Key Changes:

• Individuals may now donate $3,500 per election to federal candidates—a more than 6% increase from the 2024 election. The primary and general elections are considered separate elections for these purposes. Married couples may contribute up to $7,000 per election.

• Individuals can give more to political parties too. For individual contributions to national party committees, the annual limit has increased from $41,300 to $44,300. Special party accounts for presidential nominating conventions, election recounts and legal proceedings, and national party headquarters buildings may accept additional amounts. For each of these three accounts, the contribution limits have increased from $123,900 to $132,900 per account, per year.

A printable chart published by the FEC with all of the changes may be found here.

The new candidate limits are retroactive to November 6, 2024 and apply through November 3, 2026. All other limits are effective for the two-year period beginning January 1, 2025, and ending December 31, 2026.

Bigger Picture:

Because these contribution limits are adjusted for inflation, this increase is one of the largest in a couple of decades. Nonetheless, the playing field remains uneven, with super PACs able to raise and spend unlimited (though publicly disclosed) amounts. Certain nonprofits, which some refer to as “dark money” groups, have also become a force in federal elections and are not subject to these limits.

The case, Campaign Legal Center v. Federal Election Commission, goes back to 2016, when the campaign-finance watchdogs filed a complaint with the FEC alleging that Correct the Record (CTR), a super PAC that supported Hillary Clinton’s presidential campaign, made millions of dollars in prohibited and excessive in-kind contributions to the campaign in the form of coordinated expenditures, which CTR failed to properly disclose, in violation of the Federal Election Campaign Act (FECA). Ordinarily, super PAC communications made in coordination with a campaign are considered prohibited in-kind contributions to the campaign. But because CTR engaged only in unpaid online advocacy, CTR claimed its expenses—including polling, research, office rentals, consultant fees and expenses, and media training—were “input costs” for unpaid internet advocacy that fell within the “internet exemption” and openly announced it was coordinating with the Clinton campaign. 

The FEC’s Office of General Counsel recommended that the agency find reason to believe that several violations occurred, but the FEC could not agree, voting 2-2 on a partisan basis, and dismissed the matter. An explanation issued by the controlling bloc of Republican commissioners explained that all costs incurred to produce unpaid internet communications are broadly exempt from regulation under federal campaign finance law. The commissioners noted that “[r]equiring speakers to further allocate overhead expenses across internet communications (or other activities) and then exempting only those component fees deemed essential for the internet communication’s placement would eviscerate the internet exemption and the deliberate policy decisions behind it, and potentially chill political speech online.” But a Democratic commissioner countered that this interpretation would “swallow the coordination rules.”

After several years of litigation and a host of procedural twists and turns, the courts determined the FEC had acted contrary to law in dismissing CLC’s complaint. The recent circuit court decision affirmed a lower court’s conclusion that the internet exemption cannot be read to cover expenditures that are only “tangentially” related to an eventual internet message. The Commission’s conclusion to the contrary stretched the reading of the internet exemption beyond lawful limits because it would permit any “coordinated expenditure to escape treatment as a contribution, so long as that expenditure somehow informs a blog post or improves a tweet.” The circuit court concluded that only “direct” costs of unpaid online content are exempt and remanded the case to the district court, with instructions to remand to the FEC to “sketch the bounds” of when input costs are covered by the exemption. For groups that rely on the internet exemption to communicate on unpaid online social channels, the decision throws into question the distinction between “true” and “tangential” input costs, just as the general election kicks into high gear. As the FEC reconsiders the case, organizations that coordinate with campaigns for online communications should stay attuned to developments and reassess their reliance on the internet exemption. If you have questions regarding these developments or how they may impact your work, please contact Venable’s Political Law Practice Group.

Under FARA, those who agree to engage in certain political activities on behalf of foreign government officials must register and file reports with the Department of Justice as foreign agents. The Department of Justice’s recent—and aggressive—enforcement of this nearly 100-year-old statute has put many in Washington who work with international clients on edge.

FARA Covers Uncompensated Activity and Even Requests to Set up Meetings

FARA is vague and broad. Many are surprised to learn that one can become a foreign agent simply by agreeing to a request from a foreign government official—even if there is no contract and no payment. Unlike for the federal Lobbying Disclosure Act, payment is not a prerequisite. What is more, there is no threshold for registration, or exception for de minimis activity. A single act—be it a phone call, email, or meeting—can be enough to trigger registration.

