August 4, 2023
Artificial Intelligence (AI) in Federal Election Campaigns: Legal
Background and Constitutional Considerations for Legislation
Introduction
committee ... or other group of persons that receives
Federal campaign finance law does not specifically regulate
contributions or makes expenditures aggregating in excess
the use of artificial intelligence (AI) in political campaign
of $1,000 during a calendar year” whose major purpose is
advertising. As technology continues to evolve, concerns
to elect federal candidates to office. 52 U.S.C. § 30101(4);
have grown regarding the use of AI-generated campaign
see Buckley v. Valeo, 424 U.S. 1, 79 (1976). FECA further
ads and their potential to spread misinformation. At the
defines contribution and expenditure as monies or anything
same time, there are questions about whether regulation of
of value “for the purpose of influencing any election for
such ads would run afoul of the First Amendment. This
Federal office.” 52 U.S.C. § 30101(8), (9).
CRS In Focus discusses provisions of federal campaign
finance law that may be relevant should Congress consider
For radio and television advertisements by candidate
regulating AI-generated campaign ads. It then discusses
committees, FECA generally requires that the
pivotal Supreme Court rulings on campaign finance law and
communication state who financed the ad, along with an
constitutional considerations for possible legislation.
audio statement by the candidate identifying the candidate
and stating that the candidate “has approved” the message.
Federal Campaign Finance Law
In the case of television ads, the candidate statement is also
The Federal Election Campaign Act (FECA or Act),
required to be conveyed by an unobscured, full-screen view
codified at 52 U.S.C. §§ 30101–30146, does not
of the candidate making the statement or, if the candidate
specifically regulate the use of AI in political campaign ads.
message is conveyed by voice-over, accompanied by a
Two FECA provisions, however, may be relevant to this
clearly identifiable image of the candidate, along with a
issue: the prohibition on fraudulent misrepresentation of
written message of attribution at the end of the
campaign authority and the requirement of disclaimers,
communication. 52 U.S.C. § 30120(a).
which are statements of attribution that appear directly on
certain campaign communications.
In addition, regardless of the financing source, FECA
requires a disclaimer on (1) communications that expressly
FECA Prohibition on Fraudulent Misrepresentation
advocate for the election or defeat of a clearly identified
of Campaign Authority
candidate, (2) electioneering communications (defined to
FECA prohibits a federal office candidate, including
include broadcast ads that refer to a clearly identified
employees and agents of such a candidate, from
federal candidate that are run 60 days before a general
fraudulently misrepresenting another candidate or political
election or 30 days before a primary), and (3) public
party “on a matter which is damaging to such other
communications that solicit contributions. These
candidate or political party.” The Act further prohibits
communications can include ads financed by outside
anyone from fraudulently soliciting campaign contributions
groups, corporations, or labor unions. For such ads, FECA
whereby the solicitor misrepresents that he or she is
generally requires that a disclaimer clearly state certain
fundraising on behalf of a candidate or party. 52 U.S.C. §
contact information of the entity that paid for the
30124.
communication and that the communication was not
authorized by any candidate or candidate committee. In
On June 22, 2023, the Federal Election Commission (FEC)
radio and television advertisements, such disclaimers are
discussed, but did not approve, a petition asking it to seek
required to include, in a clearly spoken manner, an audio
comments as to whether the FEC should rule that 52 U.S.C.
statement saying who is responsible for the content of the
§ 30124 applies to “deliberately deceptive artificial
advertising. In television ads, the statement is required to be
intelligence campaign advertisements.” The petition,
conveyed by an unobscured, full-screen view of a
submitted by Public Citizen, asserts that a deepfake audio
representative of the entity paying for the ad, in a voice-
or video clip made by a candidate that depicts an opposing
over, along with a written message of attribution at the end
candidate saying or doing something that did not occur—
of the communication. 52 U.S.C. § 30120(a), (c), (d).
such as making an offensive comment or accepting a
bribe—would violate 52 U.S.C. § 30124. FEC Agenda
Effective March 1, 2023, the FEC promulgated new
Document No. 23-14-A.
regulations that broaden the disclaimer requirements for
public internet communications. Previously, the regulations
FECA Disclaimer Requirements
generally required disclaimers on public communications—
FECA requires that any public political advertising
defined to include ads that are “placed for a fee on another
financed by a political committee—including candidate
person’s website”—that were made by political
committees—include disclaimers. FECA and Supreme
committees, contained express advocacy, or solicited
Court precedent define political committee to include “any
campaign contributions. The new regulations specify that
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Artificial Intelligence (AI) in Federal Election Campaigns: Legal Background and Constitutional Considerations for Legislation
this requirement also applies to “communications placed for
In McConnell and Citizens United, the Court applied a
a fee on another person’s ... digital device, application, or
standard of “exacting scrutiny” that requires a substantial
advertising platform.” 87 Fed. Reg. 77467–77480 (Dec. 19,
relation between the disclaimer requirement and a
2022).
sufficiently important governmental interest. These
precedents suggest that courts could uphold the
Regardless of whether a campaign communication is
constitutionality of a FECA AI-disclaimer requirement to
created with AI, FECA’s disclaimer requirements would
the extent the government could show that the requirement
apply as discussed. However, the Act does not require such
furthers the informational interests of the electorate.
disclaimers to indicate that the ad was created with AI.
