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41–185 2008

HEARING ON THE USE OF ‘‘ROBOCALLS’’ IN 

FEDERAL CAMPAIGNS’’ 

HEARING 

BEFORE THE

SUBCOMMITTEE ON ELECTIONS 

COMMITTEE ON HOUSE 

ADMINISTRATION 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TENTH CONGRESS 

FIRST SESSION 

HELD IN WASHINGTON, DC, DECEMBER 6, 2007 

Printed for the use of the Committee on House Administration 

( 

Available on the Internet: 

http://www.gpoaccess.gov/congress/house/administration/index.html 

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(II) 

COMMITTEE ON HOUSE ADMINISTRATION 

ROBERT A. BRADY, Pennsylvania, Chairman 

ZOE LOFGREN, California 

Vice-Chairwoman 

MICHAEL E. CAPUANO, Massachusetts 

CHARLES A. GONZALEZ, Texas 

SUSAN A. DAVIS, California 

ARTUR DAVIS, Alabama 

VERNON J. EHLERS, Michigan 

Ranking Minority Member 

DANIEL E. LUNGREN, California 

KEVIN MCCARTHY, California 

S. ELIZABETH BIRNBAUM, Staff Director 

WILLIAM PLASTER, Minority Staff Director 

SUBCOMMITTEE ON ELECTIONS

ZOE LOFGREN, California, Chairwoman 

CHARLES A. GONZALEZ, Texas 

SUSAN A. DAVIS, California 

ARTUR DAVIS, Alabama 

KEVIN MCCARTHY, California 

VERNON J. EHLERS, Michigan 

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(1) 

THE USE OF ROBO-CALLS IN FEDERAL 

CAMPAIGNS 

THURSDAY, DECEMBER 6, 2007 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON ELECTIONS, 

COMMITTEE ON HOUSE ADMINISTRATION, 

Washington, DC. 

The subcommittee met, pursuant to call, at 11:25 a.m., in Room 

1310, Longworth House Office Building, Hon. Zoe Lofgren [chairwoman of the subcommittee] Presiding. 

Present: Representatives Lofgren, Gonzalez, Davis of California, 

Davis of Alabama, McCarthy, Ehlers, and Lungren. 

Staff Present: Liz Birnbaum, Staff Director; Thomas Hicks, Senior Election Counsel; Janelle Hu, Election Counsel; Jennifer Daehn, 

Election Counsel; Matt Pinkus, Professional Staff/Parliamentarian; 

Kyle Anderson, Press Director; Kristin McCowan, Chief Legislative 

Clerk; Daniel Favarulo, Staff Assistant, Elections; Robert Henline, 

Staff Assistant; Fred Hay, Minority General Counsel; Gineen 

Beach, Minority Election Counsel; and Bryan T. Dorsey, Minority 

Professional Staff. 

Ms. LOFGREN. I understand that Mr. McCarthy is on his way and 

Mr. Ehlers, the ranking member of the full committee, is here. 

I would like to, as we are getting settled, recognize and welcome 

the students from two high schools that are visiting this hearing 

today. The two schools are Carib Christian High School and 

Colegio Laico San Pablo High School. And I understand the students are as part of a civics education exercise. 

And we do welcome all of you here. And hopefully you will have 

a chance to visit with us after the hearing, and maybe we can answer some of your questions. 

I would like to welcome the Elections Subcommittee members, 

our witnesses and members of the public to the subcommittee’s 

hearing on the use of robo-calls in Federal campaigns. 

Political robo-calls, or pre-recorded messages supporting a particular candidate or a particular position, are an increasingly common fixture of the American political landscape. According to a 

study by the Pew Internet and American Life Project, roughly twothirds of American voters received robo-calls in the final weeks before last year’s election. Approximately 40 percent received between 

three and nine robo-calls during the campaign. And in the final 

week before the election, the Republican and Democratic Congressional Committees alone spent $600,000 on robo-calls in nearly 50 

congressional districts. 

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Used responsibly, robo-calls can be an efficient, low-cost means 

for candidates and advocacy groups to reach out to their supporters 

or the public at large. Used irresponsibly or maliciously, however, 

robo-calls can harass, confuse or deceive the public about elections 

or other matters of pressing importance. 

Unfortunately, we saw far too many examples of deceptive and 

abusive use of robo-calls in the last Federal election. In congressional districts throughout the country, voters were deluged with 

robo-calls at their homes. Often those calls included misleading information about the opposing candidate. Robo-calls usually did not 

identify the sponsor of the message until the very end of recording, 

if at all. Several of the robo-calls were designed to deceive voters 

about which candidate was responsible for the call. 

The mere fact of receiving a robo-call from a candidate, particularly at odd hours of the night or morning, may push an undecided 

voter to form a negative view of that candidate and vote for his or 

her opponent or avoid the election altogether. As one voter in 

Nashville observed, ‘‘If I were on the fence, it would push me to the 

other candidate that wasn’t annoying me.’’ This fact was not lost 

on the campaigns. 

Several of these misleading robo-calls were placed to the same 

number with unrelenting frequency. It was not uncommon for voters in some districts to receive three calls in a 4-hour period. By 

and large, voters saw these calls as a nuisance. The Missouri Attorney General reported receiving more than 600 complaints about 

robo-calls in the run-up to the last election. Unfortunately, many 

voters responded to the deluge of robo-calls by disengaging from 

the election entirely. With the airwaves already saturated with political advertising, robo-calls drove voters away from meaningful 

participation in the democratic process. Regardless of political affiliation, this is a trend that should concern us, particularly as our 

active voter participation still lags that of other democracies. 

Apart from their effect on the civility of political discourse and 

participation in elections, abusive robo-calls represent a threat to 

the sanctity of the home. As the Supreme Court has recognized 

time and time again, the Government has a significant interest in 

protecting residential privacy. In her decision in Frisby v. Schultz, 

Justice O’Connor noted that a special benefit of the privacy all citizens enjoy within their walls, which the state may legislate to protect, is an ability to avoid intrusions. Frisby is just one of many 

first amendment cases noting that the state’s interest in protecting 

the well-being, tranquility and privacy of the home is certainly of 

the highest order in a free and civilized society. 

Notwithstanding that interest in protecting residential privacy, 

many Federal laws do not apply to political robo-calls. Those laws 

that do apply often go unenforced or, if enforced, impose modest 

civil penalties that some robo-call firms simply regard as the cost 

of doing business. 

After this last election, State governments sought to fill that void 

by introducing over 100 bills after the election to address robocalls. To date, 23 States have enacted laws that deal with political 

robo-calls, and this varying approach ranges from an outright ban, 

a ban on robo-calls to numbers listed on the National Do-Not-Call 

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Registry, to require disclosures of the entity sponsoring and paying 

for the call. 

Municipal governments have also legislated, and indeed these efforts have not actually stopped the deceptive robo-calls. We saw, 

last month, in the gubernatorial race in Kentucky, one candidate 

was the victim of robo-calls that falsely purported to be from a gayrights advocacy group in support of that candidate, and one voter 

reported, ‘‘These calls were the ugliest thing I have heard in an 

election probably in my lifetime.’’ With incidents like these, it is clear little has happened since last 

year’s election to address this issue. And this hearing we hope will 

explore the nature of the problem and potential remedies, and 

whether the Federal, State and local governments can work together to strike the proper balance of first amendment interests, 

residential privacy and meaningful participation in the electoral 

process. 

At this point, I would like to recognize the ranking member of 

the subcommittee for any statement he may wish to make. 

[The statement of Ms. Lofgren follows:] 

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Mr. MCCARTHY. Well, thank you, Madam Chairwoman, and I do 

want to thank you for holding this oversight hearing. 

As one member that has been on the end of negative robo-calls 

but also seen positives from this position, doing tele-town halls, 

that I have never gotten so much response back from constituents 

and felt the freedom to ask a member any question out there, that 

I see that, as we move forward in an election cycle and as we move 

forward as a way to communicate with our constituents, especially 

with new technology, we do need these oversight hearings to know 

which way we tread and see if there is an ability to protect an individual’s right to privacy and the individual’s right to actually still 

communicate. 

I think every Member here who will testify today will have a horror story to tell—I have been part of those—and also have maybe 

a positive story to tell, as well. So this is one that we do need oversight in. And I thank you, Madam Chair, for holding this, that we 

can get further information and look, as we move forward, especially with technology continuing to change and abilities to reach 

constituents and constituents actually to reach their elected officials to have their voices heard. 

And that is the end of my statement, Madam Chair. 

Ms. LOFGREN. Thank you, Mr. McCarthy. 

And other members are invited to submit their statements for 

the record. 

And, without objection, we welcome the participation of Mr. Lungren in this hearing. 

And we now are very lucky to have three of our colleagues who 

are here to testify on this subject. 

First we have Representative Melissa Bean, who is serving her 

second term in the U.S. Congress, representing Illinois’s 8th Congressional District. She serves as Chairwoman of the Tax, Finance 

and Export Subcommittee of the House Small Business Committee, 

as well as serving on the House Financial Services Committee. 

Prior to her serving in the House, Congresswoman Bean helped 

build revenues and sales management positions at leading technology companies, before founding her own consulting firm in 1995. 

We also are pleased to recognize Congressman Jason Altmire. 

Congressman Altmire is serving his first term in the United States 

House of Representatives. He represents Pennsylvania’s 4th Congressional District. He serves as Chairman of the Investigations 

and Oversight Subcommittee of the House Small Business Committee, as well as serving on the Education and Labor Committee 

and the Transportation and Infrastructure Committee. Prior to 

serving in the House, Congressman Altmire worked as a congressional staffer, a member of President Clinton’s Task Force on National Health Care Reform, and with the Federation of American 

Hospitals. 

And finally, we are pleased to recognize Congresswoman Virginia 

Foxx, who is serving her second term in the U.S. House of Representatives, representing North Carolina’s 5th Congressional District. She sits on the House Committees on Agriculture, Government Reform, and Education and the Workforce. And prior to serving in Congress, Congresswoman Foxx spent 10 years in the North 

Carolina Senate. 

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So we welcome all three of you, and we are eager to hear your 

testimony. 

We would ask if we could begin with you, Congresswoman Bean. 

And there is a light on the microphone. If you can turn it on, that 

would be terrific. 

STATEMENTS OF HON. MELISSA BEAN, A REPRESENTATIVE IN 

CONGRESS FROM THE STATE OF ILLINOIS; HON. JASON 

ALTMIRE, A REPRESENTATIVE IN CONGRESS FROM THE 

STATE OF PENNSYLVANIA; HON. VIRGINIA FOXX, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NORTH 

CAROLINA 

STATEMENT OF MELISSA BEAN 

Ms. BEAN. Thank you, Chairwoman Lofgren, Ranking Member 

McCarthy, my colleagues, members of the subcommittee, for holding today’s hearing on the use of robo-calls in Federal elections. 

I am Melissa Bean, and I have the honor of representing the 8th 

Congressional District of Illinois. This is my first time on the other 

side of the table testifying in a hearing. I was asked to share my 

experiences from the 2006 campaign, when I was re-elected in a 

highly targeted and expensive race in the northwest suburbs of 

Chicago. The topic of today’s hearing is one I am personally familiar with. 

Although robo-calls, or prerecorded phone messages, can be a 

useful method in communicating with constituents and voters, unfortunately they can be used to deceive and confuse those voters or, 

even worse, deliberately suppress voter participation. 

In October and November 2006, the NRCC had spent over 

$60,000 in independent expenditure money to place over a million 

robo-calls into my district. The calls all followed the same basic format that started off by saying in an upbeat voice, ‘‘Hello. I am calling with information about Melissa Bean.’’ And then there was a 

deliberate pause. 

Most voters assumed the call was sponsored by my campaign, because these calls were received multiple times a day, sometimes 

very late, very early or on their personal cell phones. People were 

annoyed, frustrated and hung up the phone without listening to the 

message. 

For those who stayed on the line, they would have heard a standard negative attack, as we have all experienced. ‘‘as Congresswoman, Melissa Bean opposed legislation X. She is wrong for Illinois.’’ After hearing the negative attack, those who stayed on the 

line realized that the call that initially appeared to be in support 

of my campaign was actually in opposition. But it wasn’t until the 

end of the call, and usually in a different, hurried voice, before the 

voter heard who was really responsible for the call. ‘‘this ad was 

paid for by the NRCC and not authorized by any candidate or candidate’s committee,’’ is what it would say at the end. 

It is my understanding that, of the people who answer the phone 

for robo-calls, roughly 25 percent hang up right away, 25 percent 

hang up halfway through the call—or, I am sorry, halfway through 

the call, and then 25 hang up between the middle and the end, and 

only 25 will actually stay through the end of the call. The drop-off 

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rate increases when voters receive the same call over and over, as 

they did. By that logic, roughly half of the individuals who received 

the call believed incorrectly it was on behalf of my campaign, and 

only 25 percent learned it was an opposition call. 

