Reasons. Although they have directed their challenge to the statutory limit, they stipulated the first 200 50,000 of his loan was repaid with preElection Funds. The statute does not currently restrict the senators ability to obtain full repayment. The current regulatory barrier to repayment is selfinflicted. Appellees could have avoided injuries by behaving as they would have if the statute and regulations did not exist. They went out of their way to engage in transactions they would not otherwise have undertaken, solely to subject the senator to a financial loss and thereby lay the groundwork for a lawsuit. That self infliction of injury, for no purpose other than to facilitate , severed the causal link between the challenged laws and senator cruzs injury. On the merits, the loan repayment limit is constitutional. It imposes insubstantial burdens on the financing of electoral campaigns and targets a practice that has significant corruptive potential. A postelection contributor generally knows which candidate has won the election, and postelection contributions do not further the usual purposes of donating to electoral campaigns. Because repayment of candidate loads increases the candidates personal wealth, the conduct the statue resonate regulates implicates the same concerns that underlie limits on gifts to federal officials. I welcome questions. Mr. Stewart, other than section 34, is there any other basis for enforcing a regulation . Mr. Stewart none has been identified so far. If section 304 is gone, there is no enforcement. Mr. Stewart that would be the result likely. It would be up to the fec to examine other provisions of the Campaign Finance laws and ask whether the limit would continue to serve a valid purpose even without the statute but we would concede the likely result if the statute were declared invalid is the regulation would cease to be on the books or enforceable. None of this was litigated below the district they could have identified the regulation as the provision of law that was causing their injury and filed suit to have the regulation set aside. If they had done that, they could have identified it as one potential ground for invalidating the regulation, the allegation that the regulation rested on an invalid statute. There would have been to disadvantages to pursuing the claim that way. First, if they identified the regulation as the tart of their target of their challenge, they would not have been able to invoke the threejudge Court Mechanism and second, they have alleged and couched three through five other complaint both constitutional and nonconstitutional challenges to the regulation and if they had identified the regulation as the source of their injury, under usual principles of constitutional avoidance, the court would have been obliged to consider their nonconstitutional challenges to the regulation and only if those were rejected wouldnt have proceeded to the constitutional issues. Crisis is one of your arguments that the following party cannot challenge the constitutionality of a law that imposes an allegedly unconstitutional restriction on the exercise of a right if the party could have very easily satisfied the preconditions for the exercise . I think we would probably say that. I dont think it is necessary for the court to go that far. How can that be the law . A State University says no person of a particular race may enter any of the University Buildings unless that person pauses for two seconds, stand still for two seconds before entering the building, would you say you cant challenge that racial restriction because it is no big deal to pause for two seconds before you go into the building . The court might say in the context of race discrimination that the mere fact of being subject to racially disparate treatment is regard as of any other concrete consequence you think that is limited to nonconstitutional instances of Racial Discrimination . It would not apply to free street freespeech rates . In order to establish standing, a point of has to show not just the deprivation of demonstration of a legal right. Made his issue run an editorial criticizing the president unless it is in a particular font . The reason i would say the court does not need to address those more difficult hypotheticals is that at least in order to challenge a limitation like that, the newspaper would have to allege if it were not for this restriction we would use a different font. What makes this case particularly easy in our view is that appellees could have aborted their injury by doing precisely the thing they would have done if the statute and regulation were there. One more example. Section one says no newspaper may run an editorial criticizing this. Section two says any editorial criticizing the mayor must be published it must be published within 20 days after the speech. Where the newspaper have standing to challenge section one or only section two . Could you it is a little complicated. The town passes an ordinance. Section one, no newspaper may run an editorial criticizing any speech delivered by the mayor. Section two, any editorial criticizing a speech delivered by the mayor must be published within 20 days after the mayors speech. Can the newspaper after the 20 days have passed challenge section one or only section two . I think they could probably challenge both but they would have to say were it not for this legal restriction that we would publish an editorial critical of the mayor after 20 days. I think it is actually easy to find examples such as we have just heard. You have to do is take anything that restricts time. The reason they want to do it after 20 days. They want to do it after 20 days. Where does that fact take standing away . All you have to do is take any statute you want that might be unconstitutional and you say it does not apply on a certain day and then you say they can do it on that day or it does not apply in a certain place . You say some people can very easily. I just dont know of a case where we have looked into if they want to do a thing that the statute forbids that we have looked at how easy it would be to do it