Imagine that it’s late October 2024. You’ve been scrolling through Facebook, and you see a video shared by a friend. It shows a candidate you are planning to vote for saying something terrible during a “private moment caught on tape.” It’s the kind of comment that immediately catches your attention and makes you inclined to change your vote or not vote at all.
As word of the video shoots across the news, the candidate in question holds a press conference saying it’s entirely fabricated, a product of sophisticated artificial intelligence (AI). The question for you, and everyone else in your community who saw the same video, is: Do you believe him or your own eyes and ears?
The election takes place a few days after the press conference and the candidate targeted by the fraudulent AI attack loses by just a few thousand votes, with no way to tell how many people may have been swayed by the video you saw. Adding insult to injury, nobody is held responsible for paying to have the fraudulent video produced or distributed. The result is an environment where disinformation breeds distrust amongst voters, undermining our democracy for the sake of partisan gain.
On September 27 I testified before the U.S. Senate Committee on Rules and Administration, saying that uses of AI like the hypothetical described above should be outlawed, emphasizing that our government stands on firm legal ground should it take action.
The idea of using AI to discourage a candidate’s supporters is not a fantasy. One well-publicized example is a video produced by the presidential campaign of Ron DeSantis using fake — artificially created —images of Donald Trump hugging Anthony Fauci, former Director of the National Institute on Allergy and Infectious Diseases, and a lightning rod for a subset of Republican primary voters because of his efforts to fight COVID-19.
Candidates are already prohibited from fraudulently speaking for other candidates or parties on a matter that is damaging to those entities. In other words, it is illegal for Candidate A to put words in the mouth of Candidate B for the purpose of undermining Candidate B’s campaign.
The Federal Election Commission is vested with the authority to stop this kind of fraud, and the agency should use this same authority to stop the fraudulent use of AI, an argument laid outin a recent comment submitted to the FEC by CLC and Protect Democracy.
We also need Congress to act, and act swiftly. The FEC’s authority should be expanded to preclude all fraudulent misrepresentation — regardless of who is speaking and whether the matter is damaging — including through AI. Congress should also pass a new law prohibiting the deceptive or fraudulent use of AI in elections.
To help voters see through deceptive uses of AI, Congress should expand existing campaign finance disclosure requirements to include disclaimers on the face of any ad using AI to create a fake image or voice of a candidate.
When asked by Rules Committee Chairwoman Amy Klobuchar (D-MN), every witness at that September hearing agreed there is a risk posed by the use of AI to deceive voters and undermine our elections. Some witnesses, however, expressed concern with the complexity of this issue, claiming that the First Amendment protects fraudulent speech (the Supreme Court has held that it does not).
As I told the Committee, the response to those concerns is fairly straightforward. Our government has a clear, compelling interest in protecting voters and the integrity of the electoral process. Additionally, voters have a well-recognized First Amendment interest in being able to assess the political messages they see. There is no corresponding right to intentionally defraud or deceive voters or interfere in elections.
For the sake of public trust and our democracy, we must confront the misuse of AI in our elections now, before this already widespread technology becomes more pervasive and harder to detect.
Sincerely,
Trevor Potter
President, Campaign Legal Center
SPECIAL NOTE: You can now listen to all seven episodes of season 3 of CLC’s award-winning podcast “Democracy Decoded” on your favorite podcasting platform. Please listen, subscribe, review and share!
The nonpartisan Campaign Legal Center is dedicated to advancing democracy through law at the federal, state and local levels, fighting for every American’s rights to responsive government and a fair opportunity to participate in and affect the democratic process.
