Controversy over S. 2624, the Robocall Privacy Act of 2008, has increased in recent weeks following a February Senate committee hearing. Labeled as an affront to First Amendment speech rights, an unwelcome infringement upon citizen-to-citizen communication, and unconstitutionally vague and overly broad, this bill has forced political pundits, consultants, and politicians to debate what constitutes "core political speech" and how best to utilize robocalls. Some consultants in the automated call industry are seeking donations for the Legal Defense Fund of the American Association of Political Consultants (AAPC), and others are partnering with the National Political Do-Not-Contact Registry.

According to a press release from Sen. Dianne Feinstein (D-CA) and Sen. Arlen Specter (R-PA), the bill's sponsors, the main objective of the legislation is to create a reasonable framework that protects Americans from being inundated by computer automated calls in the days leading up to an election. This framework would include:

• Limits on the hours phone calls are made
• Limits on the number of phone calls made
• Caller identification and civil fines for violators

During the Senate hearing, Feinstein announced that she intends to amend the bill to make candidates and consultants abide by the commercial do-not-call-list. This would remove nearly 150 million phone numbers from the reach of robocallers.

In response to S. 2624, more than 20 bipartisan political consultants have joined forces and spent more than $20,000 to fight legislative proposals which "violate" protected speech. A recent fundraising letter sent to thousands of consultants seeks support for what could be a long legal fight against a slate of federal and state bills banning robocalls. At present, more than 20 states are considering banning robocalls, while at least ten states have already begun enacting restrictions on the practice.

One Denver-based robocall firm has proposed an alternative to legislation and partnered with the National Political Do-Not-Call Registry. Rick Gilmore, president of the robocall firm Democratic Dialing, said, "It does my clients no good to call people who are only annoyed by the calls." Gilmore went on to say, "…we think it's good policy for us and a good direction for the industry in terms of policing itself." According to the registry's CEO and founder, Shaun Daskin, this type of "voluntary solution" seems to be the only viable option.

Whether the Robocall Privacy Act of 2008 will pass constitutional muster remains to be seen. A recent Senate hearing attests to the underlying difficulty of pragmatically yet legally addressing the privacy concerns of those receiving robocalls. At the hearing, North Carolina Attorney General Roy Cooper recounted the impetus behind pending legislation that would make both political parties abide by the Do-Not-Call Registry. Cooper stated, "At best these calls interrupt home life and family life, and, at worst, the calls can cut access to emergency help and medical assistance." In North Carolina, Cooper said robocallers to over 400 patients in county hospitals were stopped and fined. In the end, Cooper argued that "policymakers must find a way to control or eliminate unwanted political robocalls just like we did with unwanted telemarketing calls."

Attorney James Bopp opposed Cooper's contention that robocalls should be regulated. According to Bopp, the First Amendment protects a person's right to not only advocate for a cause but also select the appropriate means for doing so. Since S. 2624 applies to any computer-generated call which "promotes, supports, attacks, or opposes a candidate for federal office," Bopp labeled the bill unconstitutional. According to Bopp, such language would include robocalls for issue advocacy and would be difficult to enforce since the line between criticism of public officials and electioneering can often be debatable.

The hearing ended with exchanges between all panelists on the political feasibility of providing the opportunity to voluntarily opt out of political communications upon registering for the Do-Not-Call Registry. There was also some discussion about the actual cost-effectiveness of robocalls. In the weeks and months ahead, legislative bodies across the country may be charged with finding ways to address the concerns of those advocating for regulation without infringing upon the constitutional rights of those opposing regulatory efforts.