Republicans are crying foul over a series of weekend phone calls by the West Virginia Democratic Party.
The automated calls accuse accuse Republican gubernatorial candidate Bill Maloney and the national Republican Governors Association of throwing state Republican lawmakers “under the bus.” The RGA has released two ads attacking Democrat Gov. Earl Ray Tomblin for votes on bills that Republican legislators also supported.
But the Democrats’ attempt to point out hypocrisy may have entangled the party in another dispute. The calls, personally recorded by party executive director Derek Scarbro, do not indicate the party is responsible for the calls.
That may violate federal telecommunications law. A recent Federal Communications Commission advisory on robocalls says such calls to landlines are legal but they must “state clearly” who is making the call and provide other information. The Democratic Party’s calls gave no indication who made the calls.
Democrat Chairman Larry Puccio said before it made the calls the party ran its plan by Secretary of State Natalie Tennant, a Democrat. An email exchange between Scarbro and Tennant’s elections manager do indicate Tennant’s office gave the party an all clear before the party made its calls on Sunday.
Scarbro sent elections manager Dave Nichols an email at 3:14 p.m. on Friday. The subject line was “robo disclaimer” and the text was simply, “Any guidance on that?”
Nicholas replied eight minutes later.
“A requirement for disclaimers on phone banks was struck down by (U.S. District Court) Judge (Thomas) Johnston,” he said, a reference to this case, brought by conservative groups against the state. ”We believe robo calls to be essentially the same as a phone bank. So we do not believe a disclaimer is required.”
The Republican Party filed a complaint on Tuesday with the Secretary of State’s Office arguing the Democrats violated state law. It did not mention FCC rules.
But it’s not clear if Tennant’s office or the Democratic Party considered possible federal implications. Asked about the FCC guidance, the party pointed to two Republican Party robocalls from previous election cycles. One was recorded by previous GOP Chairman Mike Stuart the other by current Chairman Conrad Lucas.
Both those GOP-backed robocalls identified the party as the origin of the call — something the Democrats did not do on Sunday –but neither call included a return phone number, something the FCC also requires.
The Democratic Party released a second statement Wednesday in response to questions about the FCC guidelines.
“We acted responsibly by contacting the chief elections officer for the State of West Virginia prior to making any calls,” the statement said. “We received from the Secretary of State’s Office information that a federal judge ruled that no disclaimer was required for robo calls and followed that guidance accordingly. We agree with the Secretary of State’s interpretation of that federal ruling.”
Maloney’s campaign said Democrats are “breaking the law and viciously attacking” Maloney out of desperation.
“Earl Ray’s cronies will do anything to keep Earl Ray in the Governor’s Mansion where he can help give millions of dollars to his family and special deals to his lobbyist friends while our jobs disappear,” Maloney campaign manager Seth Wimer said, referring to Gov. Tomblin.
An FCC spokesman and a spokesman for Tennant did not immediately respond Wednesday morning to calls seeking comment.