After Elon Musk expressed his support for Donald Trump, it was a safe bet Democrats would retaliate with leftist lawfare. They didn’t disappoint: The Biden-Harris Justice Department — part of an “all of government” approach to harassing Kamala Harris’s political enemies — is now threatening the Tesla and SpaceX founder for supposedly breaking federal election laws.
The DOJ recently sent a menacing letter to Musk’s America PAC, which had offered registered voters in Pennsylvania and six other battleground states a chance to win $1 million a day by signing a petition supporting the totally radical ideas of free speech and the right to bear arms. The DOJ claims the PAC’s payments may violate federal laws that criminalize knowingly or willfully paying people to register to vote or to actually vote.
In a separate, blatantly partisan move, Philadelphia District Attorney Larry Krasner sued Musk personally for no other reason but to go after a political donor he happens to disagree with — yet another outrageously dangerous precedent. Should we start suing the Democrat donors who funded organizations that promoted the infamous Steele dossier or the Russia hoax, and every other charade of the left’s?
No, because it’s indecent, un-American and just plain wrong. Shame on Larry and the Left, and the voters who elect them to destroy democracy.
The Left’s attack dogs conveniently ignore the very simple reason Musk is entirely and unquestionably innocent: Musk is not paying people to register to vote. Rather, he is offering an entry into a drawing for $1 million to any registered voter — someone who is already registered — who signs his PAC’s petition. That is a key distinction with an obvious difference. Presumably, the overwhelming majority of Pennsylvanians and other Americans who signed Musk’s petition already registered to vote long before his offer was made, proving that Musk is providing entries into the $1 million drawing in exchange for people’s signatures, not registering to vote.
The law is unquestionably on Musk’s side in this case. The Department of Justice’s Manual on Election Offenses states the provision Musk has been accused of violating— 52 U.S.C. § 10307(c) — is intended to protect federal elections from potential corruption by eliminating “commercial considerations from the voting process.” Musk’s offer, however, is open to all eligible Pennsylvania citizens regardless of political party, the candidate they support or whether they vote. Democrats, Republicans and Independents are welcome to participate, as long as they believe in the First Amendment and the Second Amendment.
Numerous U.S. states limit certain opportunities only to registered voters. For example, many states require local election boards to be composed of voters registered with different political parties. In such jurisdictions, a person is not able to serve as a local election official — and be paid to do so — unless they register to vote. Other states require poll watchers to be registered voters. Not a single entity, including the Justice Department, has suggested such provisions violate federal law by illegally offering valuable benefits in exchange for voter registration.
By soliciting signatures for his petition, Musk is exercising his fundamental First Amendment right to engage in political speech and association. As the Supreme Court confirmed in Buckley v. Valeo, the fact that Musk is providing an incentive to encourage people to sign his petition does not change the constitutional analysis. The involvement of payment does not magically reduce the First Amendment’s protection of an individual’s rights to free speech and free association. Musk, like any other American, is entitled to determine the bounds of his political speech and association by limiting his petition and sweepstakes solely to registered voters.
This has nothing to do with the law and everything to do with politics, at its worst. For the DOJ to threaten criminal prosecution of someone engaged in basic First Amendment activity is abhorrent and unethical — and yet all too common for the Left. Political operatives weaponizing the law against a Trump supporter (again) is utterly disgusting. No good-faith American wants a government that does — or even can — retaliate against people simply for expressing their political beliefs and endorsing a candidate of their choosing. It is un-American.
The DOJ’s weaponization of law is shameful and demands the resignation of all those involved who have abandoned their integrity in threatening to prosecute an American citizen over clearly protected speech. The DOJ and its left-wing cheerleaders, such as the once-reputable Rick Hasen of Election Law Blog, should be ashamed of promoting blatantly false, flatly unconstitutional legal theories for purely partisan purposes. The Left’s legal attempts to criminalize speech and silence dissent, while totally ignoring Hillary Clinton’s alleged campaign finance violations (among so many others), is the very definition of corruption. What a shame.
Dan Backer is a veteran campaign counsel, having served more than 100 candidates and political committees, overseeing more than $150 million in political spending over the past decade. He practices law as a member of Chalmers, Adams, Backer & Kaufman LLC.
