Palin’s Virginia Robocalls May Not Be Legal.
3 11 2009Today Virginians will elect a governor. And most of us have heard about a series of robocalls that peppered the state coming from a certain ex-governor of Alaska. But there was something strange and unusual about these robocalls. They didn’t endorse a candidate. They simply urged voters to vote “their values.” No mention of the Republican candidate or his name. I’ve heard a lot of speculation about this.
Does this mean he didn’t want the Palin endorsement? Does this mean it’s more about “Palin values” than the candidate? Did she just forget?
Leave it to a Mudflatter to pull on the boots and get to work. This is a fascinating trek through the sleuthing that led us to the answer, and a bonus conclusion that the calls may not have even been legal.
So, a huge hat tip to Mudflatter ExBg, who is a Public Policy Analyst in real life. I bet you never knew there was such a thing as a “robo-call wonk” but you are about to become one!
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Some residents of Virginia have recently received a robo-call from former-Governor Sarah Palin. Mrs. Palin identified herself by name and then entreated the listener to “vote for our shared principles” and to “vote your values.” A recorded male voice then came on the line and informed the listener that the call had been paid for by the Virginia Faith and Freedom Coalition.
But was this call legal?
First, let’s look at the legalese of robo-calls.
According to the federal Telephone Consumer Protection Act (TCPA) of 1991 regarding “robo-calls”:
All artificial or prerecorded telephone messages (i) shall at the beginning of the message, state clearly the identity of the business, individuals, or other entity that is initiating the call, and (ii) shall, during or after the message, state clearly the telephone number or address of such business, other entity, or individual.
Mrs. Palin identified herself, and then a male voice identified that the call was paid for by the Virginia Faith and Freedom Coalition, but no address or telephone number was included.
So does this mean that the call was illegal? Not necessarily.
The TCPA leaves it up to each state to decide how to regulate robo-calls of a political nature. So, let’s see what Virginia’s regulations say, shall we?
According to Virginia’s code:
It shall be unlawful for any candidate or candidate campaign committee to make campaign telephone calls without disclosing, before the conclusion of each telephone call, information to identify the candidate or candidate campaign committee who has authorized and is paying for the calls unless such call is terminated prematurely by means beyond the maker’s control.
In other words, in order for the call to be lawful, the “candidate” or “candidate campaign committee” must disclose who has authorized and is paying for the call, unless the call ended prematurely due to circumstances uncontrollable to the caller.
On the surface, it seems like this particular legal requirement may have been satisfied. After all, a male voice clearly relays that the call has been paid for by Virginia Faith and Freedom Coalition. But take a closer look. “It shall be unlawful for any candidate or candidate campaign committee…”
See that pesky little language there – “candidate campaign committee”? Keep that in the back of your mind for a moment, because we’ll be coming back to this phrase a little later. For now, let’s finish looking at the VA code.
Hmmm, well, isn’t that strange? Interestingly enough, the Virginia code also requires that “[t]he person making the telephone call shall disclose the name of the candidate.”
Did you hear a candidate endorsement? Me either. But this is something else we’ll also have to come back to.
Finally, VA code states that:
It shall also be unlawful (i) for any candidate or candidate campaign committee who contracts for campaign telephone calls to fail to provide to the persons making the telephone calls the identifying information required by this section or (ii) for any person to provide a false or fictitious name or address when providing the identifying information required.
(2000, c. 874, § 24.2-1014.1; 2006, cc. 787, 892.)
Megan Stapleton, Mrs. Palin’s spokeswoman, has already confirmed that Mrs. Palin recorded that message and FCC confirmed they’re behind these calls, so it seems they’re in the clear there.
So now that we’ve got the full code out of the way, let’s go back to the phrase “candidate campaign committee.” Candidates and candidate campaign committees are legally permitted to robo-call, but what about the Virginia Faith and Freedom Coalition? Who are they and are they a “candidate campaign committee”?
According to the “About” section on their website, The Virginia Faith ad Freedom Coalition, aka the FFC:
“…believe[s] that the greatness of America lies not in the federal government but in the character of our people — the simple virtues of faith, hard work, marriage, family, personal responsibility, and helping the least among us.”
