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Man of the People Ted Cruz Takes on Anti-Plutocrat Campaign Finance Law

Maybe Sen. Ted Cruz is just really hard up for $10,000. Otherwise, it's hard to figure out what he's trying to achieve with a Monday lawsuit against the federal elections commission, beyond pure campaign-finance nihilism.

Broken down to its simplest terms, Cruz's suit challenges a federal law that bans candidates from raising more than $250,000 after an election to repay loans given to an election campaign by the candidate running. The law is intended to do two things: to prevent very wealthy candidates from loaning their campaign exorbitant sums, only to be paid back piecemeal months, years and decades after the election, and to stop what are essentially large cash transfers between donors and candidates.

According to Cruz, who loaned and took out loans worth $260,000 for his 2018 Senate campaign, his being unable to get that last $10,000 back is a violation of his potential donors' First Amendment rights.

"The First Amendment commands that 'Congress shall make no law ... abridging the freedom of speech.' This bedrock liberty was designed to ensure the full and free political debate that is the hallmark of our democratic form of government," Cruz's attorneys, Charles Cooper and John Ohlendorf, write in the first paragraph. "At its core, it protects the rights of citizens to engage in political speech."

Adav Noti, the chief of staff at the Campaign Legal Center, says that Cruz's fight is far from a simple free-speech squabble.

"(Cruz) is going to pay his lawyers quite a bit and his likelihood of success is not high," Noti told the Observer. "This provision is really just a standalone implementation of some pretty basic principles, like we don't want donors putting money into candidates' pockets. I think he's unlikely to win and even if he does, I don't think it would mean too much in the way of ramification for campaign finance generally."

Giving candidates cash to repay loans isn't political speech, Noti says.

"The way that provisions like this get assessed by the courts in constitutional cases is the burden that is placed on the free speech of the sender gets weighed against the anti-corruption interest that underlies the law," he says. "Here is the anti-corruption interest is really, really high, where you're talking about money going in large amounts from the donor directly to a candidate. There's almost no other situation in campaign finance law where that's even possible. The speech interest is very low — arguably non-existent. There's nothing in this law that inhibits the candidate from loaning as much money as they want to the campaign. They can loan $50 million and this law doesn't stand in the way of that. It's only on the repayment side which is a purely financial transaction."

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