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FEC V. Ted Cruz for Senate, Et No. In the Supreme Court of the United States FEDERAL ELECTION COMMISSION, APPELLANT v. TED CRUZ FOR SENATE AND SENATOR RAFAEL EDWARD “TED” CRUZ ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JURISDICTIONAL STATEMENT ELIZABETH B. PRELOGAR Acting Solicitor General LISA J. STEVENSON Counsel of Record Acting General Counsel MALCOLM L. STEWART KEVIN DEELEY Deputy Solicitor General Associate General Counsel VIVEK SURI HARRY J. SUMMERS Assistant to the Solicitor Assistant General Counsel General SETH NESIN Department of Justice Attorney Washington, D.C. 20530-0001 Federal Election Commission [email protected] Washington, D.C. 20463 (202) 514-2217 QUESTIONS PRESENTED When a candidate for federal office lends money to his own election campaign, federal law imposes a $250,000 limit on the amount of post-election contribu- tions that the campaign may use to repay the debt owed to the candidate. 52 U.S.C. 30116( j). The questions pre- sented are as follows: 1. Whether appellees have standing to challenge the statutory loan-repayment limit. 2. Whether the loan-repayment limit violates the Free Speech Clause of the First Amendment. (I) PARTIES TO THE PROCEEDING The Federal Election Commission (FEC) is the ap- pellant in this Court and was a defendant in the district court. Ted Cruz for Senate and Senator Rafael Edward “Ted” Cruz are appellees in this Court and were plain- tiffs in the district court. Ellen L. Weintraub, Matthew S. Petersen, Caroline C. Hunter, and Steven T. Walther, in their official ca- pacities as Commissioners of the FEC, were originally named as defendants in the district court. Petersen and Hunter have since been succeeded as Commissioners of the FEC by James E. Trainor III and Allen Dickerson. The individual Commissioners have not separately ap- pealed. RELATED PROCEEDINGS United States District Court (D.D.C.): Ted Cruz for Senate v. FEC, No. 19-908 (June 3, 2021) (II) TABLE OF CONTENTS Page Opinions below .............................................................................. 1 Jurisdiction .................................................................................... 1 Statutory provisions involved ...................................................... 2 Statement ...................................................................................... 2 Reasons for summary vacatur or for postponing jurisdiction ..... 7 Conclusion ................................................................................... 26 Appendix A — Amended notice of appeal (June 13, 2021) ........................................... 1a Appendix B — Notice of appeal (June 11, 2021) ........................................... 3a Appendix C — District court memorandum opinion (June 3, 2021) ............................................. 5a Appendix D — District court order (June 3, 2021) ............. 38a Appendix E — District court memorandum opinion and order (Dec. 24, 2019) ............................... 40a Appendix F — Statutory and regulatory provisions .......... 65a TABLE OF AUTHORITIES Cases: Arbaugh v. Y&H Corp., 546 U.S. 500 (2006) ....................... 13 Arizona State Legislature v. Arizona Independent Redistricting Commission, 576 U.S. 787 (2015) ............. 25 Broadrick v. Oklahoma, 413 U.S. 601 (1973) ...................... 23 Buckley v. Valeo, 424 U.S. 1 (1976) ............................ 2, 17, 19 California v. Texas, No. 19-840 (June 17, 2021) ................... 8 Carney v. Adams, 141 S. Ct. 493 (2020) .............................. 15 Christian Legal Soc’y Chapter of the Univ. of California, Hastings Coll. of the Law v. Martinez, 561 U.S. 661 (2010).............................................................. 16 Clapper v. Amnesty Int’l, 568 U.S. 398 (2013) ................... 14 Clingman v. Beaver, 544 U.S. 581 (2005) ............................ 17 (III) IV Cases—Continued: Page Cutter v. Wilkinson, 544 U.S. 709 (2005) ............................ 13 Davis v. FEC, 554 U.S. 724 (2008) ........................... 17, 21, 23 FEC v. National Conservative Political Action Comm., 470 U.S. 480 (1985) ............................................... 19 FEC v. O’Donnell, 209 F. Supp. 3d 727 (D. Del. 2016) ....................................................................... 20 Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978) .................................................................................... 21 Gonzalez v. Automatic Emps. Credit Union, 419 U.S. 90 (1974) ................................................................. 4 Hicks v. Miranda, 422 U.S. 332 (1975) ................................. 8 Kontrick v. Ryan, 540 U.S. 443 (2004) ................................ 