And that they:
[…are] committed to educating, equipping, and mobilizing people of faith and like-minded individuals to be effective citizens. Together [they] will influence public policy and enact legislation that strengthens families, promotes time-honored values, protects the dignity of life and marriage, lowers the tax burden on small business and families, and requires government to tighten its belt and live within its means.
Yet the bulk of information on their website appears to be dedicated to only reporting activities and news items related to the Republican and emerging “Conservative” Parties and Republican and “Conservative Party candidates. One article, entitled “Grassroots Blitz in VA,” includes a photo of Governor-candidate McDonnell with FCC volunteers, and can be read here.
Okay, so now we have an idea of who they are and what they believe, but that doesn’t answer the question about whether they are a “candidate campaign committee,” or if so, whom they represent, since they and Mrs. Palin failed to identify a candidate in their paid-for robo-call.
To answer the first part of the question – whether they are a “candidate campaign committee” for any candidate – one needs to consult the Virginia State Board of Elections, which maintains a “List of Active Candidate Campaign Committees.” A search through all seventeen pages for the name “Virginia Faith and Freedom Coalition” yielded no matches to the Virginia Faith and Freedom Coalition.
The search did yield the name of Governor-candidate Robert “Bob” McDonnell’s campaign committee – the Republican candidate whom Sarah and the Virginia Faith and Freedom Coalition may or may not have been politicking for since they failed to identify a candidate in the robo-call - yielded one result: “McDonnell for Governor”.
So they don’t appear to be a “candidate campaign committee” and they didn’t clearly endorse any candidate by name, but can they still legally robo-call? At this point, the answer is, maybe.
To find an answer to this question, let’s look first at some information disclosed by George Stephanopoulos at George’s Bottom Line.
According to Mr. Stephanopoulos, there’s a good reason why Mrs. Palin and the FFC did not disclose support for Governor-candidate McDonnell:
The calls do not include an explicit appeal to vote for McDonnell, according to Sen. Martin, because his organization is prohibited as a 501(c)(4) organization from making a direct appeal for the election of a particular candidate.
AHA! So no we learn that FFC is a 501(c)4 organization and supposedly can’t endorse a “particular candidate,” but what exactly is a 501(c)4?
According to the IRS, a 501(c)(4) is a nonprofit dedicated to Civic Leagues, Social Welfare Organizations, and Local Associations of Employees: (http://www.irs.gov/pub/irs-pdf/p557.pdf, page 46):
To qualify for exemption under section 501(c)(4), the organization’s net earnings must be devoted only to charitable, educational, or recreational purposes. In addition, no part of the organization’s net earnings may benefit any private shareholder or individual.
Additionally:
[…] social welfare “does not include direct or indirect participation or intervention in political campaigns on behalf of or in opposition to any candidate for public office.
OK, so FFC really is not legally permitted to endorse a specific candidate. And, to be fair, in her robo-call, Mrs. Palin, on behalf of FFC, didn’t exactly say the name of any particular candidate or indicate she (or they) represents any particular party. But that doesn’t mean that FFC is apolitical, as evidenced by their website. And that in itself may be “illegal” for a “nonprofit.”
But let’s leave that thought for now, because we really need to know what the rules are for a 501(c)4 organization in legally making robo-calls, otherwise known as “telephone solicitations.”
According to the Telephone Consumer Protection Act 47 U.S.C. § 227:
(4) The term “telephone solicitation” means 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, which is transmitted to any person, but such term does not include a call or message (A) to any person with that person’s prior express invitation or permission, (B) to any person with whom the caller has an established business relationship, or (C) by a tax exempt nonprofit organization.
So, that seems pretty cut and dried, doesn’t it? FCC is a “tax exempt nonprofit organization” and as such should legally be able to make “solicitationous” robo-calls, right?
Well, yeah, maybe, but even considering all this, those calls may not have been legal, but not for the reason one might expect.