As you can imagine, these calls infuriated voters. After receiving 

several robo-calls a day, all they would hear was, ‘‘Hello. I am calling with information about Melissa Bean.’’ Countless voters who 

contacted my office or spoke to me out in the district at campaign 

stops threatened to vote against me if I didn’t stop harassing them 

with these calls. One voter who was interviewed by a local newspaper in my district received 21 of the same robo-calls in one week. 

They would explain how the calls woke up their babies, interrupted 

their dinner, kept leaving them messages on their cell phones. 

They came very late at night. They would jump up to grab the 

phone and hear, ‘‘Hello; I am calling with information about Melissa Bean,’’ for the second, third, fourth time that day. They were 

deceived into believing I supported this activity. 

My campaign and I would explain that the calls were not from 

my office, were in fact generated by the NRCC, who was using 

them to attack my record. It was difficult to convince them. For 

every voter who learned the truth, many more were so furious with 

my campaign and the process that they were discouraged from voting or persuaded to vote for another candidate. 

Unfortunately for voters across the country, this intentional deception was not an isolated case. According to the Associated Press, 

the NRCC ran similar types of robo-calls in 53 competitive House 

districts during the 2006 election. Most of the calls were generated 

by the same communications firm and followed the same format: 

‘‘hello. I am calling with information about candidate X.’’ The press 

reported that voters would receive several calls in the middle of the 

night. People would tell me about 2 o’clock-in-the-morning phone 

calls and on their cell phones. Even after calling the NRCC and 

asking to be removed from the list, the calls continued. 

In order to respond effectively to these misleading calls, campaigns across the country were forced to shift resources and change 

strategy. Instead of using the last few weeks of the campaign to 

discuss positions on issues that voters cared about, volunteers and 

staff spent hours each day contacting voters, trying to explain what 

the robo-calls were about and who authorized them. Thousands of 

flyers with information on the calls, instead of information on candidates’ platforms, were distributed. In my own race, instead of 

using one of the few prerecorded messages my campaign authorized with President Bill Clinton, which would have urged voter 

turnout, he instead rerecorded it to explain about the misleading 

calls. 

As I mentioned at the opening of my testimony, robo-calls can be 

helpful for candidates to legitimately contact voters with information regarding their positions. However, during the 2006 cycle, voters in the 8th District and other parts of the country were subject 

to abusive calls that were intended to deceive and disenfranchise 

voters. 

I understand that several pieces of legislation have been introduced to address abusive and deceptive use of robo-calls, including 

the Chair’s bill, the Quelling of Unwanted, Intrusive and Excessive 

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Telephone Calls Act. However, first and foremost, the FCC must 

enforce current laws. The calls my constituents received may have 

been in violation of current law. 

Beyond enforcing current laws, I would recommend legislation 

that prohibits repeating the same message several times a day, 

limits the hours within which those calls can be received, prohibits 

misleading messages that confuse callers about who is making call, 

and clearly notifies voters at the beginning of the call who sponsored the prerecorded message. 

The 2002 Campaign Finance Reform Act forced candidates to 

stand by their ad. That applies to commercials, mail pieces, print 

and Internet advertising, and robo-calls. The robo-calls received by 

voters in my district and other competitive districts did not follow 

the spirit of that law and may have violated the letter of the law, 

in some instances. We have a responsibility to make sure all campaign media follows the spirit and the letter of the law. 

While the press did ultimately cover the deception of these calls 

in my district and elsewhere, only a portion of those who were victimized would have seen it. Undoubtedly, there were voters who 

were discouraged and stayed home on Election Day, while others 

may have wrongfully punished candidates for calls they didn’t 

make. 

This is not a partisan issue. Our democracy should seek an open 

and transparent process so candidates can stand on the power of 

their ideas. Our process should disallow deceptive campaign practices that undermine those democratic principles. 

I am sorry; I did see I went over. And again, I haven’t been on 

this side of the table. I should have been looking closer. 

I will stick around for the testimony of my colleagues and hope 

to stay for some of the questions. But, as you all know, it is a compressed day. If I do miss any questions, I will be happy to make 

myself available. 

[The statement of Ms. Bean follows:] 

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Ms. LOFGREN. Thank you very much, Congresswoman. 

Congressman Altmire. 

STATEMENT OF JASON ALTMIRE 

Mr. ALTMIRE. Thank you, Chairwoman Lofgren and Ranking 

Member McCarthy, for inviting me to testify today. 

The 2006 elections saw unscrupulous groups use automated political robo-calls to intentionally harass, deceive and infuriate voters in an attempt to subvert the democratic process. News reports 

contained stories of calls made in the middle of the night, calls containing deliberately misleading information, and calls that repeatedly dialed if the recipient did not listen to the entire message. 

Many of my constituents and thousands of Americans expressed 

outrage and frustration with the excessive phone calls that marred 

the weeks prior to last year’s election. Dinnertime for many families was often interrupted by prerecorded messages prompting one 

candidate over another, tarnishing a candidate’s character and 

credibility, or simply annoying those homeowners who do not have 

caller ID. 

Technology has allowed campaigns to quickly and inexpensively 

use this medium to communicate with voters. Many believe that 

robo-calls are effective at increasing voter turnout. Unfortunately 

for many voters, enough is enough, and they are starting to respond to them by choosing instead to stay at home on Election Day 

due to their frustration with the incessant robo-calls. 

Fortunately, we already have a tool at our disposal to curtail 

those who abuse automated calls to influence voters, the National 

Do-Not-Call Registry. Since its inception in 2003, the registry has 

proven extremely popular with Americans who wish to opt out of 

receiving calls from unwanted telemarketers, with over 107 million 

phone numbers added through June of 2006. 

With this in mind, I introduced the Freedom From Automated 

Political Calls Act, H.R. 372, which was the first bill I introduced 

as a Member of the House of Representatives because I feel so 

strongly about this. That bill addresses the proliferation of automated political calls and would add automated calls from or on behalf of political organizations to the registry and allow our constituents to opt not to receive these political calls. 

Importantly, H.R. 372 does not prohibit automated political 

phone calls, but it gives Americans the right to choose not to receive them, just as they would any other solicitation. Why should 

political campaigns be specifically carved out from the do-not-call 

list when businesses across the country are required to abide by it? 

The do-not-call list is wildly popular—107 million phone numbers 

have been added to the registry. Why should politicians be exempt 

from the same regulations that affect everybody else? 

Importantly, H.R. 372 would not affect a candidate or his or her 

campaign’s ability to make live, person-to-person phone calls to voters. Some have raised concerns about whether my bill would preclude members from holding tele-town halls or research firms from 

conducting legitimate surveys and polls. I want to reassure them 

that this is not the intent of my bill. And I am certainly open to 

amending the language to make it more clear that the legitimate 

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use of automated phone calls would not be prohibited, and I would 

welcome anyone to discuss that with us. 

State legislatures from across the country are calling for and acting to reform their State do-not-call lists. I believe it is time for 

Congress to take action and provide voters with a choice on whether or not they should receive automated political phone calls. I believe that H.R. 372 would be an effective approach to dealing with 

robo-calls. 

And at the same time, it is important to identify and deter the 

most damaging and abusive tactics, those that Congresswoman 

Bean talked about, those that involve political robo-calls. I encourage efforts that would effectively deter those practices and punish 

those who violate the law. 

Thank you again, Chairwoman Lofgren and Ranking Member 

McCarthy, for the opportunity to testify. I appreciate your attention to this issue, as well as your introduction of legislation to penalize those who use robo-calls to make late-night calls, mislead 

voters, and fail to even disclose who they are. 

I hope to be able to work with you as you move forward, Madam 

Chair, on your efforts to protect the sanctity of one’s home from 

dinnertime interruptions, harassment, deception and the abuse of 

political robo-calls. And I look forward to working with you. 

Thank you. 

[The statement of Mr. Altmire follows:] 

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Ms. LOFGREN. Thank you very much for that testimony, Congressman. 

And finally, we have Congresswoman Virginia Foxx, and we 

would welcome her testimony. 

STATEMENT OF VIRGINIA FOXX 

Ms. FOXX. Thank you, Madam Chairwoman. I appreciate very 

much this opportunity, and I appreciate the committee holding this 

hearing and inviting me to come. Like my colleagues, this is my 

first time on this side of the desk, but I am very pleased to be with 

you. 

I will not repeat the things that have been said by my two colleagues. I certainly agree with them on most of what they have 

said. And they have given, I think, excellent scenarios. I just want 

to tell you a little bit about my experience with this and why I did 

this. 

I ran for the school board in Watauga County in 1974. I am a 

very strong person on retail politics, and so I started making telephone calls, individual telephone calls, in 1974 to people that I 

wanted to vote for me. I have done that every time I have run. I 

have made thousands of telephone calls for every campaign. And 

in every campaign, people would say to me, ‘‘I am so delighted that 

you called. I have never had a telephone call from a person. I have 

never had a chance to talk to a candidate. And I am delighted that 

you have called me.’’

Well, when I ran for Congress in 2003–2004, there were a lot of 

people running in North Carolina. Many, many primaries going on. 

And there were robo-calls going on all over my district. And as my 

colleagues have said, there were people in the district getting 20, 

24 calls a day. One of my opponents in particular was making calls 

four, five, six a day, some of them at 1 o’clock in the morning, some 

of them mentioning my name at the beginning. So, as Congresswoman Bean said, people thought I was calling at 1 o’clock in the 

morning. 

Well, about 3 weeks before the campaign, I and my volunteers 

had decided we would make personal telephone calls. So, as I said, 

about 3 weeks before the Election Day, I got on the phone one Saturday morning. I just had a precinct I was going to call. I started 

calling people at 10 o’clock on Saturday morning. The first seven 

people I called said, ‘‘I am fed up with telephone calls. I know you 

are calling me personally, but I have gotten so many calls this 

week, I have injured myself trying to get to the phone, my answering machine has been clogged up’’—just all kinds of horror stories. 

And I made the decision right then that it would be counterproductive for me to even try to make personal telephone calls because people were so upset. 

And, again, as my colleagues have said, I think that what is happening, in many cases, is that instead of people being encouraged 

to get out and vote and engaging with candidates, they are being 

turned off. That is the last thing in the world I want to have happen in this country. I have always made those personal telephone 

calls because I believe we have too much cynicism on behalf of the 

public, and I wanted to try to overcome some of that by personally 

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contacting people. So I think that these calls have had a negative 

impact on the democratic process by leaving a bad taste. 

I agree with Congressman Altmire; it is a travesty that people 

can sign up for the do-not-call registry for everything but political 

calls. The public hates it when the Congress and politicians make 

different rules for us than we do for business and industry. I am 

not saying that there should never be robo-calls. I am just saying 

that people in this country should have a choice, do you want to 

get them or do you not want to get them? 

Now, I believe very much in the tele-town halls, too. And let me 

tell you, I did a tele-town hall but it took some work, given my opposition to robo-calls. But what we did was we invited people to 

call us. Now, it was probably a little bit more expensive, but we 

advertised in newspapers, we advertised on radio, we sent out direct mail, I went on radio stations. I did everything I could to advertise it. And so we had a tele-town hall, but the people who 

wanted to talk to me called in. And it was a very successful teletown hall. 

So people kept asking me in my first campaign, what is going to 

be the first bill that you are going to introduce? Well, at that point 

I kept saying, I don’t know. But at that point, 3 weeks before the 

election, I made up my mind it would be my first bill to set up a 

do-not-call registry for robo-calls from the political side. 

Well, it turned out to be my second bill, but it was very important to me, and I have reintroduced that bill. It is H.R. 248. It is 

extremely similar to Congressman Altmire’s bill. And I am very 

pleased his bill was introduced after mine and is extremely similar 

to mine. But I believe—and I, like he, would be more than willing 

to modify the bill if there are some ways that it needs to be 

tweaked. But I think that we must not set the Congress and other 

elected officials apart from the way we treat business and industry, 

and that it is very important that we pass legislation similar to our 

bills. 

And I again thank you very, very much for giving us this opportunity, because I think this is a winner, and I also think it is not 

a partisan issue. Thank you very much. 

Ms. LOFGREN. Well, thanks so very much to all three of our colleagues for compelling testimony. 

Now, we all know how busy we are in these closing days of the 

Congress, so I don’t know whether all three of you have the ability 

to stay and talk with questions. If you don’t, we will not be upset 

if you have to leave. Now would be the time. If you do have time 

for some questions, perhaps we can do that now. 

And I would like to recognize our ranking member to begin. 

Mr. MCCARTHY. I think Mr. Ehlers needs to get to——

Ms. LOFGREN. Is that right? Well, then let us recognize Mr. 

Ehlers. 

Mr. EHLERS. Thank you very much, because I do have a meeting 

I have to go to. 

