The Federal Election Commission (FEC) officially dipped its toes into the ongoing national debate around artificial intelligence (AI) regulation, publishing a Federal Register notice seeking comment on a petition submitted by Public Citizen to initiate a rulemaking to clarify that the Federal Election Campaign Act (FECA) prohibits deceptive AI-generated campaign advertisements. The Commission unanimously approved publication of the petition at its August 10 meeting.
The public is being asked to comment on whether the FEC should initiate a formal rulemaking to specify that using false AI-generated content, sometimes called “deepfakes,” in campaign ads would violate FECA’s prohibition on fraudulent misrepresentation of campaign authority (52 U.S.C. § 30124). Currently, there are no AI-specific FEC regulations or guidance governing campaign ads or fundraising.
The decision to seek comment on the petition follows the FEC’s June deadlock on an earlier petition from Public Citizen. FEC Republicans, led by Commissioner Allen Dickerson, argued that the FEC has no authority to address AI-generated or “deepfake” campaign ads under FECA, and should not make rules without further guidance from Congress.
However, the decision to seek public comment does not mean that the Commission will ultimately issue a proposed rulemaking, much less adopt new AI-specific rules. The Commission remains divided on whether it has the statutory authority to address AI issues at all. In voting to advance the petition in June, Democratic FEC Chair Dara Lindenbaum indicated she was “skeptical” that the FEC has existing authority to regulate AI, but supported publishing the petition in the hope of receiving helpful comments on the issue. At the August 10 meeting, Commissioner Dickerson, despite voting to publish the petition, reiterated his view that this remains an issue for Congress and noted “serious First Amendment concerns lurking in the background of this effort.”
Partisan divisions in Congress also mean an expansion of the Commission’s authority to encompass AI-generated ads is unlikely to become law anytime soon. In May, Rep. Yvette Clark (D-NY) introduced the REAL Political Advertisements Act legislation to give the FEC authority to regulate the use of AI in campaign ads. Senators Amy Klobuchar (D-MN), Cory Booker (D-NJ), and Michael Bennet (D-CO) have also introduced a Senate companion bill. No Republican Members of Congress have yet cosponsored either bill, nor did any congressional Republicans join 27 of their House and Senate colleagues on a July letter to the FEC urging it to move forward with the rulemaking petition.
The FEC will accept public comments on whether to initiate a rulemaking process until October 16, 2023.