A. Samp; for Protect the First Foundation by Gene
C. Schaerr, Erik S. Jaffe, H. Christopher Bartolomucci, Hannah C.
Smith, and Kathryn E. Tarbert; for the Public Policy Legal Institute by
Barnaby W. Zall; for the Republican National Committee by Michael E.
Toner, Brandis L. Zehr, Stephen J. Obermeier, and Andrew G. Woodson;
for United States Senators Roy Blunt et al. by Scott A. Keller; and for
United States Senator Mitch McConnell by Donald F. McGahn II, Noel J.
Francisco, Robert Luther III, Andrew J. M. Bentz, and J. Benjamin
Aguiñaga.
Briefs of amici curiae urging vacatur were fled for Public Citizen by
Scott L. Nelson and Allison M. Zieve.
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tion violates the First Amendment rights of candidates and
their
campaigns to engage in political speech.
I
A
Candidates for federal offce may, consistent with federal
law, use various sources to fund their campaigns. A candi-
date may spend an unlimited amount of his own money in
support of his campaign. See Buckley v. Valeo, 424 U. S.
1, 52–54 (1976) (per curiam). His campaign—a legal entity
distinct from the candidate himself—may borrow an unlim-
ited amount from third-party lenders or from the candidate
himself. See 11 CFR § 110.10 (2017); 52 U. S. C. § 30101(9)
(A)(i); see also Buckley, 424 U. S., at 52–54. And campaigns
may, of course, accept contributions directly from other orga-
nizations or from individuals, subject to monetary limita-
tions. Individual contributions are capped at $2,900 for the
primary and $2,900 for the general election. See §§ 30116(a),
(c); 86 Fed. Reg. 7869 (2021). Campaigns may continue to
receive contributions after election day, so long as those con-
tributions go toward repaying campaign debts. See 11
CFR § 110.1(b)(3)(i).
Section 304 of the Bipartisan Campaign Reform Act of
2002 (BCRA), 116 Stat. 98, 52 U. S. C. § 30116( j), further re-
stricts the use of post-election funds. Under that provision,
a candidate who loans money to his campaign may not be
repaid more than $250,000 of such loans from contributions
made to the campaign after the date of the election. Ibid.
To implement that limit, the Federal Election Commission
(FEC) has promulgated regulations establishing three rules
pertinent here: First, a campaign may repay up to $250,000
in candidate loans using contributions made “at any time
before, on, or after the date of the election.” 11 CFR
§ 116.12(a). Second, to the extent the loans exceed $250,000,
a campaign may use pre-election funds to repay the portion
exceeding $250,000 only if the repayment occurs “within 20
days of the election.” § 116.11(c)(1). And third, if more
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than $250,000 remains unpaid when the 20-day post-election
deadl
ine expires, the campaign must treat the portion above
$250,000 as a contribution to the campaign, precluding later
repayment. § 116.11(c)(2).
B
Appellee Ted Cruz represents Texas in the United States
Senate. This case arises from his 2018 reelection campaign,
which was, at the time, the most expensive Senate race in
history. Before election day, Cruz loaned $260,000 to the
other appellee here, Ted Cruz for Senate (Committee). At
the end of election day, however, the Committee was in the
red by approximately $340,000. App. 285. It eventually
began repaying Cruz's loans, but by that time the 20-day
post-election window for repaying amounts over $250,000
had closed. See 11 CFR §§ 116.11(c)(1), (2). The Commit-
tee accordingly repaid Cruz only $250,000, leaving $10,000 of
his personal loans unpaid.
Cruz and the Committee fled this action in the United
States District Court for the District of Columbia, alleging
that Section 304 of BCRA violates the First Amendment.
They also raised challenges to the FEC's implementing regu-
lation, 11 CFR § 116.11. A three-judge panel was convened
to hear the case. See BCRA § 403(a)(1), 116 Stat. 113; see
also 28 U. S. C. § 2284.
The three-judge District Court granted Cruz and his Com-
mittee summary judgment on their constitutional claim,
holding that the loan-repayment limitation burdens political
speech without suffcient justifcation. 542 F. Supp. 3d 1
(2021). The District Court also ordered that appellees' chal-
lenges to the regulation, previously held in abeyance, be dis-
missed as moot. The Government appealed directly to this
Court, as authorized by 28 U. S. C. § 1253. We postponed
consideration of our jurisdiction. 594 U. S. ––– (2021).
II
The Constitution limits federal courts to deciding “Cases”
and “Controversies.” Art. III, § 2. Among other things,

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that limitation requires a plaintiff to have standing. The
requisite
elements of Article III standing are well estab-
lished: A plaintiff must show (1) an injury in fact, (2) fairly
traceable to the challenged conduct of the defendant, (3)
that is likely to be redressed by the requested relief.
Lujan v. Defenders of Wildlife, 504 U. S. 555, 560–561
(1992).
As the Government recognizes, the Committee's present
inability to repay the fnal $10,000 of Cruz's loans constitutes
an injury in fact both to Cruz and to his Committee. See
Reply Brief 8. Cruz, of course, suffers a $10,000 pocketbook
harm. See Czyzewski v. Jevic Holding Corp., 580 U. S. 451,
464 (2017). And the bar on repayment injures the Commit-
tee by preventing it from discharging its obligation to repay
its debt, which may inhibit that form of fnancing in the fu-
ture. The Government maintains, however, that these inju-
ries are not traceable to the threatened enforcement of Sec-
tion 304, for two reasons: frst, because the inability to repay
Cruz's loans was “self-inficted,” and second, because it is the
threatened enforcement of an agency regulation, not the
statute itself, that causes the harm. We address each argu-
ment in turn.
A
First, the Government argues that appellees lack standing
because their injuries were “self-inficted.” Brief for Appel-
lant 20. Because appellees knowingly triggered the applica-
tion of the loan-repayment limitation, the Government says,
any resulting injury is in essence traceable to them, not the
Government. The predicate for this argument is appellees'
stipulation in the District Court that “the sole and exclusive
motivation behind Senator Cruz's actions in making the 2018
loan[s] and the [C]ommittee's actions in waiting to repay
them was to establish the factual basis for this challenge.”
App. 325. At bottom, the Government asks us to recognize
an exception to traceability for injuries that a party pur-
posely incurs.

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We have never recognized a rule of this kind under Article
III
. To the contrary, we have made clear that an injury re-
sulting from the application or threatened application of an
unlawful enactment remains fairly traceable to such applica-
tion, even if the injury could be described in some sense as
willingly incurred. See Evers v. Dwyer, 358 U. S. 202, 204
(1958) (per curiam) (that the plaintiff subjected himself to
discrimination “for the purpose of instituting th[e] litigation”
did not defeat his standing); Havens Realty Corp. v. Cole-
man, 455 U. S. 363, 374 (1982) (a “tester” plaintiff posing as
a renter for purposes of housing-discrimination litigation still
suffered an injury under Article III).