There’s one last thing we need to consider. So let’s go back and take another look at that article entitled “As Palin Robocalls in Virginia, McDonnell Keeps His Distance” by George Stephanopolous. He reported that:
The Virginia Faith and Freedom Coalition put together the [robo-]call list by matching up church lists with records of who had voted in recent elections. The targets included both high propensity and lower propensity voters.
So why is this important? Because non-profits, such as FFC, very probably shouldn’t have legal access to those “records of who had voted in recent elections.”
Stick with me for a moment as I veer off on a not-quite tangent.
You see, the Palin/FCC robo-calls haven’t been the only controversy brewing in Virginia lately. Another controversy, involving the antics of the Know Campaign, has some eerily familiar similarities.
Bill Sizemore of The Virginian Pilot has written a few articles in the past few days about how the Know Campaign, a non-profit organization, may have gotten illegal access to Virginians’ personal voter history.
On October 28, 2009, Mr. Sizemore reported in the article “Your Voting History Could Be in a Neighbor’s Mailbox” that:
The Know Campaign, a new nonprofit group, is sending out an individualized mass mailing to people in 350,000 households recapping their recent voting history and that of their neighbors, listed by name and address. It doesn’t reveal how people voted – merely whether they participated.
And that:
The mailing is being funded with a $150,000 grant from a foundation that [Executive Director Debra Girvin] declined to name.
The group is using the Internet domain name that was used by the Know Campaign, which helped defeat a 2002 ballot question on a sales tax for road improvements in Hampton Roads, but has no other connection to that group, Girvin said.
Mr. Sizemore did a follow up story on October 29, 2009 , entitled “Nonprofit Halts Planned Mailing of Voting History” which relayed that the Know Campaign’s mass mailing had been temporarily halted because of the questions of legality in how that information was obtained.
An inquiry into the matter is under way at the State Board of Elections, where officials were surprised to learn that a nonprofit group called the Know Campaign was planning to disseminate the voting data to 350,000 randomly chosen households.
Though the Know Campaign is arguing that the information they’d obtained was “public information” they’d received from the Board of Elections, the Board of Elections told a different story:
Nancy Rodrigues, the board secretary, said she was “shocked” to read a Virginian-Pilot report about the effort, which the group characterized as an attempt to boost voter turnout in Tuesday’s gubernatorial election.
“We did not release that information to the Know Campaign,” Rodrigues said. “Nonprofits are not given that access.”
Apparently, according to state law:
[…] lists of people who voted in elections can be released only to candidates, elected officials and political party chairmen. Those who get such access must sign a statement agreeing not to share the data with anyone else. Violation of the law is a felony.
So how did the the Virginia Faith and Freedom Coalition, a nonprofit organization, know who to robo-call again? Oh, that’s right, they’d obtained “records of who had voted in recent elections.”
And what was that about non-profits having that information? That’s right, it might not be LEGAL.
Maybe the VA Elections Board needs to take a closer look at these robo-calls.
Is Sarah Palin anywhere near this situation? She is? What a surprise….
November 3rd, 2009 at 6:00 PM
@Ripley in CT
…But I INSIST that you keep your God to yourself and out of my government! (the figurative “you” here…. as well as directly referencing Stupid Palin)
Are we all happy with our government? Of course not. It’s a system and most systems that are corrupted are junk. The answer is not a robocall from an unethical, amoral, loser, quitter, half-term lying sack of turd to try and make people think that religion will fix government!
AARRRRRRRGGGGHHHH!!!!! …
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hey palin!….can you say “Taliban”? What the h*** is the difference? I agree, keep ANY religion OUT of government!!!
November 3rd, 2009 at 6:02 PM
Chicat #43
Excellent catch. And here is another § :
“The authors said they faced intimidation tactics from Palin aimed as driving them out of the state as they worked on the book.”
In the excerpt published at CBS
“John McCain wanted desperately to become the nation’s next president, but not at the expense of facing the inevitable accusations of racial exploitation if he made Wright an issue. She knew quite well about the decree that he had months earlier laid out to everyone involved in the campaign: no one was to touch the controversy. Still, Palin could not understand why she should be held to the rule.
“I just don’t want to go back to Alaska,” she said in an offhanded comment that would later seem prescient.”