I would just like to—I don’t have questions so much as just a 

comment. I think the biggest part of the problem comes not from 

the candidates so much as it does from the political parties first, 

but even moreso from the independent entities. And those are the 

ones that really concern me, because there is no accountability. If 

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34 

an organization calls up and gives their name very rapid-fire, they 

don’t know who it is. 

I have recently been subject to a series of robo-calls. I questioned 

the intelligence of the people making them, since I have a 70 percent district, and I am not quite sure why they are making robocalls about me, but it is from some group named American Voices 

I am not familiar with. But the net effect is that my office has been 

very busy handling calls from citizens who are extremely upset, not 

at me, but that anyone questions my integrity. So I think they 

backfired as well. 

But my point is simply, whether it is MoveOn.org or American 

Voices or similar Republican groups, they are essentially out of 

control. And that is a huge concern to me. I am less concerned 

about the campaign committees we have or the national committees we have, because there is some accountability built in, provided they are honest in it. But perhaps, you know, perhaps they 

all have to be added on the do-not-call list. 

One thing I am very strong on, and that is to—first of all, whatever we do has to be in accord with the Constitution. The whole 

issues of freedom of speech and political discussion, that is going 

to be very, very difficult to take into account here. 

And finally, I find the telephone town hall meetings are very invaluable. My constituents love them. So whatever we do in this, I 

think it is very important we not ban robo-calls relating to telephone town halls, because that really is a public service. We are 

doing it personally. If they don’t like them, they can let us know, 

but I think that is a very important governmental function that we 

have to maintain. 

And I thank you very much for letting me make those three comments. 

Ms. LOFGREN. Of course. Thank you, Mr. Ehlers. 

Mr. Gonzalez, do you have questions for our colleagues? 

Ms. Davis. 

Mrs. DAVIS of California. Thank you very much, Madam Chair. 

And I certainly know from the experience of candidates in my 

district, as well as myself, how incredibly annoying those calls are, 

and especially in the middle of the night. And so I think it is very 

wise that you are here and bringing this forward, and the committee is listening to all of these concerns as well. 

I am just wondering, you know, the first amendment, free speech 

challenges, I know we are all very aware of that. I am wondering 

whether you are aware of any legal precedents that would either 

move in the direction of Congressman Altmire’s legislation or address it in a specific way. 

Is there anything that you are aware of, Congressman? 

Ms. FOXX. Could I answer that very quickly? 

Mrs. DAVIS of California. Yes. 

Ms. FOXX. And they, too, but we worked really hard, the first 

year, on our bill to make sure that would not happen. And we believe that this would stand up, as the do-not-call registry has stood 

up in terms of the private sector. So we were very sensitive to that, 

in terms of trying never to violate anybody’s free speech. 

And certainly I don’t want to stop the industry either. I think the 

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pate. So we worked very hard at that. And I think leg counsel gave 

us the assurance that this should withstand scrutiny. 

Mr. ALTMIRE. And again, Congresswoman, I would add only that 

this is optional. This is for the person at home with the phone 

number to choose to add their phone number to the do-not-call registry list. It doesn’t prohibit the calls. It doesn’t say you can’t do 

them or you can’t receive them. It just simply says, as a consumer, 

you do not have to have your number listed as being willing to receive these calls. 

Mrs. DAVIS of California. And, you know, because this started in 

California, a lot of us are from California, and I remember at the 

time that that legislation was introduced, and we really weren’t 

sure that it was going to go forward and that it was going to be 

effective. And yet I think that it has been. I mean, I think that we 

have had fewer calls at home. And certainly nonprofits are continuing to call. But the follow-up with that in enforcement is also 

hopefully effective. So I am interested, as we move forward, to take 

a look at that. 

And I think that also, Congresswoman Bean, I am interested in 

the limiting of those calls so that the companies—because we know 

there are companies, and I am sure we are going to be hearing 

from some of them—have some responsibility as well. And there 

may be a way that those can be limited so that they are not multiple calls and also at times that people certainly would have their 

sleep interrupted and other issues. 

Ms. BEAN. Congresswoman, if I can respond for a second, I am 

not necessarily advocating against the calls. I think you just have 

to put parameters on. You shouldn’t be able to harass people over 

and over. You shouldn’t be able to do it at obscene hours in the 

evening. And you should say right from the beginning, slowly and 

clearly, who it is that is paying for the ad and sponsoring it. 

Because I actually think there is a purpose for them. If someone 

is doing a TV attack against someone late in an election that is unanticipated and a candidate wants to respond, it is very difficult to 

get back on TV and do that late. You can’t put an ad together in 

the final days of the campaign, and phones give you a way to at 

least clarify your record and respond. We know how big our districts are and how many people there are to reach. 

So there are ways to do it, and I just think that we need to tighten up those parameters. 

Mrs. DAVIS of California. Thank you. 

Ms. LOFGREN. Mr. McCarthy. 

Mr. MCCARTHY. Thank you, Madam Chair. I appreciate it. 

I appreciate the panel all coming. 

Right before I begin, Madam Chair, I would ask for a few items 

to be recorded in today’s proceeding: first, the written testimony by 

James Bopp, who wasn’t able to be here; a letter from CMOR to 

Ranking Republican Member Ehlers; and a dear-colleague letter 

from Representative Conaway. 

Ms. LOFGREN. Without objection, that will be made part of the 

record. 

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Mr. MCCARTHY. Thank you. 

Congresswoman Bean, you brought up a very good point. I mean, 

I think everybody in this institution has been receptive of these 

robo-calls and could be in a negative manner. My idea, though, is, 

how do we solve a problem here, while at the same time—I have 

got some of my best responses from my tele-town halls. 

I mean, my wife and I were in a parade recently, and people 

were literally yelling from the side, ‘‘Thank you for calling.’’ One 

person said, ‘‘Call at 7:00. I am eating dinner at 6:00.’’ And I told 

him, ‘‘Okay, I will do it at 7 o’clock next time.’’ And I did it at 7:00, 

and I had fewer people participating. 

But then I also sit there and think about the campaign finance 

law. We have had these hearings, and we went through and we 

changed campaign finance law, thought we were going to solve a 

lot of these bad things in politics. And now we find it just goes to 

independent expenditures. 

And I am wondering when we sit back and we look, could we 

write a bill that says you can’t be deceptive? But I wonder how do 

you—how can you clarify that? Because someone may say in a 

robo-call against me I voted a certain way. That is probably true, 

but I think it is deceptive from that perception. 

And then if I just said that I wanted to solve a problem and I 

just said you had to say the name at the very beginning, what 

would happen is it is like water flowing through a dike; it will 

move someplace else. We would then find, like these independent 

expenditures, it would be a lot of these groups created with a very 

positive, flowery name, that money will just go there to just focus 

on robo-calls. I am afraid that wouldn’t just solve the problem. 

So I am wondering if you thought about this, are there other 

ways, because I am fearful that if you just do the name at the very 

front that that doesn’t solve it. We are just flowing the money 

someplace else. 

And I also have the opinion that a lot of people do these robocalls late at night, it works against them. If an opponent does it, 

it does work against you in the end. 

Ms. BEAN. If I could respond for a second. It is if you knew it 

was them that called. 

Mr. MCCARTHY. Yes. 

Ms. BEAN. That is the challenge. That is why if you don’t identify 

in the front end they are angry at the wrong direction. 

Mr. MCCARTHY. But if we do on television, you have a choice. 

You can do it at the beginning or the end. And I am trying to 

think—I mean, I am just brainstorming here, because—do you 

think if we just did it at the beginning it would solve all the problems on robo-calls? Or do you believe the money would flow someplace else to a flowery name? 

Ms. FOXX. Well, I think you are right about the names of the 

groups. I think that a lot of groups have great-sounding names now 

when they make those calls, so people can’t tell that it is a group 

that is campaigning against the person. 

And it is like Congresswoman Bean said. I was the victim of calls 

being made saying, ‘‘I am calling about Virginia Foxx.’’ And they 

were coming in at 1 o’clock in the morning, and people thought I 

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was making the telephone calls, and they were mad at me. So it 

is a real problem. 

I think the FEC has tightened up on ads on TV and ads on the 

radio. And there may be ways that it can be done, and I think it 

certainly should be done. But I don’t think you will probably ever 

solve that problem of the name of the group. That is probably not 

something we can figure out. 

But if we could have a disclaimer at the beginning that says this 

is a call for or against the person, if you could require them to say 

something like that, that is more important, it seems to me, than 

knowing the group. And then perhaps having them say the group 

at the end. 

I have worked less on that aspect of it, Congressman McCarthy, 

than I have on simply making the choice available to people. But 

I do think that—you know, we all know this, having been in this 

business—whatever rules we write, whatever laws we pass, somebody is going to figure out a way to get around them. 

Mr. MCCARTHY. Because I do, on my tele-town hall, at the very 

beginning if you want to opt out you hit—I forget—number 2 or 

something, and then I opt you out from ever calling or receiving 

those again. 

But I am just wondering in our television ads, we have to sit out 

there and say, ‘‘I approve this ad,’’ whether it is a positive or negative ad. And what happens is it forces you, if you are going to go 

negative, you better be true on what you say, and your face is 

there, and you are saying it. 

Now, if we did something similar to that in the robo-calls, what 

we find also on television is these independent expenditures go do 

all these negative ads, have no accountability. And I am just trying 

to think out loud how do we solve this problem without creating 

a bigger problem after the bill goes through with a whole new industry? I don’t know if anybody has any wisdom toward that. 

Ms. BEAN. No silver bullet. 

Mr. ALTMIRE. I would just say, Congressman, that you give people the choice to opt out, as Congresswoman Foxx and I have advocated. 

Mr. MCCARTHY. Well, I thank you, Madam Chair. And maybe 

even further, if we have more hearings, we should do a panel of 

members that weren’t successful, because I imagine they would 

have a lot to say. 

But I congratulate all of you surviving. 

Ms. LOFGREN. I would like to recognize Mr. Gonzalez for his 

questions at this point. 

Mr. GONZALEZ. Thank you very much, Madam Chairwoman. 

And the whole issue is just, why do we have a different standard 

for officeholders and campaigns and such on the do-not-call? And, 

you know, that is legitimate. 

But I would also like to place out there for consideration that 

maybe the nature of our work is different than most telemarketers, 

and how important a tool it may be, a robo-call, in communicating, 

contacting, advising and so on our constituents, because it is not 

the easiest thing in the world. 

None of us are going to engage in any activity that alienates the 

voter. So are we going to have different standards—and let me—

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can we tweak it? And I am just, you know, we are all thinking, giving some ideas today, and there will be an exchange, and the next 

panel may say just how crazy some of this sounds. But rather than 

simply having it apply to officeholders and those that seek office, 

could we simply have certain conditions that may guard against 

some of the abuses? 

And my colleague from California pointed out what we have to 

do when we have ads. What if that robo-call has to be in the voice 

of the candidate him- or herself? The entire message has to be. So 

if you are going to really aggravate somebody, you know that you 

are doing it, it is your voice. I mean, seriously, I am quite serious 

about this. 

Caller ID, that we make sure the caller ID identifies the candidate and on whose behalf the call is being made. I mean, all of 

these things. 

The other thing, timelines. I mean, what we do during an election year or election period may be totally different and affect the 

legitimacy of robo-calls that may be for a totally different reason 

when it is not during the election year. There has to be a way of 

doing this. 

The next consideration is we need to start thinking of the different technologies and how this will apply to the Internet when 

you hire services that have Internet addresses and they just send 

them out. We are having problems with a do-not-email-me list already. So we need to start thinking of those implications. 

And there is no reason why we shouldn’t be thinking of them in 

this particular context if we are going to be addressing one medium. Or maybe that is too ambitious. 

But what are your thoughts about tweaking it to make sure that 

the candidate would be more responsible and not necessarily 

throwing the baby out with the bath water? 

Ms. FOXX. Well, I think Congressman Ehlers brought up an important point that we need to think about, and that is that probably more of the abuse is coming from the independent expenditures than it probably is coming from the candidates. I mean, we 

don’t know that for sure, but it definitely seems to me that some 

control ought to be placed on these independent expenditures. 

But as I understand it, there is no way for us to be in touch with 

those people. So they can’t be in touch with us to get an ad if they 

are going to run something either for or against us. So it would 

seem to me that one of the ways to start looking at this would be 

to look at the independent expenditures. 

And I appreciate what you said, Congressman Gonzalez. For the 

most part, we don’t want to alienate anybody who might vote for 

us, so we are more sensitive to that, but some of these independent 

groups may not be quite as sensitive. So I would suggest, if you 

look at it, begin there. 

Ms. BEAN. I would echo Congresswoman Foxx’s comments that, 

at least in my experience and most that I heard about, it wasn’t 

from opponents, it was from parties. And in that case, the wall is 

up and you can’t communicate. So it would be difficult to do some 

sort of—have your voice on someone else’s ad. So I think, to her 

point, you would have to look at those independents. 

