Monday, December 07, 2009

Are politician robocalls part of freedom of speech?

A couple of states have placed restrictions to cover politicians' calls soliciting donations and votes under their Do Not Call restrictions. The national law exempted politicians and now some groups that solicit donations are petitioning the FEC to rule on whether states can place further limitations than the federal law.
The view of the agency and lawmakers was that such messages should enjoy broad free-speech protections. But that exemption hasn't stopped a large number of states from imposing restrictions on such calls. Two states, Arkansas and Wyoming, have even banned them.

Robocalls are one of the cheapest ways to reach voters, and some candidates and political groups have chafed under the state restrictions, many of which require a caller to obtain permission from a phone subscriber -- often through an operator -- before placing an automated call. Now an Iowa-based conservative group, [@urlAmerican Future Fund Political Action,@] is trying to get the state laws overturned. On its behalf last month, the law firm Holtzman Vogel of Warrenton, Va., filed a request with the Federal Election Commission for an advisory opinion on whether federal election law supersedes state laws affecting elections, in the interest of national uniformity.

The issue is one of First Amendment rights, says Nick Ryan, the Iowa fund's chairman. "These regulations limit the ability of candidates and those of us who seek to advocate. It impinges on our right to communicate."

Ryan also notes that the restrictions -- which range from prohibitions to relatively minor limits on the hours of calling -- favor groups and candidates with the most money. That's because an automated call costs from 5 cents to 8 cents, by Ryan's estimate, while states that require a live operator to gain a voter's consent, such as Minnesota, drive the cost of each call to around $1. That's the same cost as a direct mail solicitation.
Once the Supreme Court has accepted campaign finance restrictions and rejected the reasoning that such limits violated the First Amendment, I don't see how restrictions on robocalls would be more of a restriction than limiting how much candidates can spend on advertising.

And let's face it. In the days of the internet, telephone solicitations are becoming so last century.

I always thought that the real reason for the exemption of politicians' calls by the federal law was not a sensitivity to free speech, but a sensitivity to the legislators' needs to raise money. Let's hope that the FEC upholds the bans in Arkansas and Wyoming. I'd love to see such a ban in my state.