May 17, 2022

"As a practical matter, personal loans will sometimes be the only way for an unknown challenger with limited connections to front-load campaign spending."

"And early spending — and thus early expression — is critical to a newcomer’s success. A large personal loan also may be a useful tool to signal that the political outsider is confident enough in his campaign to have skin in the game, attracting the attention of donors and voters alike."

Wrote Chief Justice John Roberts, quoted in "Supreme Court Rules for Ted Cruz in Campaign Finance Case/The Texas senator challenged a federal law that put a $250,000 cap on repayments of candidates’ loans to their campaigns using postelection contributions" (NYT). 

Roberts wrote for the 6-person majority. Justice Elena Kagan, writing for the 3-person dissent, said:

"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 appointment. It takes no political genius to see the heightened risk of corruption."

34 comments:

gilbar said...

serious question:
Was there, EVER a person, that DIDN'T run for reelection?
Even Presidents (even George Washington) run for reelection
Aren't you contributing to his NEXT run?

Other Serious Question:
Of the elevenity Zillion dollars, that Hilary! Clinton raised.. Where'd THAT money go?
Did it disappear?

Can Of Cheese for Hunter said...

now do self-funding Polis.

Can Of Cheese for Hunter said...

"enrich the candidate personally"

Wasn't this Ted's money to begin with?

Leland said...

I agree with the dissent, but I don't agree in unilateral disarmament. $250,000 wouldn't buy a Hunter Biden artwork.

Readering said...
This comment has been removed by the author.
Readering said...

Post election contributions. Hmmm. How many to defeated candidates?

The Cracker Emcee Refulgent said...

Sounds like everybody has a point. Which tells you a lot about why our politicians suck.

David Begley said...

Kagan is wrong. The candidate isn’t enriched. He’s just getting his loan back.

My friend is running for the Nebraska state senate. He lent his campaign money in the beginning to get it going. Then he held fundraisers. He won the primary!

The state senate is officially non-partisan, but he’s a Republican and his general election opponent is a Dem. The Dem has 3x more money.

The seat is in Lincoln and has been held by the Dems for many years. It will be ground zero in the general because of Roe and Casey. I expect BIG national money in this race.

Kevin said...

OK Kagan, now do The Clinton Global Foundation and the Obama deal with Netflix.

Mason G said...

"All the money does is enrich the candidate personally at a time when he can return the favor — by a vote, a contract, an appointment."

I'm shocked to hear that a politician could be bought like that. But I guess the judge knows more about how the government works than I do.

walter said...

Are either of these arguments about the constitutionality?

Greg The Class Traitor said...

The main problem with paying off ANY sort of loan with money raised after the election is that it means the voters don't get to see who's funding the campaign.

Since voters should get to see that (it's the core, and utterly justified, reason behind campaign disclosure laws), that makes these pay-offs a bad thing.

Until such time as no one is allowed to hire politicians' family members for "contracting" positions (see Hunter Biden), the whole "it gives donors a way to personally pay off the politicians" argument, while true, is rather irrelevant. Since there still would remain a thousand other ways.

But the "you can only use up to $250,000 of post-election fundraising to pay off the candidate, and any pre-election fundraising can only go to the candidate in the 20 days after the election" rule at issue, OTOH, is just stupid. What's the difference between 20 days, and 40 for the pre-election $$$?

What I'd like is "you can't raise any money after the election." But that just isn't going to work.

AlbertAnonymous said...

“It takes no political genius to see the heightened risk of corruption."

Heightened Risk? So what. Since when did heightened risk trump constitutional rights of free expression? Kagan sucks.

Greg The Class Traitor said...

Readering said...
Post election contributions. Hmmm. How many to defeated candidates?

Happens all the time. What often happens after an election is that the winning and losing candidates will swap high end donor lists, and each call the other's maxed out donors to ask for donations, so that each campaign can pay off the debts left over from the race.

Yeah, it's more likely to be a payoff to the winning candidate. but not always

Greg The Class Traitor said...

gilbar said...
serious question:
Was there, EVER a person, that DIDN'T run for reelection?
Even Presidents (even George Washington) run for reelection
Aren't you contributing to his NEXT run?


