Reining In the Robocalls

The political industry is fighting new attempts at regulation, while keeping an eye on itself…
It took Robert Morrow three tries to %uFB01nd a company that would distribute his anti-Clinton robocalls to phones in South Carolina last year—just three. The man from Austin, Texas who fancies himself the nation’s foremost expert on the lies and misdeeds of Bill and Hillary, says two Republican auto-dial %uFB01rms turned the call down before he found a %uFB01rm which would run it.
“I guess they were concerned about the content,” he says. That’s a pretty good guess. The calls, which Morrow himself voiced, made headlines during the Democratic presidential primary for their outlandish and unsubstantiated allegations about the Clintons, including the claim that Hillary knew about and helped cover up Bill’s rape of Juanita Broderick.
After a short conversation with Morrow, it seems his laundry list of Clinton conspiracy theories relies more on off-the-wall accusations than bona-%uFB01de opposition research. (He continually encourages me to Google pictures of Chelsea Clinton and Webb Hubbell for a side-by-side comparison of their facial features.) Despite theirquestionable veracity, Morrow’s calls still made a splash in South Carolina, eliciting widespread coverage by the political blogosphere as the audio made the rounds. They also provided another negative headline for political robocalls at a time when phone vendors were %uFB01ghting an increasingly negative public reception to their services and efforts to further regulate or entirely ban their activities.
For those phone vendors who say people like Morrowand those who agree to distribute such calls give the industry a bad name, “I have two words for them,” Morrow says. Politics won’t print them, but you can probably guess what those two words were.
It’s easy to see why phone vendors cringe when a robocall like the one written and paid for by the likes of Morrow makes national news. “From a P.R. standpoint, all the stories in the mainstream media about robocalls are negative,” says Mike Smith, CEO of ConnectCall USA.“It does serious damage not just to my %uFB01rm, but to the reputation of the entire industry.”
Consultant Brad Chism says concerns within the political industry over what he terms “%uFB02y-by-night %uFB01rms,” are growing. “It’s a problem,” says Chism, who heads Zata3, a Democratic %uFB01rm that specializes in auto-calls. “I think the quality %uFB01rms on both sides of the aisle would love to have agreement on a set of rules that discourages %uFB02 y-by-nights and adds con%uFB01dence to the wholeprocess.”
Morrow’s South Carolina call might not have violated anything other than good taste, but thousands of calls last cycle did %uFB02out regulations in certain states. In Oregon, where campaigns are barred from calling those on the commercial do-not-call list, the Clinton and Obama campaigns were both reprimanded by the state attorney general for robocalling. Both camps claimed complete ignorance of the law and neither was %uFB01ned. The laws are similar in California, Indiana, Wyoming and a handful of other states, but voters still received thousands of calls and few %uFB01nes were issued to campaigns or political %uFB01 rms.
In North Carolina, the non-pro%uFB01t group Women’s Voices Women Vote was accused of voter suppression after a robocall primarily aimed at African-American households informed voters that they needed to return a voter registration packet before they could vote in the state’s Democratic presidential primary. The call went out after the state’s registration deadline. The group claimed the timing of the call was a mistake and only part of its voter registration effort, but North Carolina Attorney General Roy Cooper levied a $100,000 %uFB01 ne on the organization.
The problem for vendors, says Chism, is that the vast majority of callers are legitimate, do not engage in dirty tricks and do their best to abide by what has become a maze of different state regulations governing robocalls. Vendors see states like Oregon, Indiana and numerous others as off limits, which many say translates into a signi%uFB01cant hit to their businesses.
Don Powell’s %uFB01rm is based in Oregon where the restrictions put some 65 percent of registered voters off limits. “It de%uFB01nitely affected my business more than I thought it would,” says Powell, who owns Powell Phones.”Originally I %uFB01gured the campaigns and candidates that I had worked with in the past would just go to live calls if they couldn’t do the robocalls, but that didn’t happen.” And, he adds, it isn’t likely to happen anytime soon given the added expense.
The typical robocall runs anywhere from 5 to 7 cents, if not cheaper. The typical live call ranges from 40 to 85 cents a pop. Phone vendors are put in a tough spot. On the one hand, there’s a desire to clean up the process and try to root out the so-called %uFB02 y-by-nights. On the other hand, there’s the work of staving off further regulation, which requires championing First Amendment concerns through lobbying efforts on the state and federal level.
Part of what the industry needs, says Chism, is a more concerted effort to discourage %uFB02y-by-night %uFB01rms and demonstrate that the accidental 3 a.m. robocall or theMorrow-like calls are outliers and not representative of the way the vast majority of political phone vendors do business. “We simply don’t combat that stuff well enough,” he says.
It’s one of the reasons the American Association of Political Consultants is in the process of drafting an of%uFB01cial policy on the use of robocalls. “We already have a similar policy as it relates to push-polling,” says Angela McMillan, the AAPC’s executive director. “As an industry we have an obligation to promote good business practices, and that’s what we intend to do.”   