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Mr. ALTMIRE. Congressman Gonzalez, at the beginning of your 

remarks, you said something that others have said in reviewing 

this legislation, is that, well, isn’t the nature of a political candidate’s call different than that of a phone solicitor? And that may 

be the case, so a possible solution to that is to have a separate donot-call registry to where, if you are on the do-not-call list for consumer products, that is one thing, and then you have a separate 

do-not-call list for political robo-calls. 

Logistically, that is a lot more difficult to do. I don’t support that. 

I think it should be within the overall do-not-call list. But that 

would be a way to resolve the concern that you have mentioned. 

Mr. GONZALEZ. And I guess what I am hinting at here, of course, 

is still some sort of exemption or carve-out for, obviously, the incumbents and candidates for office, because I do see the value of 

this particular tool. And the abuses, we can take care of that. 

I definitely would agree with Congresswoman Foxx that I think 

most of the abuses are going to be the independent expenditure, 

the organizations and some parties, and not the individuals. I just 

would hate to impact the individuals. So if there is some way to 

protect the legitimate utilization of such an important tool. 

And I will just end it with this. I will tell you robo-calls, for me, 

it is about the only way I really get people out there for events, 

not necessarily to convince them to vote for me, but when I am 

having an event back in San Antonio, I tell you, it is the robo-call 

that gets people there. And I haven’t had any complaints. Actually, 

they thank me, ‘‘Thank you for notifying me about today’s meeting.’’

So, again, thank you very much. I yield back. 

Ms. LOFGREN. Thank you, Mr. Gonzalez. 

Mr. Lungren, would you care to ask some questions? 

Mr. LUNGREN. Thank you very much, Madam Chairwoman. 

Probably the largest reason why I decided to come to this hearing today is to make sure that nothing we do would discourage 

telephone town halls, either for Members of Congress or political 

office or those running. 

Last week I had a telephone town hall in my district. I was home 

in the district. I had a live town hall, where I had about—standing 

room only, about 150 to 200 people. But I did a telephone town 

hall. We dialed 175,000 people or homes, because I wanted to do 

the whole district to see if we could do that. We had 102,000 households contacted: 55,000 were live households answering the phone; 

49,000 calls went to voicemail. After answering the phone, 25,000 

households hung up. But I had 28,169 people who accepted the call 

and listened—28,000. Now, some listened for 10 seconds; some listened for 21⁄2 hours. That is the most effective means to communicate with my district: 28,000 versus 200 people at the live one. 

I call at dinnertime, believe it or not, because I have called at 

different times and I found most people like it at dinnertime. They 

put it on the speaker phone. I had one lady tell me 2 months ago 

that it was great. When I called, she was feeding her baby. She fed 

her baby, she bathed her baby, she put her baby to bed, and now 

she had a chance to ask me a question. 

Now, the fact of the matter is, if you have a State—or we have 

a law that says you can’t use a recorded message, you can’t do it 

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61 

that way. Because I can’t make 175,000 dials in an hour and a 

half. So I think we ought to be very, very careful about anything 

we do here that would restrict that. 

Secondly, the great inconvenient truth today is not global warming, as my friend Al Gore suggests, but it is the first amendment 

of the Constitution. It is inconvenient. It interferes with things. I 

don’t want to listen to someone yelling at me some political message as I walk through or happens to be outside my house on the 

sidewalk, but, you know, they are able to do that. 

There is a distinction, first amendment distinction, between commercial speech and political speech. Whether we like it or not, 

there is a distinction. We don’t have to be defensive about the fact 

we make a distinction between Members of Congress or politicians 

and commercial speech, because it is embedded in the Constitution. 

The Supreme Court has suggested to us that you have to have 

what they call a compelling governmental interest to interfere in 

any way. And then, if we do, it has to be in the least intrusive way. 

And that is what we have to look at here. 

I am informed, although I don’t have it on my phone, that you 

can have caller ID on your phone, in which if your phone does not 

recognize the number that is calling they don’t accept the call. Presumably, that would stop a lot of robo-calls. That is a far less intrusive way of doing it than either banning it or putting political 

speech within the no-call list that we have. 

So, I don’t like people calling me. I got so many—I was excited 

the first time the Governor of California called me. It was very evident from his accent who it was. But about the sixth time he 

called, among the 20 that were calling that day prior to the election, I don’t like it. I just turned that off. It makes me less likely 

to vote for whoever it is. And if I am really concerned about having 

repetitive calls, I listen to hear who actually has the tagline for 

who they are, and then I either don’t vote for them or I let them 

know I don’t appreciate that sort of thing. 

So I understand the problem, but I just hope we don’t overreact 

to the problem. Politics is supposed to be robust. It is supposed to 

be kind of tough. I mean, we are supposed to get bruises from it. 

That is the price we pay for the first amendment. We allow all 

kinds of terrible speech out there. We protected Nazis marching in 

Illinois, I recall, 20 years ago, even though that is terribly offensive, far more offensive than a call talking about what a bad guy 

I am. So I am very leery of us doing that. 

But the main reason I am here is to make sure nothing we do 

would interfere with the potential for telephone town halls, which 

I happen to think is the most effective means that allows us to 

communicate with our constituents or an aspiring elected official to 

communicate with their prospective constituents. And we are so divided now, where most of us vote by absentee rather than actually 

going to the polls, it is almost like we are afraid to be a community 

again politically. And I hate to be the negative person here, but I 

am very, very concerned about us overreacting. 

And I thank you, Madam Chair. 

Mr. ALTMIRE. Madam Chair, if I might respond? I know we are 

over the time. 

Ms. LOFGREN. Certainly. 

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Mr. ALTMIRE. I am glad the gentleman brought it back to the 

tele-town halls, because I agree with everything he said in his remarks. My legislation does not ban tele-town halls. It is certainly 

not my intent nor Congresswoman Foxx’s intent to in any way 

have tele-town halls or the ability for candidates or elected office 

officials to hold tele-town halls under the scope of this legislation. 

Ms. FOXX. And what I might add to that, Dan, is that the 25,000 

people who hung up right after you called might be those people 

who would say, I don’t want to get the call to begin with. So you 

are not really turning anybody off or denying anybody that opportunity. They simply opted out of those 173,000. 

I don’t want to cut people off—I don’t want to cut out free speech 

in any way. But I believe allowing people to get on a do-not-call 

registry and have it apply to everybody—I mean, whether they are 

independent callers or they are us or they are aspiring people, if 

it applies to everybody, then we are all treated alike. And then 

those people don’t have to be called to begin with. And the people 

who do want to be on your tele-town hall will be on your tele-town 

hall. So you are not denying anybody anything. 

Ms. BEAN. I also want to echo I think Congressman Lungren 

makes a very valid point. We have all used the town halls. And 

particularly with the time we are spending in Washington lately, 

which has been an even greater degree, it makes it so much harder 

to stay connected to our constituents and understand their concerns. So I think it is a very valid form of communication. 

And there is a difference between political speech and government outreach, too. But I would say, relative to the freedom of 

speech provision that you mentioned and the Nazis, you know, in 

Illinois, in Skokie particularly, of course we support freedom of 

speech, but the Nazis weren’t pretending to be someone else. So I 

do think there is a way to allow those people to speak, but there 

is a difference between speaking and being fraudulent in who is 

speaking. 

Ms. LOFGREN. Let us turn now to Mr. Davis. 

Mr. DAVIS of Alabama. Thank you, Madam Chairwoman. 

Mr. Lungren and I serve on two committees together, and I find 

that 75 percent of the time I disagree with him. The other 25 percent of the time, I am envious that he got to make the point first, 

because he makes it very well. And this is a 25 percent moment, 

frankly. 

I am certainly glad to see the effort that my colleagues have put 

into this legislation. I fully understand the purpose and the underlying spirit behind it. But I think the core of what Mr. Lungren 

said is exactly right for two reasons. 

First of all, we do have a well-developed constitutional doctrine 

in this country, developed by the Supreme Court, that says that 

commercial speech does not have the same weight as political, ideological speech. And that manifests itself in a variety of ways. You 

can put time, place and manner restrictions on commercial speech. 

You can say that a billboard can only be so large and can’t be in 

certain areas. For example, you can say you can’t advertise liquor 

in a school zone or next to a school. I don’t think anyone would 

ever argue you could make those kinds of exceptions for political 

speech. 

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63 

There are content-based restrictions you can put on commercial 

speech related to truth in advertising. As much as we probably 

would like to find a way to do it, as much as we would like to find 

a way to adopt a standard requiring truth in advertising in campaigns, a lot of how you interpret a voting record, a lot of how you 

interpret a position is enormously subjective. And our truth may 

not hold up to some objective light of day. It is just the nature of 

this business. 

So there has been a well-established difference in how we treat 

commercial and political speech, and I am a little bit uncomfortable 

with redrawing the lines. And, you know, certainly you can say, 

well, the robo-calls for town hall meetings are good, robo-calls to 

encourage that you turn out to vote are good, robo-calls to say ‘‘support me’’ aren’t good. The problem is, electronically, those are all 

the same thing. They are all advocating that you do something. 

They are trying to compel you to a particular set of action. They 

are advocacy. And that is the root. It is not so much that it is advocacy that we like versus advocacy that may make us uncomfortable. The root of everything I have just described is that it is advocacy, it is encouraging you to do something. And we are very loathe 

to restrict political advocacy, as opposed to commercial advocacy. 

The second point that I would make, I do think that we struggle 

with the question of people spreading lies by telephone. Virtually 

every one of us who has been elected to office at any level has had 

some opponent spread, through literature or through phone, something that is palpably false. 

Now, there is a difference between the palpably false and something that is simply an argument over a vote or what the ripple 

effect of something may be. If you say someone has been arrested 

three times, has a criminal record, that is either true or false. If 

you say that voting for the Protect America Act means that you are 

indifferent to civil liberties, that is obviously subjective. So what I 

wonder is whether we can ever find the way and the means to really hone in on factually demonstrably false information. 

Now, having said that, we know how robo-calls do it. They don’t 

say that John Jones is a three-time sex offender. They say, ‘‘Would 

it trouble you if you learned that one of the leading candidates in 

this race who is not Pete Smith is a three-time sex offender?’’ and 

they would come back and say, ‘‘Well, I didn’t say it. I just asked 

if it would bother you.’’

So I wonder if we could find a way to maybe rout out the demonstrably factually false, someone asserting a vote that did not happen, someone asserting a criminal record when you don’t have it, 

someone asserting an arrest when you don’t have it. And I wonder 

if we could find some way to strengthen our laws. 

And our libel laws are interesting in this area. There is this 

myth that floats around that basically politicians are immune from 

libel laws. That is not quite true. If you know that something is 

false, you don’t have a right to disseminate it against a politician 

more than you do anybody else. The question is what constitutes 

knowledge and what constitutes certainty. 

But I think it is a very interesting discussion, it is a very interesting debate. I don’t think we resolve it, though, by trying to carve 

out lines based on different kinds of advocacy. Political speech is 

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political speech. And whether it encourages someone to come out 

to a town hall meeting or vote for Virginia Foxx or Jason Altmire, 

it is still advocacy at its core. And I think if we are going to parse 

out those distinctions, we are going to eventually find a Supreme 

Court that gives us some outcomes we don’t like. 

Ms. LOFGREN. The gentleman yields back. 

I appreciate the fact that our colleagues have stayed with us for 

so long. I know Congresswoman Bean had to leave. 

I will just say how much I appreciate the leadership the three 

Members have given on this important subject. It is complicated. 

The three of us serve on the House Judiciary Committee. And 

thinking about this, I mean, there are severe First Amendment 

issues here; there is no doubt about it. 

The last thing any of us would want to do would be to constrain 

the ability to have these tele-town halls. I just think they are a fabulous opportunity to connect and for citizens to participate. And, 

you know, if a Member has not done it, they should try it. The citizens love it. 

On the other hand, that is very different than, you know, 25 

phone calls being placed to the same number at 2:00 a.m., which 

is harassment. And so, as we look at this, we are going to be very 

mindful of the constraints of the First Amendment. 

But, you know, we also did pass out of the Judiciary Committee, 

with broad bipartisan support, an anti-election harassment bill, 

too, where it is now contrary to law to tell people the election date 

has changed. And so I think we can explore some of what is possible on the harassment area. And I think this hearing and certainly the leadership of the three Members is a very important first 

step on that road. 

So we thank you very much. 

And we will now ask our next panel to come forward. And we 

will be having two votes soon, but perhaps we can at least begin 

on the next panel. 

And I would like to introduce the witnesses. 

We have Steve Carter. Mr. Carter has served as Indiana’s Attorney General since the year 2000. As Attorney General, Mr. Carter 

has been active in enforcing and implementing the Nation’s strongest do-not-call law. And in the last 3 years, his office has either 

filed suit or entered court-ordered agreements with roughly 20 

companies for violating either State or Federal statutes regulating 

automated calls. Prior to serving as the Attorney General, Mr. 

