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Prerecorded telephone messages that provide information about political candidates or urge
voters to go to the polls are a common campaign tactic. Anecdotal accounts suggest that the
public often objects to the volume and frequency of these automated political calls (also called
“auto calls” or “robo calls”). Despite often negative anecdotal information about automated
political calls, they remain an inexpensive, effective way to reach hundreds or thousands of voters
quickly. Campaigns and groups often rely on automated political calls to respond to last-minute
campaign developments.
In the 111th Congress, H.R. 116 Several bills (H.R. 248, H.R. 372, H.R. 479, H.R. 894, H.R.
1298, H.R. 1383, H.R. 1452, H.R. 4298, H.R. 5747, and S. 2624) introduced in the 110th
Congress would have added the calls to the federal do not call list, required additional reporting
about the calls, or otherwise regulated the calls. The Committee on House Administration,
Subcommittee on Elections, held an oversight hearing on automated political calls on December
6, 2007. The Senate Rules and Administration Committee considered S. 2624 at a February 27,
2008, hearing.
Empirical research and data about automated political calls are extremely limited. Data from
surveys and the Federal Election Commission (FEC) suggest that during the 2006 election cycle,
a majority of American voters received automated political calls and that various political
committees spent millions of dollars on those efforts. Despite media reports of strong public
disdain for automated political calls, the FEC has received few recent formal complaints on the
issue. Cases concerning automated political calls accounted for just 1.7% of FEC enforcement
matters closed between October 2003 and February 2008. (The Commission has not closed any
enforcement matters since that time.) However, FEC enforcement data are not necessarily a
reliable indicator of public sentiment toward automated political calls. The Federal
Communications Commission (FCC) reportedly does not track data about complaints it receives
on automated political calls.
This report provides an overview of how automated political calls are used in federal campaigns.
This includes attention to recent spending estimates and polling data about automated political
calls. The report also discusses legislation that would affect the calls. Policy options discussed in
the report include maintaining the status quo, gathering additional data, revising federal
disclosure or disclaimer requirements, adding the calls to the federal do not call list, or restricting
the number and timing of calls. Some of those options would likely involve contentious questions
about which organizations and messages should be regulated by campaign finance law.
Constitutional issues could also affect some of those policy options. The “First Amendment
Considerations” section provides a legal analysis.
This report will be updated as events warrant.
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Introduction ............................................................................................................................... 1
Franked Calls Versus Campaign Calls ...................................................................................... 2
Federal Disclaimer and Disclosure Requirements .................................................................... 2
Federal Election Commission Requirements...................................................................... 3
Federal Communications Commission Requirements........................................................ 4
Automated Political Calls: Uses and Industry........................................................................... 5
The Automated Political Calls Industry .............................................................................. 5
Spending Estimates............................................................................................................. 6
Frequency of Calls and Voter Reaction............................................................................... 8
Effect on Voter Turnout....................................................................................................... 9
Campaign Enforcement Issues ................................................................................................ 10
Recent FEC Activity ......................................................................................................... 10
Professional Enforcement ..................................................................................................11
Recent Legislation................................................................................................................... 12
Revising the Do Not Call Framework .............................................................................. 14
Revising Disclosure and Disclaimer Requirements or Otherwise Restricting
Automated Political Calls .............................................................................................. 14
Other Bills That Could Affect Automated Political Calls ................................................. 14
AAPC Recommendations ................................................................................................. 15
Policy Options......................................................................................................................... 16
Maintain the Status Quo.................................................................................................... 16
Gather Additional Data ..................................................................................................... 16
Encourage Voluntary Changes by Practitioners................................................................ 17
Revise Disclosure Requirements ...................................................................................... 17
Revise Disclaimer Requirements ...................................................................................... 18
Revise the Do Not Call Framework.................................................................................. 18
Restrict the Timing or Number of Calls............................................................................ 19
First Amendment Considerations ............................................................................................ 19
Conclusion .............................................................................................................................. 21
Methodological Appendix....................................................................................................... 22
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Table 1. Self-Reported Voter Contacts During the Final Weeks of the 2006 Election
Cycle ............................................................................................................................................ 8
Table 2. 111th and 110th Congresses: Legislation Relevant for Automated Political Calls ........... 13
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Author Contact Information .......................................................................................................... 23
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Automated political calls generally include prerecorded messages that provide information about
candidates or urge voters to go to the polls.2 They are also used to announce events and solicit
campaign volunteers. The calls are an inexpensive way to reach large numbers of voters quickly.
The calls can therefore play an important role in get-out-the-vote (GOTV) and voter-education
activities. Those who oppose the calls generally argue that they are intrusive, that too many calls
are placed to individual voters, or that they are too often used to convey negative information.
Identifying those responsible for calls is also a concern.
The Federal Election Campaign Act (FECA) does not require detailed reporting about automated
political calls.3 Political committees also have few incentives to make information about
automated calls public. In addition to this lack of data from regulators and practitioners, campaign
tactics and political consulting receive limited scholarly attention. Academic research that does
exist tends to focus on campaign strategists, especially political consultants such as pollsters and
media specialists. By contrast, those providing automated political calls (so-called “vendors”)
often receive limited attention.4
Empirical research about automated political calls is extremely limited. Data from one survey and
the FEC suggest that during the 2006 election cycle, a majority of American voters received
automated political calls and that various political committees spent millions of dollars on those
efforts. Despite media reports of strong public disdain for automated political calls, the FEC has
received few formal complaints on the issue recently.
Several bills introduced in the 110th Congress would have imposed additional regulations on
automated political calls, but would not necessarily apply to all circumstances in which the calls
are used. Legislation on the topic has also been introduced in the 111th Congress. Many of the
concerns surrounding automated political calls are not about the calls themselves, but about how
those calls are used. Congress, therefore, has various options for addressing automated political
calls, if it chooses to do so at all. Aside from maintaining the status quo, one relatively cautious
option would be gathering additional data before choosing a policy approach. Federal agencies
and the oversight process could provide such information. Another relatively limited approach
would be to encourage voluntary changes by practitioners. By contrast, if Congress chose to
require policy changes, it could add political calls to the do not call list or restrict the timing or
number of calls. Finally, Congress could place additional disclosure or disclaimer requirements
1 R. Sam Garrett served as the primary author of this report. Kathleen Ann Ruane authored much of the “Federal
Communications Commission Requirements” section and all of the “First Amendment Considerations” section.
2 This report refers to American campaigns. Due to political culture and technical infrastructure, automated political
calls are rare outside the U.S. See Michael Coleman, “Do Not Robocall? Depends on Your Country,” Campaigns &
Elections, September 2007, pp. 44-45.
3 On FECA, see 2 U.S.C. § 431 et seq.
4 See, for example, David A. Dulio, For Better or Worse? How Political Consultants are Changing Elections in the
United States (Albany: State University of New York Press, 2004), chapt. 2. On the distinction between various kinds
of political consultants, see Dennis W. Johnson, “The Business of Political Consulting,” in James A. Thurber and
Candice J. Nelson, eds., Campaign Warriors: Political Consultants in Elections (Washington: Brookings Institution
Press, 2000), pp.37-52; and R. Sam Garrett, “‘Adrenalized Fear’: Crisis-Management in U.S. House and Senate
Campaigns” (Ph.D. diss., American University, 2005), chapt. 4. Prof. Johnson also provided a telephone consultation
on these points (with R. Sam Garrett, November 16, 2007).
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on political calls. Some of those options would likely involve difficult questions about which
groups and messages are devoted to campaign activities versus policy advocacy.
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This report focuses on how automated calls are used during campaigns. From the outset, however,
it is important to remember that not all automated calls containing political information are
campaign-related. Although automated campaign calls can be controversial, many Members
reportedly find official (franked) automated calls useful. According to one political consultant,
official automated calls have been used to announce “town hall” meetings, solicit constituent
input on votes, and provide information about federal programs (e.g., student loans).5 House
Commission on Congressional Mailing Standards staff reported similar uses for franked calls,
which have become increasingly common.6 Discussion at a December 2007 hearing held by the
Committee on House Administration, Subcommittee on Elections, suggested a desire among
some Members to curtail unwanted campaign calls while preserving official calls.
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Automated political calls are subject to relatively little federal regulation, although approximately
20 states reportedly restrict or ban such calls, or are attempting to do so.7 FCC and FEC
regulations each place different restrictions on automated political calls. The FEC regulations
apply only to political committees or individuals engaged in express advocacy, which proposes
election or defeat of federal candidates. By contrast, the FCC regulations appear to apply to all
prerecorded or automated calls, regardless of whether they are political or commercial.
