Robocalls — recorded messages sent to thousands of phone numbers — are a
fact of life in political campaigns. The public doesn’t like them much,
judging by the gripes about them, but campaign managers and politicians
still believe in their utility.
Legality? That’s a more complicated question.

According to state law, “it is unlawful for any person to use a
telephone … for soliciting information, gathering data, or for any
other purpose in connection with a political campaign when the use
involves an automated system for the selection and dialing of telephone
numbers and the playing of recorded
messages when a message is completed to the called number.”

But political campaigns are still making the calls. So how do they get
around the law? Defenders take guidance from federal action. The
Consumer Telephone Protection Act of 1991 prohibits robocalls for
commercial purposes, but not for political ones. In January, the Federal
Election Commission, pointing out Arkansas and Wyoming specifically,
observed that state laws prohibiting pre-recorded calls are preempted by
the Federal Election Campaign Act of 1971. This had no force of law,
however.

Brad Phelps, chief deputy attorney general, wrote in a letter to the
Times that “while the Arkansas robocall statute has not yet faced a
First Amendment challenge, given the nature of the speech prohibited, it
can reasonably be anticipated that any effort to enforce the statute
with respect to political robocalls is likely to face such a challenge.”

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“As far as I know, we don’t have any binding case law on this,” says
UALR law professor Ken Gallant. “This is political speech. It seems to
me that whether or not it’s you calling me live or your robot calling
me, you are trying to convey a political message and politicians have a
right to do that.”

But not everyone is of the same opinion.

State Rep. Dan Greenberg (recently defeated in a primary race for
Senate) used robocalls in a previous campaign before learning of the
law. But he did not in his most recent run for state senate because he
believes the state statute can be enforced.

“There are two arguments against the proposition that it’s a criminal
offense. The first argument is a First Amendment argument, that people
have the right to speak and so forth. Now that is a difficult argument
to make because the government is allowed to regulate speech in a
content neutral way, according to time, place and manner. Second, the
argument that federal preemption takes over and eliminates the state law
was challenged in Minnesota in a similar case and the court found there
was no federal preemption.”

Gabe Holmstrom is a consultant for the Democratic Party and has worked
on campaigns that used robocalls. He says most campaigns assume they are
protected by the federal laws.

“Campaigns feel they have some cover,” he says. “And they do it because
they think it’s effective, or otherwise they wouldn’t be spending money
on it.”

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But what a campaign might see as useful, voters might interpret a bit
differently.

“The puzzling thing about this whole deal is that the political
campaigns seem to believe that there is an advantage to be gained by
making these calls and I suspect that a lot of people like me are less
inclined to vote for someone that you get a robocall from,” Gallant
says.

One reason campaigns can get away with making the calls is because the
law is essentially being ignored. It’s not being enforced and efforts to
change it in the legislature are unlikely.

“And that’s probably for two reasons,” Gallant says. “One, the
legislature has more important stuff to do with its time. Number two, no
one wants to go on the record as being in favor of robocalls, which
everybody, including me, hates.”

A citizen complained to a prosecutor this year about recorded
endorsements made by Mike Huckabee for Rhonda Wood of Conway, a
candidate for Court of Appeals. Wood contended the calls weren’t covered
by the statute, apparently because numbers weren’t randomly dialed.
Nothing came of the complaint to the local prosecutor. Wood lost the
election anyway.

Greenberg looks at the question through a political lens.

“The fundamental issue is that there’s a political problem,” he says.
“No prosecutor wants to be the first one to take this on. But I think
that most people agree that what we have now is a monstrosity with the
telephone ringing constantly. I don’t think that politicians appreciate
the burden they’re placing on average citizens.”

If robocalls are illegal (at least nominally, until a court rules
otherwise), then what does that say about the politicians and campaigns
that make them?

“That’s really for the voters to decide,” Gallant says. “If you are
someone who thinks that obeying the law is important then one thing you
might say is ‘None of these politicians has the courage to go to court
and challenge this law and get it struck down. Instead they’re trying to
go around it.’ On the other hand, if you are a libertarian type then
you say ‘What this tells me is that these politicians are ready to fight
for their right to stand up and speak freely.’ Or you could just simply
say ‘I hate these calls so much that I will not vote for the last one
who robocalls me.’ ”

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