Musk’s purchase of Twitter has sealed his bond with the American right—whether the platform’s left-leaning employees and users like it or not.

Elon Musk's pursuit of Twitter Inc. began earlier this month as a joke. It started slowly, then spiraled out of control, culminating on April 25 with the world's richest man agreeing to spend $44 billion on one of the most politically significant technology companies ever. There have been bigger financial acquisitions, but Twitter's significance has always outpaced its balance sheet. This is a unique Silicon Valley deal.

To recap: Musk announced in early April that he had bought a stake in Twitter, citing the company's alleged suppression of free speech. His complaints were vague, relying heavily on the dog whistles of the ultra-right. A week later, he announced he'd buy the company for $54.20 per share, four days after initially pledging to join Twitter's board. Twitter's directors noticed the 420 reference as well, and responded with a “shareholder rights” plan (i.e., a poison pill) that included a 420 joke.

Musk - Patrick Pleul/Getty Images

No one knew if the bid was genuine. Musk's Twitter plans seemed implausible or insincere. In a tweet, he referred to automated accounts that use his name to promote cryptocurrency. He enraged his prospective employees by suggesting that Twitter's San Francisco headquarters be turned into a homeless shelter, renaming the company Titter, and expressing solidarity with his growing conservative fan base. “The woke mind virus is making Netflix unwatchable,” he tweeted on April 19.

But Musk got funding, and after a frantic weekend of negotiations, Twitter said yes. Unlike most buyouts, Musk will personally fund the deal, putting up up to $21 billion in cash and borrowing another $12.5 billion against his Tesla stock.

Free Speech and Partisanship

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The deal is expected to replatform accounts that were banned by Twitter for harassing others, spreading misinformation, or inciting violence, such as former President Donald Trump's account. As a result, Musk is at odds with his own left-leaning employees, users, and advertisers, who would prefer more content moderation rather than less.

Dorsey - Photographer: Joe Raedle/Getty Images

Previously, the company's leadership had similar issues. Founder Jack Dorsey stepped down last year amid concerns about slowing growth and product development, as well as his dual role as CEO of payments processor Block Inc. Compared to Musk, a father of seven who already runs four companies (besides Tesla and SpaceX), Dorsey is laser-focused.

Musk's motivation to buy Twitter may be political. Affirming the American far right with $44 billion spent on “free speech” Right-wing activists have promoted a series of competing upstart Twitter competitors—Parler, Gettr, and Trump's own effort, Truth Social—since Trump was banned from major social media platforms for encouraging rioters at the US Capitol on Jan. 6, 2021. But Musk can give them a social network with lax content moderation and a real user base. Trump said he wouldn't return to Twitter after the deal was announced, but he wouldn't be the first to do so.

Trump - Eli Hiller/Bloomberg

Conservative activists and lawmakers are already ecstatic. “A great day for free speech in America,” said Missouri Republican Josh Hawley. The day the deal was announced, Tucker Carlson opened his nightly Fox show with a 10-minute laudatory monologue. “The single biggest political development since Donald Trump's election in 2016,” he gushed over Musk.

But Musk's supporters and detractors misunderstand how much his business interests influence his political ideology. He marketed Tesla's cars as carbon-saving machines that were faster and cooler than gas-powered luxury cars during George W. Bush's presidency. Musk gained a huge following among wealthy environmentalists who reserved hundreds of thousands of Tesla sedans years before they were made during Barack Obama's presidency. Musk in the Trump era advocated for a carbon tax, but he also fought local officials (and his own workers) over Covid rules that slowed the reopening of his Bay Area factory.

Teslas at the Las Vegas Convention Center Loop Central Station in April 2021. The Las Vegas Convention Center Loop was Musk's first commercial project. Ethan Miller/Getty Images

Musk's rightward shift matched the rise of the nationalist-populist right and the desire to serve a growing EV market. In 2019, he unveiled the Cybertruck, a Tesla pickup, and in 2018, he announced plans to manufacture it at a new plant outside Austin. In 2021, he decided to move Tesla's headquarters there, citing California's "land of over-regulation." After Ford and General Motors beat him to the electric truck market, Musk reframed Tesla as a company for pickup-driving dudes.

Similarly, his purchase of Twitter will be entwined with his other business interests. Tesla has a factory in China and is friendly with Beijing. This could be seen as a conflict of interest when Musk's Twitter decides how to treat Chinese-backed disinformation, as Amazon.com Inc. founder Jeff Bezos noted.

Musk has focused on Twitter's product and social impact, but the company's biggest challenges are financial: Either increase cash flow or cut costs to comfortably service his new debt. Even if Musk can't do that, he can still benefit from the deal. He has recently used the increased attention to promote other business interests: Boring has hyperloops and Neuralink brain implants on the way, Musk tweeted. Remember Tesla's long-promised robotaxis!