Regulations promulgated by both agencies require that automated political calls provide certain
identifying information. Finally, the Federal Trade Commission’s (FTC) National Do Not Call
Registry exempts political calls. Therefore, even individuals whose telephone numbers appear on
the registry may still receive automated political calls.
5 Telephone interview with Marty Stone, CEO, Stones’ Phones, conducted by R. Sam Garrett, November 14, 2007. In
addition to being a political consultant specializing in voter contact, Stone is a member of an American Association of
Political Consultants (AAPC) working group monitoring automated-calls legislation. That group’s recommendations
are discussed later in this report.
6 Telephone conversation between Jack Dail, Staff Director, House Commission on Congressional Mailing Standards,
and Matthew E. Glassman, November 15, 2007. Although the frank is normally associated with official mail, Members
are also permitted to use these funds for automated calls or e-mail. On franking regulations, see CRS Report RS22771,
Congressional Franking Privilege: Background and Current Legislation, by Matthew Eric Glassman.
7 See, for example, Donald G. Aplin, “States Take Aim at Political ‘Robo-Calls’ Despite Ongoing Legal, Regulatory
Challenges,” Money & Politics Report, February 14, 2008, at http://pubs.bna.com/ip/bna/mpr.nsf/eh/A0B6A8G4H3;
Susan Saulny, “States Seek Limits on ‘Robocalls’ in Campaigns,” New York Times, April 25, 2007, at,
http://www.nytimes.com/2007/04/25/us/politics/25calls.html?_r=1&hp&oref=slogin; Joseph Sanscrainte, “States
Enforce Limits on Robocalls,” DMNews, at http://www.dmnews.com/cms/dm-news/legal-privacy/38770.html, October
27, 2006; “Missouri AG Seeks to Expand No-Call Law to Cover Cell, Fax, Automated Political Calls,” Money &
Politics Report, November 20, 2006, at http://pubs.bna.com/NWSSTND/IP/BNA/mpr.nsf/SearchAllView/
576C34E794B957738525722A0006AAB7?Open&highlight=MISSOURI,AG; and Testimony of William E. Raney,
Appendix 1, in U.S. Congress, House Subcommittee on Elections, Committee on House Administration, The Use of
“Robocalls” in Federal Campaigns, hearing, 110th Cong., 2nd sess., December 6, 2007, 41-185 (Washington: GPO,
2008), p. 98.
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FECA does not specifically address automated political calls. However, the FEC has determined
that various requirements related to political advertising apply to automated calls.8 In particular,
“telephone banks” are included in the definition of “public communications,” a form of political
advertising that must contain certain information.9
Messages from telephone banks (and other sources) paid for by authorized political committees
(i.e., candidates’ principal campaign committees), must contain what FEC regulations refer to as a
“disclaimer” clearly stating that the committee paid for the communication.10 Similarly, messages
not authorized by candidate committees (e.g., by party committees) must clearly state that a
candidate committee is not responsible for the call and must provide the “full name and
permanent street address, telephone number, or World Wide Web address of the person who paid
for the communication.”11 The latter requirement also appears to apply to “general public political
advertising” (including telephone banks) paid for by “any person” that expressly advocates the
election or defeat of a clearly identified federal candidate or solicits funds.12
The requirements discussed above suggest that automated political calls paid for by political
committees (i.e., candidate committees, political action committees (PACs), or party committees)
must include disclaimers identifying the sponsor. The same is true for other “persons” engaging
in express advocacy (advocating the election or defeat of particular candidates) or fundraising.
However, it is possible that entities other than political committees could avoid disclaimer
requirements as long as they did not engage in express advocacy or fundraising related to federal
candidates. These entities or individuals also would not normally fall under FEC jurisdiction. To
summarize, automated political calls that propose election or defeat of federal candidates, or
solicit funds for those candidates, appear to require disclaimers identifying the sponsor. However,
these requirements do not appear to apply to calls that are not sponsored by political committees
or that do not engage in express advocacy or fundraising for federal candidates. Therefore, FEC
disclaimer requirements do not necessarily apply to 527s, interest groups, or other entities that
make automated political calls.13
FECA also requires political committees to report information about their spending—whether on
political calls or any other good or service. Specifically, committees must itemize disbursements
totaling more than $200 to a single source.14 Reports submitted to the FEC must include the name
and address of the payee, date of payment, and a brief description of the purpose of disbursement.
However, political committees are generally not required to use particular terminology when
itemizing expenditures, as long as their descriptions are specific enough to determine the
8 See, for example, Federal Election Commission, First General Counsel’s Report in Matters Under Review (MUR)
5584 and 5585, January 26, 2006, p. 5, at http://eqs.nictusa.com/eqsdocs/00005777.pdf.
9 On the definition of “public communications,” see 2 U.S.C. § 431(22). Telephone banks include “more than 500
telephone calls of an identical or substantially similar nature within any 30-day period,” which would be consistent
with automated political calls. See 2 U.S.C. § 431(24).
10 11 C.F.R. § 110.11(b)
11 Ibid.
12 2 U.S.C. § 441d(a)
13 On 527s, see CRS Report RL33888, Section 527 Political Organizations: Background and Issues for Federal
Election and Tax Laws, by R. Sam Garrett, Erika Lunder, and L. Paige Whitaker.
14 11 C.F.R. § 104.3(b)(3). Reporting time frames vary by committee type. See, for example, 11 C.F.R. § 104.3(b).
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purpose.15 Policy guidance issued by the FEC in 2007 did not address how automated political
calls should be described in expenditure reports.16 (This topic is discussed in more detail later in
this report.) Therefore, although payments for automated calls must be disclosed, committees are
largely free to determine how they wish to characterize their expenditures on reports submitted to
the FEC. Unless a committee chooses to be particularly specific—which is unlikely because these
disclosures are available to opponents and the media—FEC reports do not necessarily indicate
how much committees spend on automated calls or whether they purchase automated calls at all.
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The Telephone Consumer Protection Act of 1991 (TCPA) generally prohibits calls made by
automated telephone dialing systems to cell phones, emergency lines, certain hospital lines, and
other similar establishments.17 The TCPA also prohibits calls to residential telephone lines that
use automated or prerecorded voices to deliver a message, except in an emergency or by order of
the FCC exempting that call from the prohibition.18 When promulgating rules under the TCPA,
the FCC was required by Congress to consider exempting calls made for non-commercial
purposes.19 In its order implementing the TCPA, the FCC chose to exempt calls made for a non-
commercial purpose from the prohibition on calls using prerecorded messages to residential
telephone lines.20 Calls made by campaigns or other political organizations generally are
considered to be calls made for a non-commercial purpose.21
Though automated or prerecorded telephone calls and calls using automated telephone dialing
systems, including calls made to deliver political messages, to residential telephone lines are not
prohibited by FCC regulation or the TCPA, these types of calls are subject to some regulation.
Specifically, prerecorded calls must clearly state the identity of the business, individual or other
entity responsible for initiating the call at the beginning of the message.22 Furthermore,
prerecorded calls, including those placed with automatic dialers (“autodialers”), must also state
the telephone number for the business, individual or entity responsible for initiating the call.23
15 For example, for authorized committees, itemized descriptions such as “phone banks” are acceptable, but “get-out-
the-vote” is too vague. See 11 C.F.R. § 104.3(b)(3)(B).
16 Federal Election Commission, “Statement of Policy: ‘Purpose of Disbursement’ Entries for Filings With the
Commission,” 72 Federal Register 887, January 9, 2007.
17 47 U.S.C. § 227(b)(1)(A).
18 47 U.S.C. § 227(b)(1)(B).The TCPA does not expressly prohibit the use of automated dialing systems when making
any call to residential telephone lines. Instead, it prohibits the use of automated or prerecorded messages in phone calls
to residential lines. In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of
1991, 7 FCC Rcd 8752 (1992) at ¶ 27.
19 47 U.S.C. § 227(b)(2). The FCC was also directed to consider exempting calls that are made for a commercial
purpose but do not affect the privacy rights the TCPA seeks to protect and do not contain unsolicited advertisements.
20 In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 7 FCC Rcd
8752 (1992) at ¶ 40.
21 The commission found that the exemption for non-commercial calls extended to calls made by tax-exempt non-profit
organizations (including some, though not necessarily all, political organizations) and to calls “which do not involve
solicitation” as defined by the commission. In the Matter of Rules and Regulations Implementing the Telephone
Consumer Protection Act of 1991, 7 FCC Rcd 8752 (1992) at ¶ 41. Solicitation is defined as “the initiation of a
telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or
services....” 47 C.F.R. § 64.1200(f)(12).
