The Constitution and the courts have granted candidates wide latitude to broadcast their slogans, promises and attack ads to voters — even when voters have no interest in hearing those messages. That’s why Americans can be inundated with political junk mail and robocalls in an election year.
But it’s not exactly free speech when the recipients have to pay for it, as they do when campaigns send them text messages — a relatively new phenomenon that regulators should squash before it spreads.
Republican voters in Michigan are among the latest victims of political text spam. A television station in Flint reported shortly before the state’s GOP primary that local voters were receiving a cryptic unsolicited message from a mysterious source on their phones — “Romney’s poor comments” — accompanied by a phone number from a nearby area code. According to WJRT-TV, callers to that number heard a recorded message criticizing GOP candidate Mitt Romney, with no information about who the sponsor might be. Such messages can cost recipients 10 to 25 cents each if their plans don’t include an allotment of free texts.
Voters in Colorado also were hit with unsolicited anti-Romney text messages this year. Before that, the tactic popped up in several congressional elections in 2009 and 2010 and in a state legislative race in Virginia last year, according to Scott Goodstein of Revolution Messaging, a communications consultancy with a left-of-center clientele.
Goodstein contends that at least some of the text spam is the work of the obliquely named Americans in Contact PAC, a group based in Northern Virginia that supports Republican candidates and is financed largely through undisclosed, small-dollar donations. A consultant hired by the PAC, CC Advertising, has defended the practice, saying it sends unsolicited political emails — which is legal — to a list of addresses, some of which happen to be cellphones.
That’s a distinction without a difference. As the Federal Communications Commission said explicitly in 2003, the Telephone Consumer Protection Act prohibits unsolicited messages to cellphones unless the owner expressly gives consent in advance. The consumer privacy rules that carve out exceptions for political speech don’t apply when the receiver of the call or the message has to pay for it.
Goodstein has petitioned the Federal Communications Commission to clarify that the prohibition on spam applies to messages converted from emails to texts. Such a clarification shouldn’t be necessary, but it wouldn’t hurt to remind political operatives that the rules against unsolicited texts apply equally to them. Even better, the FCC should start fining candidates and PACs who blast voters’ cellphones with unsolicited campaign ads.