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Robocalls are back in Montana's election season

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Eric Hines was meeting with some friends at noon on May 8, when his cell phone rang. Hines let it go to voicemail. When he checked later, the pre-recorded voice of Public Service Commissioner Gail Gutsche told him he should support Pam Bucy for Montana attorney general.

Had Hines taken the call, he would have heard a live operator asking him if he wished to hear Gutsche's message. Thousands of Montanans didn't get that courtesy last week, however, when they received robocalls from Ken Miller's gubernatorial campaign.

Bucy's calls were legal. Miller's were not.

"It's an issue every year," says Bucy's campaign manager, Annie Glover. "But I think there's a short memory, because I remember this being an issue in 2008 and it being verified then that with a live caller, it is legal. The first call of the season, I guess some campaigns are just learning what's legal and what's illegal."

Robocalls have become an election-cycle pain for voters. The Montana Legislature banned them in the early 1990s, making it illegal to use them in connection with a variety of activities. Last on that list is the promotion of a political campaign or "any use related to a political campaign." It makes an exception for calls, like Bucy's, that secure "permission of the called party" by a "live operator before the recorded message is delivered." Violations carry a fine of $2,500.

The state's Office of Political Practices was slammed last week with complaints stemming from the Miller robocalls, one of which went to the office itself. Political Practices Commissioner Jim Murry says that, as in other years, responding to robocall complaints has begun to dominate his small staff's time in an already busy cycle. It's particularly troublesome, Murry says, given that his office doesn't even have jurisdiction over campaign robocalls. Enforcement falls to county attorneys.

Murry says he called the Miller campaign, which claimed it was operating inside the law. Miller cited an opinion by former Montana Attorney General Mike McGrath declaring the robocall ban unconstitutional. Miller told the Indy he heard about McGrath's opinion from several people, but, he added, it's "one of those things nobody seems to be able to find." He used robocalls, he said, because he "didn't want to be at a disadvantage" going into the Republican primary.

Murry also contacted Lewis and Clark County Attorney Leo Gallagher last week. Gallagher promptly sent a letter to the Miller campaign informing them of the law. Gallagher says that's his usual tactic and that candidates seeking to justify their robocall activity have developed a predictable defense.

"There's basically two theories," Gallagher says. "One is that they're exercising their right to political speech, and that's not been resolved by a Montana court as far as I know...The second way that a candidate or committee believes that they're entitled to use this is they'll say there's an existing business relationship between the caller and the recipient of the call."

Hines suspects the second defense is what's behind at least one call he received last week. He got another automated call on May 8, from Montana Conservation Voters, endorsing Bucy for attorney general and Steve Bullock for governor. Hines, a political science professor at the University of Montana, says he's been active with a number of environmental groups over the years. He also believes he's given his cell number to MCV members in the past.

MCV Executive Director Theresa Keaveny told the Indy her organization hasn't supplied any member information to any political campaign.

As for the Miller calls, Hines wonders why they bothered. Blanketing voters with an automated message instead of targeting those calls usually just turns voters off, Hines says. Plus, "with cell phones, a lot of times with the robocalls it's costing the person receiving the call money or minutes."

The automated calls sounded a deeper alarm with Hines. His first exposure to them came during the 2004 electoral cycle, when he was a student in Iowa. Starting around Thanksgiving of 2003, he says, he received robocalls "almost non-stop until the election ... from presidential candidates, from gubernatorial candidates. There was a hotly contested Senate election and a House election. ... Every night I was getting calls on my landline. It was annoying as heck."

Missoula County Attorney Fred Van Valkenburg says his office "will charge somebody" for political robocalling if it has a solid case. "The big issue is finding the source of the robocalls and being able to do something about it."

Glover says the Bucy campaign has done everything it can to ensure its calls are operating inside the bounds of the law, and to ensure that if recipients don't want to be bothered, they aren't. "We make sure that's noted in the voter file," she says, a database that includes names of registered voters and their contact information.

Staying within the bounds of the law isn't cheap. Each of Bucy's live-operator calls cost the campaign about 35 cents, Glover says, instead of the 5- or 10-cent rate common with straight robocalling. Miller says he decided not to use live operators because the method is "extremely expensive and very slow." He did, however, attach his personal cell phone number to his robocalls.

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