The good folks over at TalkingPointsMemo.com have posted a great piece about how a “shadowy conservative group” known as the American Future Fund Political Action (AFFPA) is looking to break the law in states with rules against political automated calls, states like Indiana.
There are several reasons for this, but in the Hoosier state there are only 6: Congressman Pete Visclosky, Congressman Joe Donnelly, Congressman Andre Carson, Congressman Brad Ellsworth, Congressman Baron Hill and District 3 Challenger Dr. Tom Hayhurst.
Last month, American Future Fund Political Action (AFFPA) informed the FEC that it’s planning robo-calls in congressional races. Jason Torchinsky, a lawyer for AFFPA, wrote that the group “wishes to distribute pre-recorded telephone calls … as part of a nationwide program of political outreach.” The calls, wrote Torchinsky, “will expressly advocate the election or defeat of one or more clearly identified candidates for Federal office.”
AFFPA was asking the FEC for an advisory opinion on whether state laws restricting robo-calls should apply, or whether, as AFFPA argues, they’re pre-empted by a less restrictive federal law that sought to standardize the regulation of robo-calls. An FEC ruling in AFFPA’s favor would badly undermine state laws such as Minnesota’s, which requires the listener to actively consent to hearing a recorded message before the message can be played.
That’s worth paying attention to in itself. But behind the robo-call effort is a team of high-powered GOP operatives behind a slew of sleazy campaign tactics over the years.
You might remember Torchinsky, AFFPA’s lawyer, as one of the architects of the American Center for Voting Rights (ACVR), the bogus “voting-rights” group that was set up by GOP operatives in 2005 to “give ‘think tank’ academic cachet to the unproven idea that voter fraud is a major problem in elections,” as election law expert Rick Hasen has written.
For several months, ACVR’s executive director was Alex Vogel, a former RNC lawyer whose consulting firm reportedly was paid $75,000 for the ACVR gig. (Also involved with ACVR: TPMmuckraker favorite Pat Rogers, the New Mexico GOP activist who helped get David Iglesias fired for not pursuing bogus voter fraud complaints.)
Interestingly, Campaigns & Elections reports how this puts Indiana Attorney General Steve Carter in tepid opposition to these Republicans.
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.
And expect these robo-calls to be filled with unverifiable information and lies because this is AFFPA and AFF group is a bunch of unscrupulous so-and-so’s who like this approach:
As for AFF itself, the group already has earned a reputation for trafficking in vicious and misleading shots against Democrats. A typical recent ad alleged that the government “planned to give flu shots to detainees at Guantanamo.”
It also has worked closely with Dick Armey’s FreedomWorks to help promote the Tea Party rallies against health-care reform. Republican heavy-hitters Jan Van Lohuizen, Ed Tobin, Ben Ginsberg are all reportedly involved with the group.
Here is another key aspect to remember, especially when you think about what this means for Indiana congressional races. Terre Haute’s own staunch conservative attorney James Bopp, is the guy who pretty much wrote the playbook for these teabaggers.
In his February 2008 testimony to the U.S. Senate Committee on Rules and Administration he sought to give the issue a hip new iPod-like face for the young rock-n-rollers by stating that the terms robo-calls and automated calls are misnomers:
[W]ith advances in technology calls using automated dialing devices are sometimes indistinguishable from calls placed by live operators. Therefore, although such calls have previously been deemed “robo” calls, I believe a better term would be artificial intelligence calls or “AIC” for short.”
He goes on to say that the “Artificial Intelligence Calls” can be programmed to create do-not-call lists for the user of the technology and that the technology can be programmed so the caller can cancel the call at the beginning by just saying no.
While we at ALO are certain that they can program these calls to ask first and put these folks on a personal do-not-call and all sorts of other wonderful things these are what lawyers call “may” provisions and not “shall” provisions. We doubt that Mr. Bopp or the AFF or any other teabag-powered swiftboating organization will follow those “may”provisions unless told to. And then we doubt that there will be enough enforcement.
The big problem with the use of robo-calls, with all apologies to the technology folks, is that the technology will be used by people. While we at ALO are certain there are good folks out there who have and would use this technology soundly, we know that calls like this have beeen used to spread untraceable lies about candidates and misdirect and waste the time of voters to lower turnout.
We are certain the technology can be used to send retractions to all the homes that were called with incorrect information, but that doesn’t help the day after an election and would never happen anyway. And make no mistake, if they get around this, this state will be ground zero for robo-calls. Read Bopp’s robo-call testimony here.
Like Todd Rokita’s redistricting powergrab it is packaged as such reasonable stuff and leaves out the ways it can be abused, because no one would ever do that.
If Bopp’s for it, Democrat Members of Congress should be wary and on guard.