Artificial Intelligence (AI) in Federal Election Campaigns: Legal Background and Constitutional Considerations for Legislation

Artificial Intelligence (AI) in Federal Election Campaigns: Legal Background and Constitutional Considerations for Legislation

Updated August 17, 2023
Artificial Intelligence (AI) in Federal Election Campaigns: Legal
Background and Constitutional Considerations for Legislation
Introduction
committees—include disclaimers. FECA and Supreme
Federal campaign finance law does not specifically regulate
Court precedent define political committee to include “any
the use of artificial intelligence (AI) in political campaign
committee ... or other group of persons that receives
advertising. As technology continues to evolve, concerns
contributions or makes expenditures aggregating in excess
have grown regarding the use of AI-generated campaign
of $1,000 during a calendar year” whose major purpose is
ads and their potential to spread misinformation. At the
to elect federal candidates to office. 52 U.S.C. § 30101(4);
same time, there are questions about whether regulation of
see Buckley v. Valeo, 424 U.S. 1, 79 (1976). FECA further
such ads would run afoul of the First Amendment. This
defines contribution and expenditure as monies or anything
CRS In Focus discusses provisions of federal campaign
of value “for the purpose of influencing any election for
finance law that may be relevant should Congress consider
Federal office.” 52 U.S.C. § 30101(8), (9).
regulating AI-generated campaign ads. It then discusses
pivotal Supreme Court rulings on campaign finance law and
For radio and television advertisements by candidate
constitutional considerations for possible legislation. For a
committees, FECA generally requires that the
related policy discussion, see CRS product, Artificial
communication state who financed the ad, along with an
Intelligence (AI) and Campaign Finance Policy: Recent
audio statement by the candidate identifying the candidate
Developments, by R. Sam Garrett.
and stating that the candidate “has approved” the message.
In the case of television ads, the candidate statement is also
Federal Campaign Finance Law
required to be conveyed by an unobscured, full-screen view
The Federal Election Campaign Act (FECA or Act),
of the candidate making the statement or, if the candidate
codified at 52 U.S.C. §§ 30101–30146, does not
message is conveyed by voice-over, accompanied by a
specifically regulate the use of AI in political campaign ads.
clearly identifiable image of the candidate, along with a
Two FECA provisions, however, may be relevant to this
written message of attribution at the end of the
issue: the prohibition on fraudulent misrepresentation of
communication. 52 U.S.C. § 30120(a).
campaign authority and the requirement of disclaimers,
which are statements of attribution that appear directly on
In addition, regardless of the financing source, FECA
certain campaign communications.
requires a disclaimer on (1) communications that expressly
advocate for the election or defeat of a clearly identified
FECA Prohibition on Fraudulent Misrepresentation
candidate, (2) electioneering communications (defined to
of Campaign Authority
include broadcast ads that refer to a clearly identified
FECA prohibits a federal office candidate, including
federal candidate that are run 60 days before a general
employees and agents of such a candidate, from
election or 30 days before a primary), and (3) public
fraudulently misrepresenting another candidate or political
communications that solicit contributions. These
party “on a matter which is damaging to such other
communications can include ads financed by outside
candidate or political party.” The Act further prohibits
groups, corporations, or labor unions. For such ads, FECA
anyone from fraudulently soliciting campaign contributions
generally requires that a disclaimer clearly state certain
whereby the solicitor misrepresents that he or she is
contact information of the entity that paid for the
fundraising on behalf of a candidate or party. 52 U.S.C. §
communication and that the communication was not
30124.
authorized by any candidate or candidate committee. In
radio and television advertisements, such disclaimers are
On August 16, 2023 the Federal Election Commission
required to include, in a clearly spoken manner, an audio
(FEC) published a petition for rulemaking to amend its
statement saying who is responsible for the content of the
regulation on fraudulent misrepresentation of campaign
advertising. In television ads, the statement is required to be
authority, 11 C.F.R. §110.16, to clarify that the related
conveyed by an unobscured, full-screen view of a
statute, 52 U.S.C. § 30124, applies if “candidates or their
representative of the entity paying for the ad, in a voice-
agents fraudulently misrepresent other candidates or
over, along with a written message of attribution at the end
political parties through deliberately false AI-generated
of the communication. 52 U.S.C. § 30120(a), (c), (d).
content in campaign ads or other communications.” It
approved the petition on August 10, 2023. (On June 22, the
Effective March 1, 2023, the FEC promulgated new
FEC had discussed, but not approve, a similar petition.)
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
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Artificial Intelligence (AI) in Federal Election Campaigns: Legal Background and Constitutional Considerations for Legislation
committees, contained express advocacy, or solicited
In McConnell and Citizens United, the Court applied a
campaign contributions. The new regulations specify that
standard of “exacting scrutiny” that requires a substantial
this requirement also applies to “communications placed for
relation between the disclaimer requirement and a
a fee on another person’s ... digital device, application, or
sufficiently important governmental interest. These
advertising platform.” 87 Fed. Reg. 77467–77480 (Dec. 19,
