Reuteman: Legislators should ban 'robo-calls'

Published May 12, 2007 at midnight

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A business lobbyist orchestrated a program of "deceitful" and "reprehensible" automated phone calls to galvanize opposition to a bill perceived as injurious to home builders.

That's what a panel of lawmakers concluded after several weeks of ethics hearings into the activities of William Mutch, a lobbyist for Colorado Concern, an alliance of 100 of the state's chief executives.

But the lawmakers also decided they had little jurisdiction over the matter, and sadly, that's probably true. The ethics panel holds sway over the activities that take place between lobbyists and lawmakers, but since the "robo- calls" were made to lawmakers' constituents and not the lawmakers themselves, there's apparently not much they can do. That's the recommendation that now goes to another panel of House and Senate leaders from both political parties. They can toss the ethics complaint filed by Rep. Alice Borodkin, D-Denver, or discipline Mutch.

Two other things ought to be considered. One suggestion came from Borodkin, whose constituents began calling her a couple of months ago after they received robo-calls saying their state legislator supported a homeowners bill that would raise their taxes. In fact, the bill had not even been introduced, and it did not involve any taxes. The bill in question makes it a little easier for buyers to sue builders over defective construction. Opponents fear that frivolous lawsuits will follow, will raise the cost of insurance for contractors and ultimately will raise the cost of housing.

"I don't think it's OK that they called my constituents and lied to them," Borodkin said Friday. "We need to sit down with lobbyists. They need to create an ethics committee of their own. They need to police themselves. If the legislature doesn't take responsibility for dirty tricks, we get what we deserve."

For starters, the legislative leadership should indeed push for lobbyists to police themselves. Secondly, bills to ban political robo-calls are under consideration in California, Michigan, Wisconsin, New Jersey, Nebraska and the U.S. Congress. Colorado lawmakers ought to consider similar legislation.

Much of this argument goes back to the national do-not-call registry, which went into effect in 2003, though Colorado was one of 26 states that already had one. The registry bans most telemarketing but allows such calls from charities and political campaigns.

In October 2003, Denver U.S. District Judge Edward Nottingham - yes, the same guy who just presided over Joe Nacchio's insider trading trial - ruled that the national do-not-call registry was in violation of the First Amendment since it banned only one type of telemarketing calls - from businesses - while allowing calls from charities and political campaigns. Ban all telemarketing calls, and the registry is constitutional, Nottingham ruled.

"Any consumer who desires to refuse all telemarketing calls, commercial and noncommercial, cannot enforce that preference," he wrote, and that's what makes the registry unconstitutional.

But Nottingham's decision was overturned, and the registry went into effect. His ruling struck a little too close to politicians' bread and butter. As Sen. John McCain said sarcastically at the time, "We certainly wouldn't want to deprive political operatives of their ability to operate as usual."

And so we still have automated phone calls interrupting our privacy whenever a political operative - whether it's William Mutch or Mayor John Hickenlooper - decides to mount such a campaign. In the states I mentioned, it's so bad that politicians arrange for 3 a.m. calls that pretend to be from their opponents. It's not that bad here yet. But there's apparently nothing to prevent it.

In his overturned ruling, Nottingham wrote, "The Supreme Court has recognized that 'preserving the sanctity of the home, the one retreat where men and women can repair, to escape from the tribulations of their daily pursuits, is an important value.' The ancient concept that 'a man's home is his castle' into which 'not even the king may enter' has lost none of its vitality."

If there's any silver lining to this mess, it's that Colorado might get ahead of the national curve - as it did initially with business telemarketing - and ban automated calls altogether.

Business editor Rob Reuteman can be reached at 303-954-5177 or reutemanr@RockyMountainNews.com.

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