A Citizen's Guide to Indiana

Masson's Blog

Sunday round-up

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  • Niki Kelly, writing for the Fort Wayne Journal Gazette, has an article entitled Secretary of State race poised to make, break Daniels’ agenda. The article notes that, in the event of a 50/50 tie in the Secretary of State race, the winner determines who will control the chamber. I can’t remember how the provision is written — whether the Secretary of State casts the vote, or whether the party holding the Secretary’s office is the party that will control the House. If it’s the latter, things could get very interesting if Libertarian Mike Kole were to win. Obviously Libertarians have a tough road in any campaign, but Mr. Kole has probably put forth the most credible challenge in a statewide race of any Libertarian in recent memory. Meanwhile, the Journal Gazette’s editorial board endorses Democratic challenger Joe Pearson for the position.
  • The Indianapolis Star issues endorsements for the 9 Congressional Districts. IN-01: Pete Visclosky, incumbent; IN-02: Joe Donnelly, challenger; IN-03: Mark Souder; IN-04: Steve Buyer, incumbent; IN-05: Dan Burton, incumbent; IN-06: Mike Pence, incumbent; IN-07: Julia Carson; IN-08: Brad Ellsworth; IN-09: Mike Sodrel. For those keeping score, that’s an endorsement of 7 incumbents versus two challengers. So, let’s not hear any future wailing and moaning by the Star about how it’s gerrymandering that keeps incumbent retention at a ridiculously high rate. (Particularly galling in my quick read was this: “it’s Buyer’s work on veterans issues, along with his fiscal conservatism, that wins The Star’s endorsement.” Had the Star editorial board actually been following that race, they’d know that Buyer’s record on veteran’s issues is sketchy. If they’d been looking at the federal deficit while Buyer and friends have been in control, they’d know his fiscal conservatism is sketchy as well. But, I’m sure there are other gems in that string of endorsements that deserve my abuse as well.)
  • Thomas Langhorne, writing for the Evansville Courier Press has an article entitled Ellsworth widens lead in poll. An Indiana State University follow up poll commissioned by the Courier Press showed Ellsworth with 55% compared to Hostettler’s 32%. Langhorne also reports that 2/3 of likely voters supporting Ellsworth are motivated by a desire to see Democrats control the House or to see Hostettler defeated.
  • The Courier Press also has an editorial digging into the byzantine mechanics of Congressional pay raises and concludes that the waters are muddy but Hostettler had a chance to get at the pay raise for an up or down vote and declined the chance.
  • The Lafayette Journal and Courier has an editorial entitled “Democrats look to gain seats, control.” The paper does not take any particular position but describes the issues that have voters in a bad mood with respect to Republicans and have Democrats apparently in a better electoral position than they have been in years past.
  • Lesley Stedman Weidenbener has an article looking at attack mail flooding mailboxes in Indiana’s 9th District.
  • Steve Walsh, writing for the Gary Post Tribune has an article on Indiana’s Second Congressional District entitled “District election a dead heat.” I guess it’s true, the media wants a horse race, not a blow out. Because, the “dead heat” headline seems to come from the Chocola campaign’s statement that they had polls showing the race to be a dead heat, as opposed to a recent South Bend Tribune poll showing Donnelly to have a 10 point lead.

  • Speaking of horse races, Sylvia Smith has an opinion column entitled “A lot can happen before election day.” Democrats, she said, should not be too confident, and Republicans should not be too discouraged.

IN-09: Baron Hill accuses “Millionaire Mike” of keeping money with Foley taint

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In the 9th District, Baron Hill is apparently the first candidate out of the gate to use a television commercial featuring pedophile Congressman Mark Foley against his Republican opponent.

Former Rep. Baron Hill, D-Indiana, criticizes Rep. Mike Sodrel, R-Indiana, for refusing to return $77,000 in campaign contributions “from the House leadership who knew about but did nothing to stop sexual predator Congressman Foley.

“Millionaire Mike, he says nothing and refuses to return the money,” an announcer says in the ad that is scheduled to run at least through the weekend, a Hill campaign spokeswoman tells CNN.

. . .
The ad also features images of former Rep. Randy “Duke” Cunningham, R-California, who is now serving time in jail for accepting bribes as well as former House Majority Leader Tom DeLay, R-Texas, who is fighting charges that he broke Texas campaign laws. The ad notes that Cunningham had donated $2,000 to Sodrel, while DeLay, who resigned earlier this year, had given the congressman $20,000.

Melanie Morris, Hill’s spokeswoman, said Sodrel “should return the money from those in the House leadership who kept this under wraps.