any different way or in a different place or in a different time when they say we dont want to. What is that case . Im not saying it does not exist, all i am saying is i cant find it. Let me come at it this way by saying it is helpful to think of how the standing issue would have played out if the appellees had filed suit several days before the election and they had said this provision impairs our Constitutional Rights by proposing burdens on the use of loans for self financing. For standing purposes, the first question a court would ask is if this legal restriction were removed or if it did not exist, would you make a loan to your campaign and would you wait for more than 20 days . If the answer to that question was no, there would be no standing. That is carney versus adams. In carney versus adams, the point of challenge delaware law restrictions on the Party Affiliations of people who wanted to run for delaware judgeships. They sickly the whole standing analysis was never to determine if this plaintiff would actually run for a judgeship if these restrictions were removed and the debts removed and the court concluded that we have insufficient confidence that they would and therefore there was no standing. If you ask that question seven days before the election, the answer would be no standing. They have stipulated that the only reason for making the loan and the only reason for the delay in repayment was to facilitate the lawsuit and if there had been no statute or regulation, there would have been no lawsuit to facilitate. If these laws were not on the books, they would not have made the loan. If they would have, it would have been promptly repaid. They could have avoided injury the analysis in carney verse adams versus adams is a lot more concrete then your first hypothetical. These cases are hard enough when youre trying to figure out the weight of the infringement on the First Amendment values against what is the protective effect on potential corruption. I dont know how you would do that in the first place but to say that the standing will depend upon a particular calculation, i think it is much more concrete when youre asking if somebody would go run for office. That is also harder but not anywhere approaching the indeterminacy of the calculation we are supposed to make here. The calculation on the merits might be difficult. The calculation on standing i think is very straightforward. If the appellees had filed their suit seven days before the election and said in their complaint that senator cruz has no intention of loaning money to his campaign regardless of the outcome of this suit but he feels strongly that a statute is unconstitutional and he would like judicial determination to that effect, clearly there would have been no standing. Never the court thought of the merits of the constitutional claim. What we have here is essentially that. Appellees have stipulated that if there were no statute, if there were no reg, they never would have made the loan and they would have probably repented if the loan had been made. Test cases are not always they dont always have a lack of standing. If you have people challenging discriminatory housing practices and then go in and say we are thinking about buying this house and they are discriminate against because of their race and they dont say whatever, course they may not have to prove that they would buy the house in the same way. They do show that they have to be ready to apply. The question is if they did not have standing seven days before the election, can they manufacture standing by voluntarily subjecting themselves to an injury solely for the purpose of facilitating a lawsuit. I do have difficulty understanding this manufacture business because he wasnt protruded he was only precluded from repaying it from certain funds. I dont know that this is a manufactured injury as such. Can we go to the specific point or one of your many points outstanding . The one i am most concerned about is that he in fact did have no injury because he had used preElection Funds to repay his debt and there was no bar to him using postElection Funds to pay the 10,000. Yes. That is a different kind of situation. That is a different standing argument. That is an argument that the inability that he currently faces to repay the manning 10,000 is attributable to the regulation rather than to the statute but our argument i am not even sure if it is a trivial ball to the statute. The statute says you cant use postElection Funds to pay off more than 250,000 preElection Funds. But if he did not have preelection debts greater than 10,000, he would still have the money to pay. Crises loaned to the campaign 260 thousand dollars. The campaign had a 260,000 debt to him and it repaid 250,000 dollars of that amount and stipulated from preor post . He alleged in the complaint that he paid it through postElection Funds and the District Court at the motion to dismiss stage rejected the standing argument, excepting is true that allegation but the appellees stipulated that none of that 250,000 was for money raised after the election and the stipulation is binding on them. If they used preElection Funds they claim that they used 2024 election money instead of preelection money. Why dont we get to their allegations i have read the deposition of one of the treasurers who said he was now sure which funds were used. Preelection or 2024 election money. The question i have for you he said money is fungible and our intent was to use 2024 Election Fund money. This was money received by the campaign on the 2018 election but was redesignated for the 24 campaign. We would say those were preelection contributions because they were received by the campaign before the election. The appellees essay the redesignation affected a simultaneous refund of the earlier contribution and the making of a new postelection contribution and there is a legal dispute about that. One thing i would say about that legal dispute is the position we have taken which is the one that is more favorable to campaigns generally. If it is redesignated afterwards, that counts as reelection contributions. That