Alaskans really were taken for a ride !
November 3rd, 2009 at 6:05 PM
35 Ripley in CT Says:
November 3rd, 2009 at 5:03 PM
Ok, so McDonnel won… if they find out that her calls were illegal, can they strip him?
He was already well ahead of a very unimpressive opponent so its kind of moot.
They can trace the source of the illegal release and prosecute.
We, lowly citizens, aka voting units, are supposed to have the protection of a “secret” ballot. Unfortunately the SCOTUS said that the voter lists from primaries are the property of the party and so can be dissiminated (sold) at will.
Guess what, if you voted in a Dim primary, you are probably a Dim, so its a safe bet you vote for Dims in the main election. That’s one way that they can target.
November 3rd, 2009 at 6:08 PM
I wish I had hair extensions so I could rip them out.
I must go into hibernation -soon!
November 3rd, 2009 at 6:15 PM
Wow! I really like how your mind works. Your peeling away the layers of lies is amazing. Fun and informative read. Thanks!
November 3rd, 2009 at 6:15 PM
Chicat………..OMG…..most excellent. Great that you got a screen shot. I need one too. This could be useful.
November 3rd, 2009 at 6:16 PM
Ohhh! ChiCat! Too funny! I hope Jason Linkens caught it! Nice catch!
(Sorry… I know…OT).
November 3rd, 2009 at 6:17 PM
Anyone notice that there are TWO…count ‘em 2…Bill Sizemores? VERY important…and a great article to launch off from with that lead. These people think they are Teflon, but they are a sticky web.
November 3rd, 2009 at 6:18 PM
10 lilly Says:
November 3rd, 2009 at 2:56 PM
Didn’t Palin tell voters in some state or other to be sure to go to the polls to vote on Wed. The day after the national election last year?
She nothing if not scatty brained.
Yes.
And her phone your Congress person day, a couple of weeks ago, was timed for a federal holiday.
Sarah doesn’t study, doesn’t read, but she is determined and has found a huge sugar daddy in the rich far right Christian churches.
November 3rd, 2009 at 6:19 PM
Very interesting. It certainly seems like the Elections Board should be interested in at least two apparent violations of the law regarding lists of who voted.
Also, too, perhaps the IRS might examine the 501(c)4 status of these groups. I’m pretty sure non-profits are supposed to not violate the law.
November 3rd, 2009 at 6:23 PM
ChiCat…..
It’s still there…..lol………lol She tried to “drive them out of the state??….lol….lol
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The book was released Tuesday — almost one year after Barack Obama and Joe Biden defeated John McCain and Palin, and weeks before the former Alaska governor releases her autobiography, “Going Rouge: An American Nightmare.”
“It’s the good, the bad and the ugly,” Walshe told FoxNews.com. “Everything is there.
To tell their story, Conroy and Walshe drew on their experiences as campaign reporters and conducted interviews with key sources, including Palin’s parents, Republican aides and strategists and former McCain campaign staff.
The authors said they faced intimidation tactics from Palin aimed as driving them out of the state as they worked on the book.
http://www.foxnews.com/politics/2009/11/03/new-book-seeks-debunk-myths-palin/?test=latestnews
November 3rd, 2009 at 6:30 PM
Even if they can’t strip him, if bad PR around illegal tactics connect Palin to his campaign….other candidates may think twice or three times before they allow her to pollute their campaign. She will strike again….even if she isn’t asked. Maybe some bad PR around Palin and his campaign will make some other candidates to say, Thanks but NO Thanks.
Also too, regarding the book about the campaign and Sarah saying she didn’t want to go back to Alaska…..I wonder if some of those people in Alaska who are protecting her will wise up when they read this book (or hear about it) and realize that she duped them and start talking.
November 3rd, 2009 at 6:43 PM
With 21% of the vote in Bill Owens is leading Hoffman 51%-43%
Goes to show you can’t trust polls
November 3rd, 2009 at 6:44 PM
love the Lawrence O’Donnell…another label for palin, other than his AK blogger one…he just called her ‘the late governor, sarah palin’. GUFFAW!