Carter worked as chief city-county attorney for the City of Indianapolis and as legislative counsel for the Indiana State Senate and 

the agricultural assistant and chief of staff to the Indiana Lieutenant Governor. 

We also have with us John Cooney, who is a partner at the law 

firm Venable, LLP. He has 30 years of experience in regulatory policymaking and regulatory litigation. Prior to his work with 

Venable, Mr. Cooney served as assistant to the solicitor general in 

the Department of Justice, as well as deputy general counsel for 

litigation and regulatory affairs in the office of OMB. 

We also have with us William Raney, who is a partner in the law 

firm of Copilevitz and Canter. His practice there focuses on first 

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marketing laws. His clients include nonprofit organizations, publicly traded companies, as well as telemarketing service bureaus 

both in the United States and overseas. 

We also have Rodney Smith, who is a political consultant and 

fund-raiser. He is also a founder of the Tele-Town Hall political 

firm based in Washington, DC. And we have been singing the 

praises of tele-town halls. In the past he has worked as the national finance director for the Republican National Committee and 

the National Republican Congressional Committee and served as 

treasurer and finance director of the National Republican Senatorial Committee. 

And finally, we have Karyn Hollis, who is a registered voter in 

the 6th Congressional District. She has been a registered voter for 

17 years and is a tenured faculty member in the department of 

English at Villanova University, where she has worked for the past 

17 years. Before working at Villanova, Dr. Hollis taught at Dickinson College in Carlisle, Pennsylvania. She is married to Paul Gottlieb, and they have been married for 22 years. And they have one 

son, Martin Gottlieb-Hollis, who is 19. We thank Dr. Hollis for 

coming today, and we look forward to her testimony. 

But we are going to get the testimony of this panel after we come 

back from casting two votes on the floor. So we will be back here. 

We will come immediately after we vote. It will be, I would say, 

about 12:45 by the time that is done, at the earliest, maybe 12:50. 

Thank you. This hearing is recessed. 

[Recess.] 

Ms. LOFGREN. My apologies for our delay due to votes on the 

floor. We are reconvening our subcommittee now to hear the testimony from our second panel, who have already been introduced. 

By unanimous consent, your entire statements will be made part 

of the official record of this hearing. We would ask that your oral 

testimony be limited to about 5 minutes. When you have used up 

4 minutes, that little machine on the middle of the table will show 

a yellow light. And when your 5 minutes are up, it will show a red 

light. And at that time, we would ask you just to summarize and 

finish your sentence. 

And I am going to actually ask that we do that this time, because 

we will have another set of votes in an hour. And we would like 

to finish this and not have to come back still again. And we do appreciate your patience and your willingness to stick with us on 

this. 

So, Mr. Carter, we would like to begin with you, if we could. 

STATEMENTS OF HON. STEVE CARTER, ATTORNEY GENERAL 

OF INDIANA; MR. JOHN F. COONEY, PARTNER, VENABLE, 

LLP; MR. WILLIAM RANEY, PARTNER, COPILEVITZ AND 

CANTER, LLC; MR. RODNEY SMITH, FOUNDER, TELE-TOWN 

HALL, LLC; MS. KARYN HOLLIS, ASSOCIATE PROFESSOR, 

VILLANOVA UNIVERSITY 

STATEMENT OF STEVE CARTER 

Mr. CARTER. Thank you, Madam Chairman, members of the committee. Thank you for the opportunity to be here. Also a special 

hello to my Attorney General colleague, Congressman Lungren. 

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Thank you for the opportunity to speak as Indiana’s Attorney General. 

In that capacity, I am provided the authority to enforce consumer 

protection laws, including the do-not-call law limiting telemarketers, as well as statutes regulating prerecorded or automated 

dialed calls known as robo-calls. Both of these laws are extremely 

popular with Indiana citizens. I am reminded every day through 

comments, correspondence and by complaints received against violators of the positive impact of each of these laws on our individuals throughout our State. 

Indiana has the strongest do-not-call law in the country, a law 

with the fewest exemptions, that significantly reduces the number 

of telemarketing calls citizens receive. More than half of Indiana’s 

population benefits from the Indiana do-not-call law. The results of 

a survey that we conducted show that about 98 percent of registrants report that the laws works for them, increasing their personal privacy and reducing the unwanted, unsolicited telemarketing calls. 

I mention this because it is related to the automated or 

prerecorded calling issue. People’s expectations of privacy have increased in this area. They have come to expect that telemarketers 

should only be calling them if they have explicitly asked them to, 

or at least not when a citizen has placed himself or herself on a 

State or Federal do-not-call list. 

Automated calls have become a major issue over the past few 

years because they are different than the regular telemarketing 

calls that people have received. And as their volume increased, we 

have started to hear more about it. In the last 3 years, my office 

has either filed suit or entered into court-ordered agreements with 

about 20 companies for violating either State or Federal statutes 

related to automated calls. These actions included filing suit 

against two entities that were making political-related calls using 

a prerecorded message, in violation of our State law prohibiting socalled robo-calls. 

In addition, I have been the target of lawsuits by telemarketers 

for having pursued these enforcement actions. When I sued American Family Voices and the Economic Freedom Fund for calling 

citizens in Indiana’s 9th Congressional District for noncompliance 

with the law, I was in turn sued by FreeEats.com, a company that 

sends, and can literally send millions of automated calls within a 

few hours. 

As a matter of fact, this company has admitted in an Indiana 

court that it maintains a database of nearly 2 million Indiana 

phone numbers and that its calling system can automatically dial 

these each three times. One call is annoying. Two is frustrating. 

Number three is often considered harassment, at least in Indiana. 

This group has been seeking ways to keep me from enforcing Indiana’s law and providing residential peace and quiet to our citizens. 

We have prevailed, though, and in September the Seventh Circuit 

Court of Appeals gave me the green light to proceed with my State 

enforcement actions against FreeEats and other groups involved. 

Indiana has implemented and enforced a strict standard of telephone privacy for its citizens. When the standard is breached, the 

Attorney General’s Office has regularly stated and stood by a policy 

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of strong enforcement. I believe we have had overwhelming success 

in achieving compliance from most telemarketers. 

I continue to believe that a marketer’s message can be relayed 

in many different ways, outside of an intrusive, invasive use and 

violation of one’s personal telephone line. The annoyance and frustration caused by these unwanted calls pushes an intended audience away, leading people to file grievances and be more inclined 

to disregard or even disagree with the message being conveyed. 

With television and radio advertising, use of prerecorded messages in a lawful way, also where direct mail and volunteers are 

able to make message calls, there are many ways that telemarketers can reach an audience legally. Technological advances 

that have created these mass-market calling programs have made 

it easier on the telemarketer, but at what cost to the consumer? 

Greater convenience for the telemarketer comes only at the expense of the loss of privacy for our consumers. 

The public sentiment for telephone privacy is very high. This 

country saw a wave of do-not-call registries form within short 

order. Legislators know that this issue hits a chord with their constituency. Congress has recognized the tidal wave and implemented 

a national registry, watching firsthand as millions registered, seeking relief and wresting control of their telephone back from those 

unwanted telemarketing calls. Calls can be made, but they must be 

made in accordance with the laws that have been established for 

the benefit of those we serve. 

Laws also don’t assist the public if they are not enforced. This 

is why I have taken a position to ensure that these laws are being 

utilized and enforced and companies are taken to task for not recognizing the language of the law but also not for recognizing the 

will of the people. 

Thank you. 

[The statement of Mr. Carter follows:] 

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Ms. LOFGREN. Thank you very much, Mr. Attorney General. 

Mr. Cooney. 

STATEMENT OF JOHN COONEY 

Mr. COONEY. Chairman Lofgren and members of the committee, 

thank you for the opportunity to testify today. 

In my testimony I will try to focus on the constitutional issues 

related to Government regulation of prerecorded telephone calls 

that are made for political purposes. And my principal point will 

be that the First Amendment, as interpreted in many Supreme 

Court decisions, substantially limits the Government’s ability to 

regulate prerecorded calls as long as they are made for political 

purposes. 

Political speech is entitled to the greatest degree of protection 

under the First Amendment. And the answer to the question that 

was presented by Representatives Altmire and Foxx was the answer given by Congressman Lungren and Congressman Davis, 

namely that commercial enterprises are different. Under Supreme 

Court precedent, they are entitled to a lesser degree of protection, 

and the standard of review used in considering Government restrictions is also lesser. And so there is a fundamental difference between the free-speech rights of political speakers and those of commercial speakers. 

Now, existing Federal Communications Commission rules adopted under the Telephone Consumer Protection Act of 1991 already 

regulate the procedures under which prerecorded political calls can 

be made. The TCPA was passed by Congress after a thorough debate on the constitutional limitations on its power to regulate noncommercial calls. And it recognized that its authority was lesser, 

and so it sent the issue to the Federal Communications Commission for a nuanced, tailored approach to make certain that consumer protection was furthered but consistent with the overall rule 

that political speech has a paramount role to play in American life. 

After the TCPA and its implementation, there is probably a 

small space within which additional procedural restrictions could 

be adopted on prerecorded political calls. But it would be very easy 

for Congress to step over the line and adopt a restriction that was 

unconstitutional. So my bottom-line judgment is that Congress 

should proceed very cautiously in this area, both because of the 

value of prerecorded political calls to the public debate and also because the risk of constitutional error is so high. 

Now, as I mentioned, the political speech protection is at its zenith under the First Amendment. The Government must show that 

the restriction serves a compelling governmental interest and is the 

least restrictive alternative available. And as Congressman Lungren pointed out, it is very difficult for the Government to satisfy 

a least-restrictive-alternative test. There have been repeated Supreme Court decisions over the last 10 years that have struck down 

good-faith efforts by Congress to find ways to regulate speech. In 

the indecency on cable television, obscenity on the Internet, and in 

the campaign finance area, in particular, Congress has had great 

difficulty in understanding where the line is, in response to issues 

that are presented there. But the universal statement in all these 

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cases is that political speech is entitled to the greatest degree of 

protection. 

The Supreme Court has also specifically held that you cannot 

have a regulation that entirely blocks one mode of communication. 

That was Justice Rehnquist’s decision in 1994 in City of Ladue 

cited five other Supreme Court cases, going back to the Jehovah’s 

Witnesses cases that we all studied in law school, that have made 

this point consistently since the 1940s. 

The Supreme Court also established that the Government can’t 

block a form of political communication based upon assertions that 

some members of the public may not wish to receive it. In the 

Struthers case, the Supreme Court held that where technology exists for prerecorded political calls to differentiate between the people who want to receive the call and those who do not want to receive the call, then a blanket ban is impermissible. 

As members of the committee have said today, I think Representative Bean pointed out that 25 percent of the people who received 

prerecorded calls listened to them to the end. And the record in the 

Indiana litigation to which the Attorney General referred, the undisputed facts in the record showed that 20 percent of the population stayed on until the end of the call, the interactive call that 

my client, FreeEats, made. And FreeEats uses a new generation of 

technology which we call artificial-intelligence calls, because it asks 

the recipient a series of questions that can be answered ‘‘yes’’ or ‘‘no’’, and depending upon the ‘‘yes’’ or ‘‘no’’ answer, the recipient 

can hear that he is going down a logic path and that the machine 

is responding to his questions. And people are interested in participating. 

And in particular, this technology is used in franking calls by 

Members of Congress, where it has proved to be a popular and effective way in which questions can be asked directly to large numbers of people in the Member’s district. And the Member doesn’t 

get a poll; he gets more than a representative sample. He gets answers from a large number of his constituents about how they feel 

about pressing policy issues. 

So, for these reasons, because of the value of these kinds of 

prerecorded political calls in the public debate, my bottom-line conclusion is that the committee should proceed very cautiously and 

with full view of the Constitution to make certain that we don’t violate the Constitution and we don’t inhibit the public debate. 

[The statement of Mr. Cooney follows:] 

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Ms. LOFGREN. Thank you very much for that very helpful testimony. 

Mr. Raney. 

STATEMENT OF WILLIAM RANEY 

Mr. RANEY. Thank you, Chairwoman. Thank you, Ranking Member McCarthy, members of the committee. I am here on behalf the 

American Association of Political Consultants, which is a bipartisan professional trade group representing candidates at all levels 

of elections, that is here to urge responsible tactics both for its 

members, as well as show a need for legislation by this committee 

and by Congress. 

I don’t think anybody thinks that fraud or abuse is protected 

speech. Everyone knows that that is not. So setting reasonable 

standards preventing harassment, frequency of calls, deception, 

curfews—we urge adoption of those types of restrictions. And that 

will not create a constitutional problem because abuse and fraud 

are not protected speech. 

