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.
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