HELENA — If you think a law's unconstitutional, ignore it. Defy it. Flout it. Take the law into your own hands.
These are the weird messages coming from two otherwise law-abiding Montanans, state Auditor John Morrison and state Senate President Jon Tester. They are the top Democrats trying to unseat Republican U.S. Sen. Conrad Burns in 2006.
Both Morrison and Tester admitted to the Bozeman Daily Chronicle last week they are soliciting donations for their respective campaigns through prerecorded telephone messages, despite a 1991 state law specifically forbidding the practice.
"It's a free speech issue,'' Tester told the Chronicle.
"How can you tell people they can't communicate with voters about issues in the democratic process?'' asked Morrison.
The law prohibits political campaigns from using these prerecorded telephone messages and provides that violators can be fined up to $2,500. It's up to local authorities to enforce the law, or—more accurately—ignore it. Despite the thousands of prerecorded calls made in Montana political campaigns since then, no one has ever been charged with breaking this law.
Unlike the annoying telephone solicitations from long-distance companies and other businesses and charities that use real live people, the equally irritating ones from candidates feature recorded messages from the pols themselves. They plug their campaigns and solicit our cash.
It's a cheap way for campaigns to raise money or send out a message. They send huge batches of phone numbers to out-of-state outfits. These businesses in turn make thousands of prerecorded calls relatively cheaply to Montanans through a sophisticated computerized dialing device. If it didn't work, campaigns wouldn't do it.
Toward the end of every campaign season, Attorney General Mike McGrath dutifully issues a press release that says: "I'd like to remind people that Montana law specifically prohibits using automated phone systems and recorded messages for any use related to a political campaign.''
Everyone looks the other way as Montana politicians, the odious in-state and out-of-state 527 campaign groups and others make their illegal prerecorded phone calls and defy Montana law with impunity.
The election takes place. Then it's on to the next political cycle, and campaigns once again ignore the law. It's a game without an end.
Morrison and Tester each told the Chronicle that this law violates candidates' freedom of speech to communicate with voters.
Perhaps it does.
Yet both Morrison and Tester, like every other state and local elected official, took oaths of office when they were sworn in pledging to uphold state laws and the Montana Constitution, not just the laws they like.
If they believe it's unconstitutional, why haven't Morrison or Tester taken any action? Why doesn't Morrison, a lawyer, go to court to challenge the law? Why doesn't the Montana Democratic Party, or the Republican Party for that matter, ask a district judge to declare the law unconstitutional.
Why didn't Tester, a lawmaker for four sessions, sponsor a bill to repeal an unconstitutional law? Or why hasn't the Democratic Party asked a legislator to drop in a bill to dump the law. Or why haven't Republicans?
The Montana Republican Party's executive director, Chuck Denowh, said Morrison and Tester should obey and respect the law, even if they think it's unconstitutional.
If the Republican Party wants to make a case of it, why doesn't the GOP gather the prerecorded calls from people's answering machines and give them to a friendly Republican county attorney to prosecute Morrison or Tester or other apparent scofflaws?
The dirty little secret, of course, is that campaigns from both sides at least some of them — have used these prerecorded calls in the past. That, of course, doesn't make these calls right or legal.
A spokesman for Burns said the senator hasn't used the prerecorded messages in the past and won't do so because it's illegal.
Yet the 527 committees that want to help re-elect Burns will use the prerecorded calls to trash Morrison or Tester, just as those groups wanting to oust Burns will use these calls to vilify him to help the Democratic nominee. Of course, these snarky 527 committees supposedly cannot have any links to the candidates' campaign. Right.
Either the law should be tested in court or repealed.
At the very least, we should expect our candidates to follow the law. And at the very least we should expect our state laws to be constitutional. Something has to give.
Charles S. Johnson is chief of the Lee Newspapers State Bureau in Helena. He can be reached at (800) 525-4920 or (406) 443-4920. His e-mail address is email@example.com