Analysis: Voters are getting a phone message from President Trump in Montana, where robocalls are illegal

Rather than risk an embarrassing loss Thursday, Washington Republicans have gone all in on Montana’s special congressional election.

Numerous members of Congress have sent fundraising emails for Republican congressional candidate Greg Gianforte. Donald Trump Jr. and Vice President Mike Pence went out west this month for rallies. And in the final few hours of the race, Pence and President Donald Trump each recorded phone calls for the Republican National Committee expressing support for Gianforte.

Except, there’s one hang-up on that last outreach effort: robocalls are technically illegal in Montana, punishable by a fine of up to $2,500. How Republicans got around that ban is technically legal, even though it arguably undermines the intent of the ban in the first place. But politicians are pros at finding ways to call voters en masse: Finding ways to circumvent bans on robocalls is as old as land lines.

Some Democrats watching Thursday’s election for the congressional seat vacated by Interior Secretary Ryan Zinke were quick to seize on the robocall as another example of the Trump administration walking right up to the law and stomping on it.

But Republicans in Washington say they knew what they were doing: To comply with the law, they’re paying real people to call up potential voters and ask them if they want to hear a message from the president or vice president. The decades-old law makes a clear exception for that, Republicans point out.

That means when Montana voters’ phones ring at dinner this week, they pick up and hear actual persons introducing themselves with: “Hello, I’m so and so calling from the Republican National Committee. May I play you a recorded message from President Donald Trump about the upcoming special election?”

If the caller says yes, the call will switch over to a recording made by the president or vice president: “Greg Gianforte is running to be your next congressman, and President Trump and I need Greg working with us in Washington to cut your taxes, secure our borders and protect your Second Amendment rights,” Pence says in his call.

See? Perfectly legal. But more costly: The Republican National Committee has to pay a call center to ask voters if they want to hear a robocall.

And there’s no guarantee said person will say “yes” – robocalls are illegal because Montana voters don’t want to be bothered by them. In fact, some version of commercial robocalls are illegal in more than 40 states; at least a dozen have explicit restrictions on political calls. Congress has tried several times in the past few decades to limit the reach of robocalls.

The president isn’t the only one trying to call Montana voters despite Montana’s ban. A super PAC affiliated with Trump, Great America PAC, also recorded calls for Gianforte, including one from Wisconsin conservative superhero Sheriff David Clarke.

The group said they stayed on the right side of the robocall ban because theirs wasn’t a call at all: Sheriff Clarke’s message went straight to people’s voice mail.

But even if the president had recorded a call that rang up voters’ homes without asking permission first, he probably could have gotten away with it. Political recordings are as old as landlines, but decades later, there’s no real consensus on whether they should be allowed.

Let’s take Montana as a good example. Its robocall ban is really tough to enforce. Montana’s enforcement body on political campaigns doesn’t have jurisdiction over crimes, which the state law says a robocall is. People can call their local police and complain, but from there the police don’t have a lot of resources.

When Montana voters complained during the presidential GOP primary they were getting robocalls from Ted Cruz’s presidential campaign, all the Commissioner of Political Practices could do was shrug and say they can’t do anything about it.

“Nothing can be done,” said then-political practices commissioner Jonathan Motl. “I can’t do anything about robocall complaints.”

(The robocalls even became a political issue: Cruz’s campaign denied making the calls, to which Ohio Gov. John Kasich’s presidential campaign snapped back: “We’re doing things in the way it should be done in Montana.”)

Even if Montana officials could do something about robocalls, the caller could conceivably claim that the state’s ban is violating his or her free speech on campaigns. People in other states have tried that argument – and actually won, says Anthony Johnstone, a law professor at University of Montana and former state solicitor.

In 2010, a Republican strategist was arrested in South Carolina for making robocalls for state House races. The courts agreed with him that the state’s robo-call ban was unconstitutional.

Last July, a federal judge in Arkansas struck down the state’s ban on political robocalls, saying it violated callers’ First Amendment.

But a robocall ban in Pence’s home state, Indiana, has survived repeated freedom-of-speech challenges by political campaigns in state and federal courts. The state’s attorney general says the calls are a “nuisance” that plague Hoosiers, and in January, a federal appeals court agreed, writing:

“No one can deny the legitimacy of the state’s goal: Preventing the phone (at home or in one’s pocket) from frequently ringing with unwanted calls. Every call uses some of the phone owner’s time and mental energy, both of which are precious.”

In Montana, lawmakers seem split about whether to keep fighting robocalls that will happen anyway or to just give up and let them happen.

In 2015, a Democratic lawmaker introduced a bill to give the state’s political enforcement commission the power to prosecute robocall violators. This year, the state’s previous political commissioner suggested a draft bill to allow robocalls for political campaigns, but it never got introduced.

In other words: In the middle of a heated election, Montana voters may not want to hear politicians call them up. But there’s nothing they can do to avoid getting calls from the president anyway.