“Basically, our point is there is a crisis in leadership and Mike Sodrel isn’t doing anything about it,” she said. “He is part of the problem.”

Gotta hate that Foley taint.

IN-02, IN-09: Zogby Poll

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Zogby has released poll results for several races across the country. Among these are IN-02 and IN-09:

IN-02:
Republican Rep. Chris Chocola, one of the party’s three endangered incumbents in normally Republican Indiana, aired an ad claiming Bush was not tough enough on immigration. “We just disagree,” he said. He faces a challenge from Democratic businessman Joe Donnelly.
Democrat 48.5%
Republican 39%
Not sure: 11%

IN-09:
In a rematch of a close 2004 race, Republican Rep. Mike Sodrel and Democratic former congressman Baron Hill have battled over hot-button social issues like abortion and gay marriage. Their southern Indiana district leans Republican.
Democrat 46%
Republican 38%
Not sure: 14%

The polls were taken the week of Sept. 25 to Oct. 2 in 15 of the most competitive House districts across the country, including three days the sex scandal involving Florida Rep. Mark Foley’s explicit Internet messages to teenage male congressional pages. It bears mentioning that those three days were Saturday, Sunday, and Monday, so I would guess that the poll doesn’t reflect the full brunt of the Foley scandal. The finger pointing over who knew what and when, and the conservative calls for Speaker Hastert’s resignation didn’t really get cooking until the beginning of the week.

Not included in the polling were several Republican-held districts where Democrats are favored, including that of Foley, who has resigned from the House, former Rep. Tom DeLay’s Texas district, Indiana Rep. John Hostettler’s district and the Pennsylvania seat of Rep. Don Sherwood, who suffered his own sex scandal last year.

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?

IN-09: More on pro-Sodrel robo-calls

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TPM Muckraker continues to investigate the company hired by Swiftboater Bob Perry that has barraged citizen’s phones with anti-Hill robo-calls in the 9th District race.

The company, called ccAdvertising and also doing business under the name FreeEats.com (and apparently thousands of other names) is also in the habit of hijacking other company’s identities on caller-IDs.

Mike Sodrel, the beneficiary of these anti-Hill robocalls better get on top of this. You sleep with dogs, you get fleas.

IN-09: Swiftboaters for Sodrel sue for their right to robo-call Hoosiers

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TPM Muckraker continues to follow the story of the “Economic Freedom Fund” — an organization bankrolled by Bob Perry, the man who bankrolled the smears on John Kerry’s military record. This organization is going to bat for Mike Sodrel by paying for “FreeEats.com Inc.” to robocall Hoosiers with attacks on Baron Hill. By robocall, I mean use computers to dial Hoosier phones and play recorded messages to anyone unfortunate enough to pick up the phone. Trouble is, this practice is illegal.

The General Assembly, recognizing that Hoosiers don’t want to have the phone ringing at all hours only to have a computer play them a recording, adopted IC 24-5-14 which prohibits playing such a recording unless an actual person has obtained the consent of the person picking up the phone before playing the recording. Attorney General Steve Carter, appropriately, took these folks to court to put an end to their law breaking.

On the contrary, however, Sodrel’s supporters apparently feel that the First Amendment protects their God given right to have computers ring your phone and tie up your line playing you recorded messages. So, they’ve gone to federal court asking it to nullify the state law. So much for strict construction and states’ rights, I guess.

IN-09: TPM Muckraker investigates Swiftboaters for Sodrel

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Readers may recall that the Indiana Attorney General is suing the “Electronic Freedom Fund” which appears to be Swiftboat moneyman Bob Perry’s latest vehicle for attacking Democrats. The Indiana AG’s interest has to do with illegal robocalls attacking Mike Sodrel’s challenger, Baron Hill. TPM Muckraker does some digging to determine who does Perry’s dirtiest dirty work; in other words, who does the dialing of the Electronic Freedom Fund’s push polls. The short answer is, “they don’t want you to know.”

AG sues Electronic Freedom Fund for anti-Hill robocalls

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An article from Mary Beth Schneider indicates that Attorney General Steve Carter  has sued a California-based group called the “Electronic Freedom Fund” for automated phone calls attacking IN-09 Democratic Congressional candidate Baron Hill.

The group has apparently agreed to stop making the calls, but Carter has said that the State will continue to seek an injunction against the “Electronic Freedom Fund” in a Brown County Court. Carter says that the group said that their vendor said that the calls were “legal so long as they were placed from out of state.” Where they got that, I don’t know. The relevant statute is IC 24-5-14 which states:

A caller may not use or connect to a telephone line an automatic dialing-announcing device unless:
(1) the subscriber has knowingly or voluntarily requested, consented to, permitted, or authorized receipt of the message; or
(2) the message is immediately preceded by a live operator who obtains the subscriber’s consent before the message is delivered.

