[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]


 
                 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


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                   COMMITTEE ON HOUSE ADMINISTRATION

                ROBERT A. BRADY, Pennsylvania, Chairman
ZOE LOFGREN, California              VERNON J. EHLERS, Michigan
  Vice-Chairwoman                      Ranking Minority Member
MICHAEL E. CAPUANO, Massachusetts    DANIEL E. LUNGREN, California
CHARLES A. GONZALEZ, Texas           KEVIN McCARTHY, California
SUSAN A. DAVIS, California
ARTUR DAVIS, Alabama
                 S. Elizabeth Birnbaum, Staff Director
                William Plaster, Minority Staff Director
                                 ------                                

                       Subcommittee on Elections

                  ZOE LOFGREN, California, Chairwoman
CHARLES A. GONZALEZ, Texas           KEVIN McCARTHY, California
SUSAN A. DAVIS, California           VERNON J. EHLERS, Michigan
ARTUR DAVIS, Alabama


               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 two-thirds 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.
    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 robo-calls. 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 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 gay-rights 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.
    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 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 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 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 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 tele-town 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 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 robo-calls 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 industry has a purpose, and there are people who want 
to participate. 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 
robo-calls 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 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--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.
    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 do-not-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 2\1/2\ 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 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.
    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.
    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 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 amendment issues and compliance with State and Federal 
telemarketing 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. 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 so-called 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 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 
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.
    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, two-way 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 robo-calls.
    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.
    [The statement of Ms. Hollis follows:]
    [GRAPHIC] [TIFF OMITTED] T1185A.110
    
    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 tele-town 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, especially 
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, 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 robo-call 
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.
    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 tele-town 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 tele-town 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 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 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--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 robo-calls 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.
    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 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.
    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.
    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?
    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 robo-call 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.]

                                  
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