A New Orleans magician recently made headlines for using artificial intelligence (AI) to  emulate President Biden’s voice without his consent in a misleading robocall to New Hampshire voters. This was not a magic trick, but rather a demonstration of the risks AI-generated “deepfakes” pose to election integrity.  As rapidly evolving AI capabilities collide with the ongoing 2024 elections, federal and state policymakers increasingly are taking steps to protect the public from the threat of deceptive AI-generated political content.

Media generated by AI to imitate an individual’s voice or likeness present significant challenges for regulators.  As deepfakes increasingly become indistinguishable from authentic content, members of Congress, federal regulatory agencies, and third-party stakeholders all have called for action to mitigate the threats deepfakes can pose for elections.  

Several federal regulators have taken steps to explore the regulation of AI-generated content within their existing jurisdiction.  On February 8, the Federal Communications Commission  issued a declaratory ruling confirming that the Telephone Consumer Protection Act restricts the use of “current AI technologies that generate human voices,” an interpretation endorsed by 26 state attorneys general. 

Last year, the Federal Election Commission (FEC) took a step toward clarifying whether AI-generated deepfakes might violate the Federal Election Campaign Act’s prohibition on deceptive campaign practices by requesting comment on whether to initiate a rulemaking on the subject.  After previously deadlocking on a petition from Public Citizen to open such a rulemaking, the FEC voted unanimously in August 2023 to accept public comment on whether to initiate rulemaking procedures, though the agency has not yet taken further action.

Members of Congress also have introduced several bills regulate deepfakes, though these efforts have moved slowly in committee.  Many lawmakers remain determined to make progress on the issue, as senators from both parties expressed in an April Judiciary Subcommittee hearing.  In March, Senators Amy Klobuchar (D-MN) and Lisa Murkowski (R-AK) introduced the bipartisan AI Transparency in Elections Act of 2024 to require clear and conspicuous disclosures in certain political communications that were created or materially altered by artificial intelligence.  Representatives Anna Eshoo (D-CA) and Neal Dunn (R-FL)—members of the House Bipartisan Task Force on Artificial Intelligence—introduced a more generally applicable deepfake disclosure bill that would also address potential impact of the technology on our elections.

Several states already have enacted prohibitions or disclosure requirements on certain forms of manipulated media related to elections, including Minnesota, Texas, and California.  These laws generally prohibit the knowing dissemination of deepfakes within one to three months of an election, and each requires intent to influence the election or the depicted candidate’s reputation.

Even with AI risks top-of-mind for policymakers at all levels, with just seven months until the 2024 general election, a full agenda in Congress, and state legislative sessions coming to a close, the prospects of major reforms in time for this cycle remain uncertain.

Matthew Shapanka

Matthew Shapanka draws on more than 15 years of experience – including on Capitol Hill, at Covington, and in state government – to advise and counsel clients across a range of industries on significant legislative, regulatory, and enforcement matters. He develops and executes…

Matthew Shapanka draws on more than 15 years of experience – including on Capitol Hill, at Covington, and in state government – to advise and counsel clients across a range of industries on significant legislative, regulatory, and enforcement matters. He develops and executes complex, multifaceted public policy initiatives for clients seeking actions by Congress, state legislatures, and federal and state government agencies, many with significant legal and political opportunities and risks.

Matt rejoined Covington after serving as Chief Counsel for the U.S. Senate Committee on Rules and Administration, where he advised Chairwoman Amy Klobuchar (D-MN) on all legal, policy, and oversight matters within the Committee’s jurisdiction, including federal election law and campaign finance, and oversight of the Federal Election Commission, legislative branch agencies, security and maintenance of the U.S. Capitol Complex, and Senate rules and regulations.

Most significantly, Matt led the Rules Committee staff work on the Electoral Count Reform and Presidential Transition Improvement Act – landmark bipartisan legislation to update the antiquated process of certifying and counting electoral votes in presidential elections that President Biden signed into law in 2022.

As Chief Counsel, Matt was a lead attorney on the joint bipartisan investigation (with the Homeland Security and Governmental Affairs Committee) into the security planning and response to the January 6, 2021 attack on the Capitol. In that role, he oversaw the collection review of documents, led interviews and depositions of key government officials, advised the Chairwoman and Committee members on two high-profile joint hearings, and drafted substantial portions of the Committees’ staff report on the attack. He also led oversight of the Capitol Police, Architect of the Capitol, Senate Sergeant at Arms, and executive branch agencies involved in implementing the Committees’ recommendations, including additional legislation and hearings.

Both in Congress and at the firm, Matt has prepared many corporate and nonprofit executives, academics, government officials, and presidential nominees for testimony at legislative, oversight, or nomination hearings before congressional committees, as well as witnesses appearing at congressional depositions and transcribed interviews. He is also an experienced legislative drafter who has composed dozens of bills introduced in Congress and state legislatures, including several that have been enacted into law across multiple policy areas.

In addition to his policy work, Matt advises and represents clients on the full range of political law compliance and enforcement matters involving federal election, campaign finance, lobbying, and government ethics laws, the Securities and Exchange Commission’s “Pay-to-Play” rule, as well as the election and political laws of states and municipalities across the country.

Before law school, Matt worked as a research analyst in the Massachusetts Recovery & Reinvestment Office, where he worked on all aspects of state-level policy, communications, and compliance for federal stimulus funding awarded to Massachusetts under the American Recovery & Reinvestment Act of 2009. He has also worked for federal, state, and local political candidates in Massachusetts and New Hampshire.

Samuel Klein

Samuel Klein helps clients realize their policy objectives, manage reputational risks, and navigate the regulatory environment governing political engagement.

As a member of Covington’s Election and Political Law practice, Sam assists clients facing Congressional investigations and offers guidance on ethics laws; with the…

Samuel Klein helps clients realize their policy objectives, manage reputational risks, and navigate the regulatory environment governing political engagement.

As a member of Covington’s Election and Political Law practice, Sam assists clients facing Congressional investigations and offers guidance on ethics laws; with the firm’s Public Policy group, Sam supports strategic advocacy across a breadth of policy domains at the federal, state, and local levels.

Sam spent one year as a law clerk at the Federal Election Commission. His prior experience includes serving as an intern to two senior members of Congress and helping clients communicate nuanced policy concepts to lawmakers and stakeholders as a public-affairs consultant.