First Amendment rights to political speech are back before the U.S. Supreme Court.

The challenge involves what at first glance seems like a narrow issue, yet high-court decisions on narrow issues can have broader implications.

So let’s take a look.

Oral arguments are set for Jan. 19 in Federal Election Commission v. Ted Cruz for Senate, the campaign committee of U.S. Sen. Ted Cruz, R-Texas.

Within the bounds of the U.S. Constitution, including the First Amendment, law may regulate political speech. In this field of law, to “regulate” speech is to require disclosure of it.

Within the bounds of the U.S. Constitution, including the First Amendment, law may also ban or otherwise limit political speech, with a ban being a limit of zero.

FEC v. Ted Cruz for Senate involves a limit. In short, many federal candidates lend money to their own campaign committees for use during the campaign under way at the time. When a campaign committee repays such a loan after Election Day, the campaign committee may use only up to $250,000 of contributions received after Election Day.

This is a limit not on contributions received but on how a campaign committee spends them. Thus, this is a spending limit, not a contribution limit.

Yet either way, the high court has held that the only constitutional justification for banning or otherwise limiting political speech – which both contributions and spending are – is the prevention of quid-pro-quo corruption or the appearance of quid-pro-quo corruption.

Two opinions from the 2010s address this. One holds that quid-pro-quo corruption means only “a direct exchange of an official act for money.” Another holds that neither influence, access, favoritism, nor gratitude/ingratiation rise to the level of quid-pro-quo corruption or the appearance of quid-pro-quo corruption.

With this as background, one question in FEC v. Ted Cruz for Senate is this: Where is the quid-pro-quo corruption, or the appearance of quid-pro-quo corruption, here?

That is: Does the $250,000 limit prevent quid-pro-quo corruption or the appearance of quid-pro-quo corruption?

The FEC must prove that it does. Otherwise, the FEC can’t prevail on the merits.

It’s not up to anyone challenging the limit’s constitutionality to prove the negative.

In other words, it’s not up to anyone challenging the limit’s constitutionality to prove it does not prevent quid-pro-quo corruption or the appearance of quid-pro-quo corruption.

The FEC – with the solicitor general’s office, not the FEC’s own lawyers, as counsel of record – asserts that (1) repaying loans to candidates increases their personal wealth, (2) post-election contributors know this, (3) post-election contributors know whether candidates have won and can do favors for contributors, and (4) post-election contributors may feel pressure to contribute to winning candidates.

Ted Cruz for Senate disagrees with (1), and by extension (2), in part by asserting this: Even a child knows the difference between lending out a toy and giving it away. When a child lends a toy to a playmate, the playmate’s returning the toy doesn’t increase the child’s personal wealth.

Why? Because the toy was the child’s before, during, and after the loan.

Ted Cruz for Senate asserts the same is true when a candidate lends money to the candidate’s own campaign.

If the candidate had a balance sheet, the money would be the candidate’s asset before, during, and after the loan. Beforehand and afterward, it would be cash on hand. During the loan, it would be a receivable.

As for (3)’s reference to “favors,” it can help the FEC only if the FEC means quid-pro-quo corruption or the appearance of quid-pro-quo corruption. By contrast, if the FEC means “favoritism,” then the response is that under the law, favoritism isn’t quid-pro-quo corruption or the appearance of quid-pro-quo corruption.

Besides, (3) and (4) are arguments, however meritorious, not for a spending limit but for a contribution limit. Only a spending limit, not a contribution limit, is at issue here.

And Ted Cruz for Senate asserts (3) and (4) “would doom all contributions, pre- or post-election, to incumbent officeholders.”

A decision is expected by June.

Dr. Randy Elf’s Aug. 20, 2020, presentation to Advocates for Balance at Chautauqua on the constitutionality of political-speech regulation – that is, disclosure requirements – is at https://works.bepress.com/elf/21

COPYRIGHT ç 2022 BY RANDY ELF