Elon Musk’s new tactics for attracting votes for Donald Trump are raising red flags when it comes to election finance laws.
Josh Shapiro, the Pennsylvania governor, suggested in an interview this weekend that law enforcement should investigate Musk’s proposal to give $1m once a day to a registered swing state voter who has signed a petition supporting free speech.
The election law expert Rick Hasen has said in blog posts and interviews that Musk’s actions break the law, first with the offer of free tickets for registered voters and now this.
“This is likely illegal, because in a federal election one cannot give anything of value in exchange for someone agreeing to turn out to vote,” Hasen said.
“It is not necessary to offer that a person vote for or against a particular candidate. Here is the relevant statute, 18 USC section 597. Just like one cannot give out free ice cream or car washes or concert tickets, one cannot give out free admission to hear a speech by a tech entrepreneur.”
Earlier this month, Musk had also offered a $47 payment to people who refer registered voters in swing states to sign a petition supporting free speech and gun rights. The billionaire’s political action committee is using the petition to gather contact information in a last push for support of Donald Trump’s campaign.
Responding to that offer, the card game company Cards Against Humanity, long a Musk foe, announced it would pay up to $100 to each person who didn’t vote in 2020, who apologizes for that, makes a plan to vote and posts in public the phrase “Donald Trump is a human toilet.” Residents of swing states can earn the most money.
Vote buying is illegal under US law, but Cards Against Humanity’s site claims that it is “exploiting a legal loophole to pay America’s blue-leaning non-voters”.
The Guardian talked with Hasen, a professor specializing in election law and director of the Safeguarding Democracy Project at the UCLA School of Law, about the legality – if not the propriety – of these offers.
I want to get a sense from you about where the line is. What’s legal and what’s not? What are we looking at with Trump buying $100 worth of groceries for somebody at the store, or Musk with this $47 thing, or the reaction by Cards Against Humanity to that? How much of this is legal, and how much isn’t?
It’s all legal. The Cards Against Humanity one comes closest, but there’s a pretty bright line. You cannot pay someone to vote, to register to vote, to vote in a particular way in a federal election. Elon Musk is not paying anyone to vote. He’s paying for leads. I mean, if he’s actually going to pay people to vote, that’s a different question.
I’ve got to wonder whether or not anybody’s actually going to get a check at the end of the day from that.
That’s a different question, and that’s potentially fraud. But if you’re talking about vote buying, the idea that you’re paying someone for leads, people who might sign a petition that would indicate that they are conservative by signing a second amendment petition, that is not paying someone to vote or to register to vote.
If this were a referendum on a ballot, I think it would be different.
This is not an official document. That would be paying someone to sign an initiative, a petition to qualify something for the ballot. That’s very different than signing a private petition.
Suppose somebody who’s chasing after people to sign this petition offers them something. Like: “Hey, Elon’s going to pay me $47. I’ll give you $15 to sign the petition.”
That’s not voting.
So, what you’re saying is Elon Musk could theoretically pay somebody directly to sign the petition.
Sure.
What about Cards Against Humanity? Is that scheme legal?
That one comes the closest, because what it requires you to do is to get the money, you have to have made up a plan for voting, which would include figuring out registering to vote, or figuring out how you would register to vote and where you would vote, right?
Donald Trump was in a grocery store like a couple of weeks ago, and bought all the groceries ...
Not close to the line. Not even in the neighborhood. He’s not paying someone to vote or to register to vote.
Some conservatives liken the Biden initiative for student loan relief to vote buying, saying: “Oh, he’s just buying votes from college students.” Is that vote buying?
So that’s not vote buying, because what you’re doing is you’re making policy proposals that might benefit people financially. It’s just like when Donald Trump says, I want to give a tax cut to people who work for tips so that they won’t be taxed. There’s a supreme court case that talks about how that does not constitute vote buying. Part of the first amendment is making general promises about what you’re going to do in office, not specific promises to specific people that you’re going to pay them to vote in a particular way.
Have there been actual, meaningful cases of vote buying in the United States?
Sure, yes. People have been paid to vote. They’ve been paid to turn in absentee ballots. I wrote about a case in the 1990s where this happened, where competing candidates for a county office set up tables at opposite ends of the courthouse steps and paid people to vote. It’s rare. Today, everyone’s looking out for fraud, so it’s not the kind of thing that’s happening out in the open.
Would you succinctly explain why buying and selling votes is a bad idea?
The reason that we prohibit buying and selling votes is because we don’t want people to think of exercising their franchise in a purely transactional way. There are certain things that we don’t allow to be sold. We don’t allow body parts to be sold. We believe there are certain things that are inalienable right, things that cannot be sold. And the idea of selling votes is that it’s going to make people think about voting in a much more material and self-interested way than they otherwise might. Just like you wouldn’t want a politician voting for or against a piece of legislation based on getting a bribe, getting a piece of personal benefit, rather than voting in the public interest.
The philosophical element of that is interesting to me, in part because of all of the ways, once you drill down into it, that philosophy gets violated in practice. In 2020, they spent something like a $500m on elections for getting out the vote, rallies, advertising, all the rest of that. There were 5m votes here. So that was about $100 a vote spent to influence the election. As a matter of law, it’s perfectly acceptable for candidates to spend $100 a person on everything except handing a person $100 bill in order to get them in a way or another.
Yeah, it’s the difference between trying to convince someone – and it takes resources to do that – how they should vote, versus directly paying them, and having them not consider what’s in the best interest of the nation or their community, but instead, what’s going into their pocket.
I can imagine Joe Voter looking at all of that and being pretty cynical about things at this point.
Sure. But you know, you can take it to the other extreme. Ask why is Georgia prohibiting giving someone water when they’re waiting in line to vote? You know, that is seen as a potential vote buying, as if someone would stand in line for hours to vote in order to get a free bottle of water.
