It looks like new rules governing the use of artificial intelligence in political ads will not become a reality during what remains of the current election cycle. The Federal Election Commission is set to vote Thursday (Aug. 15) to close a proposal to launch a new rulemaking to expand the rules governing AI’s use without taking any action. Republican FEC Chair Sean Cooksey says in addition to the mid-election timing of any rule change, the agency will continue to use existing regulations to go after fraudulent misrepresentations in campaign ads.
“A rulemaking to limit or prohibit AI in campaign communications would not only overstep the Commission’s limited legal authority to regulate political advertisements, but it would also insert the agency — in the middle of an election — into a developing technology in which it has no expertise or experience,” Cooksey told Axios. “The better approach is for the FEC to wait for direction from Congress and to study how AI is actually used on the ground before considering any new rules.”
Cooksey has circulated an item that, if approved, says the Commission will not initiate a rulemaking on AI use at this time.
A petition seeking action was filed in July 2023 by Public Citizen, which had said the increased use of AI necessitated the FEC to “clarify that the law against ‘fraudulent misrepresentation’ applies to deliberately deceptive AI to produced content in campaign communications.” It wanted the agency to make it clear that if candidates or political groups used AI-generated content in campaign ads to deliver fraudulent messages, that legal penalties would be a possibility. The FEC received more than 2,000 comments on the issue, including many that wanted rules to regulate AI’s use. Others questioned its legal authority and raised First Amendment implications.
A draft decision written by Cooksey concludes the agency will not take any action, pointing to the possibility of going forward on a case-by-case basis, rather than issuing blanket rules. But Cooksey also says that the Commission lacks the authority to create such regulations. He says such restrictions “go well beyond” its current legal mandate.
Cooksey’s draft order also says the FEC is “ill-positioned” to take on the issue of AI regulation and does not have the technical expertise required to design appropriate rules for AI-generated advertising, which it concludes makes a rulemaking at this stage a “poor use” of agency resources. “The relatively limited use of AI-generated content in federal campaigns to date means there is little evidence of significant harms that would benefit from regulation,” his draft order says.
But Commissioner Ellen Weintraub, a Democrat, is expected to vote against the chairman’s proposal. She told Axios that the FEC “can and should conduct a rulemaking” on AI’s use in political ads. But because there are even numbers of Democrats and Republicans on the FEC, attorneys expect any effort to go forward will deadlock with a 3-3 tie.
The FCC’s proposal that radio and TV stations slap AI labels on political ads that use the technology is also unlikely to go forward until after the election. The National Association of Broadcasters and the Motion Picture Association have asked the FCC to push back the comment deadlines, which would all but ensure that’s the case. The FCC has not yet acted on their request, however.
Under the FCC’s proposal (MB Docket No. 24-211), every station that airs political ads would be required to ask buyers whether their spots contain any AI-generated content. Specifically, a station would be required to inform the buyer, at the time an agreement is reached to air a political ad, that the station must make an on-air disclosure for any political ad that includes such AI-generated content. Stations would also be mandated to inquire whether the ad includes AI-generated content. If yes, a disclosure will be needed.
Even if nothing new is on the books for the 2024 election cycle on the federal level, broadcast attorney David Oxenford says AI is something stations will need to deal with in many markets. “Approximately 19 states have their own rules on this issue and as, even without legislation, defamation questions may still arise,” he says. Oxenford writes in a blog post that even if no action is taken by the FEC or FCC, he expects that the debate over AI’s use in political ads is far from over.
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