The Department of Justice interprets political activity very broadly—well beyond the ordinary meaning of the term. Relevant to the summit, arranging meetings between foreign government officials and U.S. government officials can be “political activity,” as can advising a foreign government on their engagement strategy with U.S. government officials, even if you do not accompany the foreign officials in their interactions.

FARA does not apply just to acting on behalf of America’s adversaries. Acting on behalf of our NATO allies is covered too.

FARA Registration Triggers Lurk on the Sidelines of Major International Political Meetings in DC

FARA is not intuitive. Thus experienced government affairs experts may unwittingly find themselves in a situation surrounding the NATO summit in which FARA registration is a real possibility.

For example, suppose you work at a public affairs firm and an old college friend of yours is coming to DC for the summit. Your friend asks you for a favor because he knows you used to work on Capitol Hill. Can you help him set up some meetings between his boss—a senior foreign government official—and some members of Congress while they are in town for the summit? You agree. By doing so, you may very well have triggered an obligation to register under FARA.

Or let’s say you are a military analyst at a nonprofit. A foreign military official who reads your work has a request for you. They want some advice about setting up a meeting with U.S. defense contractors and DOD officials while they are in town so they can talk about military procurement. You agree to the request. Is FARA triggered?

If you are being paid by a foreign government, the analysis is simple: You are a foreign agent. But the terrain is less certain when a foreign government asks you for an uncompensated favor or makes a specific request as in the examples above.

As we have seen with other conferences involving world leaders held in DC, FARA triggers are lurking on the sidelines. Knowing about these FARA risks is only half the battle. Successfully navigating them is the other.

• Political Giving: How to Achieve Political Objectives, Comply with Applicable Law, and Protect Personal Reputation and Business Interests

Under current law, all organizations that have a single contract with the state, county, or other political subdivision of the state with a total value of at least $200,000 must register with the State Board of Elections and, for as long as they hold government contracts, file semi-annual reports disclosing certain political contributions made by the contractor, its principals, and, if it has one, its affiliated political action committee. Separately, under Maryland procurement law, contractors with state agencies must file reports with the Secretary of State identifying each person who has “beneficial ownership” of the contracting entity, defined as:

1. Any ownership interest of five percent or more in a business;
2. Any ownership interest of five percent or more in one or more entities in a chain of parent and subsidiary entities, any one of which participates in at least five percent of the capital or profits of a business; or
3. Possession of an interest that exists under a contract, a relationship, an understanding, or any other arrangement and entitles a person to benefits substantially equivalent to an ownership interest of five percent or more of a business.

Beginning in July, rather than submit reports about “beneficial ownership” to the Secretary of State, which, according to an analysis accompanying the new legislation were infrequently reviewed, state contractors must include this information when registering with the State Board of Elections under the pay-to-play law. In addition, contractors with Maryland local government bodies, such as county agencies and local school boards, will have to list beneficials owners on their election board registrations. Contractors already in Maryland’s pay-to-play system will need to update their registrations in accordance with regulations yet to be adopted by the State Board of Elections. The new law will likely result in more public scrutiny of ties between political contributions and the award of public contracts. The law will also enable the state election board to impose civil penalties on public contractors who fail to list their beneficial owners.

The law makes other changes as well. Pay-to-play law registrations will now have to list a Maryland resident agent, and for contracts subject to approval by the Board of Public Works, contractors must certify that they have filed the required initial political contribution disclosure statement that covers contributions made in the 24 months preceding the contract award.

Venable will continue to monitor these changes to Maryland’s pay-to-play law and anticipated regulations. Please contact Venable’s Political Law Group if you have questions about these developments or if you have questions about establishing a pay-to-play compliance program.

House and Senate Gift Rules Apply to the Conventions

There is no special gift rule exception for convention events. All events to which federal legislators and congressional staff are invited must comply with House and Senate gift rules. Convention event planners and sponsors should be particularly mindful of the following events and items that the gift rules expressly allow:

• Food and refreshments of nominal value that are not offered as part of a meal. For evening events, this gift rule exception is commonly used for cocktail receptions.
• Invitations and other gifts offered to all convention delegates or to all delegates from a particular state.
• Free attendance at a “widely attended event” at the invitation of the event sponsor (must invite at least 25 non-congressional attendees and meet other prerequisites).
• Free attendance at a charity event held to raise funds for a 501(c)(3) organization at the invitation of the event’s sponsor (includes food, beverages, and entertainment that is part of the event).
• Free attendance at a political fundraising event organized by a PAC.
• Any gift with a value less than $50, provided the donor is not a federal lobbyist, a registered foreign agent, or an entity that employs or retains lobbyists. Such gifts are subject to a $100 annual limit on gifts from any one source.
• A t-shirt or baseball cap of reasonable value, as well as non-food items that have a total value of $10 or less.