Musk may be comfortable saying he has no expectation of profit because it benefits his other businesses. At the TED conference on April 14, Musk insisted that his interest in Twitter was solely charitable. “I don't care about money.”

The rockets and weed jokes make it easy to see Musk as unique—and his crazy buyout will undoubtedly add to that narrative. However, he is a megabillionaire who is risking a small amount of money (approximately 13% of his net worth) to gain potentially enormous influence. Musk makes everything seem new, but this is a rehash of an old media story.

What Is the Howey Test?

To determine whether a transaction qualifies as a "investment contract" and thus qualifies as a security, the Howey Test refers to the U.S. Supreme Court cass: the Securities Act of 1933 and the Securities Exchange Act of 1934. According to the Howey Test, an investment contract exists when "money is invested in a common enterprise with a reasonable expectation of profits from others' efforts." 

The test applies to any contract, scheme, or transaction. The Howey Test helps investors and project backers understand blockchain and digital currency projects. ICOs and certain cryptocurrencies may be found to be "investment contracts" under the test.

Understanding the Howey Test

The Howey Test comes from the 1946 Supreme Court case SEC v. W.J. Howey Co. The Howey Company sold citrus groves to Florida buyers who leased them back to Howey. The company would maintain the groves and sell the fruit for the owners. Both parties benefited. Most buyers had no farming experience and were not required to farm the land. 

The SEC intervened because Howey failed to register the transactions. The court ruled that the leaseback agreements were investment contracts.

This established four criteria for determining an investment contract. Investing contract:

1. An investment of money
2. n a common enterprise
3. With the expectation of profit
4. To be derived from the efforts of others

In the case of Howey, the buyers saw the transactions as valuable because others provided the labor and expertise. An income stream was obtained by only investing capital. As a result of the Howey Test, the transaction had to be registered with the SEC.

Howey Test and Cryptocurrencies

Bitcoin is notoriously difficult to categorize. Decentralized, they evade regulation in many ways. Regardless, the SEC is looking into digital assets and determining when their sale qualifies as an investment contract.

The SEC claims that selling digital assets meets the "investment of money" test because fiat money or other digital assets are being exchanged. Like the "common enterprise" test. 

Whether a digital asset qualifies as an investment contract depends on whether there is a "expectation of profit from others' efforts."

For example, buyers of digital assets may be relying on others' efforts if they expect the project's backers to build and maintain the digital network, rather than a dispersed community of unaffiliated users. Also, if the project's backers create scarcity by burning tokens, the test is met. Another way the "efforts of others" test is met is if the project's backers continue to act in a managerial role.

These are just a few examples given by the SEC. If a project's success is dependent on ongoing support from backers, the buyer of the digital asset is likely relying on "others' efforts."

Special Considerations

If the SEC determines a cryptocurrency token is a security, many issues arise. It means the SEC can decide whether a token can be sold to US investors and forces the project to register. 

In 2017, the SEC ruled that selling DAO tokens for Ether violated federal securities laws. Instead of enforcing securities laws, the SEC issued a warning to the cryptocurrency industry. 

Due to the Howey Test, most ICOs today are likely inaccessible to US investors. After a year of ICOs, then-SEC Chair Jay Clayton declared them all securities. 

Howey Test FAQs

How Do You Determine If Something Is a Security?

The Howey Test determines whether certain transactions are "investment contracts." Securities are transactions that qualify as "investment contracts" under the Securities Act of 1933 and the Securities Exchange Act of 1934.

The Howey Test looks for a "investment of money in a common enterprise with a reasonable expectation of profits from others' efforts." If so, the Securities Act of 1933 and the Securities Exchange Act of 1934 require disclosure and registration.

Why Is Bitcoin Not a Security?

Former SEC Chair Jay Clayton clarified in June 2018 that bitcoin is not a security: "Cryptocurrencies: Replace the dollar, euro, and yen with bitcoin. That type of currency is not a security," said Clayton.

Bitcoin, which has never sought public funding to develop its technology, fails the SEC's Howey Test. However, according to Clayton, ICO tokens are securities. 

A Security Defined by the SEC

In the public and private markets, securities are fungible and tradeable financial instruments. The SEC regulates public securities sales.

The Supreme Court defined a security offering in SEC v. W.J. Howey Co. In its judgment, the court defines a security using four criteria:

• An investment contract's existence
• The formation of a common enterprise
• The issuer's profit promise
• Third-party promotion of the offering

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What is PFOF?

PFOF is a brokerage firm's compensation for directing orders to different parties for trade execution. The brokerage firm receives fractions of a penny per share for directing the order to a market maker.

Each optionable stock could have thousands of contracts, so market makers dominate options trades. Order flow payments average less than $0.50 per option contract.

Order Flow Payments (PFOF) Explained

The proliferation of exchanges and electronic communication networks has complicated equity and options trading (ECNs) Ironically, Bernard Madoff, the Ponzi schemer, pioneered pay-for-order-flow.