The cases the Government cites do not alter our conclu-
sion. In Clapper v. Amnesty Int'l USA, 568 U. S. 398 (2013),
for example, the plaintiffs attempted to manufacture stand-
ing by voluntarily taking costly and burdensome measures
that they said were necessary to protect the confdentiality
of their communications in light of the Government surveil-
lance policy they sought to challenge. Id., at 402. Their
problem, however, was that they could not show that they
had been or were likely to be subjected to that policy in
any event. Id., at 416. Likewise, in Pennsylvania v. New
Jersey, 426 U. S. 660 (1976) (per curiam), we held that the
unilateral decisions by a group of States to reimburse their
residents for taxes levied by other States was not a basis to
attack the legality of those taxes. Nothing in the chal-
lenged taxes required the plaintiff States to offer reimburse-
ments; accordingly, the fnancial injury those States suffered
was due to their own independent response to taxes levied
on others. Id., at 664. Here, by contrast, the appellees' in-
juries are directly inficted by the FEC's threatened enforce-
ment of the provisions they now challenge. That appellees
chose to subject themselves to those provisions does not
change the fact that they are subject to them, and will face
genuine legal penalties if they do not comply. See 52
U. S. C. § 30109(a)(5); 11 CFR § 111.24.
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One fnal point bears mentioning. The Government main-
t
ains that it should not be blamed for appellees' injuries be-
cause it provided the Committee with a legally available “al-
ternative” that would have avoided any liability—repaying
Cruz's loans in full with pre-election funds, within 20 days
of the election. But even if such funds were available,
the Government's argument largely misses the point. For
standing purposes, we accept as valid the merits of appellees'
legal claims, so we must assume that the loan-repayment lim-
itation—including the 20-day rule—unconstitutionally bur-
dens speech. See Warth v. Seldin, 422 U. S. 490, 500 (1975)
(“standing in no way depends on the merits of the plaintiff 's
contention that particular conduct is illegal”). Demanding
that the Committee comply with the Government's “alterna-
tive” would therefore require it to forgo the exercise of a
First Amendment right we must assume it has—the right to
repay its campaign debts in full, at any time. And this
would require the Committee to subject itself to the very
framework it says unconstitutionally burdens its speech.
Such a principle fnds no support in our standing jurispru-
dence. See, e. g., Susan B. Anthony List v. Driehaus, 573
U. S. 149, 158–159 (2014).
B
The Government next asserts that although appellees
would have standing to challenge the FEC's implementing
regulation, 11 CFR § 116.11, they do not have standing to
challenge Section 304 itself. As a reminder, Section 304 pro-
hibits the use of post-election funds to repay a candidate's
personal loans; it does not restrict the use of funds raised
before the election. See 52 U. S. C. § 30116( j). That re-
striction comes instead from Section 304's implementing reg-
ulation, 11 CFR § 116.11. This regulation provides that nei-
ther pre-election nor post-election funds may be used to
repay candidate loans above $250,000 outstanding 20 days
after the election. §§ 116.11(c)(1)–(2). Such amounts must
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Opinion of the Court
instead be treated as contributions to the campaign, barring
their
repayment.
Bearing that in mind, the Government contends that the
record before the District Court reveals that the Committee
used funds raised before the election to repay the frst
$250,000 of Cruz's loans. For support, it naturally points to
appellees' stipulation that “none of the $250,000 of the loan
that was repaid was from contributions raised after the elec-
tion.” App. 329. Thus, the Government says, the Commit-
tee has not yet reached the cap in Section 304 on the use of
post-election funds, and can still repay the remaining balance
without running afoul of that statutory restriction. It is in-
stead the agency's regulation—with its 20-day limit—that
prevents repayment of the fnal $10,000. This matters, the
Government insists, because “[s]tanding is not dispensed in
gross,” and plaintiffs must establish standing separately for
each claim that they press and each form of relief that they
seek. Brief for Appellant 17 (quoting TransUnion LLC v.
Ramirez, 594 U. S. –––, ––– (2021)). A challenge to the reg-
ulation, the Government argues, is separate from a challenge
to the statute that authorized it.
For their part, appellees insist that the record, properly
interpreted, shows that the Committee used post-election
funds to repay Cruz. During the period between election
day and when the Committee repaid Cruz's loans, the Com-
mittee received more than $250,000 in “redesignated” contri-
butions to Cruz's 2024 campaign. Those contributions came
from individuals who donated to the 2018 election in amounts
exceeding their base limit and who, subsequent to the elec-
tion, redesignated the overlimit amount to the 2024 cam-
paign. See 11 CFR § 110.1(b)(5). Such funds, appellees say,
qualify as “post-election contributions” for purposes of Sec-
tion 304, and may have been used to repay the frst $250,000
of Cruz's loans. See § 116.12(a).
These arguments have an Alice in Wonderland air about
them, with the Government arguing that appellees would not
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ELECTION COMM'N v. TED CRUZ FOR SENATE
Opinion of the Court
violate the statute by repaying Cruz, and the appellees ar-
g
uing that they would. But this case has unfolded in an
unusual way. After all, Cruz and the Committee likely
would have had standing to bring a pre-enforcement chal-
lenge (as they do now) to Section 304 in a much easier man-
ner—by simply alleging and credibly demonstrating that
Cruz wished to loan his campaign an amount larger than
$250,000, but would not do so only because the loan-
repayment limitation made it unlikely that such amount
would be repaid. See Susan B. Anthony List, 573 U. S., at
158–159. In addition, it ordinarily would not matter
whether a plaintiff was challenging the statute's enforcement
or instead the enforcement of a regulation and, in doing so,
raising arguments about the validity of the statute that
authorized the regulation. Cf. Collins v. Yellen, 594 U. S.
–––, ––– – ––– (2021). The parties here, however, assume
that the distinction makes a difference because the subject-
matter jurisdiction of the three-judge District Court is lim-
ited to actions challenging the enforcement of the statute.
See BCRA § 403(a) (authorizing a three-judge court to hear
any “action . . . brought for declaratory or injunctive relief
to challenge the constitutionality of any provision of this Act
or any amendment made by this Act”).
It seems to us that the Government is likely correct that
appellees have not shown that they exhausted Section 304's
cap on the use of post-election funds. The loan-repayment
limitation applies to contributions “made” after the date of
the election. 52 U. S. C. § 30116( j). And a contribution is
“considered to be made when the contributor relinquishes
control” over it, which occurs when the contribution is “de-
l ivered” to the Committee or the candidate. 11 CFR
§ 110.1(b)(6). The redesignated contributions on which ap-
pellees now rely, however, involve funds that were delivered
to the Committee before the 2018 election. And those funds
have remained under the Committee's control from that date,
even if they were later redesignated to a different campaign.
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But we need not go further down this rabbit hole. Even
under
the Government's account, appellees have standing to
challenge the threatened enforcement of Section 304. The
present inability of the Committee to repay and Cruz to re-
cover the fnal $10,000 Cruz loaned his campaign is, even if
brought about by the agency's threatened enforcement of its
regulation, traceable to the operation of Section 304 itself.
An agency, after all, “literally has no power to act”—includ-
ing under its regulations—unless and until Congress author-
izes it to do so by statute. Louisiana Pub. Serv. Comm'n
v. FCC, 476 U. S. 355, 374 (1986); see also FDA v. Brown &
Williamson Tobacco Corp., 529 U. S. 120, 161 (2000). An
agency's regulation cannot “operate independently of ” the
statute that authorized it. California v. Texas, 593 U. S.
–––, ––– (2021). And here, the FEC's 20-day rule was ex-
pressly promulgated to implement Section 304. See 68 Fed.
Reg. 3973 (2003). Indeed, the Government admitted at oral
argument that it could fnd no other basis to authorize en-
forcement of this regulation, Tr. of Oral Arg. 5, and “con-
cede[d]” that “the most likely result, if the statute were de-
clared invalid, is that the regulation would cease to be on
the books or would cease to be enforceable,” ibid. Thus, if
Section 304 is invalid and unenforceable—as Cruz and the
Committee contend—the agency's 20-day rule is as well.
And the remedy appellees sought in the District Court—an
order enjoining the Government from taking any action to
enforce the loan-repayment limitation, App. 27—would re-
dress appellees' harm by preventing enforcement of the
agency's 20-day rule. See Lujan, 504 U. S., at 561.
Contrary to the Government's suggestion, the foregoing
analysis does not call into question the principle that “a
plaintiff injured by one law does not thereby acquire stand-
ing to challenge a different law.” Brief for Appellant 17.