Mr. Lungren raised an excellent point, however, that you can’t 

differentiate between types of political speech. It is all protected at 

the core. And you raise an even bigger constitutional problem if 

you treat some forms of core speech less favorably or if you treat 

some forms of commercial speech more. San Diego v. Metromedia 

is the Supreme Court case on that. And you would quickly run 

afoul of the Constitution if you differentiate between levels of 

speech. 

There are several unique benefits for this type of media. It is 

fast. You could place a political prerecorded call if a polling place 

was called to let constituents know that the polling place would be 

kept open for longer hours. That can’t be done through any other 

media. And that is prevented by some States. 

It is targeted. The town hall topic has been mentioned many, 

many times. You have direct, participatory political involvement 

with your constituents. I don’t think there is any other medium 

that can do that so effectively. And that is banned by some States. 

It is effective. You can directly get voters patched to your office. 

Their concerns can be directly expressed to you through this medium, and I don’t think they can be done through any other medium. 

There is a need for legislation on the Federal level to prevent the 

abuses that Congresswoman Bean talked about, but also to satisfy 

the uniformity that is needed in this field, especially with Federal 

elections. There is a long tradition, and it has been upheld, of Federal regulation of interstate telephony. We have many, many 

States, set forth in my testimony, that ban these calls, that apply 

the State or Federal do-not-call list to these calls, and that is not 

appropriate when we are talking about a uniform medium like 

interstate telephony. 

So in conclusion, the AAPC would urge adoption of a caller ID 

provision, prohibition against any form of deception regarding the 

identity of the sponsor of the call, a curfew to reasonable hours—

8:00 a.m. to 9:00 p.m. is the same curfew that has been adopted 

in many other States—and preempting contradictory State law. 

This is the main need of this committee. 

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Thank you. 

[The statement of Mr. Raney follows:] 

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Ms. LOFGREN. Thank you very much. 

Mr. Smith. 

STATEMENT OF RODNEY SMITH 

Mr. SMITH. Madam Chairman, Ranking Member McCarthy, distinguished members of the subcommittee, my name is Rodney 

Smith. I am the founder and president of Tele-Town Hall. 

Thank you for letting me testify today on the need to protect 

telephone town halls, which are not robo-calls, but still they are 

banned right now in some states. That is why federal legislation 

is needed to ensure that telephone town halls are available to all 

elected officials and candidates as a unique new form of live, twoway communications with their constituents. 

A telephone town hall is essentially an ordinary phone call that 

allows elected officials and candidates to have a real-time, personal 

conversation on a mass scale with a targeted audience. There is no 

other medium currently providing comparable means of communications. 

Well over 150 members of the House and a growing number of 

members of the Senate use telephone town halls to contact their 

constituents directly from their D.C. or state offices. The magic of 

a telephone town hall is that it allows members of Congress to develop a personal relationship with a large number of constituents. 

In the Congressional Institute’s research study on the transformative effects of telephone town halls on constituents’ perceptions of members of Congress, it was found that among both Republicans and Democrats participating in just one telephone town 

hall meeting that the favorable view of their Congressman increased by at least 60 percent. That is why it would be tragic to 

allow new telephone town hall technology to be outlawed by states. 

Yet this is exactly what is happening, albeit unintentionally. An 

automated dialing system and a prerecorded introduction are essential ingredients in setting up a telephone town hall meeting. 

Unfortunately, states’ statutory language prohibiting robo-calls 

typically focuses on automated dialing systems and prerecorded 

messages as the trigger for application of the law. As a consequence, telephone town hall technology inadvertently becomes 

caught up in the definitions of existing bans on robo-calls, as well 

as in the definitions of much of the pending legislation being proposed to prohibit robo-calls. 

I have included in my written testimony suggested language that 

addresses this issue, and I would urge the Subcommittee, in its deliberation, to consider this language relating to communications between a member of Congress and his/her constituents. To see exactly how a telephone town hall works, you are welcome to visit my 

web site, www.teletownhall.com, and simply click on ‘‘See It Perform.’’

Thank you. 

[The statement of Mr. Smith follows:] 

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Ms. LOFGREN. Thank you very much Mr. Smith. 

And we will close with Dr. Hollis. 

STATEMENT OF KARYN HOLLIS 

Ms. HOLLIS. Thank you, Chairwoman Lofgren, thank you, everyone, for inviting me to speak here today. I am happy to be able to 

speak on this issue because I have received a number of the robocalls. 

I am just going to read this, because I think it will be quicker. 

During the days preceding the election of November 7, 2006, my 

family received an unwarranted barrage of automated recording 

calls to our home phone number in Winwood, Pennsylvania. I 

would estimate that we received up to about four robo-calls a day 

during that weekend before the election. The calls had numerous 

scripts, but all were critical of Lois Murphy, the Democratic candidate for Congress in our 6th District. These calls were frequent, 

irritating and misleading. 

The script typically began with the upbeat announcement, ‘‘Hi, 

I am calling with information about Lois Murphy,’’ leading the listener to believe that the call was coming from the Murphy campaign. Furthermore, the tone was cheery, giving the listener the 

impression the information was going to be positive. Both of these 

assumptions were incorrect. As the recording continued, the script 

turned negative regarding Murphy. Although I can’t remember exactly what the calls said, I do remember that they were critical of 

Murphy. And at the time, I recall feeling angry because the information presented was false. I knew what Murphy’s positions were 

on the issues, and they weren’t being truthfully represented in 

these calls. Voters were indeed being misled by them. 

I went so far as to file a complaint with the Federal Communications Commission, because I believed that these calls had broken 

some campaigning laws. The fact that they were made and paid for 

by the Republican Party was not indicated at the beginning of the 

call, as is legally mandated. 

All during the first few days before the November 7th election, 

I heard family, friends and neighbors in our district complaining 

about the content and frequency of these calls. Some said they 

were so fed up with the calls that they didn’t even feel like voting 

anymore. Since the speakers in the robo-calls were not clearly identified, some voters were under the impression that the calls were 

coming from the Murphy campaign. I found this misconception particularly disturbing, and I believe that it could have cost Murphy 

some votes. 

I believe these types of harassing calls should be stopped. Because of them, some voters were likely discouraged from going to 

the polls due to their anger at candidates like Murphy, whom they 

erroneously believed instigated the calls, or because of the misinformation and falsehoods spread by the calls about candidates that 

they had previously decided to vote for. 

I thought those two bills, or the one bill proposed by Congressman Altmire and the other one by Virginia Foxx, sounded great, 

and I would encourage you to support those bills. And I hope you 

will take action against this chilling electoral activity. 

And thank you for listening to my experiences. 

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[The statement of Ms. Hollis follows:] 

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142 

Ms. LOFGREN. Thank you very much, Dr. Hollis. And thank you 

to all of the witnesses. We will now go to the time of our hearing 

where members will have an opportunity to question the witnesses. 

And I would like to invite the Ranking Member to begin. 

Mr. MCCARTHY. Why thank you, Madam Chair. This has been 

very interesting from all sides. And I appreciate both panels for 

coming. And I found it quite intriguing. I mean I feel very fortunate serving on this committee, because we have a lot of legal 

minds actually on this committee, a former attorney general, 

former judge. And part of their discussion last time, and then listening what we have here, my first question is to the Attorney 

General. I know you have a strict law inside Indiana. Do congressional Members there, does this law not allow them then to do teletown halls because they use robo-technology? 

Mr. CARTER. They would have to have consent by the person that 

they are calling. 

Mr. MCCARTHY. So you would have to send a letter to every constituent to ask them prior to making that call? 

Mr. CARTER. If you want to make the calls, not violating the law, 

you would have to have their consent. You could gather that different ways, but of course that would be one way. 

Mr. MCCARTHY. Okay. 

If I may ask, Mr. Cooney, your conversation was bordering on— that is what I found interesting from both sides, Mr. Davis and Mr. 

Lungren, about political speech and the First Amendment. Do you 

think that would uphold—that law would uphold the Supreme 

Court test for disallowing congressional members? 

Mr. COONEY. I probably shouldn’t venture an opinion on something I haven’t seen before. 

Mr. MCCARTHY. Okay. 

Mr. COONEY. I have not seen telephone town halls before today. 

But something that is classic core political speech, with a Member 

of Congress trying to reach out to constituents and involve them 

in the operations of the office and finding out what is good for people in the district, probably would be covered. And I am not certain 

if that is the context in which telephone town halls come up or not, 

but that would be the core principle from which one would start 

the analysis. 

Mr. MCCARTHY. You have a follow-up. Go ahead. 

Mr. CARTER. I would mention that in the 2006 campaign there 

were two efforts to make robo-calls that were in violation, in my 

opinion, of our statute. Those did relate to political speech. They 

did relate to congressional campaigns. We are enforcing that law, 

that State law. Those have been challenged in Federal court, and 

thus far we have succeeded both at the district court level and at 

the court of appeals that it is not an unconstitutional restraint. 

Mr. MCCARTHY. Okay. I just—and the one thing with robo-calls, 

too, from a congressional—we have blackout periods where you 

cannot do it prior to an election. I know you mentioned, Mr. Smith, 

from the tele-town hall, I find these tele-town halls holding me accountable, because I do them for one hour at a time, and they can 

ask me any question. And I don’t pick the order. Whoever hit the 

pound sign first gets to ask the next question. And I find with us 

being back in Washington during the week it is a great ability, esmstockstill on PROD1PC66 with HEARING

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pecially when I am from California, the time difference within 

there. 

I just think coming from Mr. Raney’s—you raised a couple good 

points at the very end, because I do agree with Ms. Hollis that I 

get a lot of these phone calls that I don’t care about, and some people are misleading, and this has happened to me as well. But I do 

believe also from the standpoint of free speech that you seem to 

have a couple ideas that maybe we could solve both problems all 

the way along so people could get the message, but also in a manner that is respectful. What were some of your points again about 

timeline? 

Mr. RANEY. I think a prohibition on deception regarding the 

identity of the caller. I mean I think every single one of you—well, 

most of you had a story about somebody sending a call that was 

deceptive as to the identity of the call. And there is no room for 

that. Nor is there any argument that that would be protected 

speech. So I think that is an easy victory. 

I think Mr. Carter also raised a great point regarding enforcement. There is a Telephone Consumer Protection Act out there 

right now which requires certain disclosures. And it just hasn’t 

been enforced. So if this committee can adopt standards requiring 

disclosures. Caller ID is another example regarding the identity of 

the caller. Then a lot of the complaints that we have are gone. I 

mean, making somebody stand up for the words, the attacks that 

they make is constitutional. And I don’t think that there would be 

a big first amendment concern with that type of legislation. However, I definitely think there is a need. And my client thinks that 

these are valuable calls. And there are many, many valuable applications. And to have the citizens of Indiana not be able to take advantage of those is not right. And that is why I think that there 

is a Federal need for uniformity. 

Mr. MCCARTHY. Yeah, because I almost think if I am a candidate 

and I haven’t been in political office before, and I am pure grassroots, and I don’t have the money to go on television, and I am running against some incumbent and they have a lot of money and 

they are on television all the time, the technology to be able to 

reach a lot of people inexpensively is telephones. 

Mr. RANEY. It is fast. 

Mr. MCCARTHY. It is fast and it is able to deliver, even if they 

put something up in the last 2 weeks that is not honest. So I do 

think there is a place that we could get that could solve these problems in a lot of ways and still allow the free speech. 

And I thank you, Madam Chair. I yield back. 

Ms. LOFGREN. The gentleman yields back. Mr. Gonzalez. 

Mr. GONZALEZ. Thank you very much, Madam Chairwoman. 

And the question is to General Carter. You have heard my colleagues, Mr. Lungren and Mr. Davis, express some strong concerns 

regarding the constitutionality. But in our conversation you had 

earlier you told me your law has been on the books for 20 years, 

I believe, correct? 

Mr. CARTER. Correct. 

Mr. GONZALEZ. It has been challenged in Federal court, you just 

indicated. And I am just trying to figure out as lawyers and such 

why it has withstood that kind of scrutiny. And it probably is, sure, 

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you can respect political speech, free speech and such, but the person that is exposed to it can remove themselves from that particular person that may be utilizing or exercising the constitutional 

right. And you do that by simply being on a do-not-call list or by 

having to opt in or opt out. You have an opt-in. I mean that must 

be it. 

I don’t understand, because it would seem pretty clear, after listening to Mr. Cooney, that the Indiana law by this point should 

have been successfully challenged. So I guess it is not that simple 

in the equation. But again, I am thinking what Mr. McCarthy is 

saying, is there some sort of middle ground that we can reach here? 

I will ask Mr. Carter, though. General Carter, do you think there 

has been some cost to citizens of Indiana in the way of communicating with their elected officials? 

Mr. CARTER. You know, I haven’t had any citizens tell me that 

they didn’t have plenty of information about recent campaigns in 

Indiana. In fact, they have been barraged with multiple sources of 

information about the campaigns. I don’t think that the fact that 

this one method was restricted in Indiana led to any breakdown in 

their ability to analyze the candidates. We did have the elections, 

successfully chose people for those offices. I don’t think the robocall restriction affected that. 

