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Exclusive: Agencies tussle over AI election disclaimers

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Jun 3, 2024
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Illustration: Sarah Grillo/Axios

Tech companies, Congress and federal agencies are all concerned about AI in elections, and now the Federal Election Commission wants to assert its control over the space, per a letter shared exclusively with Axios.

Why it matters: The FEC sees a conflict ahead with the FCC, which wants to issue its own regulations.

  • A race to lead on AI in elections could very well end up resulting in no federal requirements at all, especially with interagency fighting and potential disagreements in Congress.

The latest: FEC chair Sean Cooksey wrote to FCC chair Jessica Rosenworcel on Monday about proposed new regulations on political speech her agency announced last month, warning that those regulations could clash with rules the FEC is considering and confuse advertisers and voters.

  • The FCC wants to mandate AI disclosures for on-air broadcasts including AI-generated content in political ads, for both issues and candidate advertising.
  • The FEC is currently in its own rulemaking process to determine if there should be new regulations about AI in political communications.

What they're saying: "If the FCC moves forward with a final rule on this issue, I fear your proposed regulations may create irreconcilable conflicts between our agency's respective statutes and rules," Cooksey wrote, adding that litigation may be necessary if the FCC moves forward.

  • The FEC alone has jurisdiction to "interpret, administer and enforce" the Federal Election Campaign Act of 1971, he wrote, including disclaimer and reporting requirements for political communications.
  • "I maintain that the FCC lacks the legal authority to promulgate conflicting disclaimers requirements only for political communications."

The big picture: Many parties are concerned about the potential for AI to disrupt the 2024 U.S. presidential election, but it's not clear what specific federal rules, if any, will be in place before that.

  • In Congress, the Senate Rules Committee has already approved three AI in elections bills, the topic is a bipartisan priority, and Senate Majority Leader Chuck Schumer has said election-related AI bills are important to get done as soon as possible.

The other side: The FCC's announcement claims authority under the Bipartisan Campaign Reform Act. But Cooksey calls that claim an "overstatement" and describes it as solely a duty for the FCC to compile information on electioneering communications.

  • The FCC's proposal doesn't prohibit AI-generated content in political advertising — just disclosures — and aims to get the rules in place before the 2024 election.

Friction point: Generally, tech companies have managed to get away with self-governance when it comes to transparency in digital political advertising, fighting off federally required disclosures and touting their own industry-led solutions.

  • Threats of regulation have resulted in Meta and other companies launching election advertising databases online. Some tech companies have banned election advertising altogether.
  • AI and tech companies have already rolled out a number of election-related initiatives, including an AI elections accord and a White House pledge.
  • Lawmakers including Sen. Mark Warner have said such efforts won't be enough and that federal action is needed.

What's next: Cooksey urged the FCC to delay any effective date of new AI election regulations until after Nov. 5.

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