It is true that a litigant cannot, “by virtue of his standing to
challenge one government action, challenge other govern-
mental actions that did not injure him.” DaimlerChrysler
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Corp. v. Cuno, 547 U. S. 332, 353, n. 5 (2006). Here, however,
appel
lees seek to challenge the one Government action that
causes their harm: the FEC's threatened enforcement of the
loan-repayment limitation, through its implementing regula-
tion. In doing so, they may raise constitutional claims
against Section 304, the statutory provision that, through the
agency's regulation, is being enforced. Cf. Collins, 594
U. S., at ––– – –––. Even on the Government's version of the
facts, then, we are satisfed that appellees have standing to
challenge the threatened enforcement of Section 304. And
because they are challenging “the constitutionality of [a] pro-
vision of [BCRA],” § 403(a), jurisdiction was proper in the
three-judge District Court. We thus proceed to the merits.
III
A
The First Amendment “has its fullest and most urgent ap-
plication precisely to the conduct of campaigns for political
offce.” Monitor Patriot Co. v. Roy, 401 U. S. 265, 272
(1971). It safeguards the ability of a candidate to use per-
sonal funds to fnance campaign speech, protecting his free-
dom “to speak without legislative limit on behalf of his own
candidacy.” Buckley, 424 U. S., at 54. This broad protec-
tion, we have explained, “refects our profound national com-
mitment to the principle that debate on public issues should
be uninhibited, robust, and wide-open.” Id., at 14 (internal
quotation marks omitted).
The Government seems to agree with appellees that the
loan-repayment limitation abridges First Amendment rights,
at least to some extent, see Brief for Appellant 27–32, and
we reach the same conclusion. This provision, by design
and effect, burdens candidates who wish to make expendi-
tures on behalf of their own candidacy through personal
loans. See 52 U. S. C. § 30101(9)(A)(i) (defning “expendi-
ture” to include loans); see also Buckley, 424 U. S., at 52. By
restricting the sources of funds that campaigns may use to
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repay candidate loans, Section 304 increases the risk that
such
loans will not be repaid. That in turn inhibits candi-
dates from loaning money to their campaigns in the frst
place, burdening core speech.
The data bear out the deterrent effect of Section 304.
After BCRA was passed, there appeared a “clear clustering
of [candidate] loans right at the $250,000 threshold.” A. Ovt-
chinnikov & P. Valta, Debt in Political Campaigns 26 (2020),
Record 65–1 (Ovtchinnikov, Debt); see also Brief for United
States Senator Roy Blunt et al. as Amici Curiae 6–7.
There was no such clustering before the loan-repayment lim-
itation went into effect. The Government's evidence in the
District Court, moreover, refects that the percentage of
loans by Senate candidates for exactly $250,000 has increased
tenfold since BCRA was passed. See App. 312–313. Sec-
tion 304, then, has altered “the propensity of many politicians
to make large loans.” Ovtchinnikov, Debt 26; see also Brief
for Protect the First Foundation as Amicus Curiae 10–11.
In doing so, it has predictably restricted a candidate's speech
on behalf of his own candidacy. See Buckley, 424 U. S., at 54.
Quite apart from this record evidence, the burden on First
Amendment expression is “evident and inherent” in the
choice that candidates and their campaigns must confront.
Arizona Free Enterprise Club's Freedom Club PAC v. Ben-
nett, 564 U. S. 721, 745 (2011); see also id., at 746 (“we do not
need empirical evidence to determinate that the law at issue
is burdensome”); Davis v. Federal Election Comm'n, 554
U. S. 724, 738–740 (2008) (requiring no empirical evidence of
a burden). Although Section 304 “does not impose a cap on
a candidate's expenditure of personal funds, it imposes an
unprecedented penalty on any candidate who robustly exer-
cises that First Amendment right.” Id., at 738–739. That
penalty, of course, is the signifcant risk that a candidate will
not be repaid if he chooses to loan his campaign more than
$250,000. And that risk in turn may deter some candidates
from loaning money to their campaigns when they otherwise
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would, reducing the amount of political speech. This “drag ”
on
a candidate's First Amendment right to use his own
money to facilitate political speech is no less burdensome
“simply because it attaches as a consequence of a statutorily
imposed choice.” Id., at 739.
The “drag,” moreover, is no small matter. Debt is a ubiq-
uitous tool for fnancing electoral campaigns. The raw dol-
lar amount of loans made to campaigns in any one election
cycle is in the nine fgures, “signifcantly exceeding ” the
amount of independent expenditures. Ovtchinnikov, Debt
11. And personal loans from candidates themselves consti-
tute the bulk of this fnancing. See Brief for Appellant 35
(“more than 90% of campaign debt consists of candidate
loans”). In fact, candidates who self-fund usually do so
using personal loans. See J. Steen, Self-Financed Candi-
dates in Congressional Elections 21 (2006).
The ability to lend money to a campaign is especially im-
portant for new candidates and challengers. As a practical
matter, personal loans will sometimes be the only way for
an unknown challenger with limited connections to front-load
campaign spending. See G. Jacobson, Money in Congres-
sional Elections 97–101 (1980). And early spending—and
thus early expression—is critical to a newcomer's success.
See Steen, Self-Financed Candidates in Congressional Elec-
tions, at 35, 171. A large personal loan also may be a useful
tool to signal that the political outsider is confdent enough
in his campaign to have skin in the game, attracting the at-
tenti on of donors and voters a l ike. See R. Biersack,
P. Herrnson, C. Wilcox, Seeds for Success: Early Money in
Congressional Elections, 18 Leg. Studies Q. 535, 537 (1993);
see also Brief for United States Senator Roy Blunt et al. as
Amici Curiae 13. By inhibiting a candidate from using this
critical source of campaign funding, however, Section 304
raises a barrier to entry—thus abridging political speech.
The dissent cannot and does not claim that Section 304
imposes no burden on candidate speech. See post, at 318
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(opinion of Kagan, J.) (“every contribution regulation has
some
kind of indirect effect on electoral speech”). The dis-
sent instead dismisses that burden as minor and insignifcant.
Post, at 316–319. As just explained, the extent of the bur-
den may vary depending on the circumstances of a particular
candidate and particular election. But there is no doubt
that the law does burden First Amendment electoral speech,
and any such law must at least be justifed by a permissible
interest. See McCutcheon v. Federal Election Comm'n, 572
U. S. 185, 210 (2014) (plurality opinion) (“When the Govern-
ment restricts speech, the Government bears the burden of
proving the constitutionality of its actions.”).
B
With those First Amendment costs in mind, we turn to
whether the loan-repayment limitation is justifed. The par-
ties debate whether strict or “closely drawn” scrutiny should
apply in answering that question. Buckley, 424 U. S., at 25.
We need not resolve this dispute because, under either
standard, the Government must prove at the outset that it
is in fact pursuing a legitimate objective. See McCutcheon,
572 U. S., at 210. It has not done so here.
1
This Court has recognized only one permissible ground for
restricting political speech: the prevention of “quid pro quo”
corruption or its appearance. See id., at 207; see also Fed-
eral Election Comm'n v. National Conservative Political
Action Comm., 470 U. S. 480, 497 (1985). We have consist-
ently rejected attempts to restrict campaign speech based
on other legislative aims. For example, we have denied at-
tempts to reduce the amount of money in politics, see Mc-
Cutcheon, 572 U. S., at 191, to level electoral opportunities
by equalizing candidate resources, see Bennett, 564 U. S., at
749–750, and to limit the general infuence a contributor may
have over an elected offcial, see Citizens United v. Federal
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Election Comm'n, 558 U. S. 310, 359–360 (2010). However
wel
l intentioned such proposals may be, the First Amend-
ment—as this Court has repeatedly emphasized—prohibits
such attempts to tamper with the “right of citizens to choose
who shall govern them.” McCutcheon, 572 U. S., at 227; see
also Davis, 554 U. S., at 742; Bennett, 564 U. S., at 750.
The Government argues that the contributions at issue
raise a heightened risk of corruption because of the use to
which they are put: repaying a candidate's personal loans.
