Last Thursday, the Senate Commerce Committee Republicans introduced an updated version of their AI moratorium. This provision, part of the contentious House-passed budget reconciliation bill, seeks to impose a ten-year ban on state and local governments from enforcing laws or regulations on Artificial Intelligence (AI) and automated decision systems.
The revision aims to prevent the provision's removal under the Byrd rule, Section 133 of the Congressional Budget Act. This rule restricts extraneous provisions in budget reconciliation legislation. The update concedes that previous justifications for the AI moratorium being budget-related were unconvincing. However, it now ties the moratorium to funding allocation under the Broadband Equity and Access Deployment (BEAD) program, which provided $42 billion for expanding high-speed internet access across the United States.
Critics argue that this update does not address significant flaws in the provision. It could prevent states from enforcing consumer protection and anti-fraud laws involving AI systems. The revised text fails to resolve concerns that this policy change is unrelated to budgeting and should be removed under the Byrd rule.
The updated provision offers additional funding to BEAD but applies an AI moratorium to any state eligible for BEAD funding. A state's BEAD funds can be withdrawn if they do not comply with the ban on AI regulation. All states and territories are considered "eligible entities," meaning the moratorium applies regardless of whether they receive BEAD funding.
Ensuring compliance poses challenges for state and local officials due to unclear drafting. Proponents claim exceptions exist for "general purpose" laws like consumer protection and civil rights, provided these laws do not treat AI differently than other technologies. However, these exceptions form a three-part test requiring a law to be general-purpose, impose no unreasonable fee, and promote AI deployment.
This complex requirement raises doubts about enforceability against AI systems without risking BEAD funding loss. As long as current text remains unchanged, general-purpose laws may face threats rather than exemptions.
The continued prohibition of AI law enforcement by all states violates the Byrd rule despite adding funds for developing AI infrastructure through BEAD programs. This creates potential funding loss if perceived violations occur without clear budgetary impact.
Overall, critics view this ban as a significant policy shift disconnected from federal spending or revenues—potentially undermining Byrd rule intent by making unrelated program compliance conditions dependent on such policies within reconciliation bills instead of regular legislative order requiring broader consensus among Senators.
Despite attempts at obfuscation through revisions made last week—the provision still warrants removal during further deliberations according its detractors' perspectives regarding adherence principles outlined within existing legislative frameworks governing congressional processes today."