22 47 U.S.C. § 227(d)(3); 47 C.F.R. § 64.1200(b)(2).
23 The number provided may not be for the autodialer itself. 47 U.S.C. § 227(d)(3); 47 C.F.R. § 64.1200(b)(2).
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Calling the number provided may not result in a fee other than normal local or long-distance
charges (i.e., 900-numbers are prohibited).24 Although telephone solicitations such as product
sales must occur during particular times of the day,25 those requirements do not apply to calls
made by, or on behalf of, tax exempt non-profit organizations,26 including political committees.
Other technical requirements also apply. However, some of those requirements do not apply to
calls sponsored by nonprofit organizations.27
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Automated calls can be used offensively or defensively, as when criticizing an opponent or
responding to criticism. The calls are often employed in the final days before elections to
mobilize (or discourage) voters, when it is too late to purchase other services with last-minute
campaign contributions. According to one political consultant, political committees are
increasingly also turning to automated calls earlier during election cycles to solicit voter input
(through automated responses) or to coincide with mailings and other messages.28 Another
consultant noted that automated calls can encourage event-attendance and other grassroots
engagement.29
Automated calls are inexpensive (a few cents per call) and can be quickly produced and
implemented. They also provide public officials or other activists with an ability to reach
hundreds or thousands of voters in a matter of hours.30 However, some campaigns reportedly are
beginning to fear a “diminished impact” on voters because of a “flood of auto calls” just before
elections.31
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Various campaign strategists might be involved in the decision to make automated political calls,
but implementation typically rests with telemarketing firms. Some professional political
consultants also specialize in automated calls. Data about the political consulting profession are
frequently limited because consultants identify themselves by various titles, are often self-
employed, and frequently do both political and non-political work. All these factors make
tracking the profession difficult, particularly in terms of specialized groups such as those
providing automated calls. A legislative working group of the American Association of Political
24 Id.
25 47 C.F.R. § 64.1200(c)(1).
2647 C.F.R. § 64.1200(f)(9).
27 See, e.g., 47 C.F.R. § 64.1200(a).
28 Telephone interview with Marty Stone conducted by R. Sam Garrett, November 14, 2007.
29 Telephone interview with John Giesser, CEO, Spoken Hub, conducted by R. Sam Garrett, November 19, 2007. In
addition to being a political consultant specializing in voter contact, Giesser is a member of an American Association
of Political Consultants (AAPC) working group monitoring automated-calls legislation. That group’s recommendations
are discussed later in this report.
30 Donald P. Green and Alan S. Gerber cite a figure of approximately $0.05 per call in Get Out the Vote! How to
Increase Voter Turnout, 2nd ed. (Washington: Brookings Institution Press, 2008), p. 77. According to CRS Internet
research, some firms charge as little as $0.01-$0.02 per call.
31 Telephone interview with Marty Stone, November 14, 2007. According to one scholarly review, live calls,
particularly those placed by well-trained volunteers, are more effective than automated ones. See Donald P. Green and
Alan S. Gerber, Get Out the Vote!, p. 95.
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Consultants (AAPC) recently identified 129 firms claiming to provide automated political calls.32
The group’s research suggested that no more than 10-20 of the 129 firms are professional political
consulting firms, with the remainder primarily engaged in other business ventures.33 The AAPC
figure is roughly consistent with a 2006-2007 estimate compiled by Dennis Johnson, professor of
political management at George Washington University and a former political consultant. Johnson
identified 28 “telephone and direct voter contact” firms operating in 2006-2007, but did not
differentiate between firms offering automated calls versus other services. Johnson found,
however, that voter contact is a small subset of the political consulting industry, particularly
compared with more common specializations such as direct mail (126 firms), media consulting
(78 firms), and polling/research (76 firms).34
Although few firms specialize in automated political calls, computer technology is reportedly
making it easier for those without specialized knowledge to pursue political telemarketing.35 One
consultant asserted that a “bifurcation” exists between professional political consultants and other
firms or individuals offering automated calls. He also suggested that limited knowledge among
the latter group could account for technical problems associated with some calls, such as late-
night or truncated calls, and that an ability to place automated calls does not necessarily imply
professional knowledge of how to use those calls effectively in campaigns.36 (Of course,
consultants have incentives to suggest that their services are unique compared with competitors.
This report takes no position on that viewpoint.)
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Comprehensive data about the total cost of, or spending on, automated political calls is publicly
unavailable. However, some estimates, based on anecdotal information, are available. For
example, a 2007 Campaigns & Elections (C&E) magazine report estimated that the two major
parties’ congressional campaign committees “spent over $600,000 on robocalls in nearly 50
congressional districts” in the final week of the 2006 general election campaign.37
32 The AAPC body was alternatively characterized as a “subcommittee” and “working group.” In telephone interviews
with CRS, group members Marty Stone and John Giesser described it as an informal entity. (Telephone interview with
Marty Stone, November 14, 2007; telephone interview with John Giesser, November 19, 2007).
33 Telephone interview with Marty Stone, November 14, 2007. The AAPC figures were based on Internet research and
searches of industry trade publications, such as Campaigns & Elections magazine (now Politics). This estimate appears
reasonable (but would be difficult to verify) given the limited publicly available information. Using trade publications
to infer information about the consulting industry is also a common practice in academic research. However, in the
absence of law or regulations defining political consulting or requiring detailed disclosure about the types of services
political committees purchase, and from whom, it is unclear precisely how many firms that provide automated political
calls are operating in the United States. It is also unclear how much of their business volume reflects political calls.
34 Dennis W. Johnson, No Place for Amateurs: How Political Consultants are Reshaping American Democracy, 2nd ed.
(New York: Routledge, 2007), p. 241.
35 See, for example, J. Todd Foster, “Are Phones Obsolete? The Evolution of Telephone Consulting,” Campaigns &
Elections, July 2006, pp. 32-36. Although the article focused on traditional telephone banks rather than automated
political calls, Marty Stone told CRS that technology is also easing barriers to entry with respect to automated calls
(telephone interview with R. Sam Garrett, November 14, 2007).
36 Telephone interview with Marty Stone, November 14, 2007. Stone’s distinction between vendors and professional
political consultants is consistent with academic literature cited elsewhere in this report.
37 Tom Jennemann, “Ready to Play Phone Tag?” Campaigns & Elections, September 2007, pp. 42-43. According to
Jennemann, the C&E estimate was based on identifying payments to known automated-calls vendors, as itemized in FEC
reports. A reporter then confirmed with Democratic Congressional Campaign Committee (DCCC) and National Republican
Congressional Committee (NRCC) “sources” which payments were actually for automated calls. E-mail correspondence
(continued...)
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Even when working from FEC data, spending on automated political calls is often unclear.
Because of their prominent roles in mobilizing voters, congressional campaign committee are
possible sources for examining spending on automated political calls. None of the four
committees—the Democratic Congressional Campaign Committee (DCCC), Democratic
Senatorial Campaign Committee (DSCC), National Republican Congressional Committee
(NRCC), and National Republican Senatorial Committee (NRSC)—appear to publicize
information about their spending on automated political calls. Required information provided on
their FEC reports also provides little detail about how much the committees spent on automated
political calls.38
In fact, of 467 “purpose of disbursement” descriptions listed by the four party committees in
2005-2006, none used the terms “automated calls,” “robo calls,” “prerecorded calls,” or other
language clearly indicating automated political calls.39 The committees spent approximately $8.6
million on activities itemized with some variation of the term “telemarketing,” but it is unclear
what proportion of those expenses, if any, were for automated calls. In addition, a large
proportion of the “telemarketing” expenses were from one committee (the DCCC), suggesting
that others simply chose not to use the term frequently in their reports. The $8.6 million figure
also does not include other large disbursements that could represent automated calls, including
expenditures itemized as “generic phone banks” or using variations of the word “telephone.”
Without additional information, however, the exact purpose of those disbursements is unclear.
Some caveats are important to consider when interpreting the party-spending information. First,
as noted above, the party committees are not required to provide detailed information about
automated political calls, or any other expense, in their FEC reports. Indeed, examples of
acceptable itemized disbursements provided by the FEC do not include references to automated
political calls.40 Second, analyzing data from four party committees is simpler than doing so for
hundreds or thousands of candidate committees, PACs, etc. Therefore, the party committees
provide a snapshot of possible automated calls spending. Importantly, however, various other
political committees also contract for automated political calls. Despite these limitations, this
brief case study reinforces the point that data on automated-calls spending are elusive—even
when examining FEC reports.