It also maintains that post-election contributions are par-
ticularly troubling because the contributor will know—not
merely hope—that the recipient, having prevailed, will be in
a position to do him some good.
We greet the assertion of an anticorruption interest here
with a measure of skepticism, for the loan-repayment limi-
tation is yet another in a long line of “prophylaxis-upon-
prophylaxis approach[es]” to regulating campaign fnance.
McCutcheon, 572 U. S., at 221 (quoting Federal Election
Comm'n v. Wisconsin Right to Life, Inc., 551 U. S. 449, 479
(2007) (opinion of Roberts, C. J.)). Individual contributions
to candidates for federal offce, including those made after
the candidate has won the election, are already regulated in
order to prevent corruption or its appearance. Such contri-
butions are capped at $2,900 per election, see 86 Fed. Reg.
7869, and nontrivial contributions must be publicly disclosed,
see 52 U. S. C. §§ 30104(b)(3)(A), (c)(1). The dissent's dire
predictions about the impact of today's decision elide the fact
that the contributions at issue remain subject to these re-
quirements. See post, at 315–316, 327. And the require-
ments are themselves prophylactic measures, given that
“few if any contributions to candidates will involve quid pro
quo arrangements.” Citizens United, 558 U. S., at 357.
Such a prophylaxis-upon-prophylaxis approach, we have ex-
plained, is a signifcant indicator that the regulation may not
be necessary for the interest it seeks to protect. See Mc-
Cutcheon, 572 U. S., at 221; see also Bennett, 564 U. S., at 752
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(“In the face of [the State's] contribution limits [and] strict
disclosure
requirements . . . it is hard to imagine what mar-
ginal corruption deterrence could be generated by [an addi-
tional measure].”).
There is no cause for a different conclusion here. Because
the Government is defending a restriction on speech as nec-
essary to prevent an anticipated harm, it must do more than
“simply posit the existence of the disease sought to be
cured.” Colorado Republican Federal Campaign Comm. v.
Federal Election Comm'n, 518 U. S. 604, 618 (1996). It must
instead point to “record evidence or legislative fndings”
demonstrating the need to address a special problem. Ibid.
We have “never accepted mere conjecture as adequate to
carry a First Amendment burden.” McCutcheon, 572 U. S.,
at 210 (quoting Nixon v. Shrink Missouri Government PAC,
528 U. S. 377, 392 (2000)).
Yet the Government is unable to identify a single case of
quid pro quo corruption in this context—even though most
States do not impose a limit on the use of post-election con-
tributions to repay candidate loans. Cf. Brief for Campaign
Legal Center et al. as Amici Curiae 17–18 (citing the 10
States that do impose such a prohibition). Our previous
cases have found the absence of such evidence signifcant.
See Citizens United, 558 U. S., at 357 (the Government did
not claim that the political process was corrupted in the 26
States that allowed unrestricted independent expenditures
by corporations); McCutcheon, 572 U. S., at 209, n. 7 (the
Government presented no evidence of corruption in the 30
States that did not impose aggregate limits on individual
contributions).
The Government instead puts forward a handful of media
reports and anecdotes that it says illustrate the special risks
associated with repaying candidate loans after an election.
But as the District Court found, those reports “merely hy-
pothesize that individuals who contribute after the election
to help retire a candidate's debt might have greater infuence
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with or access to the candidate.” 542 F. Supp. 3d, at 15.
That
is not the type of quid pro quo corruption the Govern-
ment may target consistent with the First Amendment.
See McCutcheon, 572 U. S., at 207–208.
The dissent at points shrugs off this distinction, see post,
at 315, 325, n. 3, 326, but our cases make clear that “the
Government may not seek to limit the appearance of mere
infuence or access.” McCutcheon, 572 U. S., at 208. As we
have explained, infuence and access “embody a central fea-
ture of democracy—that constituents support candidates
who share their beliefs and interests, and candidates who are
elected can be expected to be responsive to those concerns.”
Id., at 192.
To be sure, the “line between quid pro quo corruption and
general infuence may seem vague at times, but the distinc-
tion must be respected in order to safeguard basic First
Amendment rights.” Id., at 209. And in drawing that line,
“the First Amendment requires us to err on the side of pro-
tecting political speech rather than suppressing it.” Ibid.
(quoting Wisconsin Right to Life, 551 U. S., at 457 (opinion
of Roberts, C. J.)).
2
In the absence of direct evidence, the Government turns
elsewhere. It contends that a scholarly article, a poll, and
statements by Members of Congress show that these con-
tributions carry a heightened risk of at least the appearance
of corruption. Essentially all the Government's evidence,
however, concerns the sort of “corruption, ” loosely con-
ceived, that we have repeatedly explained is not legitimately
regulated under the First Amendment.
The academic article—cited for various propositions by
both sides—concludes that “indebted politicians” are “more
likely to switch their votes” if they receive contributions
from the banking or insurance industries. Ovtchinnikov,
Debt 31. But the authors explicitly note that they cannot
distinguish between voting pattern changes traceable to
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legitimate donor infuence or access, and voting pattern
changes
as part of an illicit quid pro quo. See A. Ovtchin-
nikov & P. Valta, Self-Funding of Political Campaigns,
Management Science, Articles in Advance 18 (April 7, 2022)
(Ovtchinnikov, Self-Funding). As noted, our precedents de-
mand adherence to that distinction. See, e. g., McCutcheon,
572 U. S., at 209. The authors also state that their analysis
is merely a “frst step” in understanding whether politicians'
self-funding decisions impact voting behavior, because they
cannot “pin down a causal link” yet. Ovtchinnikov, Self-
Funding 21.
The online poll the Government asks us to consider sim-
ilarly misses the mark. The poll, conducted at the Gov-
er nment's behest for th is l itigati on, repor ts that most
respondents thought it “very likely” or “likely” that a person
who “donate[s] money to a candidate's campaign after the
election expect[s] a political favor in return.” App. 351–352.
But it failed to ask whether those same respondents thought
it likely that donors who contribute to a campaign before the
election also are likely to expect political favors in return.
Nor did the poll mention that the individual base limits still
apply to such contributions. And it failed to defne the term
“political favor,” leaving unclear the critical issue whether
the respondents associated such contributions with the direct
exchange of money for offcial acts, which Congress may reg-
ulate, or simply increased infuence and access, which Con-
gress may not.
Finally, the Government places great weight on state-
ments made by certain Members of Congress during debates
that preceded the enactment of BCRA. One Senator, for
example, remarked that without the loan-repayment limita-
tion, a winning candidate who loaned money to his campaign
could “get it back from [his] constituents [at] fundraising
events” where he could ask, “How would you like me to vote
now that I am a Senator?” 147 Cong. Rec. S2462 (March
19, 2001) (remarks of Sen. Domenici). Another stated that
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candidates “have a constitutional right to try to buy the of-
fce
, but they do not have a constitutional right to resell it.”
147 Cong. Rec. S2541 (March 20, 2001) (remarks of Sen.
Hutchison). Nothing these legislators said, however, consti-
tutes actual evidence that the loan-repayment limitation was
necessary to prevent quid pro quo corruption or its appear-
ance. And a few stray foor statements are not the same as
“legislative fndings” that might suggest a special problem
to be addressed. Colorado Republican Federal Campaign
Comm., 518 U. S., at 618.
All the above is pretty meager, given that we are consider-
ing restrictions on “the most fundamental First Amendment
activities”—the right of candidates for political offce to make
their case to the American people. Buckley, 434 U. S., at 14.
In any event, the legislative record helps appellees just as
much as the Government, given that some Senators evi-
dently viewed the limit as designed to protect incumbents
like themselves from wealthy challengers. See 147 Cong.
