I was dismayed to pick up my local newspaper yesterday and find the following headline splashed across the top of the front page:
"Dialing for dollars: Democratic candidates for U.S. Senate admit to using illegal phone messages."
Underneath the headline were head shots of the two major Democratic contenders for Sen. Conrad Burns(R)'s Senate seat: State Auditor John Morrison, and State Senator Jon Tester (Big Sandy).
The
story began:
Two Democrats seeking to defeat Sen. Conrad Burns, R-Mont., in next year's elections have been illegally soliciting campaign contributions through prerecorded telephone messages.
Jon Tester of Big Sandy and State Auditor John Morrison have used message systems to call people at home and ask them to contribute to their campaigns. Both Democrats are vying for their party's nomination to challenge Burns in 2006.
State law forbids political campaigns from using prerecorded messages, penalizing violators up to $2,500 for the offense, but no jail time.
Both candidates admitted Thursday they were using message systems. And both said they were doing so because they believe the law banning them is unconstitutional.
"It's a free speech issue," said Tester, who also is president of the Montana Senate.
Here is the Montana law regarding automated telephone solicitation:
45-8-216. Unlawful automated telephone solicitation -- exceptions -- penalties. (1) A person may not use an automated telephone system, device, or facsimile machine for the selection and dialing of telephone numbers and playing of recorded messages if a message is completed to the dialed number for the purpose of:
(a) offering goods or services for sale;
(b) conveying information on goods or services in soliciting sales or purchases;
(c) soliciting information;
(d) gathering data or statistics; or
(e) promoting a political campaign or any use related to a political campaign.
(2) This section does not prohibit the use of an automated telephone system, device, or facsimile machine described under subsection (1) for purposes of informing purchasers of the receipt, availability for delivery, delay in delivery, or other pertinent information on the status of any purchased goods or services, of responding to an inquiry initiated by any person, or of providing any other pertinent information when there is a preexisting business relationship. This section does not prohibit the use of an automated telephone system or device if the permission of the called party is obtained by a live operator before the recorded message is delivered.
(3) A person violating subsection (1) is subject to a fine of not more than $2,500.
History: En. Sec. 1, Ch. 230, L. 1991.
The argument that restrictions on commercial telephone solicitation, including automated solicitation, violates free speech rights was rejected by the U.S. Supreme Court on October 4, 2004 (in the context of upholding the Do-Not-Call list). As I understand it, the free speech argument has mainly been promulgated by telemarketing companies, not civil libertarians.
However, state laws vary regarding whether or not automated political solicitations are excepted from telemarketing laws. The FCC does permit "artificial (computerized) voice or prerecorded voice calls to your home" under several circumstances, which include "non-commercial calls (for example, calls from charitable entities, polling organizations, political or government agencies)." (you can read more complete FCC rules about telemarketing here.
For the record, I get automated telephone solicitations all the time in Montana. I didn't even know they were illegal (maybe next time I'll complain).
Here's what scared me from the Chronicle article:
Burns spokesman J.P. Pendleton said the senator's re-election campaign has not used message systems and doesn't intend to: It's against the law.
He also took issue with Morrison's and Tester's defense.
"Just because you disagree with the law doesn't mean you break it," he said. "What you do is try to change the law."
I'm not trying to be negative here, but he has a point. And I'm worried that this lapse will hurt Tester or Morrison in the 2006 race, if Burns decides to make it a campaign issue.
I'd love it if someone here could show me how to look at it in a different light; IS there a legitimate free speech issue here to be defended? Is there a way to salvage this situation and turn it to Democrats' advantage? Please advise.
