As the 2026 midterm elections draw closer, the landscape of political advertising is becoming increasingly complex due to regulations surrounding artificial intelligence, influencer marketing, and various disclosure requirements, according to experts from Venable LLP. In a recent webinar, partners Barry Benjamin and Meredith McCoy, along with counsel Dave Owens, discussed the implications of these factors for political advertisers and campaigns.
Challenges of Compliance in Political Advertising
During the discussion, McCoy, a former Federal Election Commission (FEC) enforcement attorney, outlined the criteria that determine when political messaging is classified as regulated advertising. She stated that factors such as the sponsorship of the communication, its endorsement of a candidate, and the medium of distribution are crucial in this evaluation. “Once an advertisement is considered political advertising, a whole host of other laws will start to apply,” she explained, highlighting the differing compliance obligations for advertisers and platforms.
Unpaid advocacy generally falls outside the realm of campaign advertising laws. However, compensating individuals to promote a candidate, or paying to amplify content on platforms, introduces new obligations related to disclosures and potential donor identification. The introduction of AI-generated content further complicates compliance, as Owens noted that, while no federal laws specifically address AI in political messaging, 31 states have enacted laws concerning deepfakes. These laws vary significantly regarding their restrictions, disclosure requirements, and other compliance aspects.
“There really isn’t one universal AI test in terms of compliance,” Owens cautioned, urging advertisers to thoroughly review their payment structures and content distribution strategies. Furthermore, McCoy raised questions about whether the creative advantages offered by AI justifies the compliance challenges, asking, “Are we getting such great content out of AI here that it really merits its use and is worth this disclaimer?”
In addition to AI and influencer marketing, Benjamin discussed specific legal obligations related to political email, text messaging, and robocalls. He highlighted how election-related communications may also fall under regulations like the CAN-SPAM Act and the Telephone Consumer Protection Act (TCPA). Using a hypothetical example, he illustrated that the legal analysis can significantly shift based on factors such as compensation, the nature of the message, and the technology used for transmission.
“Political marketing is still marketing, and you need to be aware of these,” Benjamin emphasized, highlighting the importance of understanding messaging content, documenting sender identities, and maintaining thorough records to respond to consent and unsubscribe requests.
The speakers concluded by stressing the growing complexity of political advertising laws and the necessity for clear responsibilities among sponsors, influencers, and advertising platforms. They recommended early legal reviews and comprehensive documentation to help organizations navigate these evolving regulations as the midterms approach.