Rec. S2465 (March 19, 2001) (remarks of Sen. Sessions)
(“[Section 304] prohibits wealthy candidates, who incur per-
sonal loans in connection with their campaign that exceed
$250,000, from repaying those loans from any contributions
made to the candidate. . . . I am glad I didn't face a person
who could write a check for $60 million, $10 million—or $5
million, for that matter. If so, I would like to be able to
have a level playing feld so I could stay in the ball game.”);
see also 147 Cong. Rec. S2541 (March 20, 2001) (remarks of
Sen. Hutchison) (“Our purpose is to level the playing feld.”).
That the limit may have been designed to protect incum-
bents should come as no surprise. Section 304 was enacted
as part of the “Millionaire's Amendment” to BCRA, designed
to hobble wealthy candidates mounting self-fnanced cam-
paigns. See Davis, 554 U. S., at 739. And it was debated
together with another provision we have already held uncon-
stitutional, in part because it pursued the same impermissi-
ble goal of “level[ing] electoral opportunities for candidates
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of different personal wealth.” Id., at 741. The connection
between
these two provisions casts further doubt on the
anticorruption interest the Government now asserts in this
case.
3
Perhaps to make up for its evidentiary shortcomings, the
Government falls back on what it calls a “common sense”
analogy: Post-election contributions used to repay a candi-
date's loans are akin to a “gift” because they “add to the
candidate's personal wealth” as opposed to the campaign's
treasury. Brief for Appellant 33. The risk of corruption is
thus greater, the Government argues, because the donor is
lining the pockets of a legislator or legislator-elect.
The dissent at multiple points makes the same argument,
contending that contributions that go toward repaying a can-
didate's loan “enrich the candidate personally,” allowing him
to “buy a car or make tuition payments or join a country
club.” Post, at 320, 327; see also post, at 315, 316, 321, 325–
326. But this forgets that we are talking about repayment
of a loan, not a gift. If the candidate did not have the
money to buy a car before he made a loan to his campaign,
repayment of the loan would not change that in any way.
On top of that, contributions that go toward retiring a can-
didate's debt could only arguably enrich the candidate if the
candidate does not otherwise expect to be repaid. In other
words, the Government's gift comparison is meaningful only
if the baseline is that the campaign will default. The Gov-
ernment, however, provides no reason to believe that most
or even many winning candidates—the only candidates with
whom its anticorruption interest is concerned—expect not to
be repaid by their campaigns. To the contrary, the Govern-
ment has recognized throughout this litigation that winning
candidates are commonly repaid in full. See App. 31–32 (cit-
ing the former FEC Commissioner's statement that “only
winners have an easy time dealing with debt”); id., at 317
(same); see also Ovtchinnikov, Self-Funding 11 (concluding
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that, even with BCRA's limitations on loan repayment in
place
, two out of three winning campaigns were able to repay
a candidate's loans in full). For such a candidate, then, post-
election contributions bear little resemblance to a gift, be-
cause there is less of a chance that his campaign will default.
Such contributions instead restore the candidate to the sta-
tus quo ante, a position to which he legitimately expected to
return. As for losing candidates, they are of course in no
position to grant offcial favors, and the Government does
not provide any anticorruption rationale to explain why post-
election contributions to those candidates should be re-
stricted. See Brief for Appellant 45–46.
The analogy also proves too much. By the Government's
logic, post-election contributions to retire candidate loans are
little different from gifts given directly to the candidate.
But that logic is belied by how the Government treats the
two categories of purported “gifts.” On the one hand, fed-
eral law fatly prohibits candidates from using campaign
contributions for personal purposes. See 52 U. S. C.
§ 30114(b)(2). And it forbids Senators from accepting gifts
worth $250 or more. See 2 U. S. C. § 4725(a)(1). By con-
trast, the postulated “gift-by-loan-repayment” limits are
simply the individual contribution limits, which are now
more than ten times higher than the gift limit: $2,900 per
election. And Section 304 allows over 86 such “gifts” before
a campaign hits the Act's $250,000 cap. Either the Govern-
ment is openly tolerating a signifcant number of “gifts” far
more generous than what it would normally think ft to allow,
or post-election contributions that go toward retiring cam-
paign debt are in no real sense “gifts” to a candidate. We
fnd the latter answer more persuasive.
As a fnal argument, the Government claims that if the
matter is otherwise in doubt, we should defer to Congress's
“legislative judgment” that Section 304 furthers an anticor-
ruption goal. Brief for Appellant 39; see also post, at 321
(Kagan, J., dissenting) (also arguing that we have no “reason
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to second-guess Congress's experience-based judgment”).
Such
deference, the Government contends, is grounded “in
part on the understanding that Congress `is far better
equipped than the judiciary to amass and evaluate the vast
amounts of data bearing upon legislative questions.' ” Brief
for Appellant 40 (quoting Turner Broadcasting System, Inc.
v. FCC, 520 U. S. 180, 195 (1997) (some internal quotation
marks omitted)). But as explained, the evidence here is
scant, and Congress's judgment is hardly based on “vast
amounts of data.” Id., at 195. Moreover, deference to Con-
gress would be especially inappropriate where, as here, the
legislative act may have been an effort to “insulate[ ] legisla-
tors from effective electoral challenge.” Shrink Missouri
Government PAC, 528 U. S., at 404 (Breyer, J., concurring);
see also Randall v. Sorrell, 548 U. S. 230, 248–249 (2006)
(plurality opinion).
In the end, it remains our role to decide whether a particu-
lar legislative choice is constitutional. See Sable Communi-
cations of Cal., Inc. v. FCC, 492 U. S. 115, 129 (1989); see
also Randall, 548 U. S., at 248–249 (stressing need for “the
exercise of independent judicial judgment” in case raising
concern that “contribution limits that are too low [may] harm
the electoral process by preventing challengers from mount-
ing effective campaigns against incumbent offceholders”).
And here the Government has not shown that Section 304
furthers a permissible anticorruption goal, rather than the
impermissible objective of simply limiting the amount of
money in politics.
***
For the reasons set forth, we conclude that Cruz and the
Committee have standing to challenge the threatened en-
forcement of Section 304 of BCRA. We also conclude that
this provision burdens core political speech without proper
justifcation. The judgment of the District Court is affrmed.
It is so ordered.
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Kagan, J., dissenting
Justice Kagan, with whom Justice Breyer and Jus-
tice
Sotomayor join, dissenting.
A candidate for public offce extends a $500,000 loan to his
campaign organization, hoping to recoup the amount from
benefactors' post-election contributions. Once elected, he
devotes himself assiduously to recovering the money; his
personal bank account, after all, now has a gaping half-
million-dollar hole. The politician solicits donations from
wealthy individuals and corporate lobbyists, making clear
that the money they give will go straight from the campaign
to him, as repayment for his loan. He is deeply grateful
to those who help, as they know he will be—more grateful
than for ordinary campaign contributions (which do not in-
crease his personal wealth). And as they paid him, so he
will pay them. In the coming months and years, they
receive government benefts—maybe favorable legislation,
maybe prized appointments, maybe lucrative contracts.
The politician is happy; the donors are happy. The only
loser is the public. It inevitably suffers from government
corruption.
The campaign fnance measure at issue here has for two
decades checked the crooked exchanges just described. The
provision, Section 304 of the Bipartisan Campaign Reform
Act of 2002, prohibited a candidate from using post-election
donations to repay loans exceeding $250,000 that he made to
his campaign. The theory of the legislation is easy to grasp.
Political contributions that will line a candidate's own pock-
ets, given after his election to offce, pose a special danger
of corruption. The candidate has a more-than-usual interest
in obtaining the money (to replenish his personal fnances),
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. At the very least—
even if an illicit exchange does not occur—the public will
predictably perceive corruption in post-election payments di-
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Kagan, J., dissenting
rectly enriching an offceholder. Congress enacted Section
304
to protect against those harms.
