Elon Musk’s $1 million election stunt is probably illegal — and the government is unlikely to stop him

The Department of Justice sent America PAC — the political action committee Elon Musk set up to help reelect former President Donald Trump — a letter warning that Musk’s $1 million lottery targeting swing state voters may be illegal. It’s the latest government attempt to regulate Musk, but it may go nowhere, even though campaign finance experts are adamant that he broke the law.

A vocal Trump supporter, Musk is using his vast fortune to influence the election. He’s contributed $75 million to the PAC thus far and has been stumping for Trump in Pennsylvania, a battleground state, since last week. But Musk’s actions go far beyond typical — and legal — wealthy donor behavior.

Musk has made payouts to voters a key element of his campaigning. His rallies are only open to registered Pennsylvania voters who sign an America PAC petition saying they support the First and Second Amendments. At the first of these events, he gave a $1 million check to a randomly selected audience member, saying he’d keep awarding sweepstakes-style prizes to petition signatories every day until November 5th.

The problem is that while you can encourage people to vote or register in a US election, you aren’t allowed to compensate them for doing so. Under 52 USC 10307(c), anyone who “pays or offers to pay or accepts payment either for registration to vote or for voting” can be fined up to $10,000 or be sentenced to up to five years in prison.

Michael Kang, a professor of campaign finance law at Northwestern University, says extra steps like the petition don’t change the fundamental facts. “In the end, this violates the federal statute against paying someone to register to vote for a federal election,” Kang told The Verge. “This isn’t paying someone to register to vote, but requiring them to be a registered voter in order to qualify for the prize.”

America PAC changed the messaging around the petition on Sunday, calling it payment for serving as “a spokesperson for America PAC.” But the fine print of the sweepstakes remains the same — and probably just as illegal as before. “If it was next summer — not connected to a presidential election coming up in a month — and was just intended to collect data on people who support the Second Amendment, that would be fine,” Kang said of the petition. “I think the context is really critical. It’s not just the requirements of the program, it’s how it’s being presented.”

Election watchdogs caught onto the move quickly. On Tuesday, the Department of Justice confirmed that it had received a letter from 11 former government officials — who described themselves as having “served in senior legal and law-enforcement roles under every Republican president from Richard Nixon to Donald Trump” — urging the DOJ to investigate the America PAC sweepstakes.

And on Wednesday, the consumer advocacy group Public Citizen filed a complaint with the Federal Election Commission warning that America PAC may have violated campaign finance law. Craig Holman, the government affairs lobbyist with Public Citizen who filed the complaint, told The Verge that Musk’s petition was clearly illegal.

“The expectation there definitely appears to be that Musk was hoping to generate a lot of people — especially conservatives, because the petition is a very conservative-oriented document — to come out of the woodwork and register to vote so they can sign the petition,” Holman said. “That is an illegal payment to encourage voter registration.”

The DOJ warned Musk about his behavior, several people familiar with the matter told CNN.

But we’re a long way from Musk facing serious consequences for the move, including prison. “I’d be a little surprised if we get to that point. I don’t think the goal here would be to put Elon Musk in jail for a number of years,” Kang said, adding that the DOJ is typically hesitant to take public action right before a presidential election. Instead, the department’s goal is to “stop him from doing this.”

Choosing to prosecute Musk could backfire for the DOJ, especially before the election. “Musk’s goal is to publicly display his support for Trump,” Kang said. “His audience is Donald Trump and his supporters. The idea that federal prosecutors may come after him just helps him.”

It’s unclear, however, what would stop Musk. (A $10,000 fine presumably won’t do much.) The billionaire has a long history of disregarding things like safety regulations, and there’s no reason to believe he’ll be any more careful with election law. In their letter to the DOJ, the election officials urged the agency to overrule concerns about appearing partisan. “We are aware of nothing like this in modern political history,” the officials’ letter read. “Law enforcement agencies are appropriately reluctant to take action shortly before elections that could affect how people vote. But serious questions arising under laws that directly regulate the voting process must be an exception. Otherwise, individuals may act with impunity, with consequences if any coming only long after the damage is already done.”

Impunity may be exactly what Musk is seeking by supporting Trump. As Public Citizen noted in a recent report, several Musk-owned companies are under investigation by a bevy of government agencies. The DOJ, the Securities and Exchange Commission, the National Highway Traffic Safety Administration, the Equal Employment Opportunity Commission, the National Labor Relations Board, the Federal Aviation Administration, and the Environmental Protection Agency have all probed or filed charges against Musk-owned companies. If the investigations continue, Musk could not only face fines but may also be ordered to alter practices at his various companies — a possibility that could end up costing him a lot more than $1 million per day.

By contrast, Trump could order many of these investigations or charges to be dropped. “There are many ways that someone in Elon Musk’s position could benefit,” Rick Claypool, the Public Citizen researcher who authored the report, told The Verge.

Musk, like nearly all of the surrogates campaigning on behalf of a presidential candidate at this stage in the game, knows the election will likely be decided by a small number of voters in a few key states. In 2020, Biden won Pennsylvania by just over 81,000 votes out of more than 6 million cast in the state.

The first three winners of the sweepstakes were registered Republicans who had already voted by mail before getting the prize money, according to The Philadelphia Inquirer. But if a few hundred — or thousand — people register to vote at Musk’s behest, the petition and associated financial promises may help move the needle. Even if it doesn’t, a lack of governmental action could send the message that it’s easier than ever to buy an election.