Elon Musk, Misinformation, and Million Dollar Giveaways: An Analysis of Big Tech and Money in Our Election System
Kristine Fishell, John Dreher, and Shannon Tomei are just three among 18 winners of Elon Musk’s $1,000,000 giveaway leading up to the election. To be eligible to win, Musk asks folks to (1) sign his PAC’s petition in support of the 1st and 2nd amendments and (2) be registered to vote. As the richest man in the world, a million dollars is like a mere couple of dollars to Musk, but to those entering the raffle, it’s life changing. So how is this legal? What role does money play in our elections today?
For context, Elon Musk’s net worth is estimated to be approximately $228 billion. Musk dropped out of graduate school at Stanford to start two web software companies, one of which would turn into PayPal, and he later sold this company to eBay for 1.5 billion dollars. He used this money to start Space X, a cost-effective alternative to NASA, as well as the car company Tesla. However, Musk’s recent entanglements with politics and free speech began primarily with his acquisition of Twitter (now called X).
Musk initially sought to buy Twitter for 44 billion dollars in April of 2022; however, problems arose when Musk backed out of the deal in July. Twitter then sued him, demanding he carry out the deal. The case was already set to go to court in mid-October when Musk decided to go through with the deal after all.
Following his acquisition of Twitter/X, Musk has become increasingly concerned with free speech. In fact, he claims that his motivation for buying Twitter was not profit, but rather the protection of free speech. He asserted that “having a public platform that is maximally trusted and broadly inclusive is extremely important to the future of civilization.” However, the “free speech” Musk is referring to is often just misinformation, some of which he has spread himself.
What Musk doesn’t realize, perhaps, is that free speech is not absolute. In Brandenburg v. Ohio, the Supreme Court established a two-tiered test for the limitation of free speech. This means that free speech can be restricted if it is “directed at inciting or producing imminent lawless action” and it is “likely to incite or produce such action.” This test, for example, justifies the suspension of Donald Trump from Twitter, as his tweets leading up to the January 6th insurrection (“Be there, will be wild!”) were mobilizing to his supporters, as many of them testified.
Musk has transformed Twitter, changing everything from its name to its revenue streams. The relevance of this deal, however, lies in his changes to the app’s content moderators (people who review and even remove content that violates community guidelines). Musk made massive cuts to the content moderation team, making the app much more susceptible to misinformation.
Furthermore, after claiming he wouldn’t make any major account reinstatements without consulting a content moderation council, Musk put up a poll on X, asking users if they think Trump should be reinstated to X. After a narrow majority voted yes, Musk allowed Trump, who had previously been banned for “Risk of Further Incitement of Violence,” and who had been repeatedly reprimanded for spreading misinformation, back on the platform.
This background provides context for Musk’s giveaway, and in particular, the petition people have to sign to enter. The petition itself asserts “The First and Second Amendments guarantee freedom of speech and the right to bear arms. By signing below, I am pledging my support for the First and Second Amendments." While Musk initially claimed the winners were selected at random, he has since gone back on that statement, claiming they were specifically chosen to be spokespeople for his PACs pro-Trump agenda.
A key piece of this story includes Elon Musk’s ongoing investigations by the Securities and Exchange Commission, National Highway Traffic Safety Administration, and the Department of Justice for matters concerning his acquisition of X and recent car accidents involving his self-driving Teslas. Furthermore, Musk has at least 100 contracts pending with the federal government, most of which are associated with Space X. All of which to say, it’s hard to imagine Musk hasn’t considered the advantages of having a sympathetic executive (Trump) heading the US government, and that this hasn’t factored into his calculus surrounding his actions during this election.
Musk’s “America” Super PAC has poured $140 million into electing Donald Trump, $119 million of which comes from Musk’s personal money. Thanks to Citizens United v. FEC, which decided that independent spending on campaigns could not be corrupting, super PACs can solicit and accept unlimited amounts of contributions, including from unions and corporations. While they can’t donate directly to political parties or candidates, they can spend unlimited amounts on “independent expenditures” (such as ads that “expressly advocate” for a certain candidate). As a result, super PACs– like Musk’s America PAC– often become vehicles for wealthy individuals to have virtually unregulated influence on elections.
While Musk’s PAC is legal, his million dollar giveaways are not. 52 U.S.C. §10307(c) explicitly prohibits “paying or offering to pay or accepting payment either for registration to vote or for voting.” It may seem like Musk’s giveaway directly violates this, but it’s unclear if people who are registered in the past are getting entered in the raffle or if it’s only for new registrants. If the requirements include people who are already registered to vote, it puts this practice in a legal gray area. Furthermore, the PAC has since tried to reframe the raffle, declaring you get hired as a spokesperson for the PAC and then get paid the one million dollars. This would effectively bypass the law, as one could argue, for example, that the PAC wants to only hire registered voters because they’re more informed.
Regardless, the Department of Justice’s public integrity section has sent a letter to the America PAC, warning them that their behavior might be illegal. While this doesn’t confirm that there will be an investigation, it serves as an indicator that the federal government is paying attention. Furthermore, on October 28th, Philadelphia District Attorney Larry Krasner sued to block the giveaways, which he deemed illegal. On November 4th, just days before the election, a Pennsylvania judge Angelo Foglietta denied Krasner’s bid, proclaiming that he would “lay out his reasoning later.”
Elon Musk’s million dollar giveaways have garnered public attention, but they represent a larger legal question of the role that money and social media can play in elections. Donald Trump has now won his re-election bid, and appointed Musk as the co-head of the Department of Government Efficiency. The fact that a billionaire interested in having an ally in the White House and political power himself can influence an election in this way should concern the American public. Indeed, there are federal conflict of interest laws that prohibit this meshing of billionaires in positions of power that could affect their businesses. It is unclear how the Trump administration plans to address this.
Moreover, this same billionaire owns and regulates one of the world’s largest social media platforms, which has been increasingly facilitating the spread of political misinformation. This begs the questions: what legislation can be put in place to ensure that the wealthiest Americans don’t have undue influence on our elections? What can we do to simultaneously protect free speech and fact check misinformation that runs rampant on social media?
Alice Kovarik is a first-year studying Economics and International and Public Affairs. She can be reached at alice_kovarik@brown.edu
Priyanka Nambiar is a freshman at Brown University looking to concentrate in Cognitive Neuroscience. She is an editor for the BULR Blog and can be contacted at priyanka_nambiar@brown.edu.