In striking down the law today, the Court greenlights all
the sordid bargains Congress thought right to stop. The
theory of the decision (unlike of the statute) is hard to
fathom. The majority says that Section 304 violates the
candidate's First Amendment rights by interfering with his
ability to “self-fund” his campaign. Ante, at 302. But the
candidate can in fact self-fund all he likes. The law impedes
only his ability to use other people's money to fnance his
campaign—much as standard (and permissible) contribution
limits do. And even that third-party restriction is a modest
one, applying only to post- (not pre-) election donations to
repay sizable (not small) loans. So the majority overstates
the First Amendment burdens Section 304 imposes. At the
same time, the majority understates the anti-corruption val-
ues Section 304 serves. In the majority's view, there is
“scant” danger here of quid pro quo corruption; loan repay-
ments produce only the “sort of `corruption' ” in which con-
tributors wield “greater infuence” over candidates than they
otherwise would. Ante, at 307–308, 313. Assume away all
objections to that distinction, which even the majority con-
cedes is “vague,” ante, at 308; for better or worse, it under-
lies this Court's recent campaign fnance decisions. Still,
the conduct targeted by Section 304 threatens, if anything
does, both corruption and the appearance of corruption of
the quid pro quo kind. That is because the regulated trans-
actions—as Members of Congress well knew from experi-
ence—personally enrich those already elected to offce. In
allowing those payments to go forward unrestrained, today's
decision can only bring this country's political system into
further disrepute.
I
In assessing a law's burden on speech, this Court's deci-
sions all distinguish between restricting expenditures and
restricting contributions. See, e. g., Buckley v. Valeo, 424

316 FEDERAL
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Kagan, J., dissenting
U. S. 1, 19–23 (1976) (per curiam). (The majority glosses
over
that core distinction, for reasons that will soon become
clear.) According to settled precedent, expenditure restric-
tions—caps on a campaign's or candidate's electoral spend-
ing—impose the greatest burdens on expression. The First
Amendment, as the majority notes, “has its fullest and most
urgent application” when a “legislative limit” prevents a
candidate from “us[ing] personal funds to fnance campaign
speech”—that is, speech “on behalf of his own candidacy.”
Ante, at 302 (internal quotation marks omitted). By con-
trast, laws focused on third-party contributions to a cam-
paign (a category the majority mostly prefers to ignore)
typically “entail[ ] only a marginal restriction” on First
Amendment interests. Buckley, 424 U. S., at 20. Take, for
example, a simple limit on the amount someone can donate
to a campaign, like the federal $2,900 ceiling. That kind of
restriction, we have reasoned, in no way interferes with the
donor's “freedom to discuss candidates and issues” through
independent spending. Id., at 21. And it has only an indi-
rect effect on the campaign itself. To be sure, the cap makes
raising money (for speech and other things) harder: It forces
candidates “to raise funds from a greater number” of people
and generally results in the campaign taking in less money
than it otherwise would. Id., at 22. But the Court has
viewed such limits as troublesome only if they are so low as
to prevent candidates from raising “the resources necessary
for effective advocacy.” Randall v. Sorrell, 548 U. S. 230,
247 (2006) (plurality opinion) (quoting Buckley, 424 U. S., at
21). In the usual case, the incidental effect of a contribution
restriction on a campaign's speech does not count as a sig-
nifcant First Amendment burden. See Randall, 548 U. S.,
at 246–247.
Under that precedent, Section 304 “entails only a marginal
restriction” on speech, because it regulates contributions
alone. Buckley, 424 U. S., at 20. The provision leaves a
campaign free to spend any amount of money for speech.
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Likewise, it leaves the candidate himself—here, Senator Ted
Cr
uz—free to do so. The candidate can (in the majority's
words) “use personal funds to fnance campaign speech”
without limit; if he wishes, he can devote his whole fortune
to “speech on behalf of his own candidacy.” Ante, at 302.
Section 304 restricts only the use of third-party contri-
butions to support his efforts—which, as just shown, imposes
a far more modest First Amendment burden. Recall
how Section 304 works: It prevents post-election campaign
contributions from going to repay large loans that the candi-
date has made to his campaign. So the provision limits—
much as standard contribution caps do—only the candidate's
ability to shift the costs of his electoral speech to others.
Or said a bit differently, it addresses not a candidate's “self-
fund[ing],” ante, at 304, but only his reliance on third-party
fnancing.
And even that regulation of third-party contributions is a
narrow one. Under Section 304, a campaign can always ac-
cept donations for small loans a candidate makes. And it
can use pre-election donations to retire even his sizable loans.
The statute just insists that donations for that purpose occur
when speech is ongoing, and before everyone knows which
candidate won (and so is in a position to return the favor by
delivering government benefts). Consistent with our case-
law, that minor restriction on a candidate's use of other peo-
ple's money does not severely burden his (or anyone else's)
expression.
The majority's argument to the contrary focuses not on the
restriction Section 304 actually imposes, but on the indirect
effects the provision might have. The majority does not dis-
pute that Section 304 places no limits on the amount a candi-
date can spend for expression. See ante, at 303. Nor does
(or could) the majority even claim that the provision caps
what a candidate can lend his campaign. Instead, the ma-
jority argues that the law “may deter” a candidate from mak-
ing large loans because it curtails a potential source of repay-

318 FEDERAL
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Kagan, J., dissenting
ment—i. e., post-election donations. Ante, at 303. In that
way
, the majority insists, the law—though concededly regu-
lating only the use of contributions—functions to “restrict[ ]
a candidate's speech.” Ibid.; see ante, at 305.
But every contribution regulation has some kind of indi-
rect effect on electoral speech, and we have still understood
them to impose only minimal burdens. Consider again a
standard contribution ceiling, like the federal $2,900 cap.
That limit, as we have acknowledged, makes raising money
harder. See Randall, 548 U. S., at 247; Buckley, 424 U. S.,
at 20–21. And so it predictably gives a campaign less
money to spend. (In fact, a lot less: Just think of a world in
which a candidate could raise an unlimited sum from every
supporter.) With the contribution cap in effect, the cam-
paign cannot pay for (nearly) as many advertisements, mail-
ings, signs, and so forth. And likewise, to return to the fact
pattern here, the campaign has less money available than it
otherwise would to repay a candidate's (or any other) loans.
By the majority's logic, that downstream effect would mean
the contribution cap imposes a signifcant First Amendment
burden. But as noted above, we have always held to the
contrary, save for the rare case in which the limit is so low
as to preclude effective advocacy. See supra, at 315–316.
There is no reason to treat Section 304 differently. In fact,
its restriction on post-election contributions for loan repay-
ment probably has much smaller indirect effects on a cam-
paign's or candidate's speech than the contribution ceilings
this Court has approved. (Again, just think of all the multi-
million-dollar donations those ceilings prevent.) So the ma-
jority's view cannot be right.
And more fundamentally, the majority fails to appreciate
what Section 304 has an indirect effect on: lending, rather
than spending, money. In the majority's view, those two ac-
tivities count as one and the same. See ante, at 302–303.
But they are not, in an obvious way. The expenditure of
“personal funds” for speech, this Court has observed, “re-
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duces the candidate's dependence” on donors—precisely be-
cause
he is not trying to speak on their dime. Buckley, 424
U. S., at 53. The loan of personal funds has the opposite
effect, as further shown in this opinion's next part. When a
candidate lends substantial funds to his campaign, he wants
(maybe desperately needs) them returned; he thus risks—
indeed, invites—dependence on donors, who alone can make
him fnancially whole. Section 304 responds to that differ-
ence in whether a candidate is speaking independently, or
instead relying on others' largesse. The provision at most
deters a single mechanism for fnancing electoral activities,
because it carries a heightened threat of corruption.
