End Citizens United filed a complaint with the Federal Election Commission (FEC) today against Donald Trump, Donald J. Trump for President 2024, Inc., and X Corp. (formerly known as Twitter Inc.). The complaint states that the resources X Corp. owner Elon Musk dedicated to hosting Donald Trump for a campaign event was an impermissible corporate in-kind contribution that violated campaign finance laws.
“The Donald Trump-Elon Musk campaign rally hosted on X wasn’t just an incoherent diatribe of lies marred by technical difficulties it was a blatantly illegal corporate contribution to Donald Trump’s campaign,” said End Citizens United President Tiffany Muller. “This brazen corporate contribution undermines campaign finance laws and would set a dangerous precedent for unfettered, direct corporate engagement in campaigns. The FEC must investigate this corporate-funded campaign event and hold Trump, his campaign, and X Corp. accountable.”
- The Federal Election Campaign Act of 1971 (the “Act”) and Federal Election Commission (the “Commission”) regulations prohibit corporations from making contributions to federal candidates, and federal candidates may not accept such contributions.
- Donald J. Trump, Donald J. Trump for President 2024, Inc., and X Corp. (the “Respondents”) violated this clear prohibition on August 12, 2024, when X hosted a “conversation” between X’s owner Elon Musk and Trump that amounted to a virtual campaign event for Donald J. Trump financed by X.
- Such a brazen corporate contribution undermines the anti-corruption aims of the Act, and the Commission should immediately investigate these violations and take appropriate remedial action.
- After generating headlines for the Trump-Musk campaign event, Trump joined a X livestream marred with technical issues that featured express advocacy by X owner Elon Musk to support the Trump Campaign.
- The livestream was hosted by Musk and X employees were assigned to facilitate, monitor, and in real time fix the technical issues with the livestream event.
- The Commission has held that activities involving the participation of a federal candidate result in contributions “if the activities involve (i) the solicitation, making, or acceptance of contributions to the candidate’s campaign, or (ii) communications expressly advocating the nomination, election, or defeat of any candidate.”
- Although there is an exemption for “any news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication,” a contribution can result if an entity otherwise entitled to the press exemption performs functions that are not within its normal press functions.
- Specifically, the Commission has historically conducted a two-step analysis in applying the media exemption: (1) determine whether the entity is a press or media entity; and (2) if the entity is not owned or controlled by a political party, political committee, or candidate, determine whether the entity is acting in its “legitimate press function.”
- To determine whether an entity is acting in its “legitimate press function,” the Commission considers “(1) whether the entity’s materials are available to the general public, and (2) whether they are comparable in form to those ordinarily issued by the entity.”
- Here—the considerable resources of X to host Trump’s campaign event, including dedicating real-time staff to address technical difficulties specifically for the campaign event and the time of its owner to participate in the event—are of significant value to the Trump Campaign.
- The event itself included repeated express advocacy by Musk for Trump.
- X’s use of resources to support Trump’s campaign event is not protected by the media exemption.
- Applying the Commission’s two-step analysis, first, the Commission has considered but has not ultimately resolved whether X is a press entity. However, that unresolved question is based on X’s role as a platform hosting and moderating content.
- Even if X were a press entity, the owner’s hosting a livestream event with a candidate featuring express advocacy is a departure from these usual hosting-and-content-moderation functions. It thus fails the second step in the Commission’s press exemption test.
- X was not acting in its legitimate press function because hosting livestream campaign events with candidates is not “comparable in form” to X’s regular activities.
- Moreover, X claims immunity under Section 230 of the Communications Decency Act as a provider of an “interactive computer service.” This law shields such providers from being treated as a “publisher or speaker of any information” posted on their service by a third party and therefore liable for its content.
- If X gets the benefit of not being treated as the “publisher or speaker” under the Communications Decency Act for information generally posted on its site, it cannot also claim the benefit of the press exemption for the Trump Campaign material it publishes using corporate resources.
- Because X spent considerable resources to host an event to expressly advocate for Trump and was not entitled to the press exemption for that event, Respondents have violated the ban on giving and receiving corporation contributions.
- Respondents appear to have violated federal law by accepting and making a corporate contribution. I respectfully request that the Commission immediately investigate these violations, fine Respondents the maximum amount permitted by law, and enjoin Respondents from further violations of the law.
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