How do our representatives find time for it all? In the
past year, Congress has worked to rescue seniors dying in the
streets for lack of a prescription drug bill (paging
Etta Munsen), set about mending our tattered economy, and made
sure that big, bad corporations won’t be able to buy up all the
downtrodden local media outlets.
Which is why I’m surprised, in this time of dire crisis, that
Congress and the president have chosen to work with such speed and
unanimity on the national Do Not Call registry. You could almost
hear the whispers in those hallowed halls of government: “Wait,
guys, seriously. Before we reform Social Security or dole
out more benefits to important constituencies, we really need to do
something about these phone calls. I mean, some people have to get
out of their La-Z-Boys, once, twice, sometimes three times a day.
Dinners are being interrupted. It has to stop!”
For libertarians and cranky conservatives, who much prefer
gridlock
to progress, this rush to legislate was downright frightening.
A brief history is in order: This February, Congress passed the
Do Not Call Implementation Act, authorizing the Federal Trade
Commission to levy fines of up to $11,000 on telemarketers who
contact people on the Do Not Call list. It was quickly signed by
the president, and in a few short months some 51 million people
added their names to the registry. As usual, there was a catch:
Pollsters, politicians, and charities were exempted, thus sowing
the seeds of the current conflict.
Last Wednesday, U.S. District Court Judge Lee R. West determined
the FTC had no authority to create the list, only one week before
it was set to take effect. In response, an indignant Congress
rushed the bill through both houses in under 24 hours, granting the
regulatory body the authority it lacked. President Bush promised to
sign it, but then another jurist threw up one more roadblock, and
this one was a doozy. U.S. District Court Judge Edward W.
Nottingham ruled it unconstitutional on First Amendment
grounds.
The exceptions for certain groups were unacceptable, Nottingham
contended. “There is no doubt that unwanted calls seeking
charitable contributions are as invasive to the privacy of someone
sitting down to dinner at home as unwanted calls from commercial
telemarketers,” Nottingham wrote. “The First Amendment prohibits
the government from enacting laws creating a preference for certain
types of speech based on content, without asserting a valid
interest, premised on content, to justify its discrimination.” The
federal government could prohibit all unsolicited phone calls or it
could prohibit none; it couldn’t have it both ways. (Although Bush
finally signed the bill yesterday, it won’t change anything unless
the free speech issues are resolved.)
The feds were incredulous. Once again, the Constitution was
standing in the way of a perfectly good photo-op and a
crowd-pleasing constituent mailing. “I do not believe that our
Constitution dictates such an illogical result,” Federal Trade
Commission Chairman Timothy Muris said. “To the contrary, our
Constitution allows consumers to choose not to receive commercial
telemarketing calls.” Senator Charles Schumer called the ruling
“goofy.” He expounded, “Fifty million people can’t all be
wrong”
To which the only possible response is, Oh yes they
can. About many things. Several times a day. One problem with
a federal Do Not Call registry is that it is none of the federal
government’s business. It’s an expansion of government powers —
albeit a wildly popular expansion of the government’s powers —
that was never conceived in the text or spirit of this nation’s
founding documents.
But never mind that; by pressing forward with the Do Not Call
registry, the federal government may have insured that people’s
shake and bake dinners will be interrupted for years to come. In
fact, 37 states already had their own Do Not Call registries, which
were functioning well enough. In states that don’t have a list,
consumers could simply ask to be put on telemarketers’ own Do Not
Call lists. Until last week, these could provide some measure of
protection against nuisance calls.
However, now that telemarketers have had not one, but two,
victories under their belts, they are becoming increasingly
belligerent toward the individual states’ authority to regulate
them. Missouri, for instance, found it necessary to warn local
companies not to flaunt state laws as the federal statute is in
flux. How long that flimsy threat will hold them off is anyone’s
guess, but if the First Amendment argument is upheld then the
federalization of the Do Not Call lists may produce an unexpected,
and cacophonous, conclusion.