The other thing I would mention is that the key question here 

is are you going to give that choice to the consumer or are you 

going to leave it with the telemarketer. The consumer, by their expression through their elected representatives that we do not want 

certain types of automated calls because of the volume, primarily, 

that we could be hit with, we don’t want that type of harassment, 

which they consider to be harassment when the volume reaches a 

certain level, and the new technology permits that, or are we going 

to leave it as we have been since the invention of the telephone? 

Are we going to leave it to the telemarketers to determine when 

and how they can interrupt people in the privacy of their homes? 

That is a key you have got to determine, which is going to control 

that decision. 

Mr. GONZALEZ. Okay. And so the question that goes to Mr. Raney 

and Mr. Smith, how do you respond to that? Because I mean he 

has a very popular and resonating argument there when you are 

out there talking to the public. Do you want the right to be able 

to restrict who is calling you at all hours, even reasonable hours, 

regardless of content, regardless of commercial or noncommercial, 

political or nonpolitical, regardless of identification, full disclosure, 

or even the nature of the message being that it be truthful and not 

deceptive? Forget all that. How do you respond to that basic 

premise that Mr. Carter has that is a very attractive one? 

Mr. RANEY. I have two responses. First, he mentioned that the 

law has been on the books for more than 20 years. This is an example of a law that was originally intended to apply to technology and 

commercial calling that is totally different than the current application, and I don’t think would have been anticipated had it been 

applied in this way. That is my first point. This is a misfit of applying commercial telemarketing rules to something that is entirely 

different, both constitutionality and purpose-wise. 

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Second, the AAPC would urge adoption of an opt-out, that any 

person who receives the call, by pressing a number on a keypad, 

can opt out of future calls from that candidate or campaign or entity, and in that way honor those requests. 

However, the Constitution mandates that more speech, not less 

speech is better. And the first amendment can sometimes be messy. 

So am I willing to pay the price of one call and then I opt out? Absolutely. Because there are new candidates and new issues all the 

time. Rather than a broad solution, let us make it campaign- and 

candidate-specific. 

Mr. SMITH. Let me add something to that if I could. The way the 

Indiana law has been challenged, has been on the basis that it violates freedom of speech, the First Amendment, and the interstate 

commerce clause. It has not been challenged under the speech or 

debate clause of Article I. And it would seem to me that a member 

of Congress has a right, under the speech or debate clause of Article I of the Constitution—as a matter of fact, a responsibility—to 

communicate in any way he or she deems appropriate in concert 

with other members of Congress—to his constituents. And that has 

yet to be argued in court. And when it is, I think it will prevail. 

Mr. GONZALEZ. Thank you very much. 

Ms. LOFGREN. Mr. Lungren is recognized for 5 minutes. 

Mr. LUNGREN. Thank you very much. I just find it interesting we 

so glibly say certain things. I mean I don’t like it when you can’t 

identify who is behind a particular ad and so forth on television. 

They can use fancy names, and the more we go to it. 

But I wonder, would the Federalist Papers have been outlawed? 

They were not, as I recall, published under the names of the individuals. They were anonymous names. You kind of wonder, when 

you go back in our history and look at those. 

Here is the other thing. And I would ask you this, my friend the 

Attorney General of Indiana. You said there are other modes of 

communication. So because you restrict one it shouldn’t have an 

impact on the first amendment. 

I can tell you absolutely if I were to use it in a campaign, a teletown hall would probably cost me about one-tenth what it would 

cost me to buy—at least one-tenth, maybe one-twentieth of what it 

would cost me to buy a television ad or sufficient radio ads to respond to an attack on me. 

So are you saying that doesn’t have any impact on the analysis 

by a court with respect to the first amendment when you are limiting in a very serious way the most effective, efficient way I have 

to respond to an attack on me using the other media? 

And by the way, think of this. If I get attacked in the last weekend on television, I cannot buy ads on television because it is 

locked up by that time. In fact, in the last week I can’t, but I can 

go and get robo-calls to be able to respond to that or have a teletown hall. Doesn’t that implicate first amendment? 

Mr. CARTER. Congressman, those arguments have been made 

very effectively in the court cases that we have been involved with, 

and thus far the Federal judiciary has not agreed with that. 

Mr. LUNGREN. I should have been involved in those cases, I 

guess. No, no, I mean but there is—for years I have been frustrated 

by the fact that the way the political machine has gone is to more 

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and more expensive things. The way the culture has developed is 

that political consultants get paid as a percentage of the amount 

that you spend. So the more you spend, the more they get. The incentive is to spend more. And you do it in television, you do it in 

radio, and you do it in mail. Tele-town halls and robo-calls, frankly, 

are the cheapest way to get your message across. It is an effective 

way of a poorer candidate being able to go against an incumbent 

or against a richer candidate. 

Isn’t the inconvenience that we would suffer as individuals—and 

I don’t like these calls any more than anybody else—isn’t that 

something to be balanced off against the first amendment presumption that we want to expand political speech rather than restrict 

political speech? 

Mr. CARTER. And I think from the invention of the telephone, up 

into the 1990s, that balancing was always in favor of the telemarketers. Because it was more efficient for whomever wanted to 

broadcast that message, we were going to permit them to intrude 

upon the privacy of the consumers. 

Mr. LUNGREN. Let us just restrict it to the political use of it, not 

all telemarketers. Not commercial speech, political speech. 

Mr. CARTER. And I think that since then, because of the volume 

of calls, because of the very advances of technology that have made 

it more efficient for the telemarketing message, the volume has 

gotten to the point where the public says we don’t want that. We 

don’t want to bear the cost of that. And one or two calls a night 

might be okay, but would 10 calls be okay? Or 15? 

Mr. LUNGREN. When you start doing that, then people start turning off and they are not effective anymore. And you move onto 

something else. The market in a sense takes care of that, because 

we turn off. And then you come to me as someone running for office 

and you say we will do robo-calls, and I know they don’t work anymore because people are sick and tired of them. 

The other thing is the Constitution suggests, at least Supreme 

Court suggests by constitutional analysis, that it is the least restrictive or intrusive way of invading the first amendment if you 

do have a real government interest here. What about the technology that I as a consumer can have caller ID? And if I don’t recognize that, I can—they don’t get in? 

Mr. CARTER. Well, you may not pick up the phone, but that 

doesn’t mean the phone didn’t ring. That doesn’t mean it didn’t 

wake up your child that has gone to bed. It doesn’t mean that it 

hasn’t interrupted that senior citizen that falls getting to the phone 

to see who is on the caller ID. 

Mr. LUNGREN. So we should tell these countries that are attempting to try to involve themselves in democracy that democracy 

is important to us, but not if it interrupts our sleep. 

Mr. CARTER. I don’t think these robo-calls are going to be the key 

to our message with them. 

Mr. COONEY. May I follow up quickly on three points that were 

raised in that colloquy? 

Mr. LUNGREN. Sure. 

Mr. COONEY. First the question about the cost. The record in the 

Indiana litigation to which the attorney general referred showed 

that the cost of a prerecorded call was one-fifteenth the cost of the 

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147 

same call, asking the same question, introduced by a live operator. 

One-fifteenth. 

Second, restrictions on alternatives to speech, you are finding 

this now in the Iowa caucuses because the caucuses are so close to 

the Christmas-New Year’s holiday season, the Wal-Marts and the 

auto companies of the world have tied up all the TV time. The candidates can’t get on, even though they have the money. So they are 

relying on prerecorded calls more extensively. 

And finally, the answer to the question about why there hasn’t 

been litigation and why there haven’t been decisions in this area 

I think is that many States recognize that these laws were vulnerable under the First Amendment because they were drafted to respond to the old technology of the late eighties, where all you could 

do is hook up a tape and play it from beginning to end, that the 

industry has moved on, and that trying to restrict something that 

actually asks questions of people and gets responses would be 

treated differently. 

And I must disagree with the attorney general on one point. 

There is no decision upholding the Indiana statute. We raised all 

these arguments. What the Seventh Circuit Court decided is that 

the issue should be resolved in State court rather than in Federal 

court. It was an abstention decision. So the merits of the Indiana 

statute have not yet been resolved. 

Ms. LOFGREN. The gentleman’s time has expired. I turn now to 

Congresswoman Davis for her questions. 

Mrs. DAVIS of California. Thank you, Madam Chair. And I am 

sorry that I wasn’t able to be here for your testimony. We were 

here for the members expressing their frustration. I want to just 

clarify for a second, Mr. Attorney General, the law in Indiana, did 

it carve out political speech? 

Mr. CARTER. No. In 1988, I believe in response to the public’s discontent with recorded messages that they were receiving, the elected members, elected legislature, chose to prohibit the so-called 

robo-calls, prerecorded messages, if they were not introduced with 

a live voice. If people want to receive those calls they can consent, 

they can then receive those calls. That is the exemption. 

Mrs. DAVIS of California. But it wasn’t specific for political 

speech? 

Mr. CARTER. No, it covers the technology, because frankly I think 

the legislature’s view was people aren’t—to some extent, if they 

have to hear the message, they are concerned with the content of 

it. But a lot of people are just upset with their phone, that they 

have bought and paid for, being utilized by somebody else without 

their permission and without them having some ability to control 

the volume of those intrusions that they have in the privacy of 

their home. 

Mrs. DAVIS of California. You have heard the concerns about the 

tele-forums that we do. And I am just wondering maybe for all of 

you, do you see that? And you may have addressed this already. 

But do you see that as a problem as we move forward and trying 

to see is there a role for Congress to play here? 

Obviously, none of us want to step in at a point that diminishes 

free speech in any way, and yet there are concerns that have been 

expressed. Do you—I think I maybe heard at the tail end of this—

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do you see a problem with the forums that we are talking about, 

that this would in some way restrict it? 

Mr. RANEY. I would personally object to inclusion of political calls 

on the Federal do-not-call list. I think the expectation of consumers 

when they signed onto the list was it was a commercial calling. 

And so I did not agree with the bills proposed by two of the previous witnesses. Congresswoman Bean, however, suggested that 

there may be some regulatory things that could be adopted to prohibit deception and abuse. And I am perfectly in favor of those. 

And like I said, there is no constitutional protection for fraud. So 

punish fraud and punish it harshly, and let legitimate speakers 

speak and let listeners listen. 

Mrs. DAVIS of California. Yeah, the policing of the industry in 

this, do you see a marked difference between the way some firms 

handle this issue? Are there some firms that refuse to have robocalls going in the middle of the night? Are there some firms——

Mr. RANEY. Oh, absolutely. I don’t think any legitimate consultant would send calls in the middle of the night. 

Mrs. DAVIS of California. But yet we know that that is——

Mr. RANEY. No client of mine. I would think that that would violate the TCPA, personally, and subject that caller to potentially 

catastrophic monetary damages. But the AAPC would urge adoption of restrictions that make it clear that there are legitimate 

ways to use this and nonlegitimate ways. 

Mrs. DAVIS of California. Could anybody else respond, though? I 

mean how do you explain the fact that this dominates in some campaigns now? So the fact that we have industries that are saying no, 

I am not going to do that, yet there must be plenty that do. And 

how, in fact, are you trying to police that among the organizations? 

Dr. Hollis. 

Ms. HOLLIS. Well, I would just like to say that I think it is a 

strategy, and I think that certain consultants and certain people 

organizing these robo-calls know very good and well what they are 

doing. You know, in our case we are registered Democrats. We are 

the base. We are probably not going to be persuaded not to vote 

for Lois Murphy. I think they know that very well. But they are 

hoping that by almost impersonating her, they are going to get people irritated and aggravated and they will just say oy, they are just 

overwhelming me here, and I am just going to forget this whole 

thing. So I think it is a definite strategy. I think they know full 

well what they are doing. 

And you know, again, I am not a lawmaker, but maybe there 

would be some ways to fine-tune wording that would, you know, be 

able to prevent this. Maybe you could limit the number of calls that 

people are—to a certain number from a certain organization. Or, 

like Mr. Davis was saying, make the blatant, false claims that 

some of them, you know, put forward illegal. Again, I don’t know 

how; there is a time element probably, but maybe you could have 

certain scripts reviewed by, I don’t know, somebody to verify that 

they are true at least. 

Mrs. DAVIS of California. It would be great if this sort of thing 

just fizzled because the public was saying forget it. But unfortunately, I think we see it probably increasing more than that. My 

time is up, but it looked like you wanted to comment. 

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Mr. SMITH. One quick statement. A campaign is a battle of ballots, not a battle of bullets, but each battle is just as intense. And 

some people carry it too far. And I think in terms of robo-calls that 

there can be some reasonable rules put in place that would account 

for most of what is being said here. And the people that go to an 

extreme ought to be punished and ought to be punished severely. 