Special Rules for Events Honoring Members

What if you want to host an event that honors a member of Congress?

A lobbyist, or a registered entity that employs or retains a lobbyist, may not pay for an event during the convention that “honors” a member of Congress. The House and Senate rules differ on certain details, however, with the House prohibiting invitations that refer to a member as a “special guest” or speaker, and the Senate allowing an event where a senator is a featured speaker.

However, an organization that employs or retains a federal lobbyist may give money to a non-lobbying organization to host or sponsor a convention event honoring a member of Congress. The restriction on paying for an event honoring a member applies only to events “directly paid for” by a lobbyist or lobbying entity.

It is also permissible for a lobbyist or an entity registered under the federal lobbying laws to host an event honoring a delegation, congressional committee, or caucus, provided that the event otherwise complies with House or Senate gift rules. There is no numerical minimum or maximum for the size of the delegation or caucus invited to such an event. A federal legislator’s name may even be listed as honorary host committee member of the event, as long as that list also includes the name of non-congressional host committee members.

Finally, the prohibition on honoring members of Congress applies only during the actual dates of the convention, allowing lobbyist employers to host a welcome or farewell event before or after the convention. Such an event must still meet one of the gift rule exceptions. The RNC convention will be held in Milwaukee from July 15 to July 18, and the DNC convention will be held in Chicago from August 19 to August 22.

Other Gift Rules May Apply

Keep in mind that other gift rules may apply to an event if invited guests include federal executive branch officials or state and local officials. For example, Biden administration appointees may accept offers of free attendance at a widely attended gathering sponsored by a lobbyist-employer only if they are speaking at the event. If your organization plans on hosting a particular state delegation, it is important to review the gift rules applicable to government officials from that state and from localities within the state that may have their own gift rules.

What About Contributions?

The national party committees (DNC and RNC) have separate “accounts” for convention expenses, which can accept contributions from individuals and PACs up to three times the amount that can be contributed to each party’s main account. For individuals and PACs that have not qualified for multicandidate status, the limit on contributions to these convention accounts is $123,900 per account per year. For multicandidate PACs, the annual limit per account is $45,000.

Corporations, including nonprofit corporations, cannot contribute (except through their PACs) to these convention accounts. They also may not pay for travel, hotel, or other expenses for convention delegates or speakers.

Corporations may, however, make unlimited cash or in-kind contributions to host committees, which are nonprofit organizations, formed by each host city, that have no political affiliation. Although the purpose of a host committee is to promote commerce and project a favorable image of each host city, they must nonetheless file reports with the Federal Election Commission disclosing their contributions received and expenditures made.

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Please contact the Venable Political Law Group with questions about hosting specific convention events or making contributions to national party convention accounts or host committees.

In the request, a state political committee proposed hiring vendors to canvass potential voters before the election and distribute literature that would expressly advocate for the election or defeat of both state and federal candidates. The committee planned to “coordinate” its canvass by collaborating with federal candidates on aspects like strategy and messaging. Was this, requestors asked, an in-kind contribution to the federal candidates that a state committee like this one is prohibited from making? To this, the Commission answered no.

Under the Federal Election Campaign Act and Commission regulations, third-party payments coordinated with a federal candidate or their campaign are deemed to be in-kind contributions to those candidates under either of two circumstances. First there is the “coordinated communication” rule, which specifies when certain “public communications” will be considered a coordinated in-kind contribution (which will usually be excessive or impermissible). The second, broader “coordinated expenditure” rule deems any expenditure that is coordinated with a candidate an in-kind contribution. The question the FEC resolved was whether a communication that is not within the definition of a public communication can nonetheless be a coordinated expenditure.

