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The Million Dollar Question: Musk’s America PAC Controversy

By Vincent Barnes '25

 

In a Harrisburg auditorium on October 19, 2024, a man in a MAGA hat rushed to the stage, having just learned he would receive $1 million for signing a political petition. This moment of John Dreher accepting an oversized check from Elon Musk's America PAC would spark an unprecedented legal battle that challenges how courts balance electoral innovation with consumer protection. (1) The case raises fundamental questions about the intersection of campaign finance law, consumer rights, and electoral integrity in an era of evolving campaign strategies.


The controversy centers on America PAC's program offering $1 million daily to registered voters in seven battleground states who signed a petition supporting First and Second Amendment rights. Pennsylvania residents received additional incentives: $100 for signing and $100 for each referral. (2) What started as an innovative campaign strategy soon faced legal challenges on multiple fronts.


Philadelphia District Attorney Larry Krasner's complaint in Commonwealth v. America PAC presents two primary arguments. First, the program constitutes an illegal lottery under Pennsylvania law's three-part test from Com. v. Lane: prize ($1 million), chance (claimed random selection), and consideration (personal data plus political pledge). Second, the program violates consumer protection laws by failing to disclose complete rules, privacy policies, and selection methods. (3)


In response, a PAC representative came forward saying the selections were not random. Instead, the winners are intentionally selected as “spokespeople” for America PAC. The defense's characterization of winners as “spokespeople” rather than lottery winners potentially invokes Riley v. National Federation of the Blind, which addresses mixed political-commercial speech. (4) This framework suggests higher constitutional protection than pure commercial speech would receive. However, calling the recipients “spokespeople” represents a pivot from earlier descriptions where Musk was quoted saying, “We’re going to be awarding a million dollars randomly to people who have signed the petition every day from now until the election.” (5)


America PAC's defense likely rests on established First Amendment precedents protecting political speech and association. Under Meyer v. Grant, petition circulation constitutes core political speech deserving strict scrutiny protection. (6) Citizens United further established broad protection for political spending as speech. (7)


Pennsylvania's lottery law (72 P.S. § 3761-101) (8) establishes state control over lotteries in terms of administration and collection of revenue, while the UTPCPL (73 P.S. §§ 201-1 to 201-9.3) (9) prohibits deceptive practices in order to ensure consumer protection. These two statutes serve as the foundation for the argument that America PAC has administered an illegal and deceptive lottery. However, Buckley v. American Constitutional Law Foundation requires strict scrutiny for petition circulation restrictions, reinforcing the principle that states cannot impose restrictions on political advocacy. This case upheld the freedom of political advocates in the ballot petition process against excessive government interference. (10)


This interplay between the state’s lottery regulations, the protection of freedom regarding political advocacy, and the question of whether America PAC’s giveaways are truly lotteries makes this issue complex. 


Another important point is that of privacy. The program's collection of personal data from over 280,000 Pennsylvania residents without specified privacy protections presents distinct legal issues. (11) This intersects with emerging jurisprudence on data privacy and political activity, raising questions about whether traditional consumer protection frameworks adequately address modern campaign practices. Access to this sort of personal information not only allows political organizations to continue contacting those who filled out the petition, but it also opens up the possibility of organizations selling this information. 


As campaign innovations continue to evolve, courts face several key questions. How should existing lottery and consumer protection frameworks adapt to novel political engagement strategies? When does protected political speech transform into regulated commercial activity? What standards should govern data collection and privacy in political campaigns? How can courts balance First Amendment protections with state interests in electoral integrity?


Following Trump’s recent victory, the US is left with these questions still lingering. Between accusations of illegal lottery and violations of privacy, the recent actions of America PAC have led the American public to consider whether such strategies can be considered fair in our elections. The intersection of campaign innovation and consumer protection brings up challenges for existing legal frameworks. Courts must navigate between competing principles: protecting political speech, ensuring electoral integrity, safeguarding consumer rights, and enabling technological innovation in campaigns. The answers to the questions from the previous paragraph will likely have lasting implications for how political strategists approach campaigning.


Various approaches are being considered by courts and legislators, from updated regulatory frameworks to modernized standards for campaign activities. Each presents distinct advantages and challenges in balancing these competing interests. As campaigns continue to evolve, the resolution of Commonwealth v. America PAC may provide crucial guidance for future innovations in political engagement.


