Welcome to the abridged August version of the Political Law Playbook, as summer has nearly come to an all too swift end. This edition highlights recent efforts by the Federal Election Commission (“FEC”) to regulate the use of artificial intelligence (“AI”) in campaign advertising, the US Supreme Court’s ruling in Moore v. Harper, and more Congressional action targeted at curbing foreign influence in the US.
Earlier this month, the FEC unanimously approved a rulemaking petition to regulate the use of AI in campaign advertising, which would address the use of the technology to create “deepfakes” and mislead voters. The US Supreme Court also issued its long-awaited opinion on the merits of the “independent state legislature” theory earlier this summer, rejecting by a 6-3 vote the notion that state courts cannot exercise judicial review over state election laws under jurisdiction granted to them by state constitutions. On Capitol Hill, legislators continue to push for additional disclosure of foreign influence in US politics with the bipartisan Retroactive Foreign Agents Registration Act and calls for the Department of Justice (“DOJ”) to investigate foreign ties to nonprofit groups.
Federal Elections & Campaign Finance
FEC Moves Toward Potentially Regulating AI Deepfakes In Campaign Ads – Earlier this month the FEC unanimously approved a rulemaking petition to amend its regulation on the fraudulent misrepresentation of campaign authority to make it clear that the related statutory prohibition applies to deliberately deceptive AI campaign advertisements. Among other uses of AI in elections, the rules could regulate advertisements that use the technology to generate “deep-fake” communications that misrepresent and falsify what political figures and candidates say and do – a tactic that has already been seen in the run-up to the 2024 presidential election. The Commission is currently seeking public comment on the rule for a 60-day period, following which the FEC Commissioners will vote again on whether to take up a final rule.
Supreme Court Denies State Legislatures The Unchecked Power To Set Election Rules – The US Supreme Court issued a landmark ruling earlier this summer in Moore v. Harper, rejecting by a vote of 6-3 the “independent state legislature” theory advanced by plaintiffs. The ruling in the case, which came up on appeal from the North Carolina Supreme Court and which was detailed in the June edition of the Playbook, hinged on a reading of the US Constitution’s Elections Clause. The majority ultimately determined that the federal constitution does not prevent a state court from exercising judicial review over state legislators’ election-related activities ranging from creating congressional districts to how people register to vote and cast a ballot. Chief Justice John Roberts also stated in his majority opinion that federal courts would maintain their own duty to exercise judicial review over state election laws, ensuring a role for the US Supreme Court in any potential cases relating to federal elections in the future.
House Republicans’ Election Bill Heads To House Floor – Last month, the House Administration Committee voted to advance the American Confidence in Elections Act for a floor vote. The bill is intended to improve voter confidence and election integrity. The bill urges states to adopt voter ID requirements, prevents federal funds from flowing to states that allow noncitizen voting or third-party ballot collection efforts, and prohibits federal agencies from targeting or demanding public donor disclosure from nonprofit organizations. The bill also aims to close loopholes and gaps in existing law that permit certain forms of foreign influence in US elections. While the bill’s sponsor, Representative Bryan Steil (R-WI), has received significant support from his Republican counterparts for attempting to restore confidence in elections, Democrat House Members have criticized the measure as disenfranchising certain voters and protecting wealthy donors.
Federal Lobbying & Ethics
Senate Committee Advances Supreme Court Ethics Bill – The Senate Judiciary Committee voted to advance the Supreme Court Ethics, Recusal, and Transparency Act last month, in response to politically-tinged criticisms leveled over the past year about the relative lack of ethics transparency requirements for Supreme Court Justices. As covered at length in past editions of the Playbook, Supreme Court Justices are not governed by the same ethics and gift disclosure requirements as other federal judges – although most (if not all) voluntarily comply with many of the same obligations as a matter of course. This dichotomy has been a recent source of consternation for many left-leaning advocacy groups and media outlets who have been pushing – regardless of separation of powers concerns – for congressional action mandating the adoption of a formal ethics and disclosure framework for the high court. This new bill, which recently cleared the Judiciary Committee on a 11-10 vote, would require the Supreme Court to: establish a published code of conduct; adopt a process for members of the public to file complaints and for a panel of lower court judges to investigate alleged violations; strengthen financial disclosure requirements for justices, as well as parties filing amicus briefs; and create new requirements for justices to recuse themselves over conflicts of interest and mandate public explanations of recusals. The legislation faces a litany of constitutional questions and an uphill battle for passage in both the full Senate and House, but we will continue to monitor the developments moving forward.
Foreign Agents Registration Act
Lawmakers Introduce Bill To Close FARA Loophole – Lawmakers in the House and Senate recently introduced companion bills that would specify that agents of a foreign principal have a continuing obligation to register under the Foreign Agents Registration Act (“FARA”), even when that work has ended. The bills come as a direct result of a legal decision last fall that prevented the DOJ from forcing casino magnate Steve Wynn to register as a foreign agent for the Chinese government, which we detailed in the November 2022 edition of the Playbook. The bills have bipartisan support in both chambers of Congress.