However, it is uncertain whether courts will determine that
notifying the electorate that an ad was created with AI is as
FECA Penalties
sufficiently an important governmental interest as
In addition to a series of civil penalties, FECA sets forth
informing the electorate as to who financed or approved of
criminal penalties for knowing and willful violations of the
an ad, as mandated by the current FECA disclaimer
Act. Generally, FECA provides that any person who
requirements.
knowingly and willfully violates any provision of the Act
that involves the making, receiving, or reporting of any
Exacting scrutiny also requires a court to evaluate the
contribution, donation, or expenditure of $25,000 or more
burden on speech. As the Court appeared to rely on the fact
per calendar year shall be fined under Title 18 of the U.S.
that FECA’s current disclaimer requirements did not
Code, imprisoned for not more than five years, or both. If
prevent anyone from speaking, if such a requirement is so
the amount involved is $2,000 or more per calendar year,
burdensome that it impedes the ability of a candidate or
but less than $25,000, the Act provides for a fine or
group to speak—for example, if a required disclaimer
imprisonment for not more than one year, or both. Should
comprises a relatively long period of time in an ad—it
Congress amend FECA to regulate AI-generated campaign
could violate the First Amendment. Citizens United v. FEC,
ads, unless otherwise provided in the legislation, FECA’s
558 U.S. at 366–71.
civil and criminal penalties would apply.
Possibly casting further doubt on the constitutionality of an
Constitutional Considerations for
AI disclaimer requirement, the Court recently invalidated a
Legislation
state disclosure law under a potentially more rigorous
In the 118th Congress, legislation has been introduced that
standard of exacting scrutiny that requires a “narrow
would regulate AI in federal election campaigns. For
tailoring” to a sufficiently important governmental interest.
example, H.R. 3044 and S. 1596, which are companion
Americans for Prosperity Foundation v. Bonta, 141 S. Ct.
bills, would amend FECA’s disclaimer requirements to
2373, 2389 (2021). While Bonta is not a campaign finance
require additional disclaimers. Specifically, for an ad that
case, some lower courts have since applied this version of
contains an image or video generated, entirely or in part, by
exacting scrutiny in cases challenging campaign disclaimer
AI, the legislation would require the ad to include a
laws. In evaluating an AI disclaimer requirement under this
statement indicating that fact.
potentially more rigorous standard, a court might be less
likely to uphold the law. Nonetheless, some appellate courts
Should Congress consider legislation to amend FECA
have approved of campaign finance disclaimer laws even
establishing an AI disclaimer requirement, the Supreme
under this narrow tailoring standard. See No on E v. Chiu,
Court’s campaign finance jurisprudence may be relevant in
62 F.4th 529, 533 (9th Cir. 2023) and Gaspee Project v.
evaluating the constitutional bounds of such legislation. For
Mederos, 13 F.4th 79, 95–96 (1st Cir. 2021), cert. denied
example, the Court upheld the facial validity of FECA’s
142 S. Ct. 2647 (2022).
disclaimer requirements against a First Amendment
challenge, determining that the disclaimer requirements
In contrast to a disclaimer requirement, it appears that
“bear[] a sufficient relationship to the important
courts would likely determine that a prohibition on AI-
governmental interest of ‘shedding the light of publicity on
generated campaign ads is unconstitutional under the First
campaign financing.’” McConnell v. FEC, 540 U.S. 93, 231
Amendment. In evaluating a prohibition on certain
(2003). Similarly, the Court upheld FECA’s disclaimer
campaign communications, the Supreme Court applied a
requirements as applied to a film regarding a presidential
“strict scrutiny” standard of review. Strict scrutiny requires
candidate and related promotional broadcast ads. Quoting
the government to show that the law is the least restrictive
Buckley and McConnell, the Court in Citizens United
means to achieve a compelling interest, which is a difficult
determined that while disclaimer requirements may burden
standard to meet. Hence, applying strict scrutiny, the Court
the ability to speak under the First Amendment, they
invalidated a FECA provision that prohibited corporations
“impose no ceiling on campaign-related activities” and “do
and unions from directly funding independent expenditures
not prevent anyone from speaking.” According to the Court,
and electioneering communications. Citizens United v.
FECA’s disclaimer requirements “provid[e] the electorate
FEC, 558 U.S. at 372. Accordingly, it appears that a
with information” and “insure that the voters are fully
prohibition on AI-generated campaign ads would likely be
informed” about who is speaking. Moreover, they facilitate
invalidated under a strict scrutiny standard of review unless
the ability of a listener or viewer to judge more effectively
the government could show that the law achieves a
the arguments they are hearing, the Court observed.
compelling government interest.
Citizens United v. FEC, 558 U.S. 310, 368 (2010).
L. Paige Whitaker, Legislative Attorney
IF12468
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Artificial Intelligence (AI) in Federal Election Campaigns: Legal Background and Constitutional Considerations for Legislation


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