Endnotes

  1. Verified Complaint, Commonwealth v. America PAC, No. 241003509 (Phila. C.P. filed Oct. 28, 2024). https://www.courthousenews.com/wp-content/uploads/2024/10/commonwealth-of-pennsylvania-lawrence-krasner-v-america-pac-elon-musk-election-giveaway-complaint.pdf

  2. Ibid.

  3. Ibid.

  4. Riley v. National Federation of the Blind, 487 U.S. 781, 796 (1988). https://advance.lexis.com/document/?pdmfid=1519360&crid=e6930e62-d2d8-444d-99d6-c796aa31d221&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A3S4X-DT40-003B-431V-00000-00&pdcontentcomponentid=6443&pdshepid=urn%3AcontentItem%3A7XW4-F4P1-2NSF-C22H-00000-00&pdteaserkey=sr0&pditab=allpods&ecomp=hc-yk&earg=sr0&prid=ca5a2ff1-5289-4baa-aa24-4aaa5ed2c73d

  5. Dale, Maryclaire. “Musk’s PAC Claims $1 Million ‘winners’ Not Chosen by Chance.” PBS, Public Broadcasting Service, 4 Nov. 2024, www.pbs.org/newshour/politics/musks-pac-claims-1-million-winners-not-chosen-by-chance

  6. Meyer v. Grant, 486 U.S. 414 (1988) https://advance.lexis.com/document/?pdmfid=1519360&crid=1bfd6d40-1929-49c0-80bf-5144420ad16c&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A3S4X-F280-003B-43M3-00000-00&pdcontentcomponentid=6443&pdshepid=urn%3AcontentItem%3A7XWN-0BS1-2NSF-C316-00000-00&pdteaserkey=sr0&pditab=allpods&ecomp=hc-yk&earg=sr0&prid=4ec95d7e-d614-497d-9eea-ea534a4f6e43

  7. Citizens United v. FEC, 558 U.S. 310, 365 (2010) https://advance.lexis.com/document/?pdmfid=1519360&crid=c7cd3072-664e-4325-a047-aed68e5ca4b4&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A7XKV-KRG0-YB0V-9128-00000-00&pdcontentcomponentid=6443&pdshepid=urn%3AcontentItem%3A7XWN-VFH1-2NSD-N2Y4-00000-00&pdteaserkey=sr0&pditab=allpods&ecomp=hc-yk&earg=sr0&prid=219df6f8-4449-4b19-9a40-e193de240259

  8. 72 P.S. § 3761-101 https://advance.lexis.com/search/?pdmfid=1519360&crid=aaab3410-69b5-442f-b628-b783b9c97138&pdsearchterms=72+P.S.+%C2%A7+3761-101&pdstartin=hlct%3A1%3A1&pdcaseshlctselectedbyuser=false&pdtypeofsearch=searchboxclick&pdsearchtype=SearchBox&pdoriginatingpage=bisnexishome&pdqttype=or&pdquerytemplateid=&ecomp=g248k&prid=382f0070-6850-4a2b-8336-6de6e2a5b6d3.

  9. 73 P.S. §§ 201-1 to 201-9.3 https://advance.lexis.com/search/?pdmfid=1519360&crid=44047a04-9a88-4bc3-9879-b8122eafbd13&pdsearchterms=73+P.S.+%C2%A7%C2%A7+201-1&pdstartin=hlct%3A1%3A1&pdcaseshlctselectedbyuser=false&pdtypeofsearch=searchboxclick&pdsearchtype=SearchBox&pdoriginatingpage=bisnexishome&pdqttype=or&pdquerytemplateid=&ecomp=g248k&prid=aaab3410-69b5-442f-b628-b783b9c97138.

  10. Buckley v. American Constitutional Law Foundation, 525 U.S. 182 (1999). https://advance.lexis.com/document/?pdmfid=1519360&crid=73066f32-54d8-4930-92bd-e0006e630bbf&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A3VJ2-5N20-004C-0008-00000-00&pdcontentcomponentid=6443&pdshepid=urn%3AcontentItem%3A7XWN-0BW1-2NSF-C279-00000-00&pdteaserkey=sr0&pditab=allpods&ecomp=hc-yk&earg=sr0&prid=177bc3ce-5281-475a-bb2c-3045015546dc

  11. Verified Complaint, Commonwealth v. America PAC, No. 241003509 (Phila. C.P. filed Oct. 28, 2024). https://www.courthousenews.com/wp-content/uploads/2024/10/commonwealth-of-pennsylvania-lawrence-krasner-v-america-pac-elon-musk-election-giveaway-complaint.pdf


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