STOPPING BIG MONEY IN POLITICS
Jay R. Mandle
If the majority of the Supreme Court were asked, they would deny that there was a problem with Elon Musk providing $443 million dollars in the 2026 midterm elections to candidates he supported. For those justices, Musk was doing no more than exercising his constitutional right to free speech, as provided by Article I of the Constitution.
The same libertarian reasoning lies behind Court’s consistent ruling that the Constitution prohibits substantial restrictions on campaign donations. That a few individuals like Musk donate millions of dollars to political campaigns, and thereby gain more influence on the outcome of elections than other voters, is of no concern to the majority of the Court.
For the 2026 midterms, a list of the top political donors notes that fourteen are “Republican-aligned”. Together, they have contributed a total of $830.9 million. Of the major donors, three are described as “Democratic-aligned,” donating a total of $224.7 million. Among the Republican-aligned individuals whose hostility to government regulation is well known are Musk himself, as well as Marc Andressen & Ben Horowtiz, Jeff and Janine Yass, Richard & Elizabeth Uihlein, Miriam Adelson, and the Winklevoss twins. The total amount of money contributed by very wealthy individuals is indeed staggering.
The Court’s indifference to political equality in its campaign finance rulings is a relatively recent development. The philosopher John Rawls cited several Supreme Court decisions in the past that are inconsistent with the Court’s current hostility to disciplining big donors. In one of those, the Court’s decision read, “full and effective participation by all citizens in state government requires…that each citizen has an equally effective voice in the election of members of the state legislature.” Rawls himself argued that such equality of political influence is “fundamental because the adequate protection of other basic rights depends on it. Formal equality is not enough.”
The fact is that the very premise upon which the Court’s recent decisions rest - that campaign donations are a form of speech – is dubious. In testimony before the Senate Rules and Administration Committee in 2014, former Supreme Court Justice John Paul Stevens pointed out that “although money is used to finance speech, it isn’t itself speech.” He went on, “campaign contributions and expenditures may finance speech, but they also finance lots of other activities which are not entitled to the same protection as speech.” What come to mind as such unprotected campaign spending are salaries paid to staffers, fees paid to consultants, and the costs of research and polling, office rent and housekeeping.
Following his retirement from the Court, Stevens actually advocated a constitutional amendment that would make clear that the First Amendment does not prevent limits on political donations. He advised that there is “a very strong state interest in trying to establish equality of opportunity for competing candidates to get elected.”
Limiting campaign contributions would not threaten the right of all citizens to express their viewpoints. But it would eliminate the distorting effects of wealth on elections and the political process.
Hpwever, it might not be necessary to resort to Stevens’ suggestion of passing a constitutional amendment to secure a more egalitarian political process. The Supreme Court, sympathetic in the past to campaign finance reform legislation, might yet be so again. As of this writing, a Democratic Party blue wave is anticipated in the midterm elections. If that transpires, a majority of members of Congress may consider money in politics to be an important focus of their attention. Under those circumstances, would-be judicial appointees could be judged based on their positions with respect to campaign finance reform. In such a scenario, the Court’s composition could be changed and its hostility to reform reversed.
Creating more political equality by curbing mega-donations by a handful of individuals has become particularly important with the advent of Artificial Intelligence. While its future is literally unknowable, there is clearly the risk of dire consequences - massive unemployment is among the damaging effects that can be foreseen. Even the speculation that AI’s adoption could threaten human existence cannot be dismissed. What this means is that the extent of AI’s application as well as the uses to which AI is put should not be left to the sole discretion of the few profit-seeking entrepreneurs who now are in charge of its implementation. Instead, precisely because it is such a powerful technology, the public should have the decisive voice. But that voice is denied when the Supreme Court blocks campaign finance reform, allowing political decisions to be disproportionately influenced by big money donations.
Of course, restricting the financial political power of the rich would not prevent them from participating in political dialogue along with other citizens. However, democratizing decision-making through campaign finance reform would deprive wealthy donors of the political power that today exceeds that of the rest of the population.