A potential showdown over state-level robocall restrictions has stalled after a conservative political action committee withdrew a request for clarification from the Federal Election Commission. The American Future Fund withdrew an advisory opinion request that asked the commission to override state regulations on political robocalls. The FEC was expected to provide a final ruling on the request by the end of this month and the issue was on the agenda for the commission’s open meeting slated for January 14. But now that AFF has pulled the request, the FEC will not issue a final opinion. The attorney for the conservative political action committee, Jason Torchinsky, had argued that a Minnesota state statute restricting the calls was pre-empted by federal campaign finance law. But in draft opinions released by the FEC, the PAC received a mixed response leading Torchinsky to conclude that the FEC’s final ruling on the matter might make it even tougher for PACs and campaigns. Here’s the full statement Torchinsky sent to Politics on the withdrawal of the AOR:
The FEC requested a second extension of time to answer what we thought was a simple, straightforward, and easy legal question according to 30 years of FEC precedent. So far, they have released three draft responses. One of those drafts correctly concludes that the state robocall restrictions are pre-empted by federal law. The other two drafts further confuse the state of the law and the adoption of either one could make it even more difficult for us to exercise our First Amendment rights. Even if the FEC ruled in our favor, the submitted comments from the state attorneys general suggest we would still be forced to litigate this issue. Given the delay and the likelihood that some state attorneys general would simply disregard a ruling in our favor, we withdrew our request. We intend to continue pursuing this matter in the future, but on a narrower and more selective basis.
The original request resulted in a bevy of responses from anti-robocall advocates and state attorneys general in opposition to AFF’s position. Shaun Dakin, who heads the National Political Do-Not-Contact Registry, and former Indiana Attorney General Steve Carter filed a comment with the FEC in November in response to the AOR. They argued that state regulations on pre-recorded calls shouldn’t be viewed as campaign finance regulations and aren’t subject to regulation under campaign finance law. That was followed by more than half a dozen additional comments, including several from sitting AG’s. The withdrawal is good news for advocates like Dakin. And in the short term it means tough restrictions like the ones in place in Minnesota, where robocalls must be preceded by a live operator, will remain intact. Shane D’Aprile is senior editor at Politics magazine. He can be reached at firstname.lastname@example.org