13 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) .......................................................................... 8, 11, 15 McConnell v. FEC, 540 U.S. 93 (2003) ................................ 14 McCutcheon v. FEC, 572 U.S. 185 (2014) ........................... 22 Natural Res. Def. Council, Inc. v. United States Food & Drug Admin., 710 F.3d 71 (2d Cir. 2013) ........... 15 Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377 (2000).............................................................. 22 Pennsylvania v. New Jersey, 426 U.S. 660 (1976) ............. 14 Shapiro v. McManus, 577 U.S. 39 (2015) ............................. 4 TransUnion LLC v. Ramirez, No. 20-297 (June 25, 2021)............................................................... 12, 14 United States v. Richardson, 418 U.S. 166 (1974) ............. 14 Williams-Yulee v. Florida Bar, 575 U.S. 433 (2015) ......... 24 Wisconsin Right to Life, Inc. v. FEC, 546 U.S. 410, 412 (2006) ............................................................................. 13 V Constitution, statutes, regulations, and rules: Page U.S. Const.: Art. III .......................................................................... 8, 13 Amend. I .................................................................. passim Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, 116 Stat. 81: § 403(a), 116 Stat. 113 ................................................... 4, 7 § 403(a)(1), 116 Stat. 113-114 ............................................ 7 § 403(a)(3), 116 Stat. 114 ................................................... 8 § 403(a)(4), 116 Stat. 114 ........................................... 8, 65a § 403(d)(2), 116 Stat. 114 ........................................... 7, 66a Federal Election Campaign Act of 1971, Pub. L. No. 92-225, 86 Stat. 3 (52 U.S.C. 30101 et seq.)..................................................................................... 2 52 U.S.C. 30106 .................................................................. 2 52 U.S.C. 30116(a) ....................................................... 2, 21 52 U.S.C. 30116(c) ....................................................... 2, 21 52 U.S.C. 30116( j) .................................................. 2, 9, 65a 5 C.F.R. 2635.204 ................................................................... 21 11 C.F.R.: Section 116.11(b)(1) ................................................... 2, 67a Section 116.11(c)(1) ................................................... 3, 68a Section 116.11(c)(2) ......................................... 3, 4, 12, 68a Fed. R. Civ. P. 56(a) .............................................................. 11 R. of the H. XXV.5 (2019) ..................................................... 21 Standing R. of the S. XXXV (2013) ...................................... 21 Sup. Ct. R. 18.12 .................................................................... 25 Miscellaneous: Judicial Conference, Code of Conduct for United States Judges, Canon 4(D)(4) (2019) ................................ 21 In the Supreme Court of the United States No. FEDERAL ELECTION COMMISSION, APPELLANT v. TED CRUZ FOR SENATE AND SENATOR RAFAEL EDWARD “TED” CRUZ ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JURISDICTIONAL STATEMENT OPINIONS BELOW An opinion of the district court (App., infra, 5a-37a) is not yet reported, but is available at 2021 WL 2269415. A prior opinion and order of the district court (App., in- fra, 40a-64a) is unreported, but is available at 2019 WL 8272774. JURISDICTION The judgment of the district court was entered on June 3, 2021 (App., infra, 38a-39a). The Federal Elec- tion Commission filed a notice of appeal on June 13, 2021 (App., infra, 1a-2a). The jurisdiction of this Court is invoked under the Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, § 403(a)(3), 116 Stat. 113- 114. (1) 2 STATUTORY PROVISIONS INVOLVED Pertinent statutory provisions are reproduced at App., infra, 65a-68a. STATEMENT 1. The Federal Election Campaign Act of 1971 (FECA), Pub. L. No. 92-225, 86 Stat. 3, as amended by the Bipartisan Campaign Reform Act of 2002 (BCRA), Pub. L. No. 107-155, 116 Stat. 81, regulates the financ- ing of federal election campaigns. The Federal Election Commission (FEC or Commission) is responsible for administering those statutes. 52 U.S.C. 30106. Under FECA, BCRA, the FEC’s regulations, and this Court’s First Amendment precedents, candidates may use a variety of means to fund their campaigns. A candidate may spend an unlimited amount of his own money in support of his election. Buckley v. Valeo, 424 U.S. 1, 52-53 (1976) (per curiam). The campaign may also accept contributions from individuals and certain political committees, subject to per-election limits. 52 U.S.C. 30116(a) and (c). And the campaign may
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