The Federal Election Commission (FEC) officially dipped its toes into the ongoing national debate around artificial intelligence (AI) regulation, publishing a Federal Register notice seeking comment on a petition submitted by Public Citizen to initiate a rulemaking to clarify that the Federal Election Campaign Act (FECA) prohibits deceptive AI-generated campaign advertisements.  The Commission unanimously approved publication of the petition at its August 10 meeting. 

The public is being asked to comment on whether the FEC should initiate a formal rulemaking to specify that using false AI-generated content, sometimes called “deepfakes,” in campaign ads would violate FECA’s prohibition on fraudulent misrepresentation of campaign authority (52 U.S.C. § 30124).  Currently, there are no AI-specific FEC regulations or guidance governing campaign ads or fundraising.

The decision to seek comment on the petition follows the FEC’s June deadlock on an earlier petition from Public Citizen. FEC Republicans, led by Commissioner Allen Dickerson, argued that the FEC has no authority to address AI-generated or “deepfake” campaign ads under FECA, and should not make rules without further guidance from Congress.  

However, the decision to seek public comment does not mean that the Commission will ultimately issue a proposed rulemaking, much less adopt new AI-specific rules.  The Commission remains divided on whether it has the statutory authority to address AI issues at all.  In voting to advance the petition in June, Democratic FEC Chair Dara Lindenbaum indicated she was “skeptical” that the FEC has existing authority to regulate AI, but supported publishing the petition in the hope of receiving helpful comments on the issue.  At the August 10 meeting, Commissioner Dickerson, despite voting to publish the petition, reiterated his view that this remains an issue for Congress and noted “serious First Amendment concerns lurking in the background of this effort.”

Partisan divisions in Congress also mean an expansion of the Commission’s authority to encompass AI-generated ads is unlikely to become law anytime soon.  In May, Rep. Yvette Clark (D-NY) introduced the REAL Political Advertisements Act legislation to give the FEC authority to regulate the use of AI in campaign ads.  Senators Amy Klobuchar (D-MN), Cory Booker (D-NJ), and Michael Bennet (D-CO) have also introduced a Senate companion bill.  No Republican Members of Congress have yet cosponsored either bill, nor did any congressional Republicans join 27 of their House and Senate colleagues on a July letter to the FEC urging it to move forward with the rulemaking petition.

The FEC will accept public comments on whether to initiate a rulemaking process until October 16, 2023.  

Photo of Matthew Shapanka Matthew Shapanka

Matthew Shapanka practices at the intersection of law, policy, and politics, advising clients on important legislative, regulatory and enforcement matters before Congress, state legislatures, and government agencies that present significant legal, political, and business opportunities and risks.

Drawing on more than 15 years…

Matthew Shapanka practices at the intersection of law, policy, and politics, advising clients on important legislative, regulatory and enforcement matters before Congress, state legislatures, and government agencies that present significant legal, political, and business opportunities and risks.

Drawing on more than 15 years of experience on Capitol Hill, private practice, state government, and political campaigns, Matt develops and executes complex, multifaceted public policy initiatives for clients seeking actions by Congress, state legislatures, and federal and state government agencies. He regularly counsels businesses—especially technology companies—on matters involving intellectual property, national security, and regulation of critical and emerging technologies like artificial intelligence and autonomous vehicles.

Matt rejoined Covington after serving as Chief Counsel for the U.S. Senate Committee on Rules and Administration, where he advised Chairwoman Amy Klobuchar (D-MN) on all legal, policy, and oversight matters before the Committee, particularly federal election and campaign finance law, Federal Election Commission nominations, and oversight of the legislative branch, including U.S. Capitol security after the January 6, 2021 attack and the rules and procedures governing the Senate. Most significantly, Matt led the Committee’s staff work on the Electoral Count Reform Act – a landmark bipartisan law that updates the procedures for certifying and counting votes in presidential elections—and the Committee’s joint bipartisan investigation (with the Homeland Security Committee) into the security planning and response to the January 6th attack.

Both in Congress and at Covington, Matt has prepared dozens of corporate and nonprofit executives, academics, government officials, and presidential nominees for testimony at congressional committee hearings and depositions. He is a skilled legislative drafter who has composed dozens of bills and amendments introduced in Congress and state legislatures, including several that have been enacted into law across multiple policy areas. Matt also leads the firm’s state policy practice, advising clients on complex multistate legislative and regulatory policy matters and managing state advocacy efforts.

In addition to his policy work, Matt advises and represents clients on the full range of political law compliance and enforcement matters involving federal election, campaign finance, lobbying, and government ethics laws, the Securities and Exchange Commission’s “Pay-to-Play” rule, and the election and political laws of states and municipalities across the country.

Before law school, Matt served in the administration of former Governor Deval Patrick (D-MA) as a research analyst in the Massachusetts Recovery & Reinvestment Office, where he worked on policy, communications, and compliance matters for federal economic recovery funding awarded to the state. He has also staffed federal, state, and local political candidates in Massachusetts and New Hampshire.

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