precedents suggest that courts could uphold the
2022).
constitutionality of a FECA AI-disclaimer requirement to
the extent the government could show that the requirement
Regardless of whether a campaign communication is
furthers the informational interests of the electorate.
created with AI, FECA’s disclaimer requirements would
However, it is uncertain whether courts will determine that
apply as discussed. However, the Act does not require such
notifying the electorate that an ad was created with AI is as
disclaimers to indicate that the ad was created with AI.
sufficiently an important governmental interest as
informing the electorate as to who financed or approved of
FECA Penalties
an ad, as mandated by the current FECA disclaimer
In addition to a series of civil penalties, FECA sets forth
requirements.
criminal penalties for knowing and willful violations of the
Act. Generally, FECA provides that any person who
Exacting scrutiny also requires a court to evaluate the
knowingly and willfully violates any provision of the Act
burden on speech. As the Court appeared to rely on the fact
that involves the making, receiving, or reporting of any
that FECA’s current disclaimer requirements did not
contribution, donation, or expenditure of $25,000 or more
prevent anyone from speaking, if such a requirement is so
per calendar year shall be fined under Title 18 of the U.S.
burdensome that it impedes the ability of a candidate or
Code, imprisoned for not more than five years, or both. If
group to speak—for example, if a required disclaimer
the amount involved is $2,000 or more per calendar year,
comprises a relatively long period of time in an ad—it
but less than $25,000, the Act provides for a fine or
could violate the First Amendment. Citizens United v. FEC,
imprisonment for not more than one year, or both. Should
558 U.S. at 366–71.
Congress amend FECA to regulate AI-generated campaign
ads, unless otherwise provided in the legislation, FECA’s
Possibly casting further doubt on the constitutionality of an
civil and criminal penalties would apply.
AI disclaimer requirement, the Court recently invalidated a
state disclosure law under a potentially more rigorous
Constitutional Considerations for
standard of exacting scrutiny that requires a “narrow
Legislation
tailoring” to a sufficiently important governmental interest.
In the 118th Congress, legislation has been introduced that
Americans for Prosperity Foundation v. Bonta, 141 S. Ct.
would regulate AI in federal election campaigns. For
2373, 2389 (2021). While Bonta is not a campaign finance
example, H.R. 3044 and S. 1596, which are companion
case, some lower courts have since applied this version of
bills, would amend FECA’s disclaimer requirements to
exacting scrutiny in cases challenging campaign disclaimer
require additional disclaimers. Specifically, for an ad that
laws. In evaluating an AI disclaimer requirement under this
contains an image or video generated, entirely or in part, by
potentially more rigorous standard, a court might be less
AI, the legislation would require the ad to include a
likely to uphold the law. Nonetheless, some appellate courts
statement indicating that fact.
have approved of campaign finance disclaimer laws under
this narrow tailoring standard. See No on E v. Chiu, 62
Should Congress consider legislation to amend FECA
F.4th 529, 533 (9th Cir. 2023) and Gaspee Project v.
establishing an AI disclaimer requirement, the Supreme
Mederos, 13 F.4th 79, 95–96 (1st Cir. 2021), cert. denied
Court’s campaign finance jurisprudence may be relevant in
142 S. Ct. 2647 (2022).
evaluating the constitutional bounds of such legislation. For
example, the Court upheld the facial validity of FECA’s
In contrast to a disclaimer requirement, it appears that
disclaimer requirements against a First Amendment
courts would likely determine that a prohibition on AI-
challenge, determining that the disclaimer requirements
generated campaign ads is unconstitutional under the First
“bear[] a sufficient relationship to the important
Amendment. In evaluating a prohibition on certain
governmental interest of ‘shedding the light of publicity on
campaign communications, the Supreme Court applied a
campaign financing.’” McConnell v. FEC, 540 U.S. 93, 231
“strict scrutiny” standard of review. Strict scrutiny requires
(2003). Similarly, the Court upheld FECA’s disclaimer
the government to show that the law is the least restrictive
requirements as applied to a film regarding a presidential
means to achieve a compelling interest, which is a difficult
candidate and related promotional broadcast ads. Quoting
standard to meet. Hence, applying strict scrutiny, the Court
Buckley and McConnell, the Court in Citizens United
invalidated a FECA provision that prohibited corporations
determined that while disclaimer requirements may burden
and unions from directly funding independent expenditures
the ability to speak under the First Amendment, they
and electioneering communications. Citizens United v.
“impose no ceiling on campaign-related activities” and “do
FEC, 558 U.S. at 372. Accordingly, it appears that a
not prevent anyone from speaking.” According to the Court,
prohibition on AI-generated campaign ads would likely be
FECA’s disclaimer requirements “provid[e] the electorate
invalidated under a strict scrutiny standard of review unless
with information” and “insure that the voters are fully
the government could show that the law achieves a
informed” about who is speaking. Moreover, they facilitate
compelling government interest.
the ability of a listener or viewer to judge more effectively
the arguments they are hearing, the Court observed.
L. Paige Whitaker, Legislative Attorney
Citizens United v. FEC, 558 U.S. 310, 368 (2010).
IF12468
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Artificial Intelligence (AI) in Federal Election Campaigns: Legal Background and Constitutional Considerations for Legislation

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