(...continued)
between Tom Jennemann, correspondent, Campaigns & Elections, and R. Sam Garrett, November 15, 2007. That methodology
would not account for payments to subcontractors or firms not known for making automated calls. It also would not account for
non-DCCC or NRCC spending.
38 In response to a CRS request, the FEC provided totals for itemized expenditures, by type of expense, reported by the
four committees during 2005 and 2006. FEC press officer Robert Biersack provided the data via e-mail, November 8,
2007.
39 R. Sam Garrett conducted this analysis. Although the FEC data listed 467 different “purpose of disbursement”
itemizations, that figure overstates the total number of unique expenditures. For example, many itemized terms were
duplicates or differed only slightly (i.e., “food and beverages” versus “food/beverage”).
40 Federal Election Commission, “Statement of Policy: ‘Purpose of Disbursement’ Entries for Filings With the
Commission,” p. 887.
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Despite the lack of firm data on the number of calls placed or the amount of money spent, it is
clear that many voters receive automated political calls. The Pew Internet & American Life
Project and the Pew Research Center for the People & the Press found that 64% of registered
voters received automated political calls during the “final stages” of the 2006 campaign.41 As
Table 1 below shows, automated calls were the second-most-commonly reported form of voter
contact late in the 2006 elections. (However, the poll did not include television or radio
advertising.) Only a slightly higher proportion of respondents reported receiving direct mail than
automated calls, but more than twice as many respondents reported receiving automated calls
compared with live calls, home visits, or e-mail. According to the Pew data, Republicans were
slightly more likely than Democrats to report receiving automated calls. Half of the surveyed
Independents reported receiving calls. Preliminary data suggest that automated political calls will
again be a popular tactic in the 2008 elections. According to March 2008 survey data, “[i]n states
that have already held a primary or caucus, fully 44% of voters have received robo-calls.”42
Furthermore, “[c]ampaigns are now more reliant on robo-calls than personal calls, but as might be
expected, there is a much higher hang-up rate for these pre-recorded political messages.”43
Table 1. Self-Reported Voter Contacts During the Final Weeks
of the 2006 Election Cycle
All
Registered
Respondents
Voters
Rep.
Dem.
Ind.
Received mail urging vote for particular
61%
71% 67% 62% 58%
candidate
Received recorded phone call
56%
64%
63%
58%
50%
Received phone call from live person
20%
24%
24%
20%
16%
Visited at home
16%
18%
18%
17%
14%
Received
e-mail
12%
14% 16% 12% 11%
Source: Pew Internet & American Life Project November 2006 Election Survey.
Notes: The survey N was 2,562 with a margin of error of ±2%.
Although the data discussed above indicate what proportion of voters received automated
political calls, it is important to note that they provide little additional detail. For example, the
data do not indicate what portion of the automated calls were aimed at increasing or decreasing
41 Lee Rainie, Director, Pew Internet Project, “Robo-calls during the 2006 election,” Pew Internet & American Life
Project, December 2006, available at http://www.pewinternet.org/pdfs/PIP_Robocalls06.pdf. “Final stages” refers to
Pew questions about contacts voters received “in the past two months.” The Pew surveys were conducted in November
and December 2006, so the results would reflect calls received between September and December 2006.
42 Pew Research Center for the People and the Press, “Robo-Calls Now Top Type Of Campaign Outreach,” April 3,
2008, at http://pewresearch.org/pubs/785/robo-calls-election-2008.
43 Ibid.
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turnout, reinforcing loyalty among decided voters versus swaying undecided ones, etc. Therefore,
it is unclear how many calls were used for allegedly positive, negative, offensive, or defensive
purposes.
As with other data about automated political calls, little or no systematic information about voter
reaction to automated calls is available. However, anecdotal accounts typically suggest strong
public disdain for such calls, particularly in states featuring several competitive elections. In some
districts during the 2006 elections, some voters reportedly received 20 calls in a single day.44
Some sources cited far lower numbers (e.g., 5-10, or fewer, calls per day), but reports indicated
that these calls were nonetheless frustrating to recipients.45 In Missouri, the state Attorney
General received more than 600 consumer complaints regarding automated political calls in the
weeks leading up to the 2006 elections.46 In response to public aggravation over automated
political calls, Citizens for Civil Discourse, which describes itself as “a non-partisan and non-
profit group of ordinary citizens,” recently established a free National Political Do Not Contact
Registry.47 Such services depend on voluntary compliance by those making automated political
calls.
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Scholarly research on the effectiveness of telephone voter contact, particularly through automated
calls, is limited.48 Available data, however, suggest that automated calls have a minimal effect on
turnout. Political scientists Donald P. Green and Alan S. Gerber concluded have that, despite
anecdotal examples of small effects on turnout:
Thus far, none of the experiments using robo calls has been able to distinguish their effects
from zero. Our best guess, based on experiments involving more than 1 million voters [in a
variety of settings], places the vote production rate somewhere in the neighborhood of one
vote per 1,000 contacts, but given the shaky state of the evidence, robo calls may have no
effect at all.49
In the absence of additional research on automated calls, much remains unknown—including
what effect, if any, calls containing negative information have on depressing turnout, and what
impact the calls might have on encouraging other forms of campaign engagement, such as
volunteering.
44 See, for example, Susan Saulny, “States Seek Limits on ‘Robocalls’ in Campaigns;” and Charles Babington and Alec
MacGillis, “It’s a Candidate Calling. Again.” Washington Post, November 7, 2006, p. A8.
45 Ibid.; Jennifer Duck, “Dems Claim GOP Launched ‘Dirty’ Phone Campaign,” ABCnews.com, November 6, 2006, at
http://abcnews.go.com/Politics/story?id=2633458
&page=1; and State of Missouri, Office of the Attorney General, “Automated political calls need to be covered by
Missouri’s No Call law,” press release, November 15, 2006, at http://ago.mo.gov/newsreleases/2006/111506.htm.
46 Office of the Attorney General, “Automated political calls need to be covered by Missouri’s No Call law.”
47 See “Stop Political Calls Now,” at http://www.stoppoliticalcalls.org/index.php.
48 For an overview of the literature on telephone outreach, see Alan S. Gerber and Donald P. Green, “Do Phone Calls
Increase Voter Turnout? A Field Experiment.” The Public Opinion Quarterly, vol. 65, no. 1 (Spring 2001), pp. 75-85.
CRS research using various databases of published and unpublished scholarship confirmed Gerber and Green’s
characterization of the literature as sparse.
49 Donald P. Green and Alan S. Gerber, Get Out the Vote!, p. 92.
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The FEC is responsible for enforcing the FECA requirements discussed at the beginning of this
report. Even so, campaigns often respond to perceived misconduct by opponents through political
advertising or by encouraging media scrutiny rather than by pursuing formal enforcement of FEC
regulations. In addition, although the commission frequently receives telephone or mail
complaints from the public regarding automated calls, these individuals rarely follow-up by filing
formal complaints.50 Therefore, although FEC enforcement activity provides one measure of
automated political calls, it is not a comprehensive indicator of all potentially objectionable
behavior associated with those calls.51
Enforcement data are available for closed (but not pending) cases. Although they do not
necessarily represent ongoing controversies, data from these closed cases provide some measure
of recent complaints concerning automated calls.52 Overall, the FEC appears to receive few
complaints about automated political calls. Specifically, in response to a CRS request, the FEC
identified eight enforcement cases concerning automated political calls that were closed between
October 2003 and February 2008.53 During the same period, the FEC closed a total of 476
Matters Under Review (MURs), the term used to describe the commission’s initial process for
receiving and assessing complaints.54 Therefore, just 1.7% (8 of 476) of MURs closed between
October 2003 and February 2008 concerned automated political calls.
Documentation in the commission’s Enforcement Query System (EQS) shows that the FEC either
dismissed the complaints or declined to take additional action after investigation in all but two of the
eight cases.55 The agency accepted a conciliation agreement in one of the remaining cases (MUR
5588). In the second case (MUR 5649), the commission referred the matter to its Alternative Dispute
Resolution (ADR) program, but rejected a proposed conciliation agreement and dismissed the case
after the candidate reportedly was indicted “on other campaign-related matters.” The commission
stated that it chose to dismiss the case based on the possibility that the criminal indictment “could
50 Duane Pugh, Deputy Director, Congressional Affairs, FEC, provided consultations regarding this point and other
FEC enforcement issues (e-mail and telephone consultations with R. Sam Garrett, November 2007; February 2008).