Nope, you're contributing to pay off the bills from the most recent run, with money that goes against any campaign finance limits for the recent election, rather than for the next election.

Even a losing campaign has people working after the election. They have to get paid. So do bills that were "net 30", or just couldn't be delivered before the election.

Egg McMuffin, I mean Evan McMillan, ran up a lot of campaign debts he wasn't able to pay after his 2016 run. That can be a common problem

Eleanor said...

With this and Citizens United, id there anything let of McCain Feingold?

WK said...

If the student loan cancellation issue should somehow get to the Supreme Court Kagan can edit her response similar to the below:

"Repaying a student’s loan after he has graduated cannot serve the usual purposes of a tuition payment: The money comes too late to aid in any of his educational activities. All the money does is enrich the former student personally at a time when he can pay off the loan by getting a job and contributing to society. “

rhhardin said...

She's right, it's open to corruption, but being open to isn't enough.

Left Bank of the Charles said...

So the right to free speech means you not only have the right to spend your own money on political speech but also have the right to get that money back. It would seem that there is never any reason to give money to your own political campaign, you should always loan it. Maybe you’ll get it back, maybe you won’t, but you definitely don’t get it back if you donate it.

Curious that Chief Justice Roberts makes policy arguments for ruling the statute unconstitutional. The statute was somewhat weak because you could lend your campaign as much as you wanted if you paid yourself back within 20 days of the election. And you could pay your self back $250,000 after that deadline. So the statute left considerable room for the kind of bribery that it was meant to address. I have one question though. Does this Constitutional right to bribery extend only to elected officials or also to Supreme Court Justices?

Leland said...

If I'm not mistaken, loans aren't guaranteed. Assuming you don't have enough from pre-election donations to pay-off the debt, then you are in debt post-election. If it is magically paid off with funds later, you are enriched. To test my argument, what do some of you feel about government paying off student loans? I get that the source is taxpayers funding, but if you are the one receiving the benefits, are you not being enriched?

As I wrote earlier, I agree with the dissent. I'll clarify that I agree that it is easy to see an avenue to corruption. Yet it is there on page 14 of the majority opinion that the Supreme Court has set precedent on the use of money to influence candidates, and the precedent is limits go against the First Amendment. If you don't like the corruption, use the democratic process.

Carol said...

Geez no newcomer would be able to seriously campaign for legislature or city council without fronting their own money for signs.

Esp in a primary where the party shouldn't take sides and give any money to the candidates.

Running for office itself is public service, a thankless task for what may be a thankless, low paid job at state and local levels.

We should be glad anyone at all wants to do it.

tim maguire said...

Err, uhh, they’re called loans. Kagan is trying to redefine a loan as a gift? If she has a theory, I’d love to hear it. All she does here is dodge the issue.

Gahrie said...

So the right to free speech means you not only have the right to spend your own money on political speech but also have the right to get that money back. It would seem that there is never any reason to give money to your own political campaign, you should always loan it. Maybe you’ll get it back, maybe you won’t, but you definitely don’t get it back if you donate it.

I'd support a law, or a Constitutional Amendment if needed, that made lending to your campaign, or any campaign, illegal.

However, while it is legal, you should be able to get the money back.

The Godfather said...

I'd repeal ALL laws that limit the amount that can be contributed to or spent on elections. In the modern world, political money is political speech. I would require that all contributions be publicly disclosed. With current technology, the disclosures can be in close-to-real-time. If you object to a candidate being supported by Musk or Soros, don't vote for her/him.

Readering said...

$250,000. Does not affect small fry.

gspencer said...

"writing for the 3-person dissent"

Yep, it's the usual three, Kagan, Breyer (soon to be Jackson) and the Wide Latina.

We'll be hearing more of how valiant these three are. From the lefty MSM.

gadfly said...

Kagan's point is that wealthy donors are allowed to contribute after a victory was accomplished to help a candidate pay himself back for personal loans to the campaign. That's a pretty good deal for the candidate. And It doesn't take a rocket scientist to see how much influence that could buy. In most cases, the repayment arrangement was likely already in hand before the "loan" was made.

