First Amendment topicsAbout the First Amendment
News Story
State, federal lawmakers target political 'robo-calls'

By The Associated Press

WASHINGTON — The Clinton campaign has complained about them. So has Mitt Romney. Plenty of voters have vented, too. Those sometimes nasty and annoying recorded political phone calls known as "robo-calls" can drive people nuts — and states are trying to crack down on them.

"We've never had anybody say that they like robo-calls. People just can't stand them and do consider them an invasion of privacy," said Colorado Attorney General John Suthers, whose office is flooded with complaints from irritated voters every political season.

Indiana bans the automated calls. At least 11 other states — Arkansas, California, New Hampshire, Kansas, Minnesota, Montana, North Carolina, North Dakota, Oregon, South Carolina and Wyoming — restrict or ban political robo-calls. Some states require a human being to ask permission to connect a recorded message before giving a political pitch. Others require the caller be identified and provide contact information about the group making the calls. Some states just prohibit the calls.

Another seven states are also considering restrictions — Colorado, New Jersey, Georgia, Kentucky, Nebraska, Pennsylvania and Wisconsin.

In Congress last month, Rep. Virginia Foxx, R-N.C., introduced a bill to expand the federal "do not call" list, overseen by the Federal Trade Commission, to allow voters to opt out of unwanted political robo-calls. The national Do Not Call Registry, created in 2003, contains an exemption for organizations engaged in political, charitable or survey work. Most states also have their own no-call lists.

On Feb. 6, Congress sent to President Bush two bills to make permanent the program to protect consumers from unwanted phone calls from telemarketers via the no-call list. The measure excluding political robo-calls, H.R. 248, is still being considered by Congress.

Robo-calls are popular with politicians because they're an easy, cheap way to reach a huge number of voters. Companies that advertise the recorded calls can offer them for about 6 cents per call and send out about 2,500 calls per minute.

Indiana's law was challenged in the federal courts last year by a marketing company. But the 7th U.S. Circuit Court of Appeals ruled the case should not have been heard in federal court in the first place, so the Indiana law was left intact to ban such calls.

The robotic calls can come at any hour of the day and night. They're about national, state and local races. Some tell a voter to go to the polls. Others may shade the truth — some say spew outright lies — about candidates. It's not unheard of for one household to get 15 or more calls a day in states with hot contests like Florida.

Sen. John McCain's campaign sent out robo-calls in the Sunshine State ahead of its high-stakes GOP presidential primary last month, prompting former Massachusetts Gov. Mitt Romney to complain on national TV about what he deemed aggressive and negative calls. The Romney campaign also used robo-calls in Florida. (Romney suspended his campaign yesterday.)

In New Hampshire, which held the nation's first primary, Sen. Hillary Rodham Clinton's campaign complained that automated calls from fellow Democratic Sen. Barack Obama’s campaign went to voters on the "do not call" list, which is a violation of state law. Obama aides maintain the calls were legal. The Clinton campaign also made robo-calls in the state but said its calls did not violate the law.

In Colorado, Suthers wants an all-out ban on recorded automated calls — political, charitable or otherwise. The attorney general would allow just a few exceptions such as reverse 911 calls from emergency officials and automated calls from schools about closings.

A few weeks ago, state lawmakers introduced legislation to end the calls, but only those pertaining to politics. Charitable groups would still be able to place robo-calls. The bill would exempt state parties and elected officials in some cases, like robo-calls to voters about a town meeting. Suthers says he wants a tougher bill.

So does Agnes Otteman. The retired nurse in Flagler, Colo., is sick of the calls.

"I don't want to be bothered with those kinds of things," she said. "I don't need to be bothered with somebody calling me repeatedly, backing this candidate or backing that candidate. Lots of time, the information that they give out is not factual anyway."

Banning the automated calls, however, raises constitutional questions, legal experts say.

"Political speech occupies such an important part in the scheme of democratic government that any form of political speech including one that's delivered through this mechanism is protected by the First Amendment and entitled to the greatest degree of protection," said John F. Cooney, a partner at the Washington-based Venable law firm who specializes in First Amendment issues.

Cooney said limits on commercial telemarketers have been upheld by the courts because commercial speech is entitled to a lesser degree of protection. "Commercial speech is different because it proposes a transaction between buyer and seller and that is not as important to the functioning of the democracy as a call that proposes that you vote for somebody in an election," he said.

New Jersey state Sen. Jeff Van Drew disagrees about constitutional infringement and has sponsored a bill aimed at revising the state "do not call" list to ban random robo-calls.

"I don't think we're swaying votes," Van Drew said. "I simply think that we're irritating the daylights out of our electorate."

A similar effort is under way in Georgia, where state Senate President Pro Tem Eric Johnson says the public is upset about the increasing use of robo-calls. He's introduced a bill to prohibit the calls unless the person receiving them gives permission.

Nevada is trying something else — coming up with its own "please don't call" list for campaign phone calls. The secretary of state, Ross Miller, recently announced that people can sign up for the list through an online "My Voter File" service his office is offering.

Implementing the list might be tough. It's ultimately up to the campaigns to honor the voter's expressed wish not to receive the calls.


High court refuses to hear challenge to 'robo-call' law

Virginia political-polling firm had asked justices to review North Dakota law barring telemarketers from making prerecorded interstate calls to state residents. 10.10.06

Ore. legislators target automated political phone calls
One bill would outlaw almost all prerecorded messages of any kind; another would eliminate free-speech hurdle — by asking voters to change state constitution. 03.13.07

Federal appeals court tosses challenge to Ind. automated-call ban
Group had asked 7th Circuit to overturn ruling that law doesn't violate free speech, but three-judge panel rules case should be dismissed because it doesn't belong in federal court. 09.13.07

Congress votes to make 'Do Not Call Registry' permanent
Lawmakers send President Bush two measures to continue popular program shielding consumers from unwanted phone calls from telemarketers. 02.07.08


News summary page
View the latest news stories throughout the First Amendment Center Online.

print this   Print

Last system update: Friday, November 14, 2008 | 03:17:47
About this site
About the First Amendment
About the First Amendment Center
First Amendment programs
State of the First Amendment

First Reports
Supreme Court
First Amendment publications
First Amendment Center history
Freedom Sings™
First Amendment

Congressional Research Service reports
Guest editorials
FOI material
The First Amendment

Lesson plans
Contact us
Privacy statement
Related links