The agenda for the Federal Election Commission’s August 15 Open Meeting was released last week, and it contains a proposed Notification of Disposition of the FEC’s review of a July 2023 petition for rulemaking filed by the advocacy group Public Citizen seeking to initiate a proceeding to address the use of Artificial Intelligence in campaign communications.  The FEC asked for public comment on that petition last August (see our article here).  The draft Notification and accompanying memorandum circulated by the three Republican members of the FEC proposes to deny the request to initiate such a proceeding.  As the FEC has equal representation of Democrats and Republicans, even if all of the Democrats disagree with the position advocated in the Notification, it would appear that the proposal would still be on hold for the foreseeable future as there would not be a majority of Commissioners necessary to move it forward.

The Public Citizen petition asked that the FEC “clarify that the [Federal Election Campaign Act’s prohibitions] against ‘fraudulent misrepresentation’ (52 U.S.C. § 30124) applies to deliberately deceptive AI-produced content in campaign communications.”  The draft Notification finds that the FEC lacks the statutory authority to initiate the proceeding – that the fraudulent misrepresentation language applies to a misrepresentation of a sponsor of a campaign ad, not to misleading messages in the ads themselves.  The Notice also contends that the FEC is “ill-positioned to take on the issue of AI regulation and does not have the technical expertise required to design appropriately tailored rules for AI-generated advertising.”  The draft notice suggests that, before any action is taken by the FEC, Congress must first authorize it.   

The Republican FEC Chair in May argued that the Federal Communications Commission should not proceed with its review of AI in political ads as the FCC does not have authority over such advertising (though the letter containing that argument, which we noted in one of our weekly summaries of regulatory activity affecting broadcasters, also suggested that the FEC would be doing its own review, rather than declining the invitation to do so).  That FCC review does raise questions about the FCC’s authority to regulate in this area (and we noted in our article on the issues raised by that proceeding that, even if it does have authority, that authority would be limited to jurisdiction over FCC-regulated entities, not to the advertisers themselves). 

With these questions about authority raised in both of the FEC and FCC proceedings, and the fact that the buying of election advertising is already in full swing, it appears that no federal agency action is coming in time for this election.  While Senator Schumer last week suggested that Congressional legislation might be included in a budget bill later this year, even if adopted that may come too late to have any effect in the current election.  But broadcasters can’t ignore AI in political ads, as approximately 19 states have their own rules on this issue and as, even without legislation, defamation questions may still arise (see our article here).  Even if no action is taken this year, we expect that this argument is not over and the debate is sure to be continued in Congress, at the agencies, before state legislatures, and likely in the courts. 

Update, 8/16/2024 – The FEC announced that its August 15 meeting, at which the Draft Notification of Disposition was to be considered, was cancelled. Its next meeting is now scheduled for August 29, and the Notice may be considered then.