The Ultrarich Have Reshaped Presidential Elections. Here’s Where They’re Looking Next.

Guest Blogger

For the Balkinization symposium on Free Speech in Crisis and the Limits of the First Amendment.

Richard L. Hasen

[This essay is adapted from one originally published on March 27, 2025 in Slate]

The rise of the nine-figure donor raises two fundamental questions: Why is this happening now? And how will this new spending affect American elections and public policy?

In the 1976 case Buckley v. Valeo, the U.S. Supreme Court interpreted the First Amendment as allowing an individual to spend unlimited sums independently supporting or opposing candidates for office, ruling that limits meant to equalize the voices of those in society to influence elections were “wholly foreign to the First Amendment.” In that same opinion, the court upheld restrictions on the amount that an individual could contribute to political committees.

Right after Buckley, nothing would have stopped a billionaire from spending $100 million or more to independently support or oppose a candidate for office, so long as the money was not contributed to a candidate or a political committee or spent in coordination with them. Despite Buckley and other similar holdings, it was rare (and remains rare) for individuals to engage in significant independent expenditures.

The ultrawealthy likely did not want to engage in large independent expenditure operations that would expose their names on ads supporting or opposing candidates, as federal campaign disclosure law requires. And they also probably did not want to have to hire and oversee employees to spend money on their behalf: It would be far easier to give the funds to a candidate’s committee or another professional group supporting or opposing candidates. But contributions to outside groups—which could help put some distance between the donor’s name and the ads—were capped at $5,000, rendering unavailable this path for big money.

That $5,000 cap came under political pressure and constitutional attack. In the 2004 elections, Soros gave millions in contributions to America Coming Together, a 527 group (so called for a different provision of the Internal Revenue Code) supporting Democrat John Kerry for president over incumbent George W. Bush. ACT claimed that because of how it spent its money (by avoiding election ads explicitly calling for Kerry’s election or Bush’s defeat), the $5,000 cap didn’t apply. After 2004, the Federal Election Commission reined in the practice of using 527 groups to circumvent contribution limits to political committees.

But then came the Citizens United revolution. In 2010 the Supreme Court reversed two key precedents that had limited the independent spending of corporations in federal elections on the grounds that such spending could “distort” the political marketplace. The actual holding of Citizens United v. FEC was less important than the reasoning employed by the court; roughly speaking, the justices made a number of doctrinal moves facilitating campaign finance deregulation. Most importantly, SCOTUS significantly narrowed the definition of corruption from one that included the sale of access to political figures by large donors to one more akin to quid pro quo bribery.

Citizens United resulted in a series of additional Supreme Court and lower-court cases (most importantly, a D.C. Circuit case called SpeechNow) and Federal Election Commission rulings that led to further deregulation of the campaign finance system. Many of these cases engaged in a kind of bootstrapping in which the courts or regulators first made a hole in the law, and challengers could subsequently point to that hole as a justification to strike down more laws, reasoning that the remaining laws were no longer effective.

One of the most important examples of this deregulatory bootstrapping occurred in relation to political committees that engage only in spending money independently in campaigns. These entities, now known as super PACs, function just like ACT, the 527 group Soros supported in 2004. But now these groups are blessed as legal, and they can take unlimited sums to support candidates. On top of that, thanks to a ruling of the Federal Election Commission sought by Democrats in 2024, campaigns can now closely work with those super PACs on voter registration and get-out-the-vote drives without running afoul of the rules prohibiting coordination between candidates and nominally independent outside groups. According to the Washington Post, Musk spent millions last year working with the Trump campaign on these efforts.

Billionaires no longer need to worry that they will break the law by spending previously obscene funds supporting or opposing candidates for office. These days, anyone with sophistication can spend whatever they want in federal elections, so long as they structure the giving properly. And some of the ultrawealthy (like others in society) are passionate about politics during our polarized times. They increasingly see no reason to resist leveraging their economic clout in the political arena.

And it’s not just the nine-figure donors who are worrisome. OpenSecrets data show that the top 100 donors gave almost 70 percent of total money to outside groups like super PACs. The top 1 percent of donors gave 98 percent of the outside money. And thanks to changes in technology, such as the rise in social media, the ultrawealthy have new ways to transform their economic heft into political might without risking legal trouble.

Today we have a mostly deregulated campaign finance system, except when it comes to some activities of political parties—rules the Supreme Court will likely soon strike down too. What remains is campaign finance disclosure, but much current political activity is not covered by disclosure rules because laws have not been updated to deal with the movement of campaigns to the online space. And new First Amendment attacks on the constitutionality of disclosure could soon bear fruit at an increasingly deregulatory SCOTUS. So we can expect a day when we may not even know how many nine-figure donors are out there seeking to influence our elections and our elected officials.