51 On a related note, in the absence of a legislative mandate, the FCC does not compile data about complaints it
receives on automated political calls (Kevin Washington, FCC legislative affairs, telephone consultation with R. Sam
Garrett, November 30, 2007).
52 FECA prohibits disclosing information about pending cases. See 2 U.S.C. § 437g(a)(12)(A).
53 These cases are Matters Under Review (MURs) 5401, 5455, 5584, 5585, 5588, 5601, 5649, and 5819. A ninth case,
initially designated as MUR 5882, was opened but dismissed after the individual filing the complaint reportedly failed
to respond to requests for additional information (telephone consultation with Duane Pugh, February 6, 2008). This
report assumes that the FEC’s number (eight cases) represents all closed enforcement cases related to automated
political calls during the time period under consideration. Commission staff reportedly identified these cases through
keyword searches that could indicate complaints about automated political calls. CRS research using EQS suggests that
the number of relevant MURs is indeed small. CRS keyword searches for variations of the term “robo call” revealed
only five closed cases in the entire database, some of which were already included in the listing provided by the FEC.
(Searches using other terms returned overly broad results that appeared to be unrelated to automated political calls.)
54 R. Sam Garrett, telephone consultation with Duane Pugh, November 16, 2007.
55 R. Sam Garrett conducted the analysis described in this section.
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eventually lead to this agency activating [another] enforcement matter,” thereby creating a
possible conflict of interest.56
To summarize, the MUR data suggest that automated political calls have been the subject of few
formal complaints to the FEC. When complaints did occur, the commission rarely decided to take
enforcement action. Automated-calls issues in those cases generally concerned an alleged failure
to include disclaimers indicating who paid for the calls.57 Some complaints also alleged that
automated dialers were used in “push polling,” in which voters are presented with negative
information about a candidate under the guise of an opinion poll.58 (Push polls are not illegal,
although many political professionals say they are unethical.59) When deciding not to pursue
additional action in these cases, the FEC generally determined that no violation had occurred, that
the agency was unable to identify a responsible party (e.g., in the case of “anonymous” calls), or
that pursuing the cases was an inefficient use of resources.60 One possible explanation for the
small number of enforcement cases is that “[t]he 2004 election cycle was the first in which the
disclaimer requirement applied to telephone banks, and some committees were unaware” of the
requirement.61 As noted previously, it is also possible that although the public and opposing
campaigns often find automated political calls objectionable, they choose not to file complaints or
they are unable to establish that FECA violations occurred. FEC enforcement data therefore are
not necessarily a reliable indicator of public sentiment toward automated political calls.
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In addition to federal enforcement, a professional trade association could take enforcement action
related to automated political calls. When they join or renew their membership, American
Association of Political Consultants (AAPC) members agree to follow the organization’s code of
ethics.62 The code does not explicitly address automated political calls but condemns “false or
misleading attacks”on opponents or family members and encourages campaigns to document
criticisms of opponents. A separate AAPC policy statement, adopted by the organization’s board
of directors in 1995, condemns push polling.63 Although AAPC members are subject to limited
sanctions (if the organization chooses to pursue internal enforcement) the code does not apply to
non-members. Former AAPC ethics committee member James A. Thurber, an American
56 This case appears in EQS as ADR-271. For a discussion of the facts of the case and the commission’s decision-
making, see the “Statement of Reasons” document, Commissioners Scott E. Thomas et al., in the matter of Taff for
Congress, and Kimberly S. Stewart, Treasurer, ADR 271/MUR 5649, November 10, 2005, at http://eqs.nictusa.com/
eqsdocs/00004D02.pdf. The quoted passage appears on page 2.
57 See, for example, Federal Election Commission, “Factual and Legal Analysis” related to MUR 5401, March 9, 2007,
at http://eqs.nictusa.com/eqsdocs/00005EE2.pdf.
58 See, for example, Federal Election Commission, “General Counsel’s Report” related to MUR 5455, November 2,
2006, at http://eqs.nictusa.com/eqsdocs/0000594C.pdf.
59 On consultant views of push polls and other ethics issues, see, for example, R. Sam Garrett, Paul S. Herrnson, and
James A. Thurber, “Perspectives on Campaign Ethics,” in Stephen C. Craig, ed. The Electoral Challenge: Theory
Meets Practice (Washington: CQ Press, 2006), pp. 203-224.
60 See, for example, “Factual and Legal Analysis” related to MUR 5401.
61 “Statement of Reasons” document, Commissioners Scott E. Thomas et al., in the matter of Taff for Congress, and
Kimberly S. Stewart, Treasurer, p. 2.
62 Applicants must sign the Code of Ethics. See the organization’s online application at http://www.theaapc.org/
content/membership/AAPC_Online_application.pdf.
63 American Association of Political Consultants, “Statement on Push Polling,” at http://www.theaapc.org/content/
resources/statement.asp.
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University political scientist, reported that ethics-enforcement cases are rare and minimally
effective.64 However, details about AAPC enforcement cases are publicly unavailable.
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One bill introduced in the 111th Congress would affect automated political calls, as would have 10
bills introduced in the 110th Congress. None of the legislation introduced in the 110th Congress
received a floor vote.
Bills on the topic generally fall into three categories. Specifically, the bills would: (1) add
political calls to the FTC do not call list; (2) revise disclosure or disclaimer requirements or
otherwise restrict automated political calls; or (3) regulate political calls generally, which could
include automated calls. As this section explains, the AAPC has also proposed legislative
recommendations about automated political calls. The “Policy Options” section below discusses
potential ramifications associated with these and other approaches.
The Committee on House Administration, Subcommittee on Elections, held an oversight hearing
on automated political calls on December 6, 2007. In addition to providing background
information about campaign practices, Members and witnesses considered whether, or if,
automated calls could be constitutionally restricted. Some Members also emphasized the value of
official (franked) automated calls to arrange telephone-based town hall meetings. The Senate
Rules and Administration Committee also held a hearing on the calls, and S. 2624, on February
27, 2008. Discussion at that hearing emphasized voter and candidate frustration with the calls,
and whether the calls could be constitutionally restricted.
64 James A. Thurber, Director, Center for Congressional and Presidential Studies, American University, telephone
consultation with R. Sam Garrett, November 28, 2007.
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Table 2. 111th and 110th Congresses: Legislation Relevant for
Automated Political Calls
Bill
Committee Referral
(Congress) Sponsor (Most Recent Major
Major Provisions on Automated Political Calls
Action)
H.R. 116
Foxx
Energy and Commerce
Would add automated political calls to the FTC Do Not
(111th)
(no additional action)
Call Registry
H.R. 248
Foxx
Energy and Commerce
Would have added automated political calls to the FTC Do
(110th)
(no additional action)
Not Call Registry
H.R. 372
Altmire
Energy and Commerce
Would have added automated political calls to the FTC Do
(110th)
(no additional action)
Not Call Registry
H.R. 479
Doolittle
Energy and Commerce
Would have added “any politically-oriented telephone calls”
(110th)
(no additional action)
to the FTC Do Not Call Registry
H.R. 894
Price (NC) House Administration
In addition to e-mail and Internet provisions, would have
(110th)
(no additional action)
extended disclaimer and “stand-by-your-ad” requirements
to prerecorded messages
H.R. 1298
Petri House
Administration Would have required disclosure of the identity of the
(110th)
(no additional action)
person funding telephone/electronic polls to respondents;
would require disclosure of total costs and funding sources
for the poll, number of households contacted, and questions
asked (if results were not to be made public) to the FEC
H.R. 1383
Lofgren Judiciary
In addition to other provisions, would have established
(110th)
(no additional action)
penalties for using “automatic telephone dialing system[s]”
or prerecorded messages to transmit deceptive information
about federal campaigns and elections
H.R. 1452
Maloney House
Administration
Would have required disclosure to the FEC of specified
(110th)
(no additional action)
phone-bank costs, funding sources, households contacted,
and questions asked/information provided
H.R. 4298
Stupak
Energy and Commerce
Would have added “politically-oriented recorded
(110th)
(no additional action)
message[s]” to the FTC Do Not Call Registry
H.R. 5747
Lofgren House
Administration Would have restricted the hours of day during which
(110th)
(no additional action)
automated calls could be made and limit the number of calls
that a single entity could make to the same telephone
number in one day; would also permit civil enforcement by
the FEC
S. 2624
Feinstein
Rules and Administration
Would have restricted the hours of day during which
(110th)
(hearing held 2/27/2008)
automated calls could be made and limit the number of calls
that a single entity could make to the same telephone
number in one day; would also permit complaints to, and
civil enforcement by, the FEC or in civil suits through a
private right of action
[similar to H.R. 5747, but contained private right of action]
Source: CRS analysis.
