Robo-Calling: What will happen next

There is a lively discussion on the Election Law listserve about the topic of robo-calling, the use of automated messages to call voters with, usually, attack messages. The start of the thread dealt with a story at Talking Points Memo and discussed by the Washington Post dealing with a tactic of both parties, but more used by the Republican party to call voters with an automated process that will continue calling the voter if the voter does not listen to the entire message.

Part of the problem with these methods is that the rules governing them are part election law and part Federal Communication Commission rules regarding automated phone calls. Having not reviewed in detail the rules regarding automated calls, but relying on sources on the election law listserve who have solid reputations and integrity, I believe that some, not all, but some of the calls may be violative of the rules. The rules require that the call identify the name of hte sponsor up front and include a phone number to call if the recipient desires. Nearly every automated call I have received at my home (and as a mixed home, my wife being a Democrat and I a Republican, we get a lot of calls) has complied with the first part of the rule but almost never the second part.

Of course, if the calls violate the law, one could go to court and seek an injunction to prevent further use of the improper script. But the question of whehter pre-election litigation should be pursued is an interesting one. Certainly post-election litigation is moot, but since the tactic usually occurs close to the election, the last week typically, would pre-election litigation be appropriate? In light of the Supreme Court's decision in Purcell v. Arizona, such suits may not be well received by the courts.

I think the courts do need to stay out of disputes such as these. First, the savvy voter will find out quickly who to punish at the polls. Second, I think this year will be the end of robo-calling. The practice simply grates on too many people and will now be counter-productive outside of simple "remember to vote" calls. Third, Congress and the states will probably act in the next legislative sessions to tighten the rules somewhat to avoid the problem. The new rules will probably insist on identificaion and phone number up front, probably with a requirement that the call state it is an automated call up front. With the new rules, it is all but certain to force the end of robo-calling.

From a campaign operatives point of view, I can see the cost effective appeal of these calls. However, from a legal point of view, I can see how easily it can lead to fraudulent representations or misuse.

Again, I think most campaigns are going to abandon robo-calling for live callers, it is more personable and possible to customize scripts as needed depending on voter responses.