Campaigns won’t be getting lower-priced survey research or phones outreach this cycle, at least not courtesy of the Supreme Court.
Six of the nine justices on Monday ruled against the American Association of Political Consultants (AAPC) in its challenge on First Amendment grounds to the Telephone Consumer Protection Act’s (TCPA) prohibition on auto-dialing cellphones, which makes it significantly more expensive for pollsters and phones vendors to reach cellphone users.
The AAPC’s legal team argued the government-debt exemption — a 2015 carve out allowing for robocalls to collect government debt — favored that speech over political speech.
Writing for the majority, Justice Brett Kavanaugh found: “In 2015, Congress carved out an exception that allowed robocalls made to collect government debt. In doing so, Congress favored debt-collection speech over plaintiffs’ political speech. We hold that the 2015 government-debt exception added an unconstitutional exception to the law. We cure that constitutional violation by invalidating the 2015 government-debt exception and severing it from the remainder of the statute.”
The AAPC said it was “grateful that the Supreme Court recognized the importance of the First Amendment and the harms imposed by content-based restrictions on speech,” but added that it was “disappointed” with the ruling.
“There remain open questions about what the TCPA means and how it applies to those who engage in First Amendment-protected policy and political discussions,” the organization said in a statement following Monday’s decision.
“We hope the Court grants review to resolve those issues in the pending Facebook case, addressing the proper interpretation of the TCPA’s autodialer definition.”
Barr v. American Association of Political Consultants was the first time the consulting industry trade group successfully brought a case to the nation’s highest court.
From a business perspective, consultants said Monday’s decision was unlikely to change how they operate.
“Six years ago, when we started, it would have changed our business dramatically if we would have won,” said Marty Stone, co-founder of Stones’ Phones.
But with advances in technology, “it really doesn’t affect it all that much. We can’t do auto-calls to cellphones and we can’t do telephone town halls to cellphones. It’s probably a chunk of business, but it’s not hugely significant.”
Robocalls can still be made to cellphones for telephone town halls on behalf of serving members of Congress.
After the May oral arguments, Stone said practitioners had been bracing themselves for a loss but hadn’t anticipated just how the decision would be handed down.
“I was not expecting this loss and this level of loss,” said Stone. “I think, in part, because the discussion in the oral argument seemed to be around robocalls, rather than around the larger issue of predictive dialers, live calls, all that kind of stuff.”
Stone added: “I think there could have been a dramatic reduction in cost if it’d passed.”