And in terms of identification, as opposed to allowing people to portray themselves as part of some mystical organization, individuals 

should take responsibility for advertisements. For example, Rodney 

Smith paid for this ad, or somebody else, so that you have an individual that can be held specifically responsible for what is said. 

Mrs. DAVIS of California. Thank you, Madam Chair. 

Ms. LOFGREN. Mr. Davis is recognized. 

Mr. DAVIS of Alabama. Thank you, Madam Chairwoman. 

Two sets of points. The first one, the broad question is the degree 

to which this institution can regulate robo-calls. I wouldn’t say that 

it is just a 100 percent decided question, but it would seem to me 

that the predominance of what the Supreme Court has said on 

these issues is that all political advocacy is given a very high level 

of protection that virtually can’t be trampled. And the Court has 

specifically said we can’t restrict or regulate political speech or political advocacy because we don’t like its content. 

So I think there are just pressing constitutional questions around 

taking the do-not-call list and adding political speech to it. I would 

be stunned, frankly, if a Federal appeals court were to uphold that. 

But moving to a closer question, Mr. Raney, you talked a lot 

about, particularly in your written statement, about—prohibiting 

deception of any sort with regard to political issues is the phrase 

you used. It is probably broader than what you meant to say, but 

you do draw a distinction between advocacy and something that is 

clearly fraudulent. So I want to try to flesh that out for a moment. 

Let us take the example most of us are familiar with, South 

Carolina campaign in 2000. Regardless of who paid for the ads and 

all that, there were ads, robo-calls rather, that went into homes 

disseminating personal information about John McCain that was 

known to be false by the people who did it. I don’t think there is 

a huge factual dispute about that. 

Does anyone on the panel believe that kind of deliberate dissemination of false information is protected under current law? Okay. 

No one affirmatively believes that is protected. 

Mr. COONEY. Certainly not. 

Mr. DAVIS of Alabama. And so can one of you talk a little bit 

about what remedies are available for a candidate who is wronged 

in that way? I suppose one remedy is, obviously, holding a press 

conference and denouncing it. But of course that is a way of publicizing the allegation. Are there legal remedies that are available, 

perhaps after the election, other than just the usual more speech 

denouncing it? Or are we talking about tort remedies that are 

available, defamation law, or as—there seems to be some concession that, well, you can’t do that under the current law, but very 

rarely do candidates take advantage of that recourse. 

Mr. SMITH. Sir, one of the things the Supreme Court says you 

can do in a campaign is advocate full disclosure. And when somebody does that they need to be forthright—in other words, they 

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can’t do it under some ruse. It would seem to me that that would 

be a step in the right direction to force them to admit who they 

are and identify themselves. 

Mr. DAVIS of Alabama. Mr. Raney, do you think that libel laws, 

as they are currently defined in most States, would allow someone 

to go to court to sue someone for the kind of ads that happened to 

McCain in 2000? 

Mr. RANEY. Yes, they would allow the suit. It would be a very 

high standard to meet. I mean we know that public figures are—

it is a very, very high standard. I think the concern that my clients 

have is more the immediacy of the campaign. That the need for 

regulation here has to do with that immediate damage that is done 

to a candidate by these messages or the immediate help that these 

messages can give a candidate. And that is the role——

Mr. DAVIS of Alabama. Let me stop you for one second and ask 

you this question. Let us say that we are 4 days out from a campaign. On day one a phone bank goes up that disseminates something that is false. Does anyone on the panel think that someone 

could go to court to get an injunction against that phone bank 

going forward? 

Mr. COONEY. Well, you could certainly try, but you are going to 

meet the First Amendment objections there. The courts will bend 

over backwards to make certain they are not suppressing——

Mr. DAVIS of Alabama. Give me an argument that would trump 

the prior restraint argument. 

Mr. COONEY. The argument would be this is a deliberate falsehood and can be proven in a short period of time to be a falsehood. 

It is not a theoretical objection to the lawsuit, it is just a practical 

problem. A judge in the days just before an election would be reluctant to jump in unless the case is overwhelming. But with an appropriate case, the courts could. 

Mr. RANEY. You would also have irreparable injury in that situation. I mean, 4 days from an election the falsehood can’t be corrected, and stopping it is the only remedy to prevent the irreparable injury. But it is a very, very high standard; I mean, practically impossible. 

Mr. DAVIS of Alabama. General Carter, do you have anything you 

want to add to that? 

Mr. CARTER. No. 

Mr. DAVIS of Alabama. Let me leave you with just one hypothetical. In your capacity as attorney general, what would be the 

circumstance in which you would consider prosecuting someone on 

grounds of fraud based upon a political communication? What 

would be your standard as an attorney general that would allow 

you to say this is clearly fraud that was communicated, I am going 

to prosecute someone for it? 

Mr. CARTER. I wouldn’t be prosecuting, because in our State the 

attorney general does not have that jurisdiction. That is with local 

prosecutors. We do represent the State Election Commission. If 

there was a complaint filed with them, we could pursue an investigation and a civil action. But again, it would not be one that 

would provide very prompt relief. 

Ms. LOFGREN. Thank you very much. The gentleman yields back. 

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151 

I think this has been an enormously helpful hearing. I have 

learned some things. I feel badly that our colleagues—we have a 

bipartisan delegation from Indiana—that none of them get to do 

tele-town halls. And I feel badly for their constituency. But I am 

interested, Dr. Hollis, one of the things that Mr. Raney suggested 

that intrigued me was the ability of a voter to press a button and 

not get any more calls from a particular source. So that doesn’t preclude the ability to initiate political speech, which has the highest 

protection level in the Constitution. 

But would that have worked in the election you talked about, 

where you could say I don’t want—you know, get rid of this, get 

it out of my answering machine, where you just turn it off? 

Ms. HOLLIS. It would have been identified as coming from the 

Republican Party. It would have been very general, I guess. And 

maybe there are some times you might want to hear what they had 

to say so——

Ms. LOFGREN. Once maybe, but not 15 times. I know when I do 

my telephone town halls—and Mr. McCarthy whispered he does 

the same thing—the first question we ask is, we are having the 

telephone town hall, you can join right now if you want. If you 

never want a call like this again, you can press number 2, and then 

we take them off the list. 

Ms. HOLLIS. Yeah, something like that sort of makes it real more 

specific what the purpose and who is calling and—yeah, definitely. 

Ms. LOFGREN. I wonder, Mr. Cooney, one of the things that I 

think there are problems, when you get into judging, as Mr. Davis 

said earlier, I mean, there is stuff that is fact, but so much of political speech is opinion, and the coordinates always felt, and the first 

amendment really provides, that the remedy for speech that you 

don’t like is more speech. 

And I agree with that, but that is different, I think, than calling 

25 times at 2:00 a.m., which is not about speech. That is about harassment. 

Do you think that regulation that is neutral in terms of the content, but deals with frequency of calls or the time of calls would 

meet the constitutional concerns that you have outlined in your 

testimony? 

Mr. COONEY. The question is simpler to answer for the timing of 

calls. The Federal Communications Commission already has rules 

that regulate when calls can be made, and States also restrict 

them—typically to some period between 8 a.m. and 9 p.m., although States vary either way on that. 

Something that affected the timing in which a call can be received is a classic time, place or manner restriction, which is 

judged under a lesser standard and is easier for a State to sustain. 

It is difficult when you start to talk about the number of calls, 

because that gets into the volume of speech. Generally speaking, 

the courts bend over backwards not to try to establish what the 

total volume of speech should be. 

But there is another part of the FCC rules that may help answer 

that problem, which is that the FCC requires, at the end of the 

prerecorded message, that a number be included that the recipient 

can call and can be taken off the list for any further calls from that 

particular speaker. 

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152 

That is one of the conditions that the FCC put in the TCPA implementing regulations. It is a step in the direction of trying to protect consumers, but by having consumer choice govern and not the 

dictate of the government. 

Ms. LOFGREN. Let me ask you, Mr. Raney, you mentioned that 

none of the political consultants that you represent would engage 

in this kind of harassing behavior. I take you at your word, but 

clearly somebody is doing it because voters—we had testimony 

from three of our colleagues this morning about problems that have 

occurred, and we have a voter here today talking about problems. 

The enforcement appears to be deficient. One of the things that 

we have kicked around is whether there needs to be—you know, 

just outlaw this and make someone who is going to do this realize 

they would be violating a criminal statute as a deterrent if it is at 

2:00 in the morning, for example. I mean, nobody who is actually 

selling a product would call a customer at 2:00 in the morning. 

That is not the way to make friends and consumers. What is your 

thought on that? 

Mr. RANEY. My thought is so long as there is a protection to prevent prosecution in the instance of a mistake. 

Ms. LOFGREN. An error. 

Mr. RANEY. It can’t be knowing and with intent. But if there is 

knowing, an intent standard, a criminal sanction is perfectly appropriate. I mean, we talked about people just doing this as a cost of 

doing business and paying some small fine. Obviously a small fine 

doesn’t work. To make it serious, that is appropriate. As long as 

there is protection from mistakes—— Ms. LOFGREN. Okay. I would like to yield to Mrs. Davis for another question. 

Mrs. DAVIS of California. Dr. Hollis, I am just curious about the 

response of the FEC to your complaint. 

Ms. HOLLIS. E-mail receipt, they got the complaint, that was it. 

Ms. LOFGREN. So nothing really happened. 

Ms. HOLLIS. Yes. 

Mrs. DAVIS of California. Certainly people wouldn’t be encouraged to do what you did, to take the extra step to file that kind 

of a complaint, if, in fact, it went into thin air. So that might be 

something we would be looking at. 

Ms. LOFGREN. Mr. Lungren, I would yield to you. 

Mr. LUNGREN. I would like to ask something of the panel, and 

that is this: We have talked about how you respond to deceptive 

advertising in the political contest. What if you have a late smear 

against you. It is by way of mail, direct mail. It arrives on Saturday or arrives Monday. You can’t get television, you can’t mail it 

out. The only thing you can do is use the telephone. 

In the course of making those calls, for the time that it takes, 

by the time you get out, you actually go beyond the 9 o’clock period. 

You go on to 10:00 or 11:00 or something. 

In view of the principles of the first amendment, and in view of 

the principles of being able to respond to an attack, in view of the 

media that is available to you, is that something that we should 

prohibit? 

Mr. Attorney General. 

Mr. CARTER. Prohibit the last-minute mailings? 

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Mr. LUNGREN. No. The only means by which I can respond would 

be by, we will call, even robo-calls, in which I state what my position is, in which I say I have been attacked unfairly, I don’t have 

time to respond, television is not available, I want you to hear my 

story. Would that be something that you think ought to be prohibited? 

Mr. CARTER. In Indiana it should be, because in Indiana people 

want their privacy more than they want those last-minute communications from politicians or anyone else. 

Mr. LUNGREN. Even if we posit that it is the truth, that you are 

actually making a truthful statement to respond to——

Mr. CARTER. Yes. It is the interruption that people are upset 

about. It is not probably the content of the message. They don’t like 

the interruption of their phone being used for any purpose like 

that. 

I am just going to ask the committee as you consider this, as you 

go forward, this is a law that the Indiana citizens do not have a 

problem with. It is not a problem with our legislature. It has been 

on the books for 19 years. It is not a problem with our congressional delegation. The only communications I had during the last 

campaign from Congressmen, and they included Congressman 

Souder, Congressman Sodrel, newly elected Congressman Hill, and 

former Congressman Hostetler, were to enforce the Indiana robocall law. You don’t have any Indiana Congressman here asking for 

exceptions to that law. 

Ms. LOFGREN. Reclaiming my time, I am glad you mentioned 

that, because I did mention to my colleagues, I think it is a shame. 

I do want to clarify none have complained to us. 

Mr. CARTER. I would ask that you communicate with them before 

you would take any action that would preempt the Indiana law. 

Ms. LOFGREN. If I may, there is lots of further discussion we are 

going to need on this subject, obviously. But if I were your political 

consultant, Dan, I would tell you don’t call them after 9:00 because 

you are just going to tick them off. Certainly you wouldn’t want to 

call them at 2:00 a.m. 

So there is a discussion about where we should draw a line and 

what really is something that no one would do except a dirty trick. 

Mr. LUNGREN. We can always call voice mail. 

Ms. LOFGREN. With that, I am going to thank the witnesses for 

being here. It has been very, very helpful. 

We will keep the record open for 5 legislative days. If there are 

additional questions that Members have, we will forward them to 

you. We will ask that you respond promptly. 

Ms. LOFGREN. A lot of people don’t realize that witnesses come 

here as volunteers to help our country find out information and to 

get to the right answers in a responsible way. We are very grateful 

to you for taking the time to participate in this process. 

This hearing is now adjourned. 

[Whereupon, at 2:07 p.m., the subcommittee was adjourned.] 

Æ 

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