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Betting on US Elections Gets Fresh Green Light From Court

Chris McHaney, executive vice president and head of investment management and strategy at Global X Investments Canada, joins BNN Bloomberg to talk about the impact of the U.S. election on the markets.

(Bloomberg) -- Americans can again legally wager millions of dollars on the outcome of congressional races after a US appeals court set the stage for a deluge of bets just five weeks before the November election.

The US Court of Appeals for the District of Columbia on Wednesday lifted a stay on trading in Kalshi Inc.’s derivatives contracts over which party will control the House and Senate. The Commodity Futures Trading Commission has argued against the products, saying they would harm the public by affecting the integrity of elections.

The ruling is the latest twist in a monthslong fight between Kalshi and the agency, which regulates it. A lower court allowed the company to go ahead and the contracts briefly traded, but the regulator got an emergency stay, which the appellate panel lifted on Wednesday.

In an opinion by the three-judge panel, written by Patricia Millett, the court said that the CFTC failed to provide evidence that the public would be “irreparably injured” if Kalshi was able to continue offering the contracts. The court left the door open to reinstate the stay if there is “more concrete evidence,” such as political campaigns pushing supporters to buy contracts or foreign investors trying to interfere in US elections.

The court is still set to weigh in on the CFTC’s authority to permanently stop the contracts.

The CFTC declined to comment. Kalshi hailed the decision as historic for US financial markets. “Trading on the US elections is finally, officially legal,” Tarek Mansour, who co-founded Kalshi, said in a statement.

‘Elections Cop’ 

CFTC Chairman Rostin Behnam has frequently said Kalshi’s elections contracts risk forcing the markets watchdog to become an “elections cop.” That’s not something that Congress ever intended, Behnam has said. 

However, the court said the CFTC could refer to the Federal Elections Commission any cases of suspected tampering, such as placing wagers on a political candidate’s race in order to gin up voter support, turnout, fundraising or campaign morale. 

“Whether the statutory text allows the commission to bar such event contracts is debatable, and the commission has not substantiated that risks to election integrity are likely to materialize if Kalshi is allowed to operate its exchange during the pendency of this appeal,” the judges said. 

Unregistered trading platforms, including Polymarket, PredictIt, and Manifold Markets, already allow wagers on elections outcomes. But now other CFTC-regulated trading platforms are expressing an interest in listing political contracts. The agency warned the court in a September filing about the prospect of “an explosion in election gambling” as a result of a ruling in Kalshi’s favor.

Trading Everything

New York-based Kalshi lets retail and institutional traders purchase binary options, a type of derivative, on nearly everything. Current contracts include who will be the richest person at the end of the year, Bitcoin’s peak price in 2024 and the number of Federal Reserve interest rate cuts.

Unlike many of its contracts which are capped at $25,000, Kalshi’s elections contracts could allow institutional traders or wealthy individuals who can prove an “established economic hedging need” to trade as much as $100 million on whether Republicans or Democrats will control Congress in 2025.

Public interest groups and Democrats such as Oregon Senator Jeff Merkley have raised the alarm that such large amounts of money could entice bad actors to try to swing the elections in favor of a preferred candidate. 

Merkley recently introduced a bill to prevent Wall Street from setting up trading platforms for political bets. “When big bets are cast on elections and dark money can smear candidates, you have the perfect combination of factors to destroy the integrity of our elections,” Merkley said in a statement.

The CFTC’s delay in defining what constitutes gaming under its rules has been at the heart of the litigation.

The markets watchdog tried to remove some of the ambiguity in a May proposal to prohibit contracts on outcomes tied to elections, sports and awards contests. That rulemaking has yet to be finalized and it’s unclear if it will be impacted by the court’s actions.

The three-judge panel considering the appeal includes Obama-appointees Millett and Cornelia Pillard, and Florence Pan, who was appointed by President Joseph Biden.

(Updates with additional background throughout.)

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