Violating the law constitutes a deceptive act under IC 24-5-0.5 which means that the attorney general can bring an action. An individual subjected to the violation may also bring suit personally and cash in a little bit. But, if the Attorney General decides to be hard core about this, he could really bring some cash into the State’s coffers under IC 24-5-0.5-8:

Sec. 8. A person who commits an incurable deceptive act is subject to a civil penalty of a fine of not more than five hundred dollars ($500) for each violation. The attorney general, acting in the name of the state, has the exclusive right to petition for recovery of such a fine, and this fine may be recovered only in an action brought under section 4(c) of this chapter.

In the definitions section, we find that “‘Incurable deceptive act’ means a deceptive act done by a supplier as part of a scheme, artifice, or device with intent to defraud or mislead.”

I’d say there is a pretty strong argument to be made that the calls were intended to mislead voters about Baron Hill’s voting record. For example, I’d be surprised if a court would agree that the “Electronic Freedom Fund” was accurately characterizing Hill’s voting record when they state that “Baron Hill voted to allow the sale of a broad range of violent and sexually explicit material to minors.”

I haven’t heard how many automated calls were made, but it wouldn’t take long before $500 per call started adding up to some real money, even for an organization bankrolled by Bob Perry, the Houston millionaire responsible for the “Swiftboat Veterans For Truth” lies about John Kerry’s military record that caused Kerry so much trouble when he was running against George Bush.

IN-02, IN-08, IN-09: Indiana is the Center of the Universe

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In a story by Maureen Groppe in the Indy Star, Amy Walter of the nonpartisan Cook Political Report, tracking U.S. House races said “Indiana is literally the center of the universe right now. To have three Republican incumbents in a very Republican state either tied or behind their Democratic opponents, what is that?”

What is that? It’s the Republicans, particularly on the federal level, betraying the people and the principles that got them there. The party of Eisenhower and Goldwater, the party of fiscal responsibility, foreign pragmatism, and small government has turned into a party of budget busting big government policies and impractical, ideological, ineffective foreign policy all mixed up with an Orwellian disregard for civil liberties  and catering to the impulses of Dominionist religious groups.

The article focuses on the shifting fortunes of Chris Chocola, who started the year seeming to be safe in his seat. Now he is at least slightly behind challenger Joe Donnelly in the polls. Courtesy of Gov. Daniels, Chocola has been slammed by a double whammy of local issues, important to his constituents in north central/western Indiana on which he has been silent: Daylight Saving Time and the Toll Road sale. Combine that with increasing voter dissatisfaction with national policy generally and President Bush particularly, and suddenly Chocola has a real challenge on his hands.

Meanwhile, in Indiana’s 8th and 9th Congressional races you have challenges that were always expected to be competitive. The re-rematch between Sodrel and Hill in the 9th effectively pits two incumbents against each other. And, in the 8th, you have a successful, fairly conservative, Democratic Sheriff, Brad Ellsworth, running against the always unconventional and anemic fund raiser, John Hostettler.

The Louisville Courier Press has the story on the debate in the 9th District last night between Hill, Sodrel, and Libertarian Eric Schansberg. Mike Sodrel says we have no energy policy crisis while Baron Hill says gasoline costs are causing great pain to the public and we need to take steps to wean ourselves off of oil dependence. Little is likely to be done, Hill says, under the current administration led by oil men, Cheney and Bush. Schansberg wants to let markets run their course, creating innovatie ways to produce energy and lower costs.

I particularly liked Schansberg’s quote on the financial implications of prosecuting the war in Iraq:

“The choice has been made, so far, to finance it with debt,” Schansberg said. If the government “has the courage to spend money,” it should have the courage to pay for it now rather than leave the bill for future generations.

Baron Hill had this to say:

Hill criticized the Republican-controlled government for cutting taxes for the wealthy and for oil companies while hundreds of billions of dollars are being spent on the war.

“It doesn’t make sense to people,” Hill said.

Sodrel responded with statements about the importance of liberty to the Iraqi people and claims that the cost of the War in Iraq is small compared to the costs of World War II. And there, we have more evidence that we’ve gone from a National Republican Party of fiscally responsible, hard-headedly practical foreign policy to one that supports a fiscally irresponsible approach to funding an ideological foreign policy.

Hoosiers, by and large, are practical people who do not love opening up their wallets. They expect the same from their government.