by Max Brantley
I wrote yesterday about complaints of robocalling by former Gov. Mike Huckabee in behalf of state Court of Appeals candidate Rhonda Wood, who hopes to unseat incumbent Judge Jo Hart. The recorded calls note that Wood has been endorsed by the Republican Party of Arkansas in a non-partisan race. (Judicial elections were changed from partisan races precisely to remove partisan coloration.)
I mailed Wood a question and got a curious answer from her campaign committee. It neither claims nor disclaims responsibility for the ad, but issues a back-handed defense of it. I've asked followup questions, but no replies yet. It has an "off" smell.
The campaign was extremely diligent to make sure any campaign calls were in compliance with Arkansas law. The calls did not involve "an automated system for the random selection and dialing of telephone calls" as the statute requires.
The campaign has not made robo calls.
It is reckless this close to election day to make these type of allegations.
The campaign also stands by any support received as being in clear compliance with the Judicial Ethic Cannons.
While its contended that the Arkansas robo call statute is likely unconstitutional (the first amendment gives enormous protection to political speech) and preempted by new FTC rules, its not our fight since the campaign did not make robo calls.
Where to begin? Is the argument that this is not a statutorily prohibited "automated call" because numbers weren't randomly selected? Because they were not "dialed"? It's a craven search for a loophole, I'd guess, and the calls themselves are not really the biggest problem, unpleasant as such interruptions are during the dinner hour.
Another problem is the argument that personal opinions outweigh the clear dictate of a state law. This is fine on the playground and in newspaper columns, not so fine issuing from a judicial candidate.
The biggie is this: if the candidate's committee solicited this endorsement and otherwise played any role in it, it's hard to see how it comports with the ethical guidelines intended to keep partisan politics out of judicial races. As direct advocacy, somebody is going to have to report the payment for these calls. It will be interesting to see who does, if anyone. It is another reason to look with suspicion at this campaign tactic. (I've sought a comment from Huckabee, but received none.)
Wood's unwillingness for two days now to fully address all the questions related to this last-minute partisan push recommends fullest consideration for Jo Hart.
PS -- Wood had already sent up red flags by her early campaign money push from Tyson Foods and work by its workers comp chief, Allyn Tatum, in introducing her around to political meetings. The Court of Appeals is generally the court of last resort for workers comp cases. Get it?
Also, re Wood's reference to federal rules: Political calling is clearly exempted from federal rules on telemarketing. But the FTC rules also seem to say the section on telemarketing should not be read as prohibiting state officials acting under authority of state civil and criminal laws.
ALSO: From the Arkansas code of judicial conduct, 4.1, a judge or judicial candidate (Wood is both) "shall not":
(6) publicly identify himself or herself as a candidate of a political organization;
(7) seek, accept, or use endorsements from a political organization;
HOWEVER, there IS some strong court precedent for an argument that this rule is unconstitutional. Just because something's legal, it doesn't make it right. It's interesting here because Republicans were leaders in the push to make Arkansas elections non-partisan. Now they're making them partisan de facto, if not de jure.
BUT, HOLEY MOLEY. Here's something sitting judges aren't supposed to do -- give money to political candidates -- as Wood seemingly did to Mike Huckabee's presidential campagn. You'll see other contributions to state GOP. No wonder they endorsed her. Calling the Judicial Discipline Commission. (She might raise the argument that the contribution Huckabee reported from her was to attend a party function, which might be possible for judicial candidates, but she hasn't returned my request for further info.)
UPDATE II: Freda Cruse Phillips of Mountain View said she'd filed an affidavit in Stone County alleging a violation of state law by the Huckabee phone call, with a photo of her caller ID showing the call came from Rhonda Wood at 501-472-1866. (The fact that it was an in-state call is relevant to a coming legal discussion.)
UPDATE III: Read on for a very good analysis of the state of Arkansas's robocall law from the attorney general's office, prepared at my request:
Our office has been fielding inquiries regarding what are commonly called political robocalls and the application the Arkansas statute which generally prohibits the use of an autodialer in conjunction with a recorded message to such calls. Ark. Code Ann. 5-63-204.
While the Arkansas statute clearly applies to calls made in connection with a political campaign, what is not clear is whether one or more federal statutes preempts application of the Arkansas statute to some or all of the calls being received by Arkansas residents.
First, a federal statute (called the Consumer Telephone Protection Act of 1991, or TCPA) prohibits robocalls for commercial purposes, but does not prohibit such calls for political purposes. The Federal Communications Commission issued an opinion in 1998 finding that a state robocall prohibition could not be applied to interstate calls, and that the TCPA preempted all such state laws as applied to interstate calls. Case law addressing the issue is both scant and equivocal. While it is clear that the TCPA does not preempt the application of the Arkansas statute with respect to intrastate calls (calls both originating and received in Arkansas), the issue with respect to interstate calls is unresolved.
Second, in January 2010 the Federal Election Commission issued a draft opinion that the Federal Election Campaign Act of 1971 (FECA) preempts numerous state laws and specifically finding that “the laws of Arkansas and Wyoming [the two states that have statutes with general political robocall prohibitions] purporting to prohibit pre-recorded telephone calls made by Federal political committees are preempted by FECA.” While the request for this opinion was later withdrawn, it appears clear to us that the FEC will take the position that all state statutes restricting or prohibiting robocalls related to federal elections cannot be enforced by the state.
Finally, while the Arkansas robocall statute has not yet faced a First Amendment challenge, given the nature of the speech prohibited, it can reasonably be anticipated that any effort to enforce the statute with respect to political robocalls is likely to face such a challenge.
Chief Deputy Attorney General
Office of the Attorney General of Arkansas