II
Preventing quid pro quo corruption or its appearance is a
compelling interest by any measure. See Federal Election
Comm'n v. National Conservative Political Action Comm.,
470 U. S. 480, 496–497 (1985). Quid pro quo corruption—
which extends beyond criminal bribery to “less blatant and
specifc” arrangements—“subver[ts] the political process”
and threatens “the integrity of our system of representative
democracy.” Nixon v. Shrink Missouri Government PAC,
528 U. S. 377, 388–389 (2000) (internal quotation marks omit-
ted). And the appearance of that corr upti on (though
scarcely mentioned in the majority opinion) is “[o]f almost
equal concern.” Id., at 388. Avoiding that appearance is
“critical” if public “confdence in the system of representative
Government is not to be eroded to a disastrous extent.” Id.,
at 389.
Serious dangers of actual and apparent quid pro quo cor-
ruption attend the transactions Section 304 regulates—
again, the use of post-election contributions to repay a can-
didate's personal loans. Consider a simple comparison.
When a campaign uses a donation to fund routine electoral
activities (including speech), the money marginally aids the
candidate's electoral odds, but in no way adds to his personal
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wealth. By contrast, when a campaign uses a donation to
repay
the candidate's loan, every dollar given goes straight
into the candidate's pocket. With each such contribution,
his assets increase; he can now buy a car or make tuition
payments or join a country club—all with his donors' dollars.
So contributions going to loan repayment have exceptional
value to the candidate—which his donors of course realize.
And when the contributions occur after the election, their
corrupting potential further increases. At that time, a
campaign can use donations only to repay loans, of which
some 97% come from candidates. See 11 CFR 110.1(b)(3)(i)
(2017); A. Ovtchinnikov & P. Valta, Self-Funding of Politi-
cal Campaigns, Management Science, Articles in Advance 5
(Apr. 7, 2022) (Ovtch i nnikov, Self-Fundi ng). So post-
election donors can be confdent their money will enrich a
candidate personally. And those donors have of course
learned which candidate won. When they give money to
repay the victor's loan, they know—not merely hope—he will
be in a position to perform offcial favors. The recipe for
quid pro quo corruption is thus in place: a donation to en-
hance the candidate's own wealth (the quid), made when he
has become able to use the power of public offce to the do-
nor's advantage (the quo). The heightened threat of corrup-
tion—and, even more, of its appearance—is self-evident (ex-
cept, it seems, to observers allergic to all campaign fnance
regulation).
In addressing that special danger, Section 304 is anything
but a “prophylaxis-upon-prophylaxis,” as the majority labels
it. Ante, at 306. The idea behind that fancy-sounding epi-
thet is just that the statute is a needless precaution: The
$2,900 contribution ceiling, the majority asserts, already pro-
vides generous protection against the corrupting potential of
donations, so the loan-repayment provision is unnecessary.
See ibid. But that claim ignores that Section 304 targets
only a subset of contributions, which raise (as just described)
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Kagan, J., dissenting
unique corruption risks. When an added protection ad-
dresses
an added danger, the existence of a basic protection
(however ordinarily ample) fails to show the supplement's
pointlessness. Regular seatbelts might suffce to protect
drivers on the interstate, but special belts—and roll cages
to boot—are essential measures on the racetrack. So too, a
$2,900 cap might suffce to prevent corruption from normal
campaign contributions—but not from post-election contri-
butions to repay a candidate's loan, and thus to enrich him
personally. When Congress, as here, responds to a height-
ened threat with a heightened safeguard, the majority has
no call to “greet” it “with a measure of skepticism.” Ibid.
Nor does the majority have reason to second-guess Con-
gress's experience-based judgment about the specially cor-
rupting effects of post-election donations to repay candidate
loans. The majority's frst attempt to counter that judg-
ment is that “we are talking about repayment of a loan”:
“If the candidate did not have the money to buy a car before
he made a loan to his campaign, repayment of the loan would
not change that in any way.” Ante, at 311. But that alto-
gether misses the point. However much money the candi-
date had before he makes a loan to his campaign, he has less
after it: The amount of the loan is the size of the hole in his
bank account. So whatever he cou ld buy w ith, say,
$250,000—surely a car, but that's beside the point—he cannot
buy any longer. Until, that is, donors pay him back. Then,
the hole is flled, the bank account replenished, and the
purchasing power restored. That is a signifcant fnancial
gain to the offceholder, courtesy of donors. If they had
not stepped up, the offceholder would have been $250,000
poorer.
The majority's second theory fares no better. Contribu-
tions to repay loans, the majority argues, do not really enrich
an offceholder, because he has, from the beginning, “ex-
pect[ed] to be repaid.” Ibid. But the record provides no

322 FEDERAL
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Kagan, J., dissenting
support for that self-assured statement. Contra the major-
ity
, the Government “has recognized throughout this litiga-
tion” not that winning candidates are usually repaid, but only
that they are repaid more often than losing ones. Ibid.; see
App. 31–32, 317.
1
That is no surprise—and the fact is af-
frmatively unhelpful for the majority's position, because it
shows how post-election donations refect an expectation of
payback from the recipient. Nothing else in the record (or
outside it) is helpful to the majority either. The best empiri-
cal study suggests that a substantial portion of winning cam-
paigns fail to retire candidate loans, even when their
amounts are too small to trigger Section 304's restrictions.
See Ovtchinnikov, Self-Funding 11; see also Brief for Cam-
paign Legal Center et al. as Amici Curiae 12–13 (summa-
r izing research “show[i ng] that most campaig ns fail to
pay off candidates' personal loans in any amount at any
time,” in confrmation of the “[c]onventional wisdom” that
post-election fundraising is “notoriously diffcult”). So a can-
didate with a loan outstanding has plenty of reason to feel
anxious—and to see the loan's repayment as a gratitude-
inducing personal beneft. The donor takes him off a sharp
hook. And even a candidate who expects repayment is far
from impervious to corruption. He may have that conf-
dence exactly because he knows that a raft of lobbyists will
1
The statement the majority quotes from a former FEC Commissioner
does not support any broader understanding of the Government's claim.
That statement appears in a parenthetical to a citation for the Govern-
ment's actual argument: that winning candidates “possess a greater capac-
ity” than losing ones do to get their loans repaid. App. 31. And the
statement—that “only winners” have “an easy time dealing with debt”—
means not that all or most winners do, but instead that no losers do. Id.,
at 31–32. The former Commissioner who made the remark had also
served as counsel to a losing presidential campaign, and he was merely
observing how hard that campaign had found it to repay debt. See P. Ov-
erby, How Will Clinton Resolve Campaign Debt? National Public Radio,
May 14, 2008.
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be eager to pay for political benefts. And with his bank
account
depleted, he has a great temptation to perform his
part in such an exchange.
2
The common sense of Section 304—the obviousness of the
theory behind it—lessens the need for the Government to
identify past cases of quid pro quo corruption involving can-
didate loan repayments. As this Court has made clear,
“[t]he quantum of empirical evidence needed” to sustain a
campaign fnance law “var[ies] up or down with the novelty
and plausibility of the [law's] justifcation.” McConnell v.
Federal Election Comm'n, 540 U. S. 93, 144 (2003). There
is nothing novel or implausible about Section 304's ration-
ale—once again, that payments going to line an elected off-
cial's pockets pose an especial risk of corruption. It is in
fact what everyone knows to be true—because everyone
knows people (including politicians) will often do things for
money. The majority suggests that we should discard our
understanding of how the world works because the Govern-
ment has not come forward with adjudicated instances of
corruption in the loan-repayment context. See ante, at 307.
But quid pro quo exchanges, in that and every other setting,
are nigh-impossible to detect and prove. That is indeed why
we have campaign fnance laws like Section 304. They pro-
2
The majority also fails to recognize that post-election contributions can
go toward interest payments, enabling a candidate to turn a tidy proft on
top of recovering the amount loaned. Consider the case of one member
of the U. S. House Transportation and Infrastructure Committee. She
loaned her campaign $150,000 at an 18% interest rate (no, that is not a
typo), and over time collected more than $200,000 in interest payments.
