Artificial Intelligence in Campaign Ads

Artificial Intelligence in Campaign Ads

Supplementary Information

The Federal Election Campaign Act of 1971, as amended (the "Act") prohibits fraudulent misrepresentation in two specific ways. ⁽¹⁾ First, the Act prohibits a candidate, his or her employee or agent, or an organization under the candidate's control, 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. ⁽²⁾ Second, the Act prohibits 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. ⁽³⁾ The Commission's regulation implementing 52 U.S.C. 30124 essentially mirrors the statutory text. ⁽⁴⁾

On July 13, 2023, Public Citizen submitted a Petition for Rulemaking ("Petition") to the Commission, asking it to undertake a rulemaking "to clarify that the law against `fraudulent misrepresentation' (52 U.S.C. 30124) applies to deliberately deceptive AI-produced content in campaign communications."  ⁽⁵⁾ The Petition requested that the Commission initiate a rulemaking for the purpose of amending 11 CFR 110.16(a), requesting that the FEC promulgate a rule providing that "if candidates or their agents fraudulently misrepresent other candidates or political parties through deliberately false AI-generated content in campaign ads or other communications-absent clear and conspicuous disclosure in the communication itself that the content is generated by artificial intelligence and does not represent real events-then the restrictions and penalties of the law and the Code of Regulations are applicable."  ⁽⁶⁾

On August 16, 2023, the Commission published a Notice of Availability seeking public comment on the Petition. ⁽⁷⁾ It received more than 2,000 comments in response, including from Members of Congress, political party committees, advocacy groups across the ideological spectrum, and individual citizens. Commenters held a range of views about the desirability of opening the rulemaking requested by Petitioner.

Whether or not to open a rulemaking in response to a petition is vested within the Commission's discretion. ⁽⁸⁾ Petitioner asks the Commission to apply an interpretation of 52 U.S.C. 30124 specifically for "AI-produced content in campaign communications."  ⁽⁹⁾ The statute, however, is technology neutral and applies on its face to all means of accomplishing the specified fraud, including AI-assisted media.

Accordingly, the Commission has decided not to initiate a rulemaking at this time and will instead proceed with any application of 52 U.S.C. 30124 to specific technologies on a case-by-case basis.

Copies of the comments and the Petition for Rulemaking are available on the Commission's website, http://www.fec.gov/fosers/ (REG 2023-02 Artificial Intelligence in Campaign Ads (2023)) and at the Commission's Public Records Office, 1050 First Street NE, Washington, DC 20463, Monday through Friday between the hours of 9 a.m. and 5 p.m.

[FR Doc. 2024-21979 Filed 9-25-24; 8:45 am]

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⁽¹⁾  52 U.S.C. 30124.

⁽²⁾  52 U.S.C. 30124(a). See also Disclaimers, Fraudulent Solicitation, Civil Penalties, and Personal Use of Campaign Funds, 67 FR 76962, 76968 (Dec. 13, 2002). The Commission has explained that "on a matter that is damaging" means "actions or spoken or written communications that are intended to suppress votes for the candidate or party who has been fraudulently misrepresented." Id. at 76968-69.

⁽³⁾  52 U.S.C. 30124(b).

⁽⁴⁾ See 11 CFR 110.16.

⁽⁵⁾  Petition at 1.

⁽⁶⁾  Petition at 5.

⁽⁷⁾ See Notice of Availability, 88 FR 55606 (Aug. 16, 2023).

⁽⁸⁾  11 CFR 200.5 ("The Commission's decision on the petition for rulemaking may include, but will not be limited to, the following considerations-(a) The Commission's statutory authority; (b) Policy considerations; (c) The desirability of proceeding on a case-by-case basis; (d) The necessity or desirability of a statutory revision; (e) Available agency resources").

⁽⁹⁾  Petition at 1.