Pennsylvania v America PAC and Musk: A Violation of Federal Election Law?
Philadelphia's District Attorney (DA), Lawrence Krasner, recently filed a lawsuit aiming to shut down Elon Musk’s super PAC, America PAC, which is conducting a $1 million daily giveaway. The giveaway rewards randomly selected individuals who sign a petition supporting the First and Second Amendments.[1] This suit has prompted much deliberation from legal experts as to whether the giveaway scheme violates federal election law, and so far they are divided.
Background
DA Krasner is seeking an immediate injunction on the basis that Musk’s giveaways are an ‘illegal lottery’, violating state laws on consumer protection stipulated in the Pennsylvania Unfair Trade Practices and Consumer Protection Law.[2] Terms of the petition require signees to be registered voters in key battleground states[3] that are likely to decide the outcome of the tightly contested Presidential race.
Under U.S. Code § 597, it is a criminal offense to offer or make any expenditure intended to influence someone to vote or refrain from voting, or to cast their vote for a particular candidate. Violations can result in a fine, imprisonment of up to two years, or both.[4] Furthermore, § 10307(c) outlaws paying or offering to pay for registration to vote or for voting, punishable by a fine of up to $10,000 or imprisonment for 5 years, or both.[5] Reportedly, the US Justice Department’s (DOJ) public integrity section sent a letter to America PAC warning that the giveaway may run afoul of federal law.[6]
Musk has defended himself by stating that voters who want to be eligible for the prizes do not need to register as Republicans or vote. However, the focus on battleground states as well as the additional $100 offered exclusively to Pennsylvania registered voters[7] indicates the petition may well be a guise for an ulterior motive. Pennsylvania is notoriously known for being a fiercely contested state, so far receiving one of the largest shares of the respective campaign’s combined spending.[8] Musk and America PAC may be trying to boost voter numbers in swing states in the Republicans’ favour, and collect the personal data of signatories to facilitate micro-targeting certain voters. The upcoming Presidential election adds a certain poignancy to the discussion in question. Furthermore, DA Krasner has questioned the fortuity of the winners, citing two that have attended Trump rallies.[9] If this was to be proved, it would undoubtedly contravene federal law.
Federal Law
Initially, the petition seems an indisputable attempt to financially induce individuals into registering to vote ahead of the imminent Presidential election. However, legally, Musk’s scheme is targeted and designed to fall into a loophole that may preclude him from suffering any real consequences. Brad Smith, a Capital University Law School Professor and former Federal Election Commission Chairman described the petition as ‘sufficiently far removed’ from the requirement of being registered to vote.[10] The existence of a potential incentive does not necessarily equate to payment for a particular activity. No-one is being directly paid to register to vote, but rather to sign a petition, and voter registration is merely a condition of signing it.
On the other hand, reference could be made to the DOJ election crimes manual, which specifically cites lottery chances as potentially illegal payments.[11] Legal experts, such as Adav Noti from the Campaign Legal Centre, have stated that on this basis it is illegal to give out money on the condition that signatories are registered to vote.[12] Furthermore, when current context is added to the petition’s criteria, it could be argued that this clearly demonstrates the purpose of the giveaway was to induce people into registering to vote. The giveaway exclusively focuses on key US battleground states, with a specific interest in Pennsylvania – one of the most important swing states in the upcoming election. Moreover, the petition fails to elaborate on the current relevance of the first and second amendments to the political climate; these rights are not under attack, but are guaranteed under the constitution and repeatedly upheld by the courts.
Conclusion
To conclude, Musk’s petition falls into an election law loophole which could absolve him of any punitive legal measures. However, other ambiguous sources of law seem to condemn the petition’s enforcement of voter registration, and the addition of context exposes the petition’s purported support of first and second amendment rights as merely a pretext.
It is unlikely that the DOJ will pursue this case further prior to the election on November 5th to avoid potentially influencing the voting intentions of the public. A Trump-appointed DOJ would likely exercise its legal discretion to drop any investigation into the matter. Should an investigation be taken further, it would be difficult to argue against the giveaways in court as Musk has ensured that the terms of the petition allow him to exploit the election law loophole in question. In the event that Musk is found guilty of a violation of federal law, the punishment would likely be merely a slap on the wrist. A fine capped at $10,000 would not severely punish the guilty party due to his immense wealth.
[1] C-241003509, Commonwealth of Pennsylvania v America PAC and Elon Musk [2024].
[2] ibid, p.2.
[3] T. Bennett; K. Epstein, ‘Musk’s $1m-a-day to swing states voters ‘deeply concerning’’, BBC News (London, 20/10/24).
[4] Title 18, U.S.C., § 597, 1948.
[5] Title 52, U.S.C., § 1037(c), 1965.
[6] E. Perez; H. Rabinowitz, M. Cohen, ‘Justice Department warns Elon Musk that his $1 million giveaway to registered voters may be illegal’, CNN (Washington D.C., 23/10/24).
[7] T. Bennett; K. Epstein, ‘Musk’s $1m-a-day to swing states voters ‘deeply concerning’, BBC News (London, 20/10/24).
[8] E. Xiao, O. Roeder, ‘Kamala Harris vs Donald Trump: tracking the 2024 US presidential advertising battle’ Financial Times (New York, 04/09/24).
[9] C-241003509, Commonwealth of Pennsylvania v America PAC and Elon Musk [2024], p.3.
[10] J. Queen, ‘Elon Musk’s $1 million election giveaway tests limits of election law’, Reuters (New York, 22/10/24).
[11] C. Hetzner, ‘Musk has nothing to fear from Philadelphia’s lawsuit into vote buying, says election law expert’, Fortune (Frankfurt, 29/10/24).
[12] ibid.