Canvassing is not a public communication

In analyzing the requestor’s paid canvassing program, the Commission first determined it did not qualify as a public communication, defined by regulation as a communication “by means of any broadcast, cable, or satellite communication, newspaper, magazine, outdoor advertising facility, mass mailing, or telephone bank to the general public, or any other form of general public political advertising.” Despite the seeming breadth of that phrase, the Commission concluded that “general public political advertising” did not cover the proposed canvass. The agency explained that the political advertising envisioned by the definition of “public communication” involves paying a vendor or platform, such as a television broadcaster, newspaper, or ad network, to gain access to the platform’s audience. The medium is controlled, and the audience is established, by that platform. A canvass, in contrast, requires the sponsor to preselect the voters whose homes would be visited and the means of communication. The canvass vendors have no preexisting relationship with the target audience. Thus, the canvassing vendors would neither establish the audience nor control the forum. Furthermore, the Commission noted that as a traditional grassroots activity, door-to-door canvassing is fundamentally different from the types of mass media enumerated in the definition of “public communication.” As a result, the Commission concluded the proposed canvassing program is not a public communication and thus would not qualify as an in-kind contribution under the coordinated communication rule.

But canvassing is still a communication

After determining canvassing is not a “public communication,” the Commission also turned down the idea that the canvass was a coordinated in-kind contribution under the broader “coordinated expenditure” rule. The coordinated expenditure rule, the opinion reasoned, applies to “expenditures that are not made for communications but that are coordinated with a candidate, authorized committee, or political party committee.” The proposed canvassing program is still a type of communication, and expenditures related to the program are solely for producing and distributing communications. Therefore, although the canvass does not meet the definition of “public communication,” its costs are expenditures made for communications, and the broader coordination standard did not apply either. In effect, the Commission concluded that a paid canvassing program is a communication, just not a public one. As such, the proposed canvass is not covered by either coordination standard and was not an in-kind contribution to the candidates with whom it is coordinated.

While the canvassing is exempt from these rules, any data that results from the canvass may only be transferred to the campaign at fair market rates. Otherwise, the data would be an impermissible in-kind contribution.

An advisory opinion is presented in response to the specific facts put forward by the requestor, but the ruling nonetheless provides important signals as to how the Commission is likely to analyze similar circumstances. The facts of the opinion—involving a state PAC that raised unlimited individual contributions—suggest that other types of canvass sponsors, like corporations, super PACs, and LLCs, could also coordinate canvasses. The opinion also demonstrates the limits of the current definition of “public communication” and leaves open the possibility that other types of paid peer-to-peer communications might be outside its scope and able to be coordinated between candidates and outside spenders.

Accordingly, with this advisory opinion, the Commission is allowing some flame to jump the anti-coordination firewall, potentially lighting the way for candidates to shift more costs to outside groups, all while aligning on message and strategy. While this opinion offers a blueprint, organizations, including super PACs and 501(c)(4)s, should seek specific advice when coordinating any activities with federal candidates to avoid getting burned by the nuanced anti-coordination rules and to ensure they do not jeopardize the organization’s ability to engage in other independent expenditure activity in the future.

But regulating AI in political communications poses unique challenges. What qualifies as deceptive advertising? Can deceptive uses of AI be banned, given the First Amendment’s special protections for political expression? Who is regulating AI-generated political ads, and who is responsible for enforcing any controls? Do advertising platforms have a role in policing the content?

Venable’s Political Law Practice Group is monitoring ongoing efforts to regulate AI in political advertising at the federal, state, and industry levels. The following highlights some of these efforts and the emerging trends.

Federal. AI is front of mind for the Biden administration and members of Congress across the political spectrum, but action on AI in federal elections has been incremental.

• Congress. A bipartisan group of senators has introduced legislation that would ban the distribution of “materially deceptive AI-generated audio or visual media” about federal candidates and allow people who are the subject of fake ads to sue those responsible for creating or distributing ads, though not online advertising platforms where such ads are placed. But an outright ban raises constitutional questions, and Congress has not yet moved on the proposal.
• Federal Election Commission. Last summer, the FEC announced it would move forward with a proposed rulemaking on deceptive campaign ads using generative AI. Existing campaign finance laws prohibit someone from fraudulently misrepresenting themselves as acting on behalf of a candidate or party in certain circumstances, and the proposal seeks to define AI-generated deepfakes as a form of prohibited misrepresentation. However, some commissioners have expressed skepticism that the current law authorizes the agency to prohibit someone from creating damaging AI-generated depictions unless the ad is pretending to be from that campaign. In other words, it doesn’t allow the FEC to ban someone from making a misleading ad about another candidate if it is clear someone other than the candidate made it. In any event, the FEC has yet to offer a proposed rule that would move the question forward, though the FEC’s chair has commented publicly that they hope to act by early summer.
• Federal Communications Commission. The FCC has acted on AI in political advertising, issuing a declaratory ruling this month affirming that calls using AI-generated voice clones are a form of artificial or prerecorded voice subject to the requirements of the Telephone Consumer Protection Act. The ruling, which specifically cited instances of deceptive campaign call spoofing a candidate voice, will require callers using AI technologies to have express consent to contact recipients and provide identifying information about the caller, among other requirements.