 Robocall Privacy Act Take Two
Phone vendors have come under increased scrutiny over the past several years from federal lawmakers seeking to pass new regulations or state legislators trying to give more teeth to those already on the books. More and more states are following Oregon’s lead—several are spurred by state attorneys general who have taken up the anti-robocall cause. In North Carolina and Indiana in particular, AG’s have turned distaste for robocalls into a bit of a cause celebre. North Carolina AG Roy Cooper (D) testi%uFB01ed before a U.S. Senate committee considering federal robocall restrictions last year, and former Indiana AG Steve Carter (R) pursued multiple alleged violations of the state’s so-called auto-dial law in court.
On the federal level, the Robocall Privacy Act went nowhere in Congress last session. The legislation, sponsored by Zoe Lofgren (D-Calif.) in the House and Dianne Feinstein (D-Calif.) in the Senate, would have mandated disclosure at the beginning of a call rather than at the end, restricted calls between the hours of 8 p.m. and 9 a.m., and banned more than two calls to the same number per day. Despite a fresh wave of complaints over excessive calls from voters, politicians weren’t eager to restrict a cheap, and what most consider an effective, form of voter contact. The bill also had an unlikely opponent in the American Civil Liberties Union, which objected on First Amendment grounds: Lofgren and Feinstein weren’t eager for a %uFB01ght with the ACLU. In May, Feinstein reintroduced the Robocall Privacy Act in the Senate, but despite the easing of objections from the ACLU, the bill has yet to be reintroduced in the House.
Shaun Dakin, who heads the National Political Do-Not-Contact Registry has been on the frontlines of the robocall battle for the past several years. Dakin’s regis- try of voters who don’t want to receive the calls is ever growing, but the legislative efforts are still stalling. To those who think passage of the Robocall Privacy Act is a long shot at best, “They’re pretty much right,” Dakin says. “I say facetiously to people that passing robocall reform is tougher than passing healthcare reform.”        
But Dakin sees some hope for his cause. He points to the National Republican Congressional Committee’s recent decision to begin its robocalls on behalf of candidates with disclosure of the source of the call. A source at the NRCC told Politics that decision was made on the advice of the committee’s general counsel and that future calls would likely be structured the same way. “That’s actually a big part of the Robocall Privacy Act,” Dakin says. “It’s great that [the NRCC] decided to just bite the bullet and get ahead of the curve.” Even though the legislation didn’t stand much of a chance last session, it still elicited some high-level lobbying efforts on behalf of the political consulting industry. The AAPC launched a legal defense fund last year to raise money to %uFB01ght state efforts to regulate the calls and to lobby Congress. And the AAPC’s legislative committee is starting to spring into action for the current session. It has already held some preliminary discussions on how to combat efforts to enact new regulations.   Used and Abused?
Alongside the battle to stave off the increasing regulation of auto-calls is the %uFB01ght over how to properly employ them as a campaign tool. Misuse of the calls is only increasing, say some, and many think the onus is on consultants to change it. “The worst thing we could do is to keep allowing campaigns to misuse a credible tool,” says Michael Matthews, a principal at the Democratic phone %uFB01rm LSG Strategies. He thinks one of the best ways to combat anger and ward off further regulation is for phone vendors to encourage signi%uFB01cant changes to the way candidates employ them. Matthews laments the increasing tendency to dump tens of thousands of robocalls during the last week of a campaign with no strategic vision attached.
John Jameson, who heads the phone %uFB01rm Winning Connections, goes a step further. Used in that manner, he says, robocalls are just about useless. “The evidence is pretty clear. The impact of robocalls on turnout and persuasion has exponentially declined,” says Jameson. “And that’s coming from someone who does millions of robocalls.” Among Jameson’s recommendations: campaigns should use robocalls in a more tactical way, rather than just dumping thousands of calls in the %uFB01nal weeks or days of a campaign. “Robocalls are a great way to talk to your fundraising committee or interact with high-level supporters,” he says.   
Along with advising candidates to spend that last minute %uFB02ood of campaign cash on something other than a late round of robocalls, Chism says the best route encourages disclosure and transparency. “You can’t yell %uFB01 re in a crowded theater, and you can’t send an anonymous call that asks why a candidate hasn’t stopped beating his wife if you can’t back it up,” says Chism. “So I think the answer is transparency. Who is paying for the call and is there a way to document it for post-election scrutiny?”
The reality is that most phone vendors aren’t against all provisions of the Robocall Privacy Act. Most told Politics they think proper disclosure is essential and that enforcing a cut-off time for robocalls is something many already mandate for their clients. Shaun Dakin sees a good middle ground in an industry-wide compromise with those seeking to regulate it. “Like any industry that is self-regulating, there will be people out there who just want to make money,” he says. “But if I were in the industry, I would be pushing for a very mild set of regulations that would govern all robocall companies. That would be good for everyone.”  Shane D’Aprile is the senior editor of Politics magazine. He can be reached at sdaprile@politicsmagazine.com