First Amendment, First Impressions: Regulating AI in Elections

-- By MichaelMacKay - 01 May 2025

A Bipartisan Boogeyman

How does an AI-generated campaign video differ from an AI-edited campaign video as a subject of regulation? This essay examines the extent to which AI tools are discernible from other kinds of software, whose use is protected under the First Amendment, as recent laws have aimed to curb the use of AI in elections. Recently, S.1213, a bipartisan bill, was introduced in the Senate to stamp out AI-generated content from federal elections. Thus, this essay proceeds by (1) establishing the First Amendment framework for protecting software as a means of expression, (2) showing how the proposed amendment to Title III of the Federal Election Campaign Act of 1971 bears on that framework, and (3) exploring the extent to which that burden likely implicates a false dichotomy. After examining legal precedents, novel changes, and technical realities, such regulations like S.1213 are likely unconstitutional and unwise.

The First Amendment Issue

Under Buckley v. Valeo, the Senate bill would likely not survive strict scrutiny as a content-based measure. U.S. District Court Judge Mendez recently granted a preliminary injunction against California’s similarly worded restriction on “synthetic media” in elections. Anonymous speech has been protected under _McIntyre v. Ohio Elections Commission_ and part of the national discourse since at least The Federalist Papers. Ultimately, if candidates choose to communicate through a dice-throwing machine, their speech should not bear any extra burdens.

The Enforcement Issue

Second, there is a maze to online sharing that confounds enforcement. What if a congressional campaign in New York merely used AI to master some audio from a campaign rally and shared the results on Facebook? That would require a disclaimer “in a size easily readable by the average viewer,” and if shared in an audio format only, then “in a clearly spoken manner.” But technically speaking, should a dinosaur now appear in that recording from the campaign rally, could the state even discern its origin? Instead, the easy case is the misrepresentation already protected under law (like a robocall impersonating a former president), but the harder case is routing through a labyrinth of lighter touches to find the agenda behind some AI-edit that the law sweeps.

The Green Issue

Above all, elections are expensive, and S.1213 likely disarms minority points of view by removing relatively cheap and effective campaign tools. According to OpenSecrets? , a nonprofit organization promoting transparency in elections, the average successful campaign for the House of Representatives spent $2.79M in the last round of midterms, so what is “synthetic” to some with deep pockets may be an “equalizing” force to most without. Last year, candidates increasingly sought joint fundraising committees, as McCutcheon struck down aggregate contribution limits, so where the evenly split FEC also allowed these fundraising entities to run ads without allocating costs, laws like S.1213 would only make it harder for less well-off insurgents to compete after Citizens United.

The Unafraid Approach

In Wyoming, last year, a candidate ran for mayor of Cheyenne by using an AI avatar. His campaign last year was unsuccessful, but his positive message on leveraging software to broadcast his platform was clear (overcoming a now failed piece of legislation resembling S.1213). As with any new technology, there are always unknowns, but it is well-known that "Congress shall make no law... abridging the freedom of speech." Using AI on behalf of a candidate or political cause is constitutionally protected speech, and as such, S.1213 is not narrowly tailored. The acronym, "AI," may obscure this fact, but RNNoise, for example, is fundamentally just software, albeit hooked up to a neural network. Hence, from a regulatory point of view, software is software, and speech is speech.

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