In July of 2023, Public Citizen submitted a petition to the Federal Election Commission urging it to clarify that the law against fraudulent misrepresentation of campaign authority (52 U.S.C. § 30124) encompasses the use of deliberately deceptive AI-generated content in campaign advertisements. On Sept. 19, 2024, when the FEC considers the petition’s request in an open meeting, I will vote against initiating a rulemaking because the FEC lacks the statutory authority to promulgate the rule the petitioner seeks. And upon careful consideration, I have concluded that, as a matter of policy, it should not.
First and foremost, the FEC may not pass a rule that goes beyond the statutory authority granted to it by Congress in the Federal Election Campaign Act. FECA generally prohibits a person from fraudulently misrepresenting that their words or actions are on behalf of a candidate or political party committee, for example, by misleadingly claiming to be raising money on behalf of a candidate or speaking on a candidate’s behalf. And the FEC has a track record of prosecuting these violations and will continue to do so, including where AI is used to effectuate the fraud. However, FECA does not prohibit broader general untruthfulness in a campaign ad, such as making untrue statements about a candidate’s voting record (of course, there are other laws that cover such conduct.) Thus, I cannot vote to initiate a rulemaking that would expand the FEC’s regulatory authority.
