By Lawson Faulkner
In a move that promises turmoil mere months before the presidential election, the FCC has advanced a proposal requiring broadcasters to disclose artificial intelligence content (AI) used for political advertising. The decision, which passed 3-2 along ideological lines, has already sparked controversy, with many critics accusing the agency of putting its thumb on the scale before a consequential election season.
As Digital Liberty has previously reported, this FCC action is an unprecedented attempt to change the rules at the last minute and impose heavy-handed regulation on AI. Unfortunately, this is consistent with the Biden administration’s authoritarian instincts towards free speech.
In a statement dissenting to the proposal, FCC Commissioner Brendan Carr considered the idea of mandatory AI disclosures to be a “recipe for chaos” on the eve of crucial federal elections. Commissioner Carr is also skeptical that the Telecommunications Act of 1996 authorizes the FCC to take such action, hinting at partisan motivations for the proposal. As he explained, the regulation of AI campaign content resembles a “DNC-backed initiative” that promises to “mire voters in confusion, create a patchwork of inconsistent rules, and encourage monied, partisan interests to weaponize the law for electoral advantage.”
Commissioner Carr’s opposition to the proposal is backed by a chorus of criticism for lawmakers and regulators as well. As Carr has argued, the Federal Elections Commission (FEC), rather than the FCC, possesses sole authority over the regulation of AI campaign content.
In a June letter penned to FCC Chairwoman Rebecca Rosenworcel, FEC Chairman Sean Cookey agreed with Carr’s assessment, explaining that FCC action would “conflict with existing law and regulations, and sow chaos among political campaigns for the upcoming election.”
Chairman Cooksey also reminded Chairwoman Rosenworcel that FEC authority over political disclaimers is well established, with court precedent acknowledging that “the FEC is the exclusive administrative arbiter of questions concerning the name identifications and disclaimers.”
Many Republican lawmakers have also expressed hostility to the FCC’s eleventh-hour action. In June, Sens. John Thune (R-S.D.), Mitch McConnell (R-Ky.), Eric Schmitt (R-Mo.) and Ted Cruz (R-Texas) addressed a similar letter to Chairwoman Rosenworcel, calling the FCC a “de-facto arm of the Biden campaign.” The senators argued that the agency has “no authority to police the content of political advertising”, and doing so without congressional authorization would create “serious statutory and legal concerns.” Furthermore, they condemned the FCC’s flirtation with election interference, urging the agency “to abandon this dangerous proposal that threatens to tip the scales of free speech in our nations.”
Luckily, given the FCC’s enthusiasm for eleventh hour AI regulation, Republican lawmakers have already jumped into action. The Ending FCC Election Meddling in Our Elections Act of 2024, co-sponsored by Sen. Mike Lee (R-Utah) and Cynthia Lummis (R-Wyo.), would prohibit the use of federal funding to enforce any order relating to the FCC’s regulatory proposal. As Sen. Lee has argued, the FCC cannot be allowed to “unilaterally alter the rules of the road for campaigning just months before the most consequential Presidential election in a generation.”
On the doorstep of election season, the FCC’s regulatory proposal promises to upend campaign procedure while simultaneously creating unnecessary confusion and chaos for the voting public. Unfortunately, this is consistent with the Biden Administration’s authoritarian instincts towards free speech. This last-minute attempt to change the rules and usurp the jurisdiction of the FEC should be resisted.
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