is the pro campaign position. They are taking the si campaign position. They said those funds were available to use and we did not attempt to trace the money because money is fungible and there was no point to it. All that does not go to the selfinflicted character of the injury. Imagine a lawsuit in which a plaintiff said it came to my attention that mcdonalds was selling dangerously hot coffee. So i went to mcdonalds and bought a cup of coffee and poured it upon myself and i am suing for cost of medical treatment and for pain and suffering and i stipulate that my only reason for buying the coffee and my only reason for pouring it on myself was to facilitate this lawsuit. I think we would all have a strong reaction that that suit can go forward. I think the best basis for saying the suit cant go forward is even if we take as true the allegation that mcdonalds was behaving negligently by selling the copy, the own deliberate conduct in visiting injury upon herself solely in order to facilitate a lawsuit severed the causal link between any wrongdoing and her ultimate injury. That is basically what the court said. The plaintiffs said we have paid out money to take protective measures to prevent our own communications from being intercepted and the court said if you would otherwise lack standing to challenge the laws that allow the interception of communications on the grounds that your injury is not sufficiently real and immediately immediate, you cant manufacture standing through a self inflicted harm and the court said that is a reason for holding that the injury is not traceable to the allegedly unconstitutional statutes. That is the same position we are advocating here. They did not have to adjust their conduct even in the most minuscule way to avoid injury. All they had to do was not make the loan or to repay it promptly if they did and crucially those are exactly the things they have said they would have done if the statute did not exist. Again, by saying our only motivation for making the loan and delaying repayment was to facilitate the lawsuit what is the doctrine they say it is his fault and the other one said you did a lot of this yourself. There is contributory negligence. Quasinever even heard in the mcdonalds case that mcdonalds was negligent because the coffee was too hot and the contributory negligence was yet maybe it was but you put it on yourself. I never heard that be as a standing talk. I would think of this as the tracing cases for the person who said i saw i wanted i wanted to go see if they would sell me a house but i just did it as a test case. Contributory negligence generally presupposes that both sides are behaving unreasonably but it is not a doctrine that typically applies in circumstances where the plaintiff has deliberately caused harm to herself. The mcdonalds hypothetical is not simply that the paint point of herself was negligent and not taking good care of the coffee, it is that she deliberately caught yourself injury that she would not have otherwise suffered silly for the purpose of facilitating a lawsuit. That is basically what we have here. To the extent there is doubt about the intricacies of the doctrine, it is helpful for the court to take about the purposes of article three standing doctrine. It is to limit the jurisdiction of article three quarts to disputes that arise because the plaintiffs conduct of his own life is being interfered in some way. It is to prevent the quarts from being used to resolve abstract disputes that dont arise out of any actual injury to the plaintiff. If the point of can circumvent that restriction by manufacturing injury, the per interval is lost. I did allude earlier to trans union and in trans union, the court said if the point of does not suffer concrete harm, the suit cant go forward even if congress has created an express cause of action how are you supposed to wait such things such as the marginal burden on the exercise of First Amendment rights, marginal assistance in preventing corruption, there is not a sufficient sufficient anticorruption interest but then all of a sudden there is. How is that analysis supposed to proceed in concrete terms . We dont pretend it is a bright line will but i think we would say two different things. The first is that there are severe restrictions on gifts to officials in all three branches of the government. There is an established understanding that the government has a substantial and legitimate interest in preventing the effects that might arise if federal officials were given money that would enrich themselves personally. The Campaign Finance laws in specifying the permissible uses of Campaign Contributions draw a line between Campaign Expenditures that will further the purpose on the campaign and Campaign Expenditures that will benefit the candidate personally. This does not enrich him personally because he is no better off than he was before, that is paying alone not lining his pockets. He is no better off than before the loan was made but after alone has been made, there may be a legal entitlement to be repaid but there will often be practical uncertainty about whether repayment will actually occur. That uncertainty may be sufficiently burdensome as a practical matter that some candidates will not make the loan at all for fear they will be left holding the bag. A contributor that illuminates that uncertainty but insures the debt will be repaid is conveying a financial benefit to the candidate. Everyone who contributes to the campaign in that respect. At the time the preelection contributions were made, there is Still Campaign literature to be distributed. There are Television Ads to be run. There are Campaign Activities still to be funded. After the campaign is over, the only permissible use of postelection contributions is to repay debts outstanding by the campaign and in many instances, the principal debt is owed to the candidate himself. If the donor knows that, the donor will understand that by giving the debt the campaign owes is to the candidate himself. If the donor knows that, then the donor will understand by giving money he or she is e