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In the 111th Congress, H.R. 116 (Foxx) would add calls containing recorded political messages to
the federal do not call list, as would have H.R. 248 (Foxx) and H.R. 372 (Altmire) in the 110th
Congress. Also in the 110th Congress, H.R. 479 (Doolittle) and H.R. 4298 (Stupak) proposed a
broader approach by adding “any politically-oriented telephone calls” (H.R. 479) or “politically-
oriented recorded message[s]” (H.R. 4298) to the do not call list.
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Various bills introduced during the 110th Congress would have required additional information to
be provided about automated political calls or would place additional restrictions on the calls. S.
2624 (Feinstein) would have placed certain disclaimer (and other) requirements on the calls.
Specifically, the bill would have required disclaimers at the beginning of automated political calls
identifying them as prerecorded messages and identifying the sponsor. Those requirements would
have applied to prerecorded calls that promote, support, attack, or oppose federal candidates
within 60 days of general elections or 30 days of primary elections. The bill would have also set
civil penalties (enforced by the FEC or via civil suits through a private right of action) for calls
made between 9 p.m. and 8 a.m., or if an entity makes more than two calls to the same number in
one day. H.R. 5747 (Lofgren) was substantially similar to S. 2624. However, the Senate bill
would have permitted civil suits of those who place automated political calls in violation of the
act, unlike H.R. 5747. In addition, H.R. 894 (Price, NC) would have extended some FECA
disclaimer requirements for broadcast advertising to prerecorded telephone messages.65 The bill
would have also applied existing “stand-by-your-ad” requirements to automated political calls.
Under that provision, automated messages would have had to include a statement, at the
beginning of the call, indicating candidate approval of the content of the recording.66 Similarly,
H.R. 1383 (Lofgren) would have established penalties for calls that did not contain certain
identifying information. Penalties would have also applied to calls providing false information
about federal elections, voter eligibility, or candidates’ party affiliations.
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Other bills summarized in Table 2 relate (or related) to political calls generally but could also (or
could have) affect automated calls. In the 110th Congress, H.R. 1298 (Petri) would have required
additional disclosure about potential push polls, which are sometimes delivered via automated
calls. H.R. 1452 (Maloney; 110th) would have required disclosure to the FEC of specified phone-
bank costs, funding sources, households contacted, and questions asked or information
provided.67 As with H.R. 1298, H.R. 1452 was not limited to automated political calls.
65 The relevant section of FECA is 2 U.S.C. § 441d(a).
66 On “stand by your ad,” see 11 C.F.R. § 110.11(c)(3)(I). See also Sec. 3 of H.R. 894.
67 H.R. 1452 specified a definition of “federal election phone bank” that is different from the current FECA “telephone
bank” definition discussed above. The bill would have applied to particular calls that solicited contributions, explicitly
advocated for election or defeat of candidates, or “provided...information” about federal candidates during the final 25
days of an election campaign.
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An AAPC working group is monitoring federal and state legislation concerning automated
political calls. In June 2007, that group, according to one of its leaders, agreed that “by promoting
legislation which includes prudent rules we could demonstrate our industry’s commitment both to
the responsible use of pre-recorded message delivery and to the prohibition of irresponsible and
abusive use of the technology.”68 The working group recommended requiring disclaimers within
the first 10 seconds of calls, electronic opt-out options for those receiving unwanted calls, and
accurate “Caller ID” information. Other recommendations propose limiting the number of daily
calls a political committee may sponsor and prohibiting “misrepresentation” or falsifying a
caller’s “identity or purpose.”69 At the same time, the working group warned against restricting
free speech though “restrictive and overly sweeping laws.”70 William Raney, an attorney
representing the AAPC, reiterated those positions at the House Subcommittee on Elections
hearing in December 2007.71
In spring 2008, however, the AAPC reportedly began a fundraising campaign appealing “to
thousands of consultants to help fund what it anticipates could be a long legal fight” over various
state and congressional legislative proposals to regulate automated political calls.72 According to
Raney, despite the fundraising appeal, the AAPC “continues to support reasonable regulation”
consistent with the AAPC’s stated position in Raney’s December 2007 testimony, although the
group opposes adding automated political calls to the national do not call registry.73
The AAPC recommendations suggest a desire by some political consultants to differentiate
political professionals from generic “vendors,” who some consultants say have abused
automated-call technology. CRS takes no position on the validity of that perspective. Some of the
AAPC’s recommendations appear to be similar to existing federal requirements. These include
provisions relating to identifying the party making automated calls and providing information
about how to request that the recipient not receive future calls. However, some of the existing
requirements do not apply to political calls. There also appears to be uncertainty about which
regulations apply to political calls versus non-political calls. Adopting regulations similar to those
the AAPC recommends could clarify which regulations apply to which calls, and when. They
could also create consistency between time-of-day restrictions on commercial calls and political
calls.74
68 Marty Stone, CEO, Stones’ Phones, e-mail to R. Sam Garrett, November 15, 2007.
69 Ibid.
70 Ibid.
71 Testimony of William E. Raney, in U.S. Congress, House Subcommittee on Elections, Committee on House
Administration, p. 89.
72 Shane D’Aprile, “AAPC Launches Fundraising Appeal to Fight Robocall Bills,” Politics, March 30, 2008, at
http://www.campaignsandelections.com/stories/?StoryID=01195413-1422-17E0-F8603587997FBA33.
73 William Raney, attorney, Copilevitz and Canter, LLC; e-mail to R. Sam Garrett, April 10, 2008.
74 Although the subject of federal preemption is beyond the scope of this report, adopting broader federal standards
than are currently in place could also alleviate diverse treatment of automated political calls by the states. On the other
hand, additional federal law could also inhibit individual states’ efforts to regulate political calls.
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Congress could choose several approaches to regulating automated political calls—or not to do so
at all. This section provides comments on various options. It also discusses broader issues that are
likely to affect whatever policy options Congress chooses.
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Congress could choose not to pursue additional regulation of automated political calls. This
option would likely be appealing to those who believe that the benefits of automated calls
outweigh their negative consequences. As noted previously, those who favor automated political
calls believe that they provide important information to voters. Automated calls can also be
valuable for responding quickly to last-minute attacks. Some Members also rely on automated
calls for official (franked) communications. If Congress chose to maintain the status quo, existing
federal requirements would remain in place. The states would be free to consider additional
regulation as they choose. Campaign committees and others would likely continue their current
campaign practices.
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Congress might also choose to gather additional information before deciding on a policy solution.
Although automated political calls are believed to be unpopular, little is known about how many
calls are made, how much money is spent on the calls, how the calls affect voters, and whether
the calls are used illegally or unethically. Substantial information about the use of automated calls
during the 2008 election cycle also remains illusive. Without such information, it could be
difficult to define the full extent of policy problems, if any, and to develop appropriate solutions.
Federal agencies and the oversight process could provide useful additional data. For example, as
noted elsewhere in this report, because the FCC has not been directed to do so, the agency
reportedly does not maintain statistics on consumer complaints about automated political calls.
Similarly, although the FEC can compile data about relevant complaints upon request, it does not
routinely release information about automated political calls. Congress could request or direct
both agencies to maintain and release data about automated-calls complaints. Through the
oversight process or by making requests to academics or other researchers, Congress could also
encourage more polling attention to automated political calls. Empirical data on public reaction to
automated political calls, and the effect of those calls on voter turnout, is especially lacking.
Gathering additional information through federal agencies or researchers could clarify whether
automated political calls are merely annoying or whether they represent a substantial public
policy concern. Such research might also find that the issue is not as prominent as media accounts
often suggest. Regardless of the findings, defining the scope of the problem by gathering more
information could make the policy response more precise. On the other hand, because of their
personal involvement in campaigns and automated political calls, lawmakers might feel that
additional research is unnecessary. Gathering additional information could also be a lengthy
process, particularly if Congress requests data over a long time period.
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If Congress determines that concerns surrounding automated calls are primarily about how the
calls are used rather than the calls per se, it could choose to encourage different behavior.
