FEC to Consider AI in Political Ads at Their September 19 Meeting – A New Compromise Proposal is Advanced

After postponing consideration of a proposal (which we wrote about here) from the Republican Commissioners at the Federal Election Commission to reject calls for a rulemaking to look at whether to require that there be labeling of political ads generated by artificial intelligence that falsely depicts a candidate, the AI item is back on the FEC’s agenda for its September 19 meeting.  This time, there is a big difference.  On the agenda for consideration is not only the proposal from the Republican Commissioners to reject the proposed rulemaking out of hand until Congress provides more guidance on the subject, but also a proposal that appears to have the backing of the three Democrats and at least one of the Commissioners who had also signed on to the Republican proposal.  That apparent compromise proposal, while also rejecting the proposal to open a new rulemaking on the subject, would decide that, under existing FEC rules and legislative authority, there would be instances where the use of AI to depict a candidate could already be prohibited, and thus complaints about the use of AI in political ads should be evaluated on a case-by-case basis under the FEC’s current policies. 

This new draft decision looks at the FEC’s current laws and rules that prohibit a candidate or their agent from purporting to speak, write, or act for another candidate or political party on a matter that is damaging to the other candidate or party.  Those rules also  prohibit any person from falsely representing that they are speaking, writing, or acting on behalf of a federal candidate or a political party for the purpose of soliciting contributions.  This compromise proposal looks at these current prohibitions and notes that they do not specify the technology that could be used to falsely speak or act on behalf of another candidate or party – and thus the use of AI in a way that would violate these existing rules could already be sanctioned by the agency.  Thus, this proposal concludes, no additional proceeding would be needed – instead cases would be decided based on their facts as they arise.

As explained in this new proposal:

[I]t does not matter whether a regulated person uses any particular form of technology, including AI, in order to “fraudulently misrepresent himself or any committee or organization under his control as speaking or writing or otherwise acting for or on behalf” of another “candidate or political party or employee or agent” or to engage in the “[f]raudulent solicitation of funds” by “misrepresent[ing] the person as speaking, writing, or otherwise acting for or on behalf of any candidate or political party or employee or agent thereof for the purpose of soliciting contributions or donations.” 52 U.S.C. 30124(a)-(b).  The legal question is whether the actor fraudulently holds himself or herself out as “acting for or on behalf of any other candidate or political party or employee or agent thereof.” Id. This fraud may be accomplished using AI-assisted media, forged signatures, physically altered documents or media, false statements, or any other means. The statute, and the Commission’s implementing regulation, is technology neutral. 

We’ll be watching as this proposal plays out at the FEC meeting next week, and we will be looking for indications as to how any decision might affect the use of AI in ads during this hotly contested election season.