In a December 2000 study on PFOF, the SEC said, "Payment for order flow is a method of transferring trading profits from market making to brokers who route customer orders to specialists for execution."

Given the complexity of trading thousands of stocks on multiple exchanges, market making has grown. Market makers are large firms that specialize in a set of stocks and options, maintaining an inventory of shares and contracts for buyers and sellers. Market makers are paid the bid-ask spread. Spreads have narrowed since 2001, when exchanges switched to decimals. A market maker's ability to play both sides of trades is key to profitability.

Benefits, requirements

A broker receives fees from a third party for order flow, sometimes without a client's knowledge. This invites conflicts of interest and criticism. Regulation NMS from 2005 requires brokers to disclose their policies and financial relationships with market makers.

Your broker must tell you if it's paid to send your orders to specific parties. This must be done at account opening and annually. The firm must disclose whether it participates in payment-for-order-flow and, upon request, every paid order. Brokerage clients can request payment data on specific transactions, but the response takes weeks.

Order flow payments save money. Smaller brokerage firms can benefit from routing orders through market makers and getting paid. This allows brokerage firms to send their orders to another firm to be executed with other orders, reducing costs. The market maker or exchange benefits from additional share volume, so it pays brokerage firms to direct traffic.

Retail investors, who lack bargaining power, may benefit from order-filling competition. Arrangements to steer the business in one direction invite wrongdoing, which can erode investor confidence in financial markets and their players.

Pay-for-order-flow criticism

It has always been controversial. Several firms offering zero-commission trades in the late 1990s routed orders to untrustworthy market makers. During the end of fractional pricing, the smallest stock spread was $0.125. Options spreads widened. Traders found that some of their "free" trades cost them a lot because they weren't getting the best price.

The SEC then studied the issue, focusing on options trades, and nearly decided to ban PFOF. The proliferation of options exchanges narrowed spreads because there was more competition for executing orders. Options market makers said their services provided liquidity. In its conclusion, the report said, "While increased multiple-listing produced immediate economic benefits to investors in the form of narrower quotes and effective spreads, these improvements have been muted with the spread of payment for order flow and internalization." 

The SEC allowed payment for order flow to continue to prevent exchanges from gaining monopoly power. What would happen to trades if the practice was outlawed was also unclear. SEC requires brokers to disclose financial arrangements with market makers. Since then, the SEC has watched closely.

2020 Order Flow Payment

Rule 605 and Rule 606 show execution quality and order flow payment statistics on a broker's website. Despite being required by the SEC, these reports can be hard to find. The SEC mandated these reports in 2005, but the format and reporting requirements have changed over the years, most recently in 2018.

Brokers and market makers formed a working group with the Financial Information Forum (FIF) to standardize order execution quality reporting. Only one retail brokerage (Fidelity) and one market maker remain (Two Sigma Securities). FIF notes that the 605/606 reports "do not provide the level of information that allows a retail investor to gauge how well a broker-dealer fills a retail order compared to the NBBO (national best bid or offer’) at the time the order was received by the executing broker-dealer."

In the first quarter of 2020, Rule 606 reporting changed to require brokers to report net payments from market makers for S&P 500 and non-S&P 500 equity trades and options trades. Brokers must disclose payment rates per 100 shares by order type (market orders, marketable limit orders, non-marketable limit orders, and other orders).

Richard Repetto, Managing Director of New York-based Piper Sandler & Co., publishes a report on Rule 606 broker reports. Repetto focused on Charles Schwab, TD Ameritrade, E-TRADE, and Robinhood in Q2 2020. Repetto reported that payment for order flow was higher in the second quarter than the first due to increased trading activity, and that options paid more than equities.

Repetto says PFOF contributions rose overall. Schwab has the lowest options rates, while TD Ameritrade and Robinhood have the highest. Robinhood had the highest equity rating. Repetto assumes Robinhood's ability to charge higher PFOF reflects their order flow profitability and that they receive a fixed rate per spread (vs. a fixed rate per share by the other brokers).

Robinhood's PFOF in equities and options grew the most quarter-over-quarter of the four brokers Piper Sandler analyzed, as did their implied volumes. All four brokers saw higher PFOF rates.

TD Ameritrade took the biggest income hit when cutting trading commissions in fall 2019, and this report shows they're trying to make up the shortfall by routing orders for additional PFOF. Robinhood refuses to disclose trading statistics using the same metrics as the rest of the industry, offering only a vague explanation on their website.

Summary

Payment for order flow has become a major source of revenue as brokers offer no-commission equity (stock and ETF) orders. For retail investors, payment for order flow poses a problem because the brokerage may route orders to a market maker for its own benefit, not the investor's.

Infrequent or small-volume traders may not notice their broker's PFOF practices. Frequent traders and those who trade larger quantities should learn about their broker's order routing system to ensure they're not losing out on price improvement due to a broker prioritizing payment for order flow.

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