This is an excerpt from Rick Hasen’s contribution to the Balkinization Symposium on  Free Speech in Crisis and the Limits of the First Amendment:

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?…

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.