FEC May Negate Robocall Law

A conservative political action committee is asking the Federal Election Commission to supersede a state law regulating robocalls in Minnesota. American Future Fund Political Action, or AFFPA, has filed an advisory opinion request with the FEC that argues the regulator should preempt the state law because it interferes with federal campaign finance law. The law under fire in Minnesota is among the toughest in the country. It forces campaigns to begin their calls with live operators and get permission to play an automated message. Counsel to AFFPA, Jason Torchinsky says the current law impacts the spending decisions of candidates and campaigns. “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,” Torchinsky says. “We’re simply asking the FEC to confirm this same rationale applies to robocalls.” Torchinsky points to an advisory opinion issued by the FEC in August, which preempted a West Virginia state law meant to police so-called push polls for the same reason. In a 6-0 decision the commission said the statute wrongly limited expenditures by federal political committees. Anti-robocall advocates say the move is just an attempt by campaigns and robocall vendors to make an end run around the myriad of state laws governing automated calls. “We’re certainly worried that this could set some sort of precedent,” says Shaun Dakin, who heads the National Political Do-Not-Call Registry. “This isn’t part of their purview. The FEC shouldn’t do anything with this.”   Dakin and former Indiana Attorney General Steve Carter filed a comment with the FEC in response to the advisory opinion request, arguing that state regulations on pre-recorded calls shouldn’t be viewed as campaign finance regulations and aren’t subject to regulation under FECA. Instead, they say, the state laws primarily address the use of auto-dialing technology, “which invade the privacy of voters.” “It’s just a silly position they’re taking,” Carter tells Politics. As attorney general, Carter went after two telemarketing firms for violating Indiana’s do-not-call law. “There are plenty of state laws that impact campaigns and campaign workers.” Carter sites traffic and gun safety laws as examples. “That doesn’t mean we’re trying to restrict political speech,” he says.   For phone vendors, a ruling in AFFPA’s favor could open the door to a broader assault on the myriad of state laws governing automated calls. “If we had certainty that federal law superseded state law in federal elections, and that law was clear, then campaigns and vendors could make much more informed decisions when it comes to automated calls, ” says Brad Chism, who heads the Democratic phone firm Zata3. The earliest the FEC will rule is mid-December, but three attorneys general have already formally requested an extension of the FEC’s comment period. UPDATE: Shaun Dakin emails to correctly point out that AFFPA’s request is broader than just Minnesota. It’s meant to apply to all states with robocall restrictions. Shane D’Aprile is senior editor at Politics magazine. He can be reached at sdaprile@politicsmagazine.com