State. States have authority to regulate the conduct of their own elections, and many states have already taken up the issue of AI in state and local election advertising. Five states have enacted laws, while at least 40 have pending bills working their way through current legislative sessions. Each state’s approach varies, but many include bans on using AI in a deceptive way, alone or in combination with carve-outs for ads that disclose the use of AI. An overview of some passed laws is provided below.

• California (Cal. Elec. Code § 20010): Beginning in 2023, California prohibited the distribution of “materially deceptive” audio or visual media showing a candidate for office within 60 days of an election “with the intent to injure the candidate’s reputation or deceive a voter into voting for or against the candidate.” Images or audio are deemed to be “materially deceptive” if they have been intentionally manipulated in such a manner that a reasonable person would believe the content to be authentic and “have a fundamentally different understanding or impression of the expressive content” than if the viewer were seeing the unaltered version. However, any communication that includes a disclaimer stating that it has been “manipulated” is exempt from the prohibition.

A candidate may pursue injunctive relief to stop the publication and seek damages against any entity that distributes the media. Notably, the law expressly does not apply to any radio or television broadcasting station or cable and satellite television operators paid to distribute the media. That carve-out does not extend to websites or other online publications unless the publication states that the deceptive audio or visual material “does not accurately represent the speech or conduct of the candidate.”

• Washington (Rev. Code Wash. 42.62): Washington State regulates “synthetic media,” defined as images, audio, or video of an individual that has been “intentionally manipulated with the use of generative adversarial network techniques or other digital technology” in a way that creates a “realistic but false image, audio, or video” in communications intended to influence voters, distributed within 60 days of an election. Like California, Washington looks to whether the depiction did not actually occur in reality and a reasonable person would have a fundamentally different impression from the original conduct. Also like California, Washington’s law states that including a disclaimer identifying the media as being “manipulated” serves as an affirmative defense against any enforcement.

If a candidate is impacted, they may seek to both enjoin distribution and bring an action for general or special damages. Note that the sponsor of the communication would not be the only target the candidate could pursue—also potentially liable are any media disseminating the content (such as “interactive computer service” providers, including entities like Facebook, Twitter, and Google). However, they would be liable only if they act to remove the synthetic content disclaimer or change the communication to include synthetic media (two fairly unlikely scenarios). Federally licensed broadcast stations were specifically exempt from liability.

• Texas (Tex. Elec. Code Ann. § 255.004): Texas has banned creating a deepfake video and causing it to be distributed within 30 days of an election with the intent to injure a candidate or influence the result of an election. “Deepfake” is defined as a video that was created with the intent to deceive and appears to depict a real person performing an action that did not occur in reality.

The application of this statute appears to be limited—audio advertisements appear to be exempt from the statute, as are display ads. Furthermore, only the “creator” of the communication may be liable, meaning there is no liability for an entity that merely hosts or republishes the communication.

• Minnesota (Minn. Stat § 609.771): Minnesota law prohibits disseminating or contracting to disseminate a deepfake 90 days prior to an election without the consent of the depicted person, with the intent to injure a federal, state, or local candidate or influence the result of an election. While the statute on its face appears to cover federal candidates, it is unlikely that it could be legally applied to such communications.

The statute allows prosecutors to criminally charge those that disseminate such deepfakes. Injunctions are also an available remedy, but they can be sought only by a limited number of persons, including the Minnesota attorney general, any county or city attorney, the depicted individual, or any candidate “who is injured or likely to be injured by dissemination.”

Self-Regulation. Finally, concerned about potential liability and reputational damage their businesses may face due to advertisers’ use of AI, some media companies have begun to implement internal mechanisms regulating the use of AI in political advertising. Several major online ad platforms now require a disclaimer on political advertisements containing realistic audio, images, or video that is digitally created or altered to depict a real person saying or doing something that did not occur.

