Group Asks FEC if Federal Election Law Preempts State Robocall Laws

Robocalls – automated phone messages – are one of the least expensive methods that political candidates use to reach voters. However, restrictions on unsolicited calls have complicated efforts by candidates who want to use political robocalls. While political robocalls are exempt from the national "do not call" registry, some states have implemented restrictions on them. A political organization is now asking whether these state laws run afoul of federal law.

In October, a political action committee, the American Future Fund Political Action (AFFPA), requested an advisory opinion [1] from the Federal Election Commission (FEC) questioning whether federal election law preempts state laws. In AFFPA’s request, it urged the FEC to find that statutes enacted in 41 states are preempted by the Federal Election Campaign Act (FECA).

Depending on how the FEC decides, such state laws could be overturned as applied to federal candidates and political committees. AFFPA indicates it wants to conduct nationwide robocall operations during the 2010 congressional campaigns, and these laws prevent it from doing so.

In AFFPA’s request for an advisory opinion, it asked whether additional state restrictions on robocalls are preempted by FECA. One question it focused on is, "Are state laws purporting to prohibit all pre-recorded telephone calls by federal political committees preempted by FECA?" In its analysis following this question, AFFPA states that "the Act and Commission regulations establish that limitations and restrictions on Federal candidate expenditures is an area to be regulated solely by Federal law."

Jason Torchinsky, counsel for AFFPA, told Politics Magazine [2] that "the FECA [Federal Election Campaign Act] is supposed to be the single national source for regulation of federal campaign expenditures, and the FEC’s prior opinions confirm that." He further stated that AFFPA is "simply asking the FEC to confirm this same rationale applies to robocalls."

In response to AFFPA’s request, Minnesota, Indiana, North Carolina, North Dakota, Arkansas, and Wyoming have filed comments with the FEC defending their state laws. The states argue that their laws do not place undue restrictions on robocalls. In North Carolina’s comments, the state mentions that while robocalls are banned in many instances under its robocall statute, there are also several exemptions.

One exemption applies to a "tax exempt charitable or civic organization," which AFFPA would presumably fall under. The only other requirements that tax exempt organizations have to comply with to meet all of the elements for exemption are refraining from making a "telephone solicitation" and clearly identifying "the person’s name and contact information and the nature of the call." North Carolina argues that these requirements are easy to comply with.

North Carolina further states in its response that "North Carolinians receive hundreds of thousands of automated calls each election cycle for local, state and federal elections and almost all such calls provide the disclosure set forth in our law without incident or burden."

Minnesota argues that the FECA does not preempt the typical state robocall statute. Some of the other states that submitted comments echoed the points raised in Minnesota’s response. AFFPA argues that state laws requiring prior consent for robocalls "limit expenditures by political committees." Minnesota counter-argues that their statute and other similar statutes "do not prohibit any candidate or political committee from making expenditures on telephone solicitations. Rather, these types of laws merely impose reasonable time, place, and manner restrictions on how such telephone solicitations can be made."

AFFPA chairman Nick Ryan told CQ Politics [3] that "these regulations limit the ability of candidates and those of us who seek to advocate. It impinges on our right to communicate."

According to CQ Politics, "the ‘do not call’ registry is broadly popular – a 2007 survey found 72 percent of Americans had registered numbers – and complaints about political solicitations are widespread."

NPAction.org [4], an OMB Watch website on nonprofit advocacy, published an article that delves into some of the controversy surrounding robocalls. According to the article, robocall supporters "argue these calls can help to increase voter participation and encourage interest in the government. They can be an effective rapid response tool for contacting supporters to take action. Also, they point out that not only is political speech protected by the First Amendment of the Constitution, but that robocalls are already regulated by state and federal laws."

According to CQ Politics, the FEC is likely to have a decision before the end of 2009.