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Libertarian’s Lose Their (Commerce) Claws
Tuesday, July 1st, 2003So it seems that blogosphere libertarians are willing to part ways with principle if it means sparing themselves of the burden of unwanted phone calls from telemarketers.
Pretty disappointing. I’d expect National Review conservatives to eat the Commerce Clause when it’s convenient for them — they were never principled federalists to begin with.
But libertarians?
On this site, the otherwise very bright Jane Galt wrote in the comments section:
Perhaps I’m not a real libertarian. But telemarketers impose substantial costs on the 99.999% of people who don’t want to buy their crap in order to reach the one person who does, with all the benefit accruing to the telemarketer. They also take pains to hide their identities in order to facilitate their ability to disturb us. And the relatively low transaction costs enabled by dialing technology make a market solution unlikely.
Sounds like a call for a federal ban on spam, too, doesn’t it? Jane goes on:
Are you opposed to laws that, for example, forbid your neighbor from lighting up the neighborhood with a rock concert at 3am? There is a legitimate libertarian case for limiting negative externalities such as the waste of time represented by telemarketers. Especially since this list is totally voluntary — the telemarketers are not being allowed to call people who’ve said they don’t want to be called. Are you saying that the telemarketers have some sort of God-given right to call people who don’t want to talk to them?
A few points:
1) I don’t dispute that telemarketers are annoying, or that they’re a waste of time, or that — at least arguably — because they can insert themselves into our homes, they’re distinguishable from case law protecting commercial speech. My argument is that this is a state and local issue, and that there’s no constitutional justification for federal involvement.
Let each state set up its own rules for telemarketers (as each was already doing), then those of us for whom telemarketers are a such a problem can choose to live in states with the strictest don’t call laws. Sure, 50 separate sets of rules are a pain in the ass for telemarketing firms, but such is the cost of business in the telemarketing industry. Frankly, I see the federal don’t-call list as a boon to telemarketers — they only have one list and one set of rules to comply with now, instead of fifty.
2) If Jane’s asking if I’d be opposed to a federal law banning rock concerts in residential areas, the answer is an unmitigated yes. Nuisance laws are the purview of state, if not local government. That aside, I’m not sure my neighbor’s pumping high-decible Linkin Park into my living room represents the same level of nuisance as, say, the Fraternal Order of Police soliciting a donation with a phone call at dinner time. I can screen calls. I can get rid of my land line and rely on a cell phone. I can chose not to answer the phone. Some call screening devices even allow you to block all but a series of phone numbers you enter into the system.
3) As for telemarketers having a right to make pitches to people who don’t want to talk to them, no, of course I don’t think they have such a right. But I’m not sure you or I have a right not to hear from them, either — so long as we’re utilizing shared utility wires. Should we have a federal law banning pop-up Internet ads, too? And it’s certainly not a right that should be enforced and protected by the federal government. The Constitution protects us from government infringing on our rights, not businesses. In choosing to have a telephone, you choose to make yourself available to telephone calls. I just don’t see any Constitutional justification for a federal right to be free of commercial solicitations. And I can’t see any interpretation of the Constitution libertarians can invoke to enforce such a right that doesn’t force them to acknowledge a bevvy of other Commerce-Clause generated federal intrusion into the private sector.
That brings me to my next libertarian-gone-wayward, wunderkind Julian Sanchez. Over at Hit & Run, Julian rather casually dismisses my criticism of the don’t-call list as “the typical libertarian response.”
“Typical,” perhaps. But how about principled, too?
Julian writes:
So what about the fact that it’s being done at the federal level? Well, the Interstate Commerce Clause is probably the most abused and misused portion of the Constitution, but this seems to at least arguably fall within its proper scope. Phone networks obviously cross state lines, a solicitation is commerce, and it seems one could make an argument that a system of 50 different lists and 50 different sets of rules would be unwieldy, conditions which suggest that the federal power “to regulate commerce between the several states” could be legitimately invoked.
I’m hoping Julian’s being contrarian for effect, here. Surely he can’t really believe this.
Nearly every libertarian constructionist interpretation of the Constitution I’ve read says that the intent of the Commerce Clause was to facilitate commerce between the states, not to inhibit it. It was meant to set up a kind of “free trade zone” between the states. So if Mississippi, for example, wanted to tax every boat carrying cotton not grown in Mississippi traveling down the Mississippi River, Congress would have the authority to intervene. I’ve never read a libertarian interpretation of the Commerce Clause that says it should be interpreted to mean that Congress can tell businesses how they can or can’t solicit customers.
In fact, most libertarians agree that the only Supreme Court case to correctly interpret the Commerce Clause was the very first to come across its desk — Gibbons vs. Ogden in 1824. There the Court struck down a New York law attempting to establish a monopoly on steamships traveling between New York and New Jersey. Chief Justice Marshall recognized that the Commerce Clause applies only to the trafficking of goods between two or more states, and also that Congresss had no power to regulate commerce within a state (he refused to allow Congress to enforce quarrentine laws before or after a steamship docked within a particular state, for example).
Of course, the Commerce Clause was subsequently broadened and abused in virtually every case thereafter, at least until the famous Lopez and Morrison cases decided by the Rehnquist court — though even those merely stopped the bleeding, and did little to roll back the 150+ years of damage.
What’s interesting is that for libertarians to support the don’t-call list, they’d have to subscribe to a theory of the Commerce Clause that’s not once, but at least twice evolved from original intent. The second round of Commerce Clause cases of course again broadened federal regulatory power, but only applied it to the trafficking of goods — to waterways and railways, for example — but not to the actual manufacture of goods, and certainly not to the means a business might use to promote and market itself.
