Local Government Regulation of Political Robocalls

Image by Joe Wu

Following up on the previous blog post, here is the first of two examples of local government ethics matters involving anonymity outside of an internet context.

An article in Thursday's Bangor Daily News 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 an article on the wired.com site, 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 Federal Election Commission regulation 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 post yesterday 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):

(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.

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:

§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.

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.

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.

Robert Wechsler
Director of Research-Retired, City Ethics

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