November 3rd, 2009 at 6:50 PM
Lainey, I heard that and had to backtrack my DVR to make sure that is what he said. LOL! He said it.
November 3rd, 2009 at 7:01 PM
On topic from the POV that it ties in to the gubanatorial races….
Lawrence ODonnell, in discussing the Republican gubanatorial wins with Howard Fineman, brought up the issue of governors in many states having fallen from grace as a direct result of the economy. Governors who previously had soaring approval ratings, only to lose those ratings, obstensibly due to the economy. Then, inexplicably, he mentions “the late Sarah Palin” as an example. How so Lawrence? (whom I adore!) Sarah Palin was a victim of her massive ego, poor leadership, probable personal problems, rumored criminal/legal issues… you name it. But, what she wasn’t a victim of is the ECONOMY! Aaaaarrrrgghhhhh!!!!!!
November 3rd, 2009 at 7:05 PM
Excellent post ExBf, that was great connecting the dots work. Send to CREW?
And good job ChiCat, it was still showing up as “Going Rouge, An American Nightmare” when I checked.
November 3rd, 2009 at 7:05 PM
Lainey @ 64/seattlefan @65,
If I hadn’t been so ticked that Lawrence gave SP cover for her low approvals at the time she quit, I would have been LMAO at his slip. I won’t go so far as to say “if only!” because I’m basically a nice person… but I will say that hopefully a Hoffman defeat will mean the death of her Fakebook career.
PS – who was the Mudpuppy who came up with “Fakebook?” I know I read it here first, but I can’t remember who to give credit.
November 3rd, 2009 at 7:15 PM
Trisha, I emailed my screen shot to AKM, figuring that she may not see a comment here in time to see the error for herself.
(AKM, I hope your email security settings don’t send all messages with attachments to SPAM!)
November 3rd, 2009 at 7:25 PM
Thank god I spent my evening at a wine tasting. I really can’t take anymore of this woman. Can’t she just go away? And it’s only going to get worse with the win of the two Repub governors, the book coming out, and the Oprah interview. What did we do to deserve Sarah Paylin??? Make it stop before I suffer liver damage…
November 3rd, 2009 at 7:51 PM
@txindygirl
I won’t go so far as to say “if only!” because I’m basically a nice person… but I will say that hopefully a Hoffman defeat will mean the death of her Fakebook career.
————
I’m keeping my fingers crossed on your second point…like you, I’m basically a nice person, but a political death is as good as any when it comes to her.
November 3rd, 2009 at 7:56 PM
Great post. I love it! Bottom line?
No one will ever prosecute? Why? Wednesday.
On Wednesday no one (D or R) will care.
It is too bad that politicians continue to exempt themselves from Do Not Call law.
StopPoliticalCalls.org is fighting for the privacy of the American voter.
1 – Creating a Political Do Not Call Registry
2 – Testifying in the US Senate about robo calls (Sen. Feinstein’s Robocall Privacy Act)
3 – Forcing states to enforce existing robo call laws (CA, MN, NJ, etc..)
4 – Getting politicians to take a do not robo call pledge (7 have)
Here is a quote from a member recently:
“I’m a shift worker, working variable shifts. I depend on my sleep to be able to do my job safely and efficiently. I’m a locomotive engineer. Imagine the disaster were I to fall asleep, operating a freight train carrying hazardous materials in your neighborhood, due to fatigue from being awoken in my middle of the night on a continuous basis during election season. Please stop..”
Learn more.
Shaun Dakin
CEO
http://www.stoppoliticalcalls.org
A non-profit fighting for the privacy of the American voter
November 3rd, 2009 at 8:13 PM
I was in moderation earlier, so some of you may have missed my reply.
I have sent an email to the VA Board of Elections and have asked them to investigate this. As soon as I know anything, I’ll let everyone here know.
But I don’t intend to let go of this and will forward my findings onto CREW and ask them to look into this also. I can also contact the IRS and ask them to look into the FFC’s financing.
