The November election’s furious get-out-the-vote drives by both parties used telephone calls as their primary tool. From call campaigns originating at huge call centers, to automated recorded calls, to grassroots telephone efforts, this election saw more use of the telephone than any we remember.
The MoveOn PAC organized calling gatherings on Election Day exhorting supporters: “Cell phones in hand, we’ll gather in living rooms across the country to have fun and contact voters together. Each phone party will have a list of folks to call and scripts to read while we’re on the phone.”
These get-out-the-vote campaigns combined with polling and fundraising calls to storm telephone lines in swing states.
Unprecedented action will result in unprecedented reaction. At least five bills in state legislatures mark the start of the reaction to political telephone calling. The coming months will show whether more state and federal regulators weigh in.
Indiana House Bill 1323 would bar any candidate or person acting on a candidate’s behalf from calling a number on the state do-not-call list to “communicate a message relating to an election.” The bill also would bar political fundraising calls to people on the Indiana list.
Similarly, Connecticut Senate Bill 135 would amend the state DNC list law to include “calls made for the purpose of promoting a candidate for public office.”
Missouri House Bill 298 would add calls “for the purpose of endorsing a political candidate, requesting financial support or a vote … or conducting polling …” to the definition of “telephone solicitation” covered by the state DNC list.
Alaska House Bill 62 would bar prerecorded political telephone calls to consumers whose names are on the state DNC list. (Alaska was one of the first states to adopt a no-call list, known before the widespread adoption of computers and databases as the “Black Dot” law, for the dot next to names in the phone book.)
Hawaii House Bill 225 also would bar prerecorded calls for any party or candidate to people on the federal no-call registry.
Though anything can happen in court, seldom have we seen a bill more likely to be struck down as unconstitutional as Indiana’s. It is unconstitutional for myriad reasons, any of which is fatal if a court considered the legislation’s constitutionality.
The most glaring flaw in the bill is that it is vague. “[R]elating to an election” could mean almost anything, from a get-out-the-vote call, to a call to a cousin in celebration of last November’s result, or even to a call to one’s mother complaining about traffic at a polling site. Vague laws are constitutionally suspect because they do not give citizens sufficient notice of what is legal or illegal and could let prosecutors selectively enforce their terms based not on the law, but on what speech or speaker the prosecutor dislikes.
The laws also ignore that consumers signed onto the lists based on a perceived dislike for commercial telephone calls. It is not at all clear that those consumers would still add their names if the lists applied to political calls. The Federal Communications Commission thought they would not, noting: “In crafting the [Telephone Consumer Protection Act], Congress sought primarily to protect telephone subscribers from unrestricted commercial telemarketing activities, finding that most unwanted telephone solicitations are commercial in nature.”
Congress also noted: “The evidence showed that the overwhelming majority of consumer complaints were about commercial calls.”
The FCC, of the national no-call list.
The final reason these bills likely would be found unconstitutional if enacted into law is that courts treat telemarketing in a fundamentally different way than political activity. Commercial telemarketing, so long as it is not deceptive, is considered “commercial speech” and is protected by the Constitution at an “intermediate level.” Basically, states can’t regulate or ban commercial speech without good reason. As anyone who has tried to comply with state telemarketing law knows, there are many laws out there, hence courts have found many good reasons for these regulations.
Political calls, though, are considered “fully protected speech” just like a stump speech or a religious sermon. Laws regulating fully protected speech are constitutional only if based on a “compelling” purpose, regulate no more speech than necessary to further that goal and the goal can’t be accomplished in another, less intrusive, way. Application of this standard is known as “strict scrutiny.” The Federal Trade Commission and FCC justified the national no-call list using the “intermediate” test, not the “strict scrutiny” test. If fully protected speech were banned by the federal list (Hawaii’s proposed ban of prerecorded calls “on behalf” of a candidate), the national list could be unconstitutional.
It is interesting that these bills represent politicians’ at least nominal efforts to limit themselves rather than agencies like the FTC or FCC regulating business. These bills may be just post-election posturing and may not progress beyond a state house subcommittee. However, if one or more become law, they surely will be challenged in federal court on First Amendment grounds.
