This piece originally appeared in the Washington Examiner on May 14, 2024.
Congressional Democrats in 2021 attempted to ram through a series of draconian election reforms aimed at harassing and limiting the speech of donors to their political opponents. Republicans rightly objected to S.1, laughably called the “For the People Act,” and successfully killed the bill.
Now Democrats are back, and since they gussied up their approach with attacks on artificial intelligence and slick rhetoric about the bill regulating Big Tech, which is simply not true, some Republicans seem willing to join this misguided effort.
The Senate is poised to consider two bills, the Protect Elections from Deceptive AI Act and the AI Transparency in Elections Act of 2024. While proponents claim these bills target artificial intelligence, for the most part, they merely recycle many of the proposals in the infamous For the People Act that would have trampled on free speech. In fact, the PEDA Act copies language verbatim from Section 4421 of S.1, not bothering to disguise its resurrection of the same unconstitutional provisions that were rightly rejected in 2021.
The bills first resuscitate S.1’s attempts to expose supporters of conservative advocacy groups to harassment and boycotts. The ATEA Act mandates disclaimers on ads deemed to contain AI-generated content, while the PEDA Act requires groups to identify certain donors, even if they provided no funding for the ads in question. Faced with being inaccurately associated with “campaign” ads, many donors will simply stop giving to nonprofit organizations.
Both bills amend the Federal Election Campaign Act to prohibit the distribution of “materially deceptive” audio or visual content, using a dangerously vague “reasonable person” standard to determine what qualifies as deceptive. In a First Amendment context, “reasonable person” standards are rarely used because “reasonable persons” can quite obviously disagree on the meaning of various types of speech, including what counts as “deceptive.” This subjective standard poses a serious threat to free speech, as the government, and especially the Biden administration, cannot be trusted to be a neutral enforcer.
More alarming still, the PEDA Act would expand campaign finance laws beyond paid ads to unpaid political speech. There are no exceptions for de minimis activity, meaning a person who posts flyers with an AI-generated image of a candidate could face federal legal consequences. This extreme overreach is both constitutionally dubious and, as a practical matter, unenforceable.
The bills include regulation of AI, but they do not regulate Big Tech (something many Republicans favor). Rather, they regulate users of AI, though not in an evenhanded way. The PEDA Act goes out of its way to ensure that legacy media outlets that publish regularly, such as the New York Times, could freely share AI-generated political content without fear of consequences under the proposed law. On the other hand, an independent journalist who doesn’t publish regularly, such as a Substack writer or the author of a one-time X exposé, could face Federal Election Commission complaints and penalties.
These bills also grant the FEC vast power to regulate AI in elections, an area in which the agency has neither expertise nor constitutional authority. As with S.1’s transformation of the FEC into a “Speech Czar,” the ATEA Act allows partisan control of the commission and biased enforcement against speakers.
Republicans are right to be concerned about the malicious use of AI-generated deepfake content. But the heavy-handed regulations proposed in these bills do little to address that problem while imposing immense burdens on free speech. Existing laws already create efficient methods for candidates to seek removal of demonstrably false content. We don’t need a convoluted federal statute superimposed on these laws, much less a statute that negatively affects free political speech. Lawmakers should see these bills for what they are: a Trojan horse teeming with attacks on First Amendment rights.
Some bad ideas never die; they just get repackaged and resold. Whether it’s the For the People Act in 2021 or the PEDA Act and the ATEA Act in 2024, the same goal remains: empowering Washington to police speech.
The Senate should defend free political speech by rejecting these bills.
Bradley A. Smith is the chairman and founder of the Institute for Free Speech and a former chairman and commissioner of the Federal Election Commission.
