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Indiana Supreme Court to Hear Robocall Case

(Politics Magazine)By Shane D'Aprile 06/12/08

The Indiana Supreme Court is set to hear a critical case on Monday that is likely to frame the debate-currently taking place in close to a dozen individual states and on Capitol Hill-over the regulation of political robocalls.

While a slew of states have restricted political robocalls, Indiana's law is perhaps the toughest, banning the calls outright, and state Attorney General Steve Carter has aggressively pursued evidence of violations. It has led to a legal showdown that pits First Amendment advocates, political professionals and both the Indiana Republican and Democratic state parties against the state's attorney general.

"The state parties weren't too happy when I informed them that I would be enforcing this law," says Carter, referring to a 20-year-old statute that bans automated calls. After the 2006 mid-term elections, Carter brought suit against American Family Voices, a Democratic group that launched robocalls against then-Rep. Mike Sodrel (R).

After a lower court judge essentially ruled in favor of American Family Voices, deciding that the Indiana law cannot prohibit political calls, Carter appealed the case directly to the state Supreme Court, hoping he could get a ruling before this November's election.

"We aren't trying to regulate the content of political speech in any way," Carter says. "This law only deals with the form in which the message is delivered."

Carter says there is no exemption in the state's statute for political calls and he argues his reading of the law is accurate. "The legislature could have made an exemption for politicians, but they decided not to do that," he says. "In fact, the legislature could go ahead and repeal the law if they wanted to, but they haven't done that either." 

As far as the number of actual citizen complaints over the robocalls in question, Carter wouldn't specify, initially saying it was "more than one," before settling on "in the double-digits." 

And both the state Democratic and Republican parties have banded together in opposition to Carter's litigation. "If government can start to regulate phone calls, what's to stop them from regulating TV ads and other kinds of political speech?" asks Thomas Cook, spokesman for the Indiana Democratic Party.

The state parties have retained well-known First Amendment lawyer James Bopp, who filed an amicus brief in support of American Family Voices. Bopp claims the attorney general is going beyond the scope of the statute in applying the law to political calls. His interpretation is that the law only bans commercial calls.

"If you apply this statute to political calls," Bopp says, "it severely limits the use of this technology and it hurts the ability of campaigns to communicate. That violates the First Amendment."

The statute in question harkens back 20 years, and it took some research on the part of the state attorney general's office to realize it was even on the books. After Indiana passed one of the toughest commercial do-not-call laws in the nation back in 2001, Carter says his office was flooded with requests to do away with political calls. That was when Carter found the 1988 law banning auto calls, and he put the state parties on notice before the 2006 election cycle that he intended to enforce it. And, for the most part, the threat of enforcement has worked.      

"I don't even advertise live calls in Indiana," says political consultant Jerry Dorchuck, who heads the automated calling firm Political Marketing International. "I just stay out of the state altogether because it's not worth upsetting an overly aggressive attorney general."   

Dorchuck's firm, along with several other political robocall firms, offers its political clients the option of scrubbing their call list against the commercial do-not-call registry. Ultimately, Dorchuck says he's convinced one of the court battles that emanates from the maze of state laws currently regulating robocalls will find its way to the U.S. Supreme Court. "Whether it's this case or another one down the line, I really think that's where this is headed ultimately," he says. 

And given the number of individual states that have passed bills restricting political robocalls, there is support within the political consulting industry for some federal legislation to regulate the calls. One bill currently before Congress would force candidates and campaigns to abide by the commercial do-not-call list. That provision has been met with strong opposition from consultants.  

"There are a lot of tough state statutes out there, but they are rarely enforced," says Shaun Dakin, who heads the group Citizens for Civil Discourse. An advocate for a political do-not-call registry, Dakin testified before a U.S. Senate committee in February that is considering legislation to limit political robocalls. 

Before Oregon's presidential primary last month, both the Clinton and Obama campaigns used automated calls in apparent violation of that state's statute. At the request of the state attorney general, both campaigns ceased and the state did not pursue any legal action against either campaign. 

Dakin says he will be watching what happens in Indiana closely, noting that the state law has been able to keep Indiana relatively free of political robocalls. "To date, the law has withstood some challenges," Dakin says, "but this is by far the biggest."

Additional reporting by Tim Sampson.