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1 1 (August 17, 2023)

handle is hein.crs/govemot0001 and id is 1 raw text is: * Con gressionol Research Service Informing the IegisI9tive debate since 1914 0 Updated August 17, 2023 Artificial Intelligence (AI) in Federal Election Campaigns: Legal Background and Constitutional Considerations for Legislation Introduction Federal campaign finance law does not specifically regulate the use of artificial intelligence (AI) in political campaign advertising. As technology continues to evolve, concerns have grown regarding the use of AI-generated campaign ads and their potential to spread misinformation. At the same time, there are questions about whether regulation of such ads would run afoul of the First Amendment. This CRS In Focus discusses provisions of federal campaign finance law that may be relevant should Congress consider regulating AI-generated campaign ads. It then discusses pivotal Supreme Court rulings on campaign finance law and constitutional considerations for possible legislation. For a related policy discussion, see CRS product, Artificial Intelligence (AI) and Campaign Finance Policy: Recent Developments, by R. Sam Garrett. Federal Carpaign Finance Law The Federal Election Campaign Act (FECA or Act), codified at 52 U.S.C. §§ 30101-30146, does not specifically regulate the use of Al in political campaign ads. Two FECA provisions, however, may be relevant to this issue: the prohibition on fraudulent misrepresentation of campaign authority and the requirement of disclaimers, which are statements of attribution that appear directly on certain campaign communications. FECA Prohibition on Frauduknt Misrepresentation of Campaign Authority FECA prohibits a federal office candidate, including employees and agents of such a candidate, from fraudulently misrepresenting another candidate or political party on a matter which is damaging to such other candidate or political party. The Act further prohibits anyone from fraudulently soliciting campaign contributions whereby the solicitor misrepresents that he or she is fundraising on behalf of a candidate or party. 52 U.S.C. § 30124. On August 16, 2023 the Federal Election Commission (FEC) published a petition for rulemaking to amend its regulation on fraudulent misrepresentation of campaign authority, 11 C.F.R. §110.16, to clarify that the related statute, 52 U.S.C. § 30124, applies if candidates or their agents fraudulently misrepresent other candidates or political parties through deliberately false AI-generated content in campaign ads or other communications. It approved the petition on August 10, 2023. (On June 22, the FEC had discussed, but not approve, a similar petition.) F ECA Discdaimer Requirements FECA requires that any public political advertising financed by a political committee-including candidate committees-include disclaimers. FECA and Supreme Court precedent define political committee to include any committee ... or other group of persons that receives contributions or makes expenditures aggregating in excess of $1,000 during a calendar year whose major purpose is to elect federal candidates to office. 52 U.S.C. § 30101(4); see Buckley v. Valeo, 424 U.S. 1, 79 (1976). FECA further defines contribution and expenditure as monies or anything of value for the purpose of influencing any election for Federal office. 52 U.S.C. § 30101(8), (9). For radio and television advertisements by candidate committees, FECA generally requires that the communication state who financed the ad, along with an audio statement by the candidate identifying the candidate and stating that the candidate has approved the message. In the case of television ads, the candidate statement is also required to be conveyed by an unobscured, full-screen view of the candidate making the statement or, if the candidate message is conveyed by voice-over, accompanied by a clearly identifiable image of the candidate, along with a written message of attribution at the end of the communication. 52 U.S.C. § 30120(a). In addition, regardless of the financing source, FECA requires a disclaimer on (1) communications that expressly advocate for the election or defeat of a clearly identified candidate, (2) electioneering communications (defined to include broadcast ads that refer to a clearly identified federal candidate that are run 60 days before a general election or 30 days before a primary), and (3) public communications that solicit contributions. These communications can include ads financed by outside groups, corporations, or labor unions. For such ads, FECA generally requires that a disclaimer clearly state certain contact information of the entity that paid for the communication and that the communication was not authorized by any candidate or candidate committee. In radio and television advertisements, such disclaimers are required to include, in a clearly spoken manner, an audio statement saying who is responsible for the content of the advertising. In television ads, the statement is required to be conveyed by an unobscured, full-screen view of a representative of the entity paying for the ad, in a voice- over, along with a written message of attribution at the end of the communication. 52 U.S.C. § 30120(a), (c), (d). Effective March 1, 2023, the FEC promulgated new regulations that broaden the disclaimer requirements for public internet communications. Previously, the regulations generally required disclaimers on public communications- defined to include ads that are placed for a fee on another person's website-that were made by political

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