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FEDERAL ELECTION COMM’N v. TED CRUZ FOR SENATE
KAGAN, J., dissenting
to his campaign. The theory of the legislation is easy to
grasp. Political contributions that will line a candidate’s
own pockets, given after his election to office, pose a special
danger of corruption. The candidate has a more-than-usual
interest in obtaining the money (to replenish his personal
finances), 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 directly enriching an officeholder. 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 12. But the
candidate can in fact self-fund all he likes. The law impedes
only his ability to use other people’s money to finance 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 anticorruption values Section 304 serves. In the majority’s
view, there is “scant” danger here of quid pro quo corruption; loan repayments produce only the “sort of ‘corruption’ ”
in which contributors wield “greater influence” over candidates than they otherwise would. Ante, at 16–17, 21. Assume away all objections to that distinction, which even the
majority concedes is “vague,” ante, at 16; for better or worse,
it underlies this Court’s recent campaign finance decisions.