New from the Institute for Free Speech
Money’s Not Enough: The Stories Behind 2020 U.S. House Primary Money-Upsets
By Nathan Maxwell
As the 2022 midterm elections approach, we’ll no doubt see media pundits aiming to predict who will win based on how much money each candidate has behind them. Proponents of intense regulation on campaign spending have long touted a supposedly causal effect between money and electoral success as justification…
Often, campaign contributions reflect a candidate’s attractiveness to voters; they don’t represent the cause of that attraction. Other factors, like name-recognition from celebrity or incumbency, play a stronger role in both electoral success and campaign giving.
To study around factors like these that confuse the results, this report narrows to a subset of 2020 House primary races that provide for a cleaner analysis of money’s role in electoral success. It then examines what went right for the outspent victors – or what went wrong for their better-financed opponents. It is a qualitative deep dive meant to add depth to our understanding of the factors that aid or harm electoral success, of which campaign spending is only one.
Supreme Court
SCOTUSblog: Court sides with Ted Cruz and strikes down campaign-finance restriction along ideological lines
By Amy Howe
The Supreme Court on Monday struck down a federal campaign-finance law that limits how and when candidates can repay loans that they make to their own campaigns. The 6-3 ruling, which held that the law violates the First Amendment, came in a case filed by Sen. Ted Cruz, R-Texas, after his 2018 victory over Democrat Beto O’Rourke…
Turning to the First Amendment analysis, Roberts explained that Section 304’s loan-repayment limitation places a burden on “candidates who wish to make expenditures on behalf of their own candidacy through personal loans.” Specifically, he noted, “[b]y restricting the sources of funds that campaigns may use to repay candidate loans, Section 304 increases the risk that such loans will not be repaid,” which “in turn inhibits candidates from loaning money to their campaigns in the first place, burdening core speech.”
Because the loan-repayment limitation burdens First Amendment speech in elections, Roberts wrote, it can only pass muster if it is justified – which, Roberts concluded, it is not. The only acceptable reason for restricting political speech, Roberts noted, is to prevent quid pro quo corruption – that is, politicians trading favors for contributions – or the appearance thereof. But in this case, Roberts observed, federal campaign finance law already seeks to prevent quid pro quo corruption by limiting individual contributions to $2,900 per election and requiring their disclosure. And indeed, Roberts added, the government has not pointed to “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 contributions to repay candidate loans.”
New York Times: Supreme Court Rules for Ted Cruz in Campaign Finance Case
By Adam Liptak
The chief justice wrote that loans played a special role for candidates challenging incumbents.
“As a practical matter, personal loans will sometimes be the only way for an unknown challenger with limited connections to front-load campaign spending,” he wrote. “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.”
Wall Street Journal: Ted Cruz, the Supreme Court and $10,000
By The Editorial Board
Justice Kagan’s view of perceived corruption in politics is expansive. She cites a YouGov poll, commissioned by the government, in which 81% of Americans said they believed that post-election donors would likely expect political favors in return. OK, but would the public feel the same way about regular pre-election donors? The survey didn’t ask.
The Chief’s opinion is a logical extension of the Court’s many precedents on free speech and campaign finance. But the Court’s liberals can’t seem to acknowledge this as a matter of stare decisis. It’s clear they’re willing to overturn those precedents as soon as they get the chance, which we hope for the sake of political free speech will be a long way off.
Election Law Blog: Dividing on Ideological Lines and Breaking Little New Ground in FEC v. Cruz, Supreme Court Strikes Down Another Part of McCain-Feingold law
By Rick Hasen
But it is worth pointing out what the opinion did not do: it did not change the standard of review that applies to campaign finance contribution limits, which remains somewhat less strict than the review of expenditure limits; it did not expressly state a new standard for the type of evidence necessary to show corruption or the appearance of corruption; and it did not otherwise mess with the Buckley framework. Given how strongly anti-campaign finance regulation this conservative Court supermajority is, I’m surprised this opinion wasn’t much worse. I don’t expect this opinion will have much influence on the general trajectory of Court review over campaign finance regulations (which is already bad enough).
Candidates and Campaigns
Bloomberg Government: McCormick, Oz Aided by Court Ruling Lifting Loan Repayment Cap
By Kenneth P. Doyle
Former Bridgewater CEO David McCormick and celebrity physician Mehmet Oz reported loaning their campaigns more than $23 million combined ahead of Tuesday’s Republican primary.
They’re among more than two dozen Senate candidates across the country this year who’ve loaned their campaigns a total of nearly $100 million, Federal Election Commission disclosure reports show. The ability to contribute significantly out of pocket provides a major advantage for wealthy candidates, who don’t need to spend as much time and money to raise funds.
“Self-financed candidates may be more likely to loan more to their campaigns after today’s ruling,” election lawyer Brett Kappel said. “They are, however, still running the risk that the campaigns may not be able to repay the loans if they don’t win the election.”
Online Speech Platforms
New York Times: Musk vs. the Bots
Elon Musk, as ever keeping Twitter’s deal advisers on their toes, threw his latest jab today, tweeting “the deal cannot move forward” until Twitter’s C.E.O. shows “proof” that bots only make up less than 5 percent of its users.
The States
AP News: Ban on protests in front of homes signed by Gov. DeSantis
Anyone who protests in front of a private residence in Florida can face jail time and fines under a bill Republican Gov. Ron DeSantis signed Monday.
The legislation makes it a second-degree misdemeanor to protest in a manner that is aimed at intentionally harassing or disturbing someone in their home. Violators face 60 days in jail and fines of up to $500.
Protesters can only be arrested after ignoring law enforcement’s orders to disperse, however…
Some Democrats opposed the bill, arguing it infringes on people’s First Amendment rights to free speech.
The law is scheduled to take effect Oct. 1.