We surely should be skeptical of the idea that big money political largesse, the privilege of a few, is the same thing as the right to free speech available to us all. Unfortunately, this is hardly the only ruling that dangerously steers more control of our government firmly in the hands of those with the most money.

Saint Croix said...

One of the problems with the Supreme Court is stare decisis.

They get themselves into these narrative ruts and build a whole framework around their original idea.

If the original idea is bad, it's just building shit upon shit. All you have to do is read their 50 years of abortion jurisprudence to see how fucked up this can be.

They are interpreting a Constitution and have an oath to follow it.

The relevant text is "Congress shall make no law...abridging the freedom of speech."

So I would just like to point out the obvious. You should focus on free speech issues, if the lawsuit alleges that the free speech clause has been violated.

If you focus on free speech, you might notice that this rule applies to all parties, and doesn't discriminate according to belief.

I would question whether anybody is being censored. You can still spend your damn money and talk, if that's what you want to do.

I don't have time to dive into the opinions or listen to the oral argument. It could be that it's more complicated than I'm suggesting. (It probably is). But I do know that the Supreme Court has said some incredibly stupid things in their campaign finance case law.

Money is not speech. Money is money. Speech is speech. Do not substitute one for the other. Money can pay for speech. But money can also pay for swimming pools.

In my mind, the question should always be, "is anybody being censored?" That should be your bedrock free speech question, before you start going down any rabbit holes.

Marek said...

It would be much better if candidates were out the money entirely. That way when they have tremendous newfound power and no money in their bank account they can act in the people's interest without temptation to enrich themselves

tim maguire said...

gadfly said...Kagan's point is that wealthy donors are allowed to contribute after a victory was accomplished to help a candidate pay himself back for personal loans to the campaign.

So? Campaigns have to be able to pay their debts. Otherwise, the various businesses they need to work with will be reluctant/unwilling to provide them space, cars, printing, etc. A personal loan is a debt owed by the campaign, just like all the other debts. It's on the books, donors can learn about it if they are concerned about where their money will go. And it should be paid if the campaign has the money.

West TX Intermediate Crude said...

"I would require that all contributions be publicly disclosed."
-The Godfather.

If your boss is a good boss but a lousy mayor of the small town you live in, and you need the job, you can't afford to contribute to his political opponent if it will be disclosed.

Maybe all contributions that amount to more than 1% of the office's annual salary should be publicly disclosed.
Or all contributions from outside the city/district/state...
Or all contributions from non-persons (Corporations, PACs).
I don't know the best approach, but I think small contributions from individual citizens should be anonymous if desired.

Leland said...

I don’t think I’d want politicians in financial distress running my country or any other level of jurisdiction. I don’t want them high on the hog eating at the taxpayer’s trough either, but financial health is a good thing.

Greg The Class Traitor said...

Gahrie said...
So the right to free speech means you not only have the right to spend your own money on political speech but also have the right to get that money back. It would seem that there is never any reason to give money to your own political campaign, you should always loan it. Maybe you’ll get it back, maybe you won’t, but you definitely don’t get it back if you donate it.

I'd support a law, or a Constitutional Amendment if needed, that made lending to your campaign, or any campaign, illegal.


So, you wish to make sure that the only people who can run for office are people who are guaranteed to be beholden to their donors?

And what qualifies as a "loan"? If you contract for services (printing, ads, whatever) where the billing is normally "net 30", is that a loan?

If I do work for a politician, and don't bill each day for my work, and don't get paid that very day, is that a loan?

You should do a search for "campaign debt", and find out how often this happens

Dave said...

It seems to me that campaign finance reform is more lawyering to keep people out. Even if I had money to give, I am prohibited as an individual in many ways that government sanctioned organizations are not. It's a complex area; I am just expressing this subjective feeling that I feel restrained when it comes to using money in the political arena, while the big whales seem to have no problems using their money to good effect. Once I make a donation as an individual, my name, the amount I contribute, who I contribute it to, and what party I support are public forever. Who funds the Tides foundation? I don't know. Is it possible to know? If not, why not? My opinion: no rules on campaign finance except you have to be an eligible voter.