Environmental Groups Targeted with FARA Investigations – Senator Ted Cruz (R-TX) and House Oversight Committee Chair James Comer (R-KY) have requested that the DOJ investigate environmental groups – such as the National Resources Defense Council and Rocky Mountain Institute – for ties both nonprofit groups have to Chinese officials. The lawmakers have requested that financial ties between the organizations and China be investigated to evaluate whether FARA registration is required based on the nonprofits’ work alongside and in cooperation with a foreign government. The move is not entirely unprecedented, as DOJ previously required nonprofit National Wildlife Federation to register under FARA on the basis of receiving funding from the Norwegian government.
Non-Federal Elections & Campaign Finance
Utah’s Congressional Map Addressed by Utah Supreme Court Justices – The Utah Supreme Court heard oral arguments last month from parties disputing the constitutionality of recently-redrawn Congressional maps in Salt Lake County. The case had previously been heard in district court, where the court refused to dismiss and led to the state requesting the Utah Supreme Court to intervene. Plaintiffs, including the League of Women Voters, argued that lawmakers intentionally drew the congressional districts to split Salt Lake County into four parts in order to dilute the vote of the most liberal part of the state. Defendant lawmakers and their attorneys have argued that the redistricting plan was driven by a desire to facilitate a consistent urban-rural mix among districts. Further, they counter that there is nothing in state law or the state constitution that prohibits a partisan gerrymander. The court is expected to issue a decision in the next few months.
Rhode Island Lawmakers Want To Make It Easier To Raise Campaign Cash – Rhode Island recently passed a package of campaign finance law changes that double contribution limits for individuals and increase the threshold for aggregated donations. The bill increases individual contribution limits from $1,000 to $2,000 and requires reporting candidates to disclose aggregate values for contributions below $200, where the law previously required any contribution over $100 to be itemized. The bill also added definitions for “fair market value” as related to in-kind contributions, expanded matching funds for primary elections, and modified certain reporting logistics.
Non-Federal Lobbying & Ethics
Dallas Has New Ethics Rules, Adds Misdemeanor For Leaking City Information – The Dallas City Council made a series of changes to the city’s ethics rules last month, lowering the standard of proof needed for the inspector general to prove an ethics violation occurred and making it a misdemeanor for city officials and employees to leak confidential municipal information. City of Dallas Inspector General Bart Bevers spoke in favor of lowering the legal standard from “clear and convincing evidence” to “a preponderance of the evidence,” after receiving over 300 investigative cases in just over one year. The high standard of proof only permitted one case to go forward during that time, whereas this change would allow more cases to be addressed by the city’s ethics advisory board and in turn have a greater affect on people’s behavior. Other changes in the new rules include provisions requiring campaign treasurers and anyone paid to participate in a sitting council member’s most recent election campaign to disclose their connection at all city meetings where council members are present. City officials and employees will also have to disclose whether they have a substantial stake in a business or property before a vote or decision on any matter involving those entities.
The Courts & Free Speech
Court Weighs Curbs On Administration’s Social Media Platform “Censorship” Activities – A three-judge panel of the US Court of Appeals for the Fifth Circuit heard oral arguments last month in State of Missouri v. Joseph Biden, after the court temporarily stayed an injunction granted earlier this summer by the district court below that prevented the Biden Administration from further communicating with social media companies. In presenting its case before the panel, the DOJ argued that it never engaged in the behavior alleged by the State of Missouri and State of Louisiana and denied forcing social media companies to remove posts about COVID-19, the 2020 election, and other topics. The circuit judge panel seemed skeptical, describing messages between the Administration and social media companies as “a supervisor complaining about a worker” and press releases suggesting antitrust enforcement as threats to the social media companies. DOJ’s lawyers in turn argued that platforms “regularly refused government requests to remove content.” The district court’s order remains suspended while the Administration appeals the injunction.
With summer coming to a brisk conclusion, businesses and organizations can take a moment in the last few weeks before Labor Day to evaluate upcoming compliance requirements they will face in the fall season. This is an ideal month to look ahead and create a longer-term schedule for upcoming obligations, such as lobbying registration renewals, third quarter and end-of-year disclosure reports, and campaign finance reporting requirements associated with 2023 and 2024 special election and primary election activity. As we look ahead to a busy 2024 election cycle, it will be especially crucial for all political stakeholders to have a clear strategy in place on how to tackle reporting obligations at the federal, state, and local levels. Business organizations, nonprofits, associations, and all other political actors should use this time to take stock of these commitments and create plans accordingly – particularly those relating to data tracking and recordkeeping associated with policy and electoral advocacy. The Dentons Political Law Team regularly advises clients on lobbying, corporate, and campaign finance filings and creates compliance strategies to ensure timely filing, so please do not hesitate to reach out if your organization or client has questions.