Robo-calls, in Montana and Elsewhere

By: Cameron Boster

           Background

Missoula, Montana, is a beautiful city. There are mountains in the distance, tall, deep-green trees everywhere, old buildings – and a rocky, white-swirling river moving through it. No reasonable person seeing Missoula for the first time would think to focus on the city’s current robo-call election law controversy.

This month, parents of students enrolled in Missoula’s schools received automated phone calls containing a message from Missoula’s mayor, John Engen. The content of the message is available on Youtube. In short, the message urges parents to vote on an upcoming bond, tells them where and how they can cast their ballot, and ends with this encouragement: “Thank you for everything you do to support your children, and to ensure a positive future for your family – and our wonderful community.”

On October 22, the city paper published an article about the message, noting the call was bankrolled with public funds. The article noted that Montana law forbids the use of public funds to advocate for bond issues, but it does not forbid using public funds to inform voters about where and how to vote.

In the same article, both the school district’s communication director and the Montana Commissioner of Political Practices stated there was no advocacy in the message. The Commissioner also said that the county attorney has jurisdiction over the complaint, and that there is nothing his office can do.

A Local Attorney Responds

A Missoula attorney, Quentin Rhoades responded to the article in an October 26 editorial. Rhoades presented two points: first, he argued that the tone of the recorded message was pro-bond in tone and content; second, he suggested that the Commissioner had jurisdiction to assess the complaint under section 13-35-225 of the Montana Code.

Whether the message advocated for the bond is a contestable factual issue. But even if the message contained advocacy, it is unclear whether section 13-35-225 grants the commissioner jurisdiction over the full scope of dispute.

A Closer Look at the Montana Code

Section 13-35-225 forbids anonymous election materials, and contains rules specifying when a message must have an “attribution” indicating who paid for it. The section also gives the Commissioner jurisdiction to determine if the message is in compliance with the attribution requirement.

However, the statute is specific about the power and penalties the Commissioner may apply. Under this section, the Commissioner may require a party to graft an attribution onto a noncompliant message and may impose penalties on parties failing to do so. The section does not give the Commissioner jurisdiction to penalize the mayor for allegedly using public funds to support a bond.

The code section forbidding the use of public funds to support a bond issue is not contained in Montana’s election laws. It is contained in the part governing standards of conduct for public officials. That part is clear about who has jurisdiction over violations committed by state or local officials: section 2-2-136 gives the Commissioner authority to deal with state official’s violations, and section 2-2-144 refers local official’s violations to the county attorney where the local official works.

Robo-calls, Broadly

            Consumers generally dislike robo-calls. Reacting to a large number of complaints, the FCC announced this year that the agency will crack down on robo-calls by green-lighting robo-call blocking technology and tightening regulations. These new regulations would apply across the board – to candidates, to commercial entities, and even to pollsters using robo-calls to collect data.

Several states already restrict robo-calls used for political purposes. For example, Arkansas and Wyoming ban political robo-calls, and states like North Dakota and Minnesota require a live operator to obtain consent before the message is played.

However, the validity of robo-call restrictions is questionable. South Carolina’s ban on commercial and political robo-calls was struck down by the Fourth Circuit as an unconstitutional content-based restriction on free speech.

Final Thoughts

            The use of robo-calls implicates the interests of several parties. Consumers generally dislike receiving robo-calls, and the FCC wants to make successful robo-calls more difficult. Although some companies and entities use robo-calls for commercial and political purposes, some groups use robo-calls as an effective means to collect data. States wishing to control robo-calls may run into resistance from political groups asserting First Amendment rights.

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