Voluntary change would not necessarily require any legislative or regulatory action. For example,
Congress could use the oversight process, or decisions by individual Members regarding their
own campaigns, to encourage practitioners to release more information about how and when they
make automated political calls, to limit the number or timing of the calls, or to curtail automated
calls that criticize opponents.
A voluntary approach could be attractive to those who believe that governmental intervention in
campaigns is unnecessary. Perhaps more importantly, despite anecdotal impressions, there is no
clear standard for what constitutes objectionable content, how many calls are too many, etc. It
could be difficult to translate these subjective concerns into precise legislative proposals.
Therefore, Congress might avoid legislation altogether by encouraging, but not requiring,
practitioners to change their behavior. However, without legislative or regulatory action, or strong
public pressure, those who make automated political calls would have few incentives to change
their practices. As the preceding discussion of the AAPC code of ethics suggests, existing norms
among political consultants do not necessarily address automated political calls. Professional
enforcement cases are reportedly rare. There is also no guarantee that political consultants are
responsible for allegedly negative consequences stemming from automated calls. Therefore, if
Congress chose to encourage voluntary changes, it would need to carefully consider which
behaviors, and by whom, it wanted to address.
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Congress could require political committees or others to report to the FEC (or another agency)
more information about how automated political calls are used in campaigns. As explained
previously, FECA requires political committees to report spending exceeding $200, including on
political calls. However, although expenses must be itemized, FEC regulations do not require
substantial detail about those expenses. As the brief case study highlighting the party committees’
spending shows, automated calls (or any other expense) are not always clearly identifiable in FEC
reports—even when those reports are filed consistent with FECA and FEC regulations.
Legislative action or an FEC rulemaking would be necessary to require political committees to
provide more information about how they use automated political calls. Such efforts might
include requiring use of more specific terms or categories on FEC reports than are currently
required. In 2006, the FEC reconsidered its requirements regarding filing terminology.75 After
receiving only two public comments on the issue, the agency largely declined to require
additional detail. At that time, the commission noted that the term “phone banks” provided
sufficient detail to itemize “a disbursement to a vendor providing phone bank services.”76 The
FEC did not address other telephone expenses, including automated political calls. If Congress
wanted to require more specificity regarding reporting about automated political calls, it could
encourage the FEC to reconsider its regulations on itemized disbursements.77 Congress could also
75 Federal Election Commission, “Statement of Policy: ‘Purpose of Disbursement’ Entries for Filings With the
Commission,” p. 887.
76 Ibid., p. 888.
77 The FEC could not act in the short term due to vacancies at the commission. See CRS Report RS22780, The Federal
(continued...)
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amend FECA. In particular, additional requirements about expenses could be added to the section
of the law detailing itemized reports.78
Additional information about spending on automated calls, or other details, such as when the calls
were made and why, would provide greater transparency about what role automated calls play in
campaigns. On the other hand, requiring detailed information about automated political calls
would be largely at odds with current regulations. Campaign finance reporting emphasizes
providing information about the source and amount of campaign money, not how that money is
used to execute campaign strategy. Perhaps most importantly, unless Congress chose to extend
disclosure requirements to non-political committees (e.g., 527 organizations that are not
registered as political committees), new disclosure requirements would not necessarily apply to
all organizations responsible for the calls.
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Congress could also require those making calls to provide more information to recipients. As
noted previously, some disclaimer requirements already apply to automated political calls, which
raises the question of whether additional enforcement measures, or increased oversight
surrounding enforcement, is necessary. Even attempted enforcement can be difficult. For
example, as the FEC has noted in some enforcement cases, field investigations do not necessarily
reveal the identities of those responsible for launching “anonymous” automated calls. Therefore,
just as regulations do not necessarily address moral issues related to campaign ethics, additional
disclaimer requirements will not necessarily ensure that those intent on breaking the law provide
truthful information when making automated calls.79
There is, however, room for requiring additional disclaimers if Congress chose to do so. In
particular, existing disclaimer requirements do not necessarily apply to “outside groups” or
individuals sponsoring calls that do not explicitly call for election or defeat of federal candidates
or engage in fundraising. If Congress wanted disclaimer requirements to apply more broadly, it
could amend the definition of “political committee” in FECA—a topic that is frequently
controversial—or place additional requirements on all entities using automated calls, regardless
of whether or not they are political committees. Doing so, however, potentially raises contentious
issues that extend well beyond automated political calls. These include questions about which
groups and individuals should be regulated by campaign finance law and which political
messages constitute campaign speech versus policy-oriented speech.
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As noted previously, several bills introduced in the 111th and 110th Congresses propose (or
proposed) to add automated political calls to the national do not call list. The do not call bills
would provide consumers with a way of opting out of political calls. This approach would not
necessarily affect the content of automated political calls.
(...continued)
Election Commission (FEC) With Fewer than Four Members: Overview of Policy Implications, by R. Sam Garrett.
78 2 U.S.C. § 434(b)
79 See, for example, Candice J. Nelson, David A. Dulio, and Stephen K. Medvic, eds. Shades of Gray: Perspectives on
Campaign Ethics (Washington: Brookings Institution Press, 2002).
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Adding political calls to the do not calls registry could occur relatively quickly while avoiding
some of the complications of other policy options. For example, if “political calls” were defined
broadly, questions about which organizations were making the calls (e.g., political committees
versus outside groups) would presumably be inconsequential. By contrast, questions about
political-committee status would likely affect some other policy options. Nonetheless, any effort
to restrict political calls, including adding them to the do not call list, could raise constitutional
questions (discussed below). This option would also not address concerns about the content of
automated political calls.
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Congress could also limit automated political calls to certain hours of the day or restrict the
number of calls made to a single recipient. Several states have reportedly placed time or other
restrictions on automated calls.80 The AAPC recommendations also include limiting the number
of calls political committees could make in one day to the same number.
This policy option could reduce the number of calls voters receive, which appears to be a
significant concern in the debate over automated political calls. However, one challenge
associated with this approach would be determining how many calls are “too many” and what
hours are acceptable. In addition, although this policy option could decrease the volume of calls
voters receive (e.g., if a single entity could place only a certain number of calls to the same
person per day), it would not necessarily reduce the frequency of calls for those voters who live in
states that produce competitive campaigns. In fact, if groups were limited to a certain number of
calls, it is possible that other organizations could emerge solely for the purpose of placing
multiple calls to the same voters. Constitutional considerations (speech issues) that could affect
this policy option are discussed below.81
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Political calls to potential voters are political speech and entitled to the highest degree of
protection under the First Amendment.82 Laws or regulations that would burden or prohibit such
calls if they use automated dialers or prerecorded messages, therefore, must withstand so-called
strict scrutiny in order to be considered constitutional.83 Under a strict scrutiny analysis, if a
governmental restriction is challenged in court, the government must demonstrate that the
80 Testimony of William E. Raney, in U.S. Congress, House Subcommittee on Elections, Committee on House
Administration, p. 98.
81 For additional information on constitutional regulation of campaign speech, see, for example, CRS Report RL30669,
The Constitutionality of Campaign Finance Regulation: Buckley v. Valeo and Its Supreme Court Progeny, by L. Paige
Whitaker.
82 See Eu v. San Francisco Democratic Cen. Com, 489 U.S. 214, 223 (1989) (holding that “the First Amendment has its
fullest and most urgent application to speech uttered during a campaign for political office”)(internal quotation
omitted).
83 Buckley v. Valeo 424 U.S. 1, 45 (1976) (holding that limitations on political expression are subject to the most
exacting scrutiny). Current laws restricting the use of these technologies to call residential telephone lines prohibit only
commercial calls, as noted earlier in this report. Calls for commercial purposes receive a lesser degree of First
Amendment protection, and, accordingly, are subject to less exacting review by the courts. See Central Hudson Gas &
Elec. Corp. v. Public Serv. Comm’n of N.Y., 447 U.S. 557 (1980).
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restriction on automated political calls serves a compelling government interest and is the least
restrictive alternative to serve that interest.84
A regulation that would ban the use of automated telephone dialing systems or prerecorded
messages in political calls may place too high a burden on core political speech to withstand such
exacting scrutiny. The First Amendment “protects [a speaker’s] right not only to advocate their
cause but also to select what they believe to be the most effective means for so doing.”85 The
Supreme Court announced this principle in the context of invalidating a state law that prohibited
the use of paid workers to obtain signatures on voter-initiative petitions as an impermissible
burden on political speech.86 The Court found that the law restricted “access to the most effective,
fundamental, and perhaps economical avenue of political discourse.”87 The Supreme Court also
has noted that “[i]t is of no moment that [a statute] does not impose a complete prohibition. The
distinction between laws burdening and laws banning speech is but a matter of degree.”88
Accordingly, though a ban on the use of prerecorded messages or automated dialing systems
would not prohibit all political calls, if a court finds that prohibiting the use of such technology
would limit such calls to a lesser degree, such a restriction could be considered an impermissible
burden on the First Amendment free speech rights of those placing political calls.
