A Citizen's Guide to Indiana

Masson's Blog

IN-09: Free Eats lawsuit seeking permission to robocall Hoosiers

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As readers will no doubt be aware, Swiftboat mastermind Bob Perry funded the “Economic Freedom Fund.” In an effort to aid Mike Sodrel’s campaign in Indiana’s 9th District, that organization went out and hired a company by the name of FreeEats.com Inc. to have its computers make robocalls playing pre-recorded messages attacking Sodrel’s challenger, Baron Hill.

Trouble is, this violates Indiana law. IC 24-5-14 prohibits use of an “automatic dialing-announcing device” unless the recorded message to be played is immediately preceded by a live operator who obtains the phone customer’s consent before the message is delivered. This, of course, defeats the purpose of robocalls – they want to be able to push a button and have their computers bombard as many Hoosiers as possible with their recordings, not have to pay an actual live person to make the calls, and certainly they don’t want to give the target an opportunity to say “no.”

Enter Attorney General Steve Carter. To his credit, Carter has been extremely active in trying to protect Hoosiers from intrusions via their telephones. He understands that few things get citizens angrier than having their phone ring, particularly at inconvenient times, only to have it be a telemarketer or, in this case even worse, a *$#@ computer droning on about how bad Baron Hill is or how great Mike Sodrel is. So, seeking to enforce the state ban on robocalls, on September 18, 2006, the AG’s office filed a civil enforcement action against Perry’s “Electronic Freedom Fund” and John Does 1-10 in the Circuit Court of Brown County under Cause Number 07C01-0609-MI-425.

Recognizing that, sooner or later, it would fill one of those “John Doe” slots, Free Eats.com d/b/a ccAdvertising filed a Complaint (pdf) in the Southern District of Indiana seeking a declaration that the state law prohibiting robocalls is pre-empted by federal law (specifically 47 USC 227) and/or unconstitutional and also seeking an injunction against the Attorney General attempting to enforce the act. The Attorney General filed its motion seeking to dismiss the federal action on the grounds of an ongoing state action involving the same matter in which Free Eats is free to seek the same relief.

I haven’t read the opinion since my Westlaw subscription doesn’t extend that far, but it looks like the 8th Circuit considered and rejected the preemption argument. The preemption argument basically says that the federal government has acted in this area and, by doing so, is exercising exclusive control over the subject matter and has prevented the states from acting on their own. Under the Supremacy Clause of the U.S. Constitution, the federal law would govern. In Van Bergen v. State of Minnesota, 59 F3d 1541 (8th Cir. 1995), the court found that a Minnesota statute regulating use of telephone automatic dialing-announcing devices was not preempted by the federal Telephone Consumer Protection Act (TCPA) because 1) the Act did not expressly preempt statute; 2) the
Act carried no implication that Congress intended to preempt state law; 3) a Congressional finding suggested that Act was intended not to supplant state law but to provide interstitial law preventing evasion of state law by calling across state lines, and 4) the statute was not in actual conflict with the Act.

Legalities aside, this whole robo-calling  approach, particularly one receiving as much publicity as this one, is likely to hurt the candidates they’re designed to support — in this case Mike Sodrel. As a voter, would you be more or less likely to vote for a candidate using computers to call you during dinner or whatever just to play you a pre-recorded message; then running to a federal judge seeking to strike down state laws designed to protect you from such intrusion?

First Republicans

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Advance Indiana brings us news of First Republicans, a group apparently devoted to returning the Republican party to its roots. (Or at least as far back as Eisenhower and Goldwater — I’m not sure they’d be in favor of Lincoln’s expansion of the federal government’s powers or Teddy Roosevelt’s trust busting crusades.) They are proponents of fiscal conservatism and social tolerance, and they certainly have my ear. That sounds like the Republican party in which I was raised, and I would certainly be pleased if the principles espoused by this group were once again embraced by the Republicans. My suspicion is that, federally anyway, the Republicans will have to spend a season or two in the wilderness before folks like these will be able to wrest control from the social conservatives who currently dominate the politics at that level.

And, they have a blog.

