I am very pleased to welcome to ELB Book Corner several contributors to The Oxford Handbook of American Election Law (Eugene D. Mazo ed. 2024). The 30% discount code for ELB readers is ALAUTHC4. The second contribution is from Robert Yablon:

Election cycle after election cycle, money in politics grabs headlines. We see reports of record-breaking spending levels, the largesse of billionaire megadonors, surging dark money, and more. Academic commentary on the campaign finance system similarly abounds. But public and academic discourse has generally devoted less attention to the booming industry that raises, deploys, and pockets ever growing sums of campaign cash.

My chapter in The Oxford Handbook of American Election Law—“The Campaign Industry”—describes and assesses our nation’s system of campaign capitalism. I’m grateful to Gene Mazo for his interest in covering this understudied but important topic—and for his truly extraordinary work as the Handbook’s editor. My chapter builds on a law review article I wrote several years ago entitled “Campaigns, Inc.” (This also happens to be the name of the nation’s first dedicated political consulting business, which was founded in California ninety years ago).

I define the campaign industry broadly to include both the staffers who work for campaign organizations and the many consultants and vendors who work with campaign organizations from the outside. Together, these actors handle a panoply of tasks, including fundraising, communications, digital strategy, data management, direct mail, polling, field operations, and legal compliance. Though pay for staffers is often modest, consulting work can be highly lucrative. For example, more campaign money is spent on mass advertising than anything else, and the media consultants who handle ad buys can earn multimillion dollar commissions. Other professionals can likewise receive hefty payouts. According to one tally, federal campaign entities spent more than $275 million on fundraising consultants alone during the 2022 election cycle. In recent election cycles, campaigns have similarly paid data brokers tens of millions of dollars. And the industry has seen an influx of venture capital investments in campaign tech start-ups that aim to swing elections while also turning a profit.

The story of the U.S. campaign industry is very much an election law story. The industry’s scale and structure is an outgrowth of how we organize electoral politics and regulate campaigning. Numerous legal developments spanning many decades—from patronage bans to primary elections to direct democracy—disrupted traditional party-centered electioneering and paved the way for today’s campaign entrepreneurs. Meanwhile, the pathways that law and doctrine provide for large sums of money to flow into the electoral system support a robust market for campaign services and create attractive business opportunities. Vehicles such as Super PACs have been a particular boon to the industry since they are typically set up and run by campaign professionals.

The relationship between the election system and the campaign industry is a two-way street: The system shapes the industry, and the industry shapes the system. Campaign professionals play a role in identifying and recruiting candidates and can help validate them by joining their campaigns. Campaign professionals shape campaign strategy and messaging, and their economic incentives may lead them to push certain tactics, such as aggressive fundraising and commission-generating mass advertisements. And campaign professionals can influence policy and governance, not only by encouraging candidates to embrace certain positions or priorities during the campaign, but also by following successful candidates into government, or by using their campaign relationships to gain access and lobby officials.

For those dissatisfied with the state of our electoral politics, industry-related reforms may hold appeal. One set of reform options might take aim at industry excesses and misdeeds. Consider a few possibilities: First, self-dealing is a recurring issue, with staffers and advisors directing campaign business to firms in which they or their families (or candidates or their families) have an economic stake. Reformers could seek to limit such transactions or at least require greater transparency. Second, and relatedly, while current law bars candidates from using campaign contributions for personal expenses, it does not place a similar constraint on those who run Super PACs—a loophole the FEC has already recommended closing. Third, some campaigns have been skirting expenditure reporting rules by funneling large sums to opaque entities that then spend the campaign’s money without revealing where it is going. Disclosure rules could be tightened to require information about downstream payments to sub-vendors and others. Fourth, one could imagine extending to campaign professionals the sort of anti-revolving door rules that limit lobbying by recent government employees. Various measures along these lines have already been adopted in some states and localities.

More ambitiously, reformers could strive to reorient electioneering away from the professionalized, capital-intensive model that now predominates. Given current First Amendment doctrine, restricting the flow of money into the system is unlikely to be a viable option. But one could imagine reforms that aim to alter the locus of campaign activity, such as by seeking to reinvigorate political parties and civic associations at the local level in order to cultivate more bottom-up, grassroots-oriented modes of campaigning.

While the chapter sketches out some reform possibilities, it does not advocate any particular course of action. Instead, its primary goal is to simply to encourage academics, legal practitioners, and the broader public to reckon more fully with the campaign industry’s consequential role in our election system.