Personal data is a commodity—frequently bought, sold, and traded on the open market by for-profit and non-profit organizations alike. It is now commonplace for political campaigns to synthesize large amounts of personal information to tailor messaging to particular individuals for persuasion, turnout, and fundraising. As campaigns and other political organizations use data in increasingly sophisticated ways, they have also dramatically increased their data collection and transfer efforts. This Note explores how federal election laws and regulations have failed to keep pace with these developments, creating a loophole through which virtually unlimited money can flow to campaigns.
This Note argues that personal data should be regulated like any other campaign asset. Federal political campaigns are subject to strict contribution limits as well as a comprehensive disclosure regime. Current Federal Election Commission advisory opinions and agency inaction have allowed campaigns to receive valuable personal data at practically no cost, even from organizations like super PACs that are otherwise prohibited from making contributions to campaigns. Perhaps even more troubling is that these contributions are not subject to the disclosure requirements that form the backbone of the federal campaign finance system. The transfer of this class of assets is subject to neither meaningful restrictions nor public scrutiny. This Note details the problem and proposes several simple regulatory changes to close existing campaign finance loopholes.