KO: The free pass has been withdrawn, Mr. Bush

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Keith Olbermann has taken extreme exception to the recent attempts by the Bush administration and its proxies, particularly Walt Disney and the “hyenas at Fox” to place blame for 9/11 on President Clinton. To listen to the narrative being concocted, one would think that we fast forwarded directly from the Monical Lewinsky impeachment to 9/12/01. In particular the 8 months of the Bush administration prior to 9/11 are completely ignored. Richard Clarke’s efforts to bring bin Laden and the risks of terrorism to the President’s attention are completely ignored. Condoleeza Rice’s fixation on missile defense are completely ignored. John Ashcroft’s actions seeking to reduce the counterterrorism budget prior to 9/11 are completely ignored. Instead, now, shortly before the 2006 elections, we get a concerted effort to pin the blame for 9/11 on the Clinton administration. Blaming no one is perhaps understandable — the events of 9/11 were so tragic, and clearly bin Laden and al Qaeda deserve our wrath, that our time, energy, and resources are better served trying to eliminate them. But, now 5 years later, with time, energy, and resources already having been diverted to a needless war with and occupation of Iraq, and finally an effort to blame Bill Clinton for 9/11, Olbermann’s ire is entirely appropriate:
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IN-03: Islamo-terror-fascists

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Reverent & Free came across a pro-Souder letter to the editor in the Fort Wayne News Sentinel (most of the post has to do with a pro-Hayhurst letter). The letter states:

“If you want to protect America and defeat Islamo-terror-fascists, vote Souder.”

Craig at R&F notes how perfect “Islamo-terror-fascists” is. It fairly screams the need of some citizens for an enemy. Just give us someone to fear and hate, then make us feel safe from those people. The description of the enemy lets us know that this isn’t reasoned fear we’re talking about. Reasoned fear would do a better job of articulating that certain groups of Islamic militants hate Americans and/or their government, and find it useful to use terrorist tactics against us. But, reasoned fear would also do a better job of putting the actual threat into perspective and, therefore, not be terribly useful as an electoral tool since one’s chances of being hurt or injured in a terrorist attack are miniscule in comparison to one’s chances of suffering a similar fate in an automobile accident.

No, the fear of “Islamo-terror-fascists” is an irrational fear. It conjures up legions of amorphous boogie-men comprised of our worst nightmares. The only thing worse, perhaps, would be “Commie Islamo-terror-fascists.” But, throwing the Communists into the mix is probably over the top. After all, Souder only needs a win, not a landslide. Besides, we probably don’t want to anger the Communist Chinese lest they decide to stop funding Souder’s & Co.’s deficit spending.

IN-03: Souder’s smear campaign

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Sylvia Smith had an article in the Fort Wayne Journal Gazette on Sunday that discussed the three most competitive Indiana Congressional races (IN-02, IN-08, and IN-09) and the potential that those races may decide control of the U.S. House of Representatives. But she also discussed the race in IN-03 which is up in the Fort Wayne region where Dr. Tom Hayhurst is challenging incumbent Mark Souder.

Souder started going negative against Hayhurst early and often:

Souder began airing radio commercials immediately after the May primary and hasn’t let up. One, for instance, scoffs at Democratic opponent Tom Hayhurst for being rich, retired and interested in a full-time public service job.

In it, Souder says four Republican physicians were elected to Congress in 1994 to make changes in the federal approach to health care, not to “do some public service at the end of their medical careers.” He describes Hayhurst, as “a wealthy, retired doctor worth up to $15 million who thinks being a congressman for a few years would be interesting. But being a congressman, if you want to get things done, is hard work. It’s not something you retire into.”

As one reader pointed out, “For a guy who has accomplished next to nothing in his 12 years of office this is really rich. For a guy who promised to leave office after 6 terms to go after someone “who thinks being a congressman for a few years would be interesting” is grotesque.”

I’d really like to see some poll numbers on the Hayhurst/Souder race. I’m just guessing, but my suspicion is that Souder isn’t as comfortably ahead as most of us would probably assume. Hayhurst is a credible opponent, Souder is flagrantly breaking promises, and the political winds are adverse to the GOP. Still, I’ve heard that IN-03 is the kind of place where a chimp with an “R” next to his name would probably beat out Jesus if he was running as a Democrat.

Godwin’s Law: Rummy Loses

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The Boston Globe has an editorial entitled “Loose Lips Sink History.” They criticized Donald Rumsfeld for comparing opponents to the war in Iraq to Hitler’s appeasers and criticized anti-war activists for comparing Bush to Hitler.

These days, the term fascism is loosely applied to anything antidemocratic. But it has a specific meaning in the context of World War II, and Rumsfeld’s application robs the word of its power.

Similarly, there is plenty of fodder for a sharp critique of the Bush administration without opponents resorting to hyperbole about Hitler.

These cliched allusions — whether from anti war activists or from official Washington — only cheapen the memory of the Holocaust and hasten the degradation of political discourse. The history of European fascism ought not be hijacked for cheap political effect .

Basically, Godwin’s Law has made its way to meatspace.

As an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches one.

