
Commentary

Kevin Frazier, Assistant Professor of Law at St. Thomas University Benjamin L. Crump College of Law since 2023, previously served as a Judicial Clerk to Chief Justice Mike McGrath of the Montana Supreme Court. A graduate of the Harvard Kennedy School and UC Berkeley School of Law, his research delves into the intersection of emerging technology, democratic design, and the law, examining how governance systems adapt to rapid technological advancements. Professor Frazier's extensive scholarship has appeared in numerous journals such as the Rutgers University Law Review, Virginia Journal of Social Policy & the Law, and Notre Dame Journal of Emerging Technology. His ongoing status as a Senior Research Affiliate with the Legal Priorities Project allows Professor Frazier to remain on the vanguard of updating laws and the legal profession in response to emerging technologies. Track his research here or by following him on Twitter: @KevinTFrazier.
To train the next generation of lawyers in the law and practice of voting rights, ballot access, campaign finance, election administration, and democracy protection.
By Kevin T. Frazier
March 27, 2024 9:30 AM
Our democracy has withstood surges of social unrest and swells of technological advances. Its survival has not been by accident or good fortune. In each instance, the American people have deliberately and boldly rushed to the ramparts to protect the ABCs of our republic: A – an accountable government; B – the basic resources and opportunities to pursue the American Dream; and C – constraints on the concentration of power in all its forms, be it economic, political, or otherwise. The ABCs have come under new pressures in recent decades. So far, we’ve delegated their defense to pandering politicians and perfidious platforms. The results have been, well, bad.
The tides have again turned against our democracy. Uncertainty and instability appear in the headlines, fill our feeds, and disrupt our capacity to collaborate, coordinate, and carry on. In particular, artificial intelligence is impacting each leg of our republic’s core requirements.
AI has already made it harder to hold our officials accountable. By its mere existence, we have become less certain of what’s real—that doubt has created space for bad actors to pollute our information ecosystem with dis-, mis-, and malinformation. The real-world consequences of this phenomenon have already played out in Slovakia and South Korea. In both places, generated AI content was strategically created and spread to manipulate voters’ impressions of candidates.
Some say that low-quality information has been a feature of our political process since tea spilled into the Boston Harbor. They’re not wrong, but they’re far from right. Although fake news is not a modern invention, our democracy has never faced the current degree of speed and scale of dissemination made possible by the combination of AI and social media. Our democratic systems and processes must be updated to mitigate this deluge of destructive misinformation.
If forecasts are to be believed, AI will also upend one of the basics of the American Dream—meaningful employment. Even conservative estimates of job loss due to AI will result in millions seeking more hours, more substantive work, or both. New programs and policies are needed to protect the ability of Americans to provide for their families and contribute to their communities. For instance, retaining programs that allow people to affordably and quickly pick up the skills necessary for in-demand jobs should be spread and scaled. San Antonio residents recognized the importance of such programs when they recently voted to reallocate tax revenue to support as many as 40,000 workers in the city undergoing workforce training or earning college degrees in fields with employment opportunities.
Finally, profits generated by AI tools will surely exacerbate an already uneven distribution of wealth, income, and, by extension, political influence. There are no safeguards to ensure these gains are distributed in a way that sustains and supports anyone other than those who already count themselves as “financially comfortable,” to say the least. A creative constraint to prevent ever more concentration of power in the hands of a few is needed to prevent AI from further tilting already tipped scales.
History makes clear that these adjustments must match the magnitude of the disruption. For example, let’s look back to the early 1900s. Then, as is the case now, the American public was grappling with “tremendous changes wrought by the extraordinary industrial development of the last half of the century,” which Theodore Roosevelt said the people could feel “in every fiber of [their] political and social being.”
The people were not passive, simply hoping that the storm battering their democracy would simply pass without unmooring core values and detaching critical institutions. Instead, they rallied to ratify three constitutional amendments and pressured politicians to adopt revolutionary regulatory schemes. On accountability, they claimed the ability to directly elect United States senators via the 17th Amendment and expanded the right to vote to women with the 19th Amendment.
On the basics, legislators acted at the public’s direction to create new social safeguards. Case in point, they passed the Federal Trade Commission Act (FTCA) to, in part, protect consumers. Relatedly, at the state level, compulsory education statutes were revised and, critically, actually enforced. Both efforts recognized that access to the American Dream required assistance in the face of abusive corporations in addition to resources to tap into our collective and individual potential.
On constraints on the concentration of power, the passage of the 16th Amendment ushered in the income tax and, in doing so, ended an inadequate and highly regressive approach to raising revenue. This massive overhaul in the tax scheme was complemented by legislation like the FTCA, which also aimed to limit anti-competitive behavior by corporations.
In short, that generation of Americans transformed the electorate, reoriented the Senate, altered the source and scale of government revenue, and constructed social safeguards. These were unanticipated, transformational, and necessary changes to preserve the ABCs in a new reality. The unpredicted advances in AI and its unprecedented adoption mark yet another new reality. To protect the ABCs in the Age of AI, we must follow the lead of our forebears. That’s precisely why we should collaborate and coordinate to pass a set of constitutional amendments and substantive legislative—what I call the “Real Deal.”
The “Real Deal” proposed here is a starting point for maintaining accountability, providing the basics for a shot at the American Dream, and placing constraints on undue concentrations of power. First, we need a Right to Reality—the subsidization of local news such that every American can access the information required to actively monitor their officials and the implementation of policy. In practice, this would revive local papers that have disappeared in recent decades and provide them with the financial independence to focus on news that is actionable, timely, and relevant to democratic affairs.
Second, we need a Right to Retrain. Major AI labs should be taxed as much as is necessary to provide every American who has their job cut or hours reduced by AI with a chance to retrain for a new profession.
Third, we need a Right to Reap. Americans should profit off of their roles in training the very AI models that are disrupting our economy and threatening our democracy. This right could manifest by giving Americans some financial benefit from the use of their data or through a version of a “windfall tax.” The latter would be triggered upon an AI lab amassing excessive profit, and, in turn, a portion of that profit would automatically be sent to Americans.
Radical? I’m just getting started. You should start brainstorming as well. Our democracy is counting on us to be bold. Let’s stop debating incremental steps and instead embrace the idea of the “Real Deal.”
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