SUPPLEMENTARY INFORMATION:

The Federal Election Campaign Act of 1971, as amended (the “Act”) prohibits fraudulent misrepresentation in two specific ways.^[1] First, the Act prohibits a candidate, his or her employee or agent, or an organization under the candidate's control, from purporting to speak, write, or act for another candidate or political party on a matter that is damaging to the other candidate or party.^[2] Second, the Act prohibits any person from falsely representing that they are speaking, writing, or acting on behalf of a federal candidate or a political party for the purpose of soliciting contributions.^[3] The Commission's regulation implementing 52 U.S.C. 30124 essentially mirrors the statutory text.^[4]

On July 13, 2023, Public Citizen submitted a Petition for Rulemaking (“Petition”) to the Commission, asking it to undertake a rulemaking “to clarify that the law against `fraudulent misrepresentation' (52 U.S.C. 30124) applies to deliberately deceptive AI-produced content in campaign communications.” ^[5] The Petition requested that the Commission initiate a rulemaking for the purpose of amending 11 CFR 110.16(a), requesting that the FEC promulgate a rule providing that “if candidates or their agents fraudulently misrepresent other candidates or political parties through deliberately false AI-generated content in campaign ads or other communications—absent clear and conspicuous disclosure in the communication itself that the content is generated by artificial intelligence and does not represent real events—then the restrictions and penalties of the law and the Code of Regulations are applicable.” ^[6]

On August 16, 2023, the Commission published a Notice of Availability seeking public comment on the Petition.^[7] It received more than 2,000 comments in response, including from Members of Congress, political party committees, advocacy groups across the ideological spectrum, and individual citizens. Commenters held a range of views about the desirability of opening the rulemaking requested by Petitioner.

Whether or not to open a rulemaking in response to a petition is vested within the Commission's discretion.^[8] Petitioner asks the Commission to apply an interpretation of 52 U.S.C. 30124 specifically for “AI-produced content in campaign communications.” ^[9] The statute, however, is technology neutral and applies on its face to all means of accomplishing the specified fraud, including AI-assisted media.

Accordingly, the Commission has decided not to initiate a rulemaking at this time and will instead proceed with any application of 52 U.S.C. 30124 to specific technologies on a case-by-case basis.

Copies of the comments and the Petition for Rulemaking are available on the Commission's website, http://www.fec.gov/​fosers/​ (REG 2023-02 Artificial Intelligence in Campaign Ads (2023)) and at the Commission's Public Records Office, 1050 First Street NE, Washington, DC 20463, Monday through Friday between the hours of 9 a.m. and 5 p.m.

89 FR 78826