Much of that money came from fundraising events hosted by a lobbying
frm representing members of the transportation industry. See A. Zajac,
Interest on Campaign Loan Pays, L. A. Times, Feb. 14, 2009, p. B1. The
example is extreme, but the FEC typically allows candidates to charge
their campaigns—which then tap contributors for—a commercially reason-
able rate of interest. See FEC, Campaign Guide for Congressional Candi-
dates and Committees 101 (2021).
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Kagan, J., dissenting
hibit conduct posing a heightened risk of corruption, so that
the
Government does not have to ferret out illicit exchanges
case by case by case. To strike down Section 304 because
the Government has not proved to a certainty some number
of loan-repayments-for-political-paybacks is to miss the pro-
vision's essential point.
In any event, the Government and its amici have mar-
shalled signifcant evidence showing that the loan repay-
ments Section 304 targets have exactly the dangers Con-
gress thought. See Brief for Appellant 37–40; Brief for
Campaign Legal Center et al. 27–29. Here is a sampling
from the record, involving jurisdicti ons unprotected by
either Section 304 or a state equivalent. In Ohio, various
law frms donated almost $200,000 to help the newly elected
attorney general recoup his personal loans. Those donors
later received more than 200 state contracts worth nearly
$10 million in legal fees. See L. Bischoff, Donations Helping
DeWine Pay Down Campaign Loan, Springfeld News-Sun,
Feb. 2, 2012, p. A1. In Alaska, a lobbyist collected almost
$100,000 for post-election repayment of the Governor's per-
sonal loans. A business in which he held an interest later
received a $9 million state contract. See B. Curry, Alaska
Gov. Sheffeld's Impeachment Inquiry Has Overtones of Wa-
tergate Scandal, L. A. Times, July 19, 1985, p. 11. In Ken-
tucky, two Governors loaned their campaigns millions of dol-
lars, “only to be repaid after the election by contributors
seeking no-bid contracts.” J. Moore, Campaign Finance Re-
form in Kentucky: The Race for Governor, 85 Ky. L. J. 723,
746 (1997). The scandal those transactions created led to a
new state campaign-fnance law similar to Section 304. In
upholding that statute, a court more cognizant than this one
about how corruption works explained that “heavily in-
debted candidates” were “easy bedfellows for quid pro quo
contributors.” Wilkinson v. Jones, 876 F. Supp. 916, 930
(WD Ky. 1995). That is also true on the local level. In San
Diego, to take just one instance, three city council members
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Kagan, J., dissenting
cast critical votes benefting lobbyists who had raised funds
to
retire their campaign debts. See C. Gustafson, Lobbyists
See Beneft From Three City Offcials, San Diego Union-
Tribune, June 13, 2009, p. A1.
3
An empirical study in the record confrms the dangers of
corruption shown in those examples. The study frst found,
based on data preceding Section 304's enactment, that po-
liticians carrying campaign debt were “signifcantly more
likely” than their “debt-free counterparts” to “switch their
votes” after receiving contributions from special interests.
A. Ovtchinnikov & P. Valta, Debt in Political Campaigns
(2020), in No. 1:19–cv–00908 (D DC, July 14, 2020), ECF Doc.
65–1, p. 31. In other words, offceholders did more in ex-
change for donations repaying their personal loans than for
other donations. The analysis next looked at Section 304's
effect. Here, the data showed that politicians with debt ex-
ceeding the law's $250,000 threshold became “signifcantly
less responsive” to contributions than before: They began to
“behave remarkably similar to their debt free counterparts.”
Id., at 28; see Ovtchinnikov, Self-Funding 3 (similarly stating
that those politicians became more “independent of contribu-
tions from special interest[s]”). In other words, Section
304 did just what Congress thought it would. By prevent-
ing post-election contributions from personally enriching po-
3
The majority asserts without explanation that these and other similar
examples involve not quid pro quo corruption, but only contributors' exer-
cise of their “greater infuence” over candidates. Ante, at 307. Even ac-
cepting that distinction (as our caselaw does), the majority's claim is hard
to understand. Here is the quid in the examples: a donation paying off a
successful candidate's personal loan. And here is the quo: a government
contract, or a key vote. However “vague” the “line between quid pro quo
corruption and general infuence,” ante, at 308, those exchanges cross it.
The majority must mean that the Government has not proved beyond a
doubt that the trades in fact occurred. But again, that is the wrong
standard given (1) the diffculty of such proof and (2) the signifcant risks
of quid pro quo corruption inherent in the above fact patterns. See
supra, at 323–324.
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liticians, the provision diminished donor-responsive voting.
The
majority tries to undermine those fndings by quoting
the kind of careful caveats always accompanying good social
science. See ante, at 309; Ovtchinnikov, Self-Funding 21
(noting that the study is a “frst step in understanding ” and
that more work is needed to “fully pin down” all aspects of
causation). But the authors are confdent—and rightly so—
in the fndings just described: that Section 304 markedly
decreased the frequency with which offceholders voted as
donors would like. And although the authors could not re-
sponsibly claim that all the shifted votes they tallied were
part of quid pro quo deals—they are, after all, professors,
not the FBI—they deduce from the data that politicians car-
rying campaign debt were “less likely to [be] sell[ing] access”
than to be “sell[ing] votes.” Id., at 18.
Fi na l ly, the record ev idence addresses the “a lmost
equal[ly]” important matter of the appearance of corruption.
Shrink Missouri, 528 U. S., at 390; see supra, at 319. A
Government-commissioned survey of public opinion found
that 81% of respondents believed it “very likely” or “likely”
that a person who “donate[s] money to a candidate's cam-
paign after the election expect[s] a political favor in return.”
App. 351–353. That bears repeating: 81%—an overwhelm-
ing perception across all demographic categories, as well as
across all party affliations and political ideologies. See
ibid. As the court reviewing the Kentucky version of Sec-
tion 304 explained: “[T]here is an impression” when a contri-
bution repays a loan after an election that the contributor is
simply “lining the candidate's pocket, as there is no ongoing
campaign to which the contribution may be made.” Wilkin-
son, 876 F. Supp., at 930; see supra, at 324. The majority
fyspecks the polling questions: Why didn't the poll defne
“political favor”? Did the poll mention that the contribu-
tions had to comply with the $2,900 cap? And so forth. See
ante, at 309. But really—is it likely that such tinkering
would have made a real difference? The poll results were
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Kagan, J., dissenting
so lopsided because the post-election contributions Section
3
04 t argets—ones addi ng to the candidate's persona l
wealth—have so conspicuous a potential to corrupt. The
public knows that to be true. The public's representatives
in Congress knew it to be true. Only this Court—some-
how—does not.
***
“Democracy works only if the people have faith in those
who govern.” Shrink Missouri, 528 U. S., at 390 (internal
quotation marks omitted). And the people cannot have faith
in representatives who trade offcial acts for fnancial gain.
Section 304 prevents that kind of corruption, at barely dis-
cernable cost to First Amendment freedoms. The provision
limits one narrow use of third-party contributions to a cam-
paign, thus “entail[ing] only a marginal restriction” on
speech. Buckley, 424 U. S., at 20. And the provision tar-
gets a practice posing exceptional risks of quid pro quo
deals. Repaying a candidate's loan after he has won election
cannot serve the usual purposes of a contribution: The money
comes too late to aid in any of his campaign activities. All
the money does is enrich the candidate personally at a time
when he can return the favor—by a vote, a contract, an ap-
pointment. It takes no political genius to see the height-
ened risk of corruption—the danger of “I'll make you richer
and you'll make me richer” arrangements between donors
and offceholders. Section 304 has guarded against that
threat for two decades, but no longer. In discarding the
statute, the Court fuels non-public-serving, self-interested
governance. It injures the integrity, both actual and appar-
ent, of the political process. I respectfully dissent.
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Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
p. 290, line 2 from bottom, “BRCA” is replaced with “BCRA”