INSIGHTi
Artificial Intelligence (AI) and Campaign
Finance Policy: Recent Developments
Updated March 18, 2024
No federal statute or regulation specifically addresses artificial intelligence (AI) in political campaigns.
The Federal Election Campaign Act (FECA) and Federal Election Commission (FEC or commission)
regulations govern conduct that calls for election or defeat of federal candidates or solicits funds affecting
federal election campaigns. They also regulate some advertisements (electioneering communications) that
refer to clearly identified federal candidates during preelection periods but do not call for election or
defeat. Disclaimer requirements that mandate attribution for communications regulated by campaign
finance law appear to apply to ads created with AI. However, those requirements do not mandate that such
advertising alert the audience, or regulators, to the presence of AI-generated content. Campaign
management decisions, such as which technology to use, are generally not subject to regulation.
This updated CRS Insight discusses recent developments that could be relevant as Congress monitors or
considers legislation related to AI and campaign finance policy. It does not address legal issues. Other
CRS products provide information on topics such as generative AI and AI policy areas other than
campaign finance that could be relevant for Congress.
AI in Political Campaigns, and Recent Legislative Developments
Recent policy attention to AI in campaigns focuses on “deepfakes,” referring to artificially manipulated
audio or video content in political advertising. Such advertising appears to present new challenges for
campaigns and voters about how to determine whether communications are authentic.
Recent legislation proposes disclaimers, reporting requirements, or prohibitions on deepfakes in federal
campaigns or elections. Bills introduced in the 118th Congress include H.R. 3044; H.R. 3106; H.R. 3831;
H.R. 4611; H.R. 5586; S. 686; S. 1596; S. 2770; and S. 3875. Legislation (H.R. 1; H.R. 5314) addressing
various elections topics, including some provisions concerning deepfakes, passed the House in the 117th
Congress but was not enacted.
In May 2023, the American Association of Political Consultants (AAPC), a trade association representing
political professionals, issued a statement explaining that its board of directors had unanimously
“condemn[ed] use of deceptive generative AI content in political campaigns” and noted that such
communications were inconsistent with the organization’s code of ethics. The AAPC position represents a
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voluntary professional standard, not a regulatory requirement. (The AAPC has also stated its support for a
February 2024 Federal Communications Commission [FCC] prohibition on automated political telephone
calls [robocalls] created using generative AI—a topic that is otherwise beyond the scope of this Insight.)
Despite the focus on AI’s role in political advertising, AI also can serve campaign-management functions.
For example, political professionals or volunteers could use AI to automate, or supplement human labor
to complete, various internal campaign tasks. According to media reports, campaigns are already using AI
to perform large-scale data analysis, compile opposition research, or draft targeted fundraising appeals.
Federal Election Commission Rulemaking Petitions
On June 22, 2023, members of the FEC deadlocked (3-3) on whether to issue a notice of availability
(NOA) to receive comments on an AI rulemaking petition from the interest group Public Citizen. Citing
the potential for AI-generated ads to “provide political operatives with the means to produce campaign
ads with computer-generated fake images of candidates,” the request asked the FEC to issue rules
specifying that the fraudulent misrepresentation of campaign authority prohibition codified at 52 U.S.C.
§30124 applied to AI-generated ads. At the June 22 meeting, some commissioners expressed skepticism
about the agency’s statutory authority to regulate AI ads; others expressed support for a rulemaking. On
July 13, 2023, several Members of Congress wrote to the commission expressing “disappoint[ment]” with
the FEC’s action and requested additional information. Also on July 13, Public Citizen submitted a new
rulemaking petition.
The commission considered the new petition on August 10, 2023. In this case, it approved a NOA. The
limited discussion at the August 10 meeting suggested that at least some commissioners continue to have
reservations about the commission’s authority concerning regulating AI ads in particular; about the
appropriateness of the FECA fraudulent misrepresentation provision as an avenue to regulating AI ads; or
both.
The comment period closed on October 16, 2023. The NOA provided an opportunity for the public, or
Members of Congress, to comment on these or other questions (available here on the FEC website under
document REG 2023-02). Fifty-two Members of Congress submitted joint comments encouraging the
FEC to adopt rules specifying that the FECA fraudulent-misrepresentation provisions apply to ads created
using generative AI; and to require disclaimers on ads created with the technology. Several interest
groups, scholars, and private citizens also submitted comments both supporting and opposing a
rulemaking. It is unclear when or whether the commission might take additional action.
Potential Policy Considerations for Congress
If pursuing legislation, Congress might need to determine whether to do so narrowly, such as by
addressing specific AI issues, or to also address other campaign finance or elections topics. Congress has
pursued both approaches to campaign finance regulation recently. If Congress chose to task the FEC with
pursuing rulemaking without also providing additional statutory guidance, it is possible that the
commission would be unable to agree, with the four of six minimum required votes, about how to
proceed.
Maintaining the status quo likely would reinforce the emerging debate about whether additional
regulation is needed, including about what role industry should play. This approach could have the
advantage of providing time to gather additional information about how AI evolves during the 2024
election cycle and where legislative coalitions might exist. It could have the disadvantage of delaying
opportunities to clarify how or whether Congress intends existing or future legislative or regulatory
options to apply to AI in campaigns and elections. Congress could also require agency (or congressional
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committee or task force) study of AI issues before, or in addition to, other policymaking, as some recent
legislation proposes (or has required in non-campaign finance matters).
Amending FECA would be a typical approach to further regulate ads that are made by political
committees, solicit funds, engage in express advocacy, or refer to federal candidates through
electioneering communications. Although Congress could also amend FECA or another statute to require
disclaimers on ads that do not meet those requirements (e.g., issue advocacy), federal campaign finance
law currently generally does not regulate issue advocacy. Prohibiting AI-generated ads might raise First
Amendment concerns, such as those discussed in another CRS campaign finance product.
Author Information
R. Sam Garrett
Specialist in American National Government
Disclaimer
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to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of
Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of
information that has been provided by CRS to Members of Congress in connection with CRS’s institutional role.
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