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The constitutionality and effectiveness of laws on AI in political advertising have not yet been tested, and it has yet to be seen whether we are seeing the leading edge of a new trend in regulation. First Amendment considerations have led bans on false political speech to be struck down, along with laws analogous to a ban on AI-generated content, like a federal law banning child pornography in which no real minors are depicted. Some also argue that well-established defamation laws already discourage inaccurate political advertisements, and additional protections are both unnecessary and chilling of political speech. But regulating AI technologies has some bipartisan appeal, and governments’ desires to protect voting rights and free and fair elections are a strong countervailing interest.

As officials grapple with these considerations, entities that create or distribute political advertising should stay attuned to developments in the regulation of artificial intelligence. If you have questions regarding these developments or how they may impact your work, please contact Venable’s Political Law Practice Group.

As campaigns and their supporters experiment with new uses for AI technology, the FCC’s declaratory ruling immediately extends existing protections of the TCPA to AI-generated calls, such as those pretending to be a candidate, surrogate, or other voice trusted by the recipients. The ruling will immediately require callers that use AI technologies to simulate human voices to obtain the express consent or express written consent of recipients before calls are placed to residential or wireless numbers, unless an emergency purpose or TCPA exemption applies. AI-generated calls will also need to provide certain identifying information about the party responsible for placing the calls and offer certain opt-out rights.

The FCC’s ruling is not limited to AI-generated content of a political nature but puts those using the technology for advocacy ahead of the 2024 elections on notice, citing specifically to reports of the fake Biden robocalls. “The use of generative AI has brought a fresh threat to voter suppression schemes and the campaign season with the heightened believability of fake robocalls,” wrote one commissioner.

Existing exceptions to the TCPA for political and nonprofit calls will continue to apply to such calls using AI. For example, nonprofit organizations need not obtain consent for AI-generated calls placed to residential lines, provided the caller makes no more than three such calls to a particular residential line within any 30-day period. But nonprofits that send AI-generated content to cell phones in any frequency must have prior consent of the recipients and may not take the position that the simulation of a human voice avoids the need for consent to receive prerecorded messages.

The FCC acknowledged the opportunities AI technologies offer and the fact that not all calls employing AI are deceptive or fraudulent. Nevertheless, the ruling will require those placing calls that use AI to proceed with greater caution to avoid investigations, litigation, and penalties and adds to the growing web of regulation from federal, state, and local regulators that organizations must contend with when incorporating AI into their advocacy.

Have questions about your organization’s use of robocalls or text messages? Connect with Venable’s Nonprofit and Political Law Practices.

The rapid acceleration of generative AI has raised questions about how the technology could be deployed to mislead voters, for example, by creating video or audio of a candidate saying something damaging they never in fact uttered. With these questions in mind, the Commission voted to ask the public for comment on whether the agency should initiate a formal rulemaking to ban “deliberately deceptive Artificial Intelligence campaign ads,” often referred to as “deepfakes.”

Existing laws prohibit candidates and their representatives from fraudulently misrepresenting themselves as acting on behalf of another candidate or party in a damaging way, and any person from fraudulently misrepresenting themselves as acting on behalf of a candidate or party for the purpose of raising money. The law also prohibits conspiracy to engage in misrepresentation schemes.

Historically, these provisions have been used to crack down on sham websites that look and feel like a candidate’s website to the average observer, but in fact route donations to bad actors. If adopted, the proposal would update the FEC’s regulations to define AI-generated deepfakes as a form of prohibited misrepresentation.

Commissioners from both sides of the aisle have expressed concern about the potential impact of generative AI in the coming 2024 elections, but the rulemaking is not without skeptics. The main point of discussion at the August Commission meeting was whether the Commission has the authority to adopt a regulation prohibiting a person from making intentionally deceptive ads, whether generated by AI or not.

Republican Commissioner Allen Dickerson noted that there are significant First Amendment concerns with the proposal and that it might exceed the agency’s authority. He expressed concern that while current law prohibits someone from pretending to be a candidate or hold themselves out as working for a candidate or party, it does not prohibit an opponent from creating an AI-generated depiction of the candidate saying something damaging—unless the ad is pretending to be from the candidate, their campaign, or a surrogate. In Commissioner Dickerson’s view, the FEC should not act without further guidance from Congress. Nonetheless, he joined other Commissioners in seeking comment on his concerns, as well on other issues that may be implicated by a rulemaking in this area.

The 60-day comment period is open through October 16, 2023. If you have questions about the rulemaking, or wish to submit comments, connect with Venable’s Political Law Practice.