The tradition in many newsgroups and other Internet discussion forums is that once such a comparison is made, the thread is finished and whoever mentioned the Nazis has automatically lost.

Update: Thanks to Jim for posting a relevant link to a Keith Olbermann blog entry. In it, Olbermann includes an equally relevant quote from Edward R. Murrow:

“We must not confuse dissent with disloyalty,” he said, in 1954. “We must remember always that accusation is not proof, and that conviction depends upon evidence and due process of law.

“We will not walk in fear, one of another. We will not be driven by fear into an age of unreason, if we dig deep in our history and our doctrine, and remember that we are not descended from fearful men, not from men who feared to write, to speak, to associate, and to defend causes that were for the moment unpopular.”

Katherine Harris: Non-Christians will legislate sin

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Katherine Harris, a Florida member of the House of Representatives and former Republican Secretary of State for Florida who was instrumental in securing the State of Florida for George Bush’s 2000 election effort is the Republican nominee to represent Florida in the U.S. Senate.

In the course of her Senate campaign, she has released a few statements that are pure, unadulterated wingnuttery:

U.S. Rep. Katherine Harris (news, bio, voting record) told a religious journal that separation of church and state is “a lie” and God and the nation’s founding fathers did not intend the country be “a nation of secular laws.” The Republican candidate for U.S. Senate also said that if Christians are not elected, politicians will “legislate sin,” including abortion and gay marriage.

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Separation of church and state is “a lie we have been told,” Harris said in the interview, published Thursday, saying separating religion and politics is “wrong because God is the one who chooses our rulers.”

“If you’re not electing Christians, then in essence you are going to legislate sin,” Harris said.

Thankfully, some of her fellow Republicans are trying to distance themselves from this kind of position. However, Harris is not some fringe member of the party. She was front and center in the effort to give Florida’s electoral votes to George Bush in 2000. She is a member of Congress. And she’s the party’s nominee in Florida’s Senate race. I’d be a lot more comfortable with the Republican Party if this kind of Dominionist nonsense was anathema to mainstream candidates.

Fear Itself

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Courtesy of Kung Fu Monkey:

FDR: Oh, I’m sorry, was wiping out our entire Pacific fleet supposed to intimidate us? We have nothing to fear but fear itself, and right now we’re coming to kick your ass with brand new destroyers riveted by waitresses. How’s that going to feel?

CHURCHILL: Yeah, you keep bombing us. We’ll be in the pub, flipping you off. I’m slapping Rolls-Royce engines into untested flying coffins to knock you out of the skies, and then I’m sending angry Welshmen to burn your country from the Rhine to the Polish border.

U.S. NOW: BE AFRAID!! Oh God, the Brown Bad people could strike any moment! They could strike … NOW!! AHHHH. Okay, how about .. NOW!! AAGAGAHAHAHHAG! Quick, do whatever we tell you, and believe whatever we tell you, or YOU WILL BE KILLED BY BROWN PEOPLE!! PUT DOWN THAT SIPPY CUP!!

U.S. rushed Britain to make recent terror bust

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The impression I got watching the Fox News Terror Porn coverage of the recent British terrorism bust at the gym, admittedly not paying full attention, was that they swept up the suspects as they were at the airport. That this wasn’t the case goes not to the propriety of the arrests, but rather to the emphasis in the way the story was reported: lead with the quotes about  “mass murder on an unimaginable scale” rather than with the fact that the threat was forming rather than imminent.

Now I see that NBC News is reporting that U.S. and British authorities had a “significant disagreement over when to move in on the suspects in the alleged plot to bring down trans-Atlantic airliners bound for the United States.” The U.S. pressed for an immediate bust. The British wanted to run surveillance for at least another week to gather more evidence. A “senior British official knowledgeable about the case said:

The suspects had not yet purchased any airline tickets. In fact, some did not even have passports.

It looks like this was some good policework by the British coupled with a lot of hype about the severity of the threat coming from political sources and the cable news networks whose advertiser thrive when sensational stories are breaking.

The message I get from the Bush administration and the cable news networks: Be afraid.

If people are scared enough, it becomes easier to say all kinds of things about people who question the wisdom of the War in Iraq or the competence of the Bush administration to prosecute the War in Iraq or the even more complicated War on Terror(ism/ists). You can call them extremists. You can call them traitors. You can say that if folks with such questions win, then America loses. You can even say that rejecting Joe Lieberman in favor of Ned Lamont helps “break the will of the American people” to fight terrorists.

But that kind of nonsense, conflating the war against Saddam Hussein’s Iraq with al-Qaeda terrorism among other things, only works if people are scared.