Turns out the "October Surprise" is crime

Elon Musk tries to disrupt electoral politics by doing a bunch of blatantly illegal shit

<deep breath>

Elon Musk thinks the law is for little people. The gravitational weight of his money usually proves him right. As a businessman, this has been his superpower. He can make infinite longshot bets. His companies ignore labor, health, and safety regulations. He doesn’t pay rent on his buildings or severance to his employees. His competition is constrained by regulatory regimes and/or the need to turn a profit. Elon is not. It’s like playing a video game on easy mode while everyone else plays the expert level and then comparing high scores at the end.

Elon recently decided that the most important thing for the future of humanity is that Donald Trump becomes President again. Whether he decided this based on a careful analysis of all the ongoing federal investigations of his businesses or based on the interaction of very fun party drugs with his brain chemistry doesn’t particularly matter. What matters is that Elon has decided he is going to elect Donald Trump, and so now we are getting to see what its like when the richest man on the planet decides that election laws are for little people.

In Pennsylvania, Elon is offering $100 to anyone who registers to vote and then signs his petition supporting the first and second amendment. This is basically the same “blitzscale” growth-hacking tactic that he and Peter Thiel used at PayPal in their younger days. (It led to a bunch of small-scale bank fraud back then, but lol that's just startups doing disruptive startup shit amirite?)

On stage at a rally last night, he upped the ante. The petition now functions as a lottery. Every day between now and Election Day, one lucky registered-voter-petition-signer in Pennsylvania will receive a $1,000,000 check.

Rick Hasen notes that this is really quite illegal. As in, black-letter, settled-law illegal.

…this one is clearly illegal. See 52 U.S.C. 10307(c): “Whoever knowingly or willfully gives false information as to his name, address or period of residence in the voting district for the purpose of establishing his eligibility to register or vote, or conspires with another individual for the purpose of encouraging his false registration to vote or illegal voting, or pays or offers to pay or accepts payment either for registration to vote or for voting shall be fined not more than $10,000 or imprisoned not more than five years, or both…” (Emphasis added.)

See also the DOJ Election Crimes Manual at 44: “The bribe may be anything having monetary value, including cash, liquor, lottery chances, and welfare benefits such as food stamps. Garcia, 719 F.2d at 102. However, offering free rides to the polls or providing employees paid leave while they vote are not prohibited. United States v. Lewin, 467 F.2d 1132, 1136 (7th Cir.
1972). Such things are given to make it easier for people to vote, not to induce them to do so. This distinction is important. For an offer or a payment to violate Section 10307(c), it must have been intended to induce or reward the voter for engaging in one or more acts necessary to cast a ballot.…

You cannot pay people to register to vote. You cannot enter them into a lottery as a reward for registering to vote. Every voter registration organization in this country knows this. Their lawyers make it very clear to them that there are fines and potential jail time if you fuck this up.

But also, the Federal Election Commission is a mess. It has six commissioners — three Democrats, three Republicans — and the Republican commissioners figured out over a decade ago that, if they voted as a bloc, every decision about Republican election crimes would be deadlocked on delivery.

And also also, the election is 16 days away. DOJ investigations take longer than sixteen days. And Elon Musk is an exceptionally well-lawyered individual. He isn’t going to serve a single day of jail time for express violations of election law. Laws are for little people.

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I don’t know whether this vote-buying stunt will work. But I say this as a political scientist whose normal data-informed demeanor is “almost no individual tactic has an actual, measurable impact on electoral outcomes.” This might move the needle. Three reasons why:

1. A million-dollar daily lottery constitutes real money for real people. Individuals who do not care about the election might care about sixteen free shots at a million dollars.

2. The lottery also creates downstream media cycles. Unregistered voters tend to be low-information voters. The perennial challenge for electoral campaign organizations is that low-information voters are hard to reach. They aren’t watching the debates, they’re ignoring the campaign ads during NFL commercial breaks, etc. But if you get a wave of coverage of the lottery — interviews with last night’s lottery winners, etc — that might spread across normally apolitical channels. (It also might not. Hard to tell. This has never been attempted before because it is very illegal.)

3. Short-term innovation edge. This is a concept from my 2012 book, The MoveOn Effect. The effects of any new political tactic tend to be larger when it is first introduced. This is due to a mix of novelty, reduced background noise, and decreasing marginal returns. Direct mail, door-knocking, and text messaging were all more impactful when they were tried first, and then the effect sizes basically vanished once everyone adapted to the tactic. If you want to have an outsized impact, you have to lean into trying something new.

What Elon is trying here is, indeed, new. No one has tried to induce voter participation through direct cash payments and million dollar lotteries. It might not work — the execution is probably garbage, since Elon is trying to stand this thing up overnight — but it is certainly possible that it could. We don’t know. It has never been tried. Because it’s so plainly illegal. And electoral campaigns do not traditionally launch high-profile, blatantly illegal campaign initiatives.

So there you have it. This might qualify as the campaign-bending “October Surprise” that pundits always spend this month scanning the news for. Elon Musk is going to spend, what, $17 million on lottery payouts. That’s much cheaper than an ad blitz in Pennsylvania’s two major media markets. He’ll spend several million on direct payments to registered-voter-petition-signers as well. And, if Trump loses, he’ll eventually pay fines for this whole illegal payments-for-voter-registrations scheme as well. (Unless he gets a Trump judge, or the Supreme Court declares “lol laws don’t apply to Republican donors.”

It’s an innovative campaign tactic. And it has a lot in common with Elon’s trademark, brash leadership. But I don’t mean that as a compliment. Elon’s secret is and always has been playing the game on easy mode while his opponents struggle with complex rulesets.

It’s only innovative because it’s illegal. The October Surprise is just election crime, committed by someone too wealthy to care.