by Ralph Nader
September 30, 2003
This week the American people were given a highly publicized free lesson in how they can become powerful against dominant corporate interests. It was the swirling dynamics around the Do Not Call registry established by the Federal Trade Commission which drew over 50,000,000 people in a matter of weeks who don't like to be bothered by telemarketers while they're eating dinner.
The events started on September 23rd when a federal district court judge, Lee R. West, ruled that the Federal Trade Commission did not have the legal authority to set up such a system. Members of Congress went, as they say, ballistic both as Republicans and Democrats. Back in February, 98 percent of the Congress voted to fund such a registry that they thought was already authorized in previous legislation. The reaction to Judge West's decision was bipartisan. The message was that this decision will not stand.
In little more than 24 hours, Congress overwhelmingly passed what Rep. Billy Tauzin called "This Time We Really Mean it Act." The vote was 412 to 8 in the House and 95 to 0 in the Senate. President Bush said he would sign it immediately.
It is fascinating to watch legislators turn away from their usual corporate grips when they hear the growing thunder of the people. Bill Tauzin, a certified cozy corporate carnivore in most instances, trumpeted "Fifty Million Americans can't be wrong." He should have added "who spoke out," for he has been ignoring the subdued wishes of tens of millions of Americans on many other subjects that have come before his Subcommittee and his own vote.
The powerful telemarketing industry whose campaign contributions and allies in Congress have made it a force to be reckoned with was also overwhelmed by the vote. It is in a bind. On the one hand, it doesn't want to appear too aggressive in taking away the right of the people to register "do not call,"; on the other hand it wants to over-turn the FTC rule in court. Hours after the Oklahoma decision was countered by Congress, a federal district court in Denver ruled that the Do not Call Registry violated the telemarketing companies' (who are not real persons, we should remember) constitutional right of free speech. Judge Edward Nottingham ruled that the FTC burdened the commercial speech of the telemarketing companies by not applying the Do Not Call rule to non-profit solicitation such as those of the Red Cross, colleges, or public television. That burden he said was significant enough to violate the First Amendments speech right of these corporations.
There are two problems with the Judge's reasoning. First, the FTC has no jurisdiction over many non-profit group activities, so it could not adjust to his ruling even if it tried. More important, the courts have distinguished, though less than before, between the constitutional protection of commercials speech and what the attorneys call political speech -- regular conversations. In a word, commercial advertisements or marketing talk are given less protection from regulation, especially when consumers don't want their privacy invaded.
The Supreme Court has already allowed consumers to block so-called junk-mail. People can put a no-solicitation sign in front of their house. Constitutional law specialists think the Direct Marketing Association -- one of the plaintiffs -- will not likely over-turn the FTC rule on appeal.
Meanwhile, Congress is trying to figure out what to do when a court raise a constitutional issue -- usually reserved for the courts -- in time for the October 1st deadline for the Do Not Call Registry to go into effect.
Feeling the public's heat, the Direct Marketing Association on September 26th advised its members to respect the national "do not call" list despite the two court rulings in its favor. Someone's getting smart. Corporate free speech does not extend to unwilling buyers who have registered their desire to keep the calls from coming to their homes.
All in all, the lesson is that should many Americans devote a tiny amount of time to convey their desires or displeasures, the thunder from that large community is heard in Washington. Civic morale in America should grow and give people a better feeling that when they act, they make the difference.
Ralph Nader is America’s leading consumer advocate. He is the founder of numerous public interest groups including Public Citizen, and has twice run for President as a Green Party candidate. His latest book is Crashing the Party: How to Tell the Truth and Still Run for President (St. Martin’s Press, 2002)