Local Government Regulation of Political Robocalls

Anonymous

Sun, 06/27/2010 - 02:45

Campaign Finance

Image by Joe Wu 
 
Following up on <a href="http://www.cityethics.org/content/transparency-anonymity-and-moral-cour…
previous blog post</a>, here is the first of two examples
of local government ethics matters involving anonymity outside of an
internet context. 
 
<a href="http://www.bangordailynews.com/detail/146842.html" target="”_blank”">An article in
Thursday's Bangor Daily News</a> discusses a state ethics commission
investigation into anonymous robocalls the day before a Republican
primary election. The robocall questions a candidate's "moral values," with
respect, of course, to his position on civil unions. 
 
Maine's campaign finance laws require disclosure in a message of who
paid for it and whether a candidate endorses it. But most states do not
appear to have such laws, and I haven't read about any local government
that does. But there's no reason why a local government, especially one with an
ethics, election, or campaign finance commission or authority, could not add a robocall
provision if the state lacks one, or even if the state's law is poorly worded or not focused on political robocalls, or if the enforcement process is too slow, politicized, or ineffectual.

North Carolina has a political robocall law (see below), and in 2008, according to <a href="http://www.wired.com/threatlevel/2008/10/womens-group-pa/" target="”_blank”">an
article on the wired.com site</a>, a voter registration group agreed to
pay a $100,000 fine for anonymous robocalls there. The
calls were particularly nasty in that they allegedly attempted to suppress voting
by African-Americans. 
 
There is a complex <a href="http://www.fec.gov/pages/brochures/notices.shtml#when" target="”_blank”">Federal
Election Commission regulation</a> that requires a disclaimer from a
political committee that pays for a series of at least 500 similar
phone calls, but it applies only to federal political committees and federal elections.
According to <a href="http://thinkdodone.typepad.com/ccd/2010/06/disclose-act-includes-langua…; target="”_blank”">a
post
yesterday</a> on the National Political Do Not Call Registry's Stop
Political Calls blog, the federal DISCLOSE Act, passed by the House,
but not the Senate, would improve the FEC regulation, but not widen the
applicablity. And the Robocall Privacy Act of 2008 never got off the
ground. 
 
Robocalls are annoying, but anonymous robocalls are dangerous
especially because of how insidious they are. Accusations or innuendos are
made, and no one knows if they're coming from the opposition candidate,
that is, whether to blame him or her, or from an independent group or
individual, or even from the candidate himself, hoping to get people
angry at the other candidate's nastiness. People are unlikely to
believe what the robocall says, but if the accusation is made up front, it will create doubt in many voters' minds. And it may
be the last thing they hear before they vote. 
 
Here's a simple approach from North Carolina (§75-104): 
<ul>
(a) Except as provided in this section, no person may use an
automatic dialing and recorded message player to make an unsolicited
telephone call.
(b) Notwithstanding subsection (a) of this section, a person may use
an automatic dialing and recorded message player to make an unsolicited
telephone call only under one or more of the following circumstances:
(1) All of the following are satisfied:
a. The person making the call is any of the following:
1. A tax‑exempt charitable or civic organization.
2. A political party or political candidate.
3. A governmental official.
4. An opinion polling organization, radio station, television
station, cable television company, or broadcast rating service
conducting a public opinion poll.
b. No part of the call is used to make a telephone solicitation.
c. The person making the call clearly identifies the person's name
and contact information and the nature of the unsolicited telephone
call.
</ul>
Since
the first words of a robocall are often the only ones heard, a negative
message should not be allowed to go first. Therefore, I recommend that a local government borrowing the NC language change the final subprovision, (b)(1)(c), to read: "At the
beginning of the call, there is a clear identification of the person or
entity making the call, including contact information (phone, e-mail
address, or both), and a description of the nature of the call." 
 
Here's an even simpler approach from Minnesota, but it covers all
robocalls, not just political ones: 
<ul>
§325E.27. A caller shall not use or connect to a telephone line an
automatic dialing-announcing device unless: (1) the subscriber has
knowingly or voluntarily requested, consented to, permitted, or
authorized receipt of the message; or (2) the message is immediately
preceded by a live operator who obtains the subscriber's consent before
the message is delivered.
</ul>
The Minnesota law requires more, I think, than is necessary. If the ID
is up front, an individual can decide whether to listen to the message
or not. Listening past this point is essentially consent. 
 
The problem with both these laws is that they are general public
utility laws, not campaign finance laws. A local government should
include such a law in its ethics or, if it has one, its election or
campaign finance
law, and it should be enforced by an ethics, election, or campaign
finance
commission or authority. 
 