Thanks to Sauerkraut’s synopsis, something I hadn’t considered earlier jumped out at me:
In addition, [b]no part of the organization’s net earnings may benefit any[/b] private shareholder or [b]individual.[/b]
This makes me wonder if and how SP got paid for her “help” and raises additional questions about whether the FFC is operating within their legal limits as a non-profit.
I also have been looking to see if political robocalls must be registered before being made, but so far I haven’t found anything in the regs to indicate calls must be registered (or where such calls would need to be registered). BUT I’m still looking for info which would confirm or disprove this. Again, I’ll let you know if I find anything.
Thanks for the warm welcome everyone!
November 3rd, 2009 at 8:24 PM
@79 exbg – Good job!!!
November 3rd, 2009 at 8:39 PM
sorry to be OT – EXCITING NEWS – Hoffman CONCEDED Ny-23 – DEMOCRAT WON!!!! Thank you Scarah!
November 3rd, 2009 at 8:55 PM
exbg- Thanks for your work on this. As usual Palin works just over the legal line.
I hope there is an investigation and more people hear her name associated with this possibly illegal activity.
Political campaigns/organizations with deep pockets can get away with this stuff because they have the money to drag it out in court. I remember during the 2004 election (I think it was 2004 might have been 2000) they caught someone working for the Bush campaign flooding/disabling the democratic phone lines for rides to the polls. They were initially found guilty, but then the national republican party helped to finance the appeal and got it overturned. This happened in NH.
November 3rd, 2009 at 9:21 PM
A felony? Wow. At the very least, this particular non-profit stands to lose their standing as a non-profit. And whoever leaked that information should be held accountable.
Even if SP didn’t pull strings to get the lists, isn’t it amazing that she’s in the middle of an ethical and legal scandal when it’s not even in her state? How does she do it?
November 3rd, 2009 at 9:41 PM
That’s our $arah……..
“Coloring outside the lines again!” Way to go! Rules are for other people, NOT Mavericks!
November 3rd, 2009 at 9:50 PM
Did anyone else catch it when Ed Schultz said something about Palin showing up in NY-23? It seems that he thought she actually was on the ground – disappoints me that he didn’t do his homework.
I’m sure she is absolutely irate and won’t take this one defeat lying down, so watch for her to come out blasting. One of the articles did mention that Hoffman was already complaining about ACORN, so watch for further on that issue.
Great job exBG and welcome to the Mudflats! Great idea to email the elections board, and definitely involve CREW.
And now that we can all sleep a bit better with Owens elected, I’m off to bed! Thanks to all for the continued updates throughout the evening.
November 3rd, 2009 at 9:59 PM
I just wanted to repost these comments from above, because they made me laugh. You two are quite funny!!
70 laprofesora Says:
Thank god I spent my evening at a wine tasting. I really can’t take anymore of this woman….Make it stop before I suffer liver damage…
54 Paula Says:
I wish I had hair extensions so I could rip them out.
November 3rd, 2009 at 11:07 PM
Excellent sleuthing, ExBg!
The silver lining is that most people abhor robocalls and hang up within a couple of seconds. Palin’s obsequious fans would stay on the line, of course, to hear her full message but their votes were never in question anyway, eh?
November 4th, 2009 at 4:49 AM
Oh, the next financial disclosure record released by SarahPAC covering this election cycle will be SO MUCH FUN!
Can’t wait to see to which ‘groups’ and ‘individuals’ money has been given.
November 4th, 2009 at 9:15 AM
Wow, that’s pretty amazing. Here I was thinking she just didn’t mention the candidate’s name in the calls because he didn’t want her involved in his campaign. She does have a knack for making a mess wherever she goes doesn’t she? By now you would think others would run when they see her coming…
November 4th, 2009 at 6:32 PM
Read Daniel Ellsberg’s article on Truthout.org – “Obama Fears Military Revolt”
He compairs this with the Vietnam war that could not be ended, largely becasue we were in a state of war. The dynamics of being a war state made stoping the war a virtual impossibility.
Obama’s in the same fix, that puts the Secretary of State the same bind.
And of course in both wars the Republicans want the war to continue, so Congress can’t and won’t defund the war.