Governments, however, are permitted to place reasonable restrictions on the time, place, and
manner of speech so long as they are content-neutral, narrowly tailored (though not necessarily
the least restrictive means), and serve a significant government interest (though not necessarily a
compelling interest), and leave open ample alternative channels for communication of the
information.89 Laws that “do not foreclose an entire medium of expression, but merely shift the
time, place or manner of its use” likely will be upheld so long as “ample alternative channels for
communication” are left open.90 In order to qualify for the less exacting “reasonable time, place,
and manner” restriction analysis, the law must be content-neutral. It is important to note that a
restriction on the use of automated telephone dialers or prerecorded messages that applied only to
political calls would likely be characterized as a content-based restriction on speech, which would
require strict scrutiny, as described above.91 Content-based discrimination could be avoided if the
restriction encompassed all speech that utilized these technologies.92
84 McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 347 (1995) (“When a law burdens core political speech, we
apply ‘exacting scrutiny,’ and we uphold the restriction only if it is narrowly tailored to serve an overriding state
interest.”).
85 Meyer v. Grant, 486 U.S. 414, 424 (1988).
86 Id.
87 Id.
88 United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 812 (2000).
89 Burson v. Freeman, 504 U.S. 191, 197 (1991) (citing United States v. Grace, 461 U.S. 171, 177 (1983). See also
Ward v. Rock Against Racism, 491 U.S. 781, 798-799 (1989). This case makes clear that, although both “strict
scrutiny” and the test for reasonable time, place, and manner restrictions on speech require “narrow tailoring,” “the
same degree of tailoring is not required” under the two; under the reasonable time, place, and manner restrictions test,
“least-restrictive-alternative analysis is wholly out of place.” Id. at 798-799 n.6.
90 City of Ladue v. Gilleo, 512 U.S. 43, 56 (1994) (internal citation omitted).
91 See Burson, 504 U.S. at 198 (holding that a ban on electioneering within a one-hundred yard radius of polling
stations was a content-based regulation subject to strict scrutiny, as the regulation did not prohibit other types of
speech).
92 See, Ward v. Rock Against Racism, 491 U.S. 781, 793 (1989) (holding that city sound amplification guidelines at
bandshell events were justified by the city’s interest in regulating noise-levels without regard to content and, therefore,
were content-neutral).
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There is little case law on this question; however, at least one federal court has addressed the
issue in a decision that was subsequently reversed on unrelated grounds. The United States
District Court for the Southern District of Indiana upheld the constitutionality of an Indiana
statute that bans the use of automated dialing systems, unless the called party has given prior
consent or the message is immediately preceded by a live operator who requests consent to play
the message.93 The court found that the statute did not violate the First Amendment, because it
was content-neutral and a reasonable time, place, and manner restriction that left open ample
alternative modes of communication.94 The court distinguished the provisions at issue from other
Supreme Court decisions that applied strict scrutiny to restrictions on the modes of delivery for
speech because the statute applied to all speech regardless of content and did not single out
political speech.95
The decision of the district court was reversed by the U.S. Court of Appeals for the Seventh
Circuit.96 The Seventh Circuit held that the district court should have abstained from deciding the
case, because the related state court action had been filed first, important state interests were
implicated, and state courts were able to afford ample opportunity to address the federal questions
raised by the case.97 The case now awaits decision in Brown County Circuit Court, an Indiana
state trial court.98
A related case was argued before the Indiana Supreme Court.99 The case concerned whether
Indiana’s Auto-Dialer Law100 applies to all calls (including political calls) or only to commercial
calls.101 On December 23, 2008, the court issued its decision holding that the statute applies to all
calls placed using autodialers.102 The court did not, however, analyze whether the statute is valid
under the First Amendment.
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Much remains unknown about automated political calls. Although empirical data are limited,
estimates suggest that the calls reach at least a majority of American voters, occur frequently
during federal campaigns, and could represent millions of dollars in spending by various political
committees. Despite media accounts of strong public disdain for automated political calls, the
FEC has received few formal complaints on the issue since 2003. Several bills introduced in the
111th and 110th Congresses would (or would have) impose additional regulations on automated
political calls, but would not necessarily apply to all circumstances in which the calls are used.
93 Freeeats.com, Inc. v. Indiana, 2006 U.S. Dist. LEXIS 77534 (S.D.Ind. 2006).
94 Id. at *34.
95 Id. at *39.
96 Freeeats.com, Inc. v. Indiana, 502 F.3d 590 (7th Cir. 2007).
97 Id. at 600-601.
98 Indiana v. Economic Freedom Fund, No. 07C01-0609-MI-0425 (Brown County Cir. Ct. Filed September 18, 2006).
99 Indiana v. American Family Voices, Inc. et al., No. 31S00-0803-CV-139 (Indiana Supreme Court, 2008).
100 Ind. Code § 24-5-14-5(b) (2008).
101 See Brief of Appellees at 9, State of Indiana v. American Family Voices, Inc. et al., No. 31S00-0803-CV-139 (Ind.
May 27, 2008)(arguing that the auto-dialer statute seeks only to regulate commercial messages promoting goods or
services); Brief of Appellant at 7, State of Indiana v. American Family Voices, Inc. et al., No. 31S00-0803-CV-139
(Ind. May 1, 2008)(arguing that the auto-dialer law applies to all calls, not just commercial calls).
102 Indiana v. American Family Voices, Inc. et al., 2008 Ind. LEXIS 1188, No. 31S00-0803-CV-139 (Indiana Supreme
Court, December 23, 2008).
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Congress has several policy options for restricting automated political calls, if it chooses to do so.
Aside from maintaining the status quo, a relatively cautious option might be gathering additional
data before choosing a policy approach. Federal agencies and the oversight process could provide
additional information. Another relatively limited approach would be to encourage voluntary
changes by practitioners. By contrast, if Congress chooses to require policy changes, it could add
political calls to the do not call framework or restrict the timing or number of calls. Finally,
Congress could place additional disclosure or disclaimer requirements on political calls. Some of
those options would likely involve sensitive questions about which groups and messages should
be covered by campaign finance law. Constitutional considerations could also be a factor.
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As this report discusses, publicly available data about automated political calls are virtually
nonexistent. FECA does not require detailed reporting about automated political calls. Political
committees also have few incentives to make information about automated calls public because
doing so potentially alerts opposing candidates, groups, and the media to campaign strategy. In
addition to this lack of data from regulators and practitioners, scholarly literature is limited.
Academic research that does exist tends to focus on campaign strategists, such as media
consultants and pollsters, but not on vendors who provide technical services such as automated
calls. Automated calls as a campaign tactic have also received limited scholarly attention.
Given the limited publicly available information about automated political calls, CRS employed a
broad research strategy designed to gather as much information as possible. This included
consultations with staff at the FCC, FEC, prominent political scientists, staff from the four
national congressional campaign committees,103 the American Association of Political
Consultants (AAPC), individual political consultants, and a political journalist. CRS also
conducted keyword searches in databases that provide archives of news sources, scholarly
journals, dissertations, and polling data (e.g., LexisNexis, Proquest, JSTOR, Polling the Nations,
etc.).104 The primary author also conducted telephone interviews with three political consultants
and analyzed disclosure and enforcement data provided by the FEC. Use of individual data
sources is documented in the text of this report.
Finally, Internet research revealed many political web log (“blog”) references to automated
political calls in recent elections. Many of these entries contained claims about allegedly
unethical or illegal campaign practices. Because CRS cannot verify the information contained in
these blogs, it is not included in this analysis.
103 These include the Democratic Congressional Campaign Committee (DCCC), Democratic Senatorial Campaign
Committee (DSCC), National Republican Congressional Committee (NRCC), and National Republican Senatorial
Committee (NRSC).
104 CRS analyst Kevin Coleman, information research professional Heather Negley, legislative attorney L. Paige
Whitaker, and R. Sam Garrett, conducted database searches.
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R. Sam Garrett
Kathleen Ann Ruane
Analyst in American National Government
Legislative Attorney
rgarrett@crs.loc.gov, 7-6443
kruane@crs.loc.gov, 7-9135
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