An additional problem with public utility laws is that they are often
limited to calls made within the state, which simply encourages
candidates,
PACs, and others to take their business out of state. Election
laws apply to campaigns, not to the origin of the robocalls. 
 
For the record, here's the very complicated Maine law, which clearly
arose not out of robocalls, but out of those fake polls done by real
people, which are old hat (I just got one yesterday, without
identification, relating to the primary for a party I'm not a member of
— I'm unaffiliated). Political robocall laws need to be more focused,
and they need to be enforced by politically- or ethically-oriented
authorities. 
<ul>
Ch. 21A § 1014-B. Push polling 
1. Push poll defined. For purposes of this section, "push poll" means
any paid telephone survey or series of telephone surveys that are
similar in nature that reference a candidate or group of candidates
other than in a basic preference question, and when: 
A. A list or directory is used, exclusively or in part, to select
respondents belonging to a particular subset or combination of subsets
of the population, based on demographic or political characteristics
such as race, sex, age, ethnicity, party affiliation or like
characteristics; 
B. The survey fails to make demographic inquiries on factors such as
age, household income or status as a likely voter sufficient to allow
for the tabulation of results based on a relevant subset of the
population consistent with standard polling industry practices; 
C. The pollster or polling organization does not collect or tabulate
survey results; 
D. The survey prefaces a question regarding support for a candidate on
the basis of an untrue statement; and 
E. The survey is primarily for the purpose of suppressing or changing
the voting position of the call recipient. 
"Push poll" does not include any survey supporting a particular
candidate that fails to reference another candidate or candidates other
than in a basic preference question. 
 
2. Push polls; political telephone solicitations; requirements. Push
polling must be conducted in accordance with this subsection. 
A. A person may not authorize, commission, conduct or administer a push
poll by telephone or telephonic device unless, during each call, the
caller identifies the person or organization sponsoring or authorizing
the call by stating "This is a paid political advertisement by (name of
persons or organizations)," and identifies the organization making the
call, if different from the sponsor, by stating "This call is conducted
by (name of organization)." 
B. If any person identified as either sponsoring or authorizing the
call is not required to file any document with election officials
pursuant to this Title, a valid, current, publicly listed telephone
number and address for the person or organization must be disclosed
during each call. 
C. If any person sponsoring or authorizing the call is affiliated with
a candidate, the candidate's name and the office sought by that
candidate must be disclosed during each call. 
D. If the call is an independent expenditure, as defined in section
1019-B, that a candidate has not approved the call must be disclosed
during each call. 
It is not a violation of this subsection if the respondent voluntarily
terminates the call or asks to be called back before the required
disclosures are made, unless the respondent is in any way encouraged to
do so by the person initiating the call. 
A person may not state or imply false or fictitious names or telephone
numbers when providing the disclosures required under this subsection. 
All oral disclosures required by this subsection must be made in a
clear and intelligible manner and must be repeated in that fashion upon
request of the call respondent. Disclosures made by any telephonic
device must offer respondents a procedure to have the disclosures
repeated. 
This subsection does not apply to a push poll or political telephone
solicitation or contact if the individuals participating in the call
know each other prior to the call. 
A person who violates this subsection may be assessed a forfeiture of
$500 by the commission. 
 
3. Registered agents; requirements; registration. Persons conducting
push polling shall register and comply with the requirements of this
subsection. 
A. A person who conducts a paid push poll or political telephone
solicitation or contact, prior to conducting that poll, solicitation or
contact, must have and 
continuously maintain for at least 180 days following the cessation of
business activities in this State a designated agent for the purpose of
service of process, notice 
or demand required or permitted by law, and shall file with the
commission identification of that designated agent. Conducting business
in this State includes both 
placing telephone calls from a location in this State and calls from
other states or nations to individuals located within this State. The
designated agent must be an 
individual resident of this State, a domestic corporation or a foreign
corporation authorized to do business in this State. This paragraph
does not apply to any entity 
already lawfully registered to conduct business in this State. 
B. The commission shall create and maintain forms for the designation
of agents required pursuant to paragraph A and require, at a minimum,
the following information: 
(1) The name, address and telephone number of the designated agent; and 
(2) The name, address and telephone number of the person conducting
business in this State. 
C. The person conducting push polling shall notify the commission of
any changes in the designated agent and the information required by
paragraph B. 
D. A person who violates this subsection may be assessed a forfeiture
of $500 by the commission. 
 
4. Permitted practices. This section does not prohibit legitimate
election practices, including but not limited to: 
A. Voter identification; 
B. Voter facilitation activities; or 
C. Generally accepted scientific polling research.
</ul>
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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