It’s been three years since I took Con Law, but if memory serves, you’d have to wait for the New Deal cases for the Supreme Court to pry the Commerce Clause open wide enough to allow for federal regulation of telephone solicitations.
It’s disheartening to see libertarians abandon the most limiting interpretation of the Commerce Clause simply because on this particular issue, the industry being regulated happens to be one we find unsavory. Once you concede that the Commerce Clause gives the federal government the power to regulate the interstate (and, for that matter, intrastate) solicitations of telemarketers, I’m not sure you can convincingly draw a line designating where that power stops. How can you then say the federal government shouldn’t be granted the power to regulate spam? The Internet?
How can you say, then, that Congress doesn’t have the Constitutional authority to regulate the airlines, broadcast media, or any business, really, that has franchises in more than one state, or that does business with other businesses in more than one state, or that does anything at all that even remotely affects commerce in more than one state?
As early as 1942, the Supreme Court ruled in Wickard vs. Filburn that our economy was so interconnected that the Congress could, under the Commerce Clause, tell a man how much wheat he was allowed to grow on his own land, for his own comsumption — because any wheat he grew and ate on his own was wheat he failed to buy off the market.
Today our economy is infintely more interconnected than it was in 1942. Every commercial transaction you make has repercussions that cross state lines. Allowing the Congress any power beyond what Justice Marshall gave it in Gibbons seems to me to be a concession liberty lovers can’t afford to make.
Amen, Radley.
Despite whether or not all of this is the government’s business at all, it’s certainly NOT the federal government’s business.
Could not have said it any better myself, but I did try.
First, as to your commerce clause discussion, telemarketing calls present constant interruptions for many and can affect individual and corporate productivity, and therefore could have a negative affect on commerce.
I think there is enough there for a court to reasonably uphold this law without abusing the “true” intent of the commerce clause.
Also, as to your suggestion that this type of restriction should be in the purview of states and municipalities, there would likely be significant and potentially insurmountable jurisdictional and enforcement hurdles to accomplishing this at the state level.
However, constitutional yes, practical and life-improving, yes, libertarian, probably not. It is annoying when people try to impose rationalizations on things to fit in a certain framework, and don’t just admit - this framework is not perfect. There are exceptions.
I think it is possible to be a libertarian, and a “principled” one at that, still see where exceptions to the strict definition are appropriate and a good thing. I am confident that libertarian change will make this country better, especially if it is gradually and thoughtfully implemented. But, this do not call list is the kind of exception to the rule that, when you weigh the costs and benefits, just makes sense.
one more thing - the loud music/lights nuisance thing is definitely appropriately dealt with by state/local nuisance laws. it is a totally local and contained problem - in very few places does this kind of nuisance cross state lines. much of the time, telemarketers are calling from out of state.
Rad, I need some clarification. When the LP stamped itself with the catchphrase “The Party of Principle”, it didn’t really explain WHOSE principle.
So, by whose “principle” is Jane Galt acting in an unpricipled way?
And much more to the point, what quality does this principle or set of principles have, that you would judge others so harshly and self-righteously by it? What gives this principle its clear and obvious correctness to you?
Thanks in adv. - Tony Shepps aka Undertoad.
I believe that the question is whether or not calling someone is a violation of their property rights. If someone came to your house and rang your doorbell, surely they would be stepping on your property, but custom has evolved that we do not consider it a violation of property rights.
If, however, they incessantly and without welcome rang your doorbell many times a day, can a case not be made that the they are violating your property rights?
And if so, can a case not also be made that telemarketers are violating your property rights?
Radley, I wish you would fix the missing scrollbars in the comments window (this is under mozilla). I’m tired of selecting text in order to scroll down. I’ve never seen this problem in any blog comment windows before yours. I apologize for the off topic post, please delete it if it bugs you.
Radley,
If you want to be principled, then your stance would need to be that neither the federal goverment or state/local goverment should regulate telemarketers.
Shouldn’t Libertarians argue that there is no reason that a “National Don’t Call List” needs to be handled by the goverment at all. It doesn’t take a lot of thought to realize that this list is GOOD for telemarketers. It saves them valuable time they would otherwise waste calling people who clearly don’t want to be solicited and won’t buy what they’re selling. The telemarketers themselves should have set up this list ages ago.
And dare I say it, why have the trial lawyers dropped the ball on this one. Everyone agrees that repeatedly calling someone over and over again is an infringement of property rights. It wouldn’t take that much effort to create a class action lawsuit against the largest and worst offending telemarketers. Why hasn’t this occurred?
Well, like it or not, I’m for it, and here’s why:
This list is the equivalent of a “No Solicitation” sign in your front yard. Such a sign superceds the “Doorbell clause,” letting door-to-door folk know that you do not wish their intrusion.
Part of the problem with your arguement that you seem to miss (or avoid), Radley, is that one state cannot enforce its laws in another. So if I am signed up on a no-call list in Georgia, ans a company based in Tennessee calls me, the laws regarding the no-call list are unenforceable there.
Finally, Radley, this has happened because the industry in and of itself has failed to regulate its own intrusive behaivior. Had the telemarketing industry had its own no-call list, voluntarily complied with, that worked even 75% of the time, this law would have never been brought up. They failed, and now they have to face the music.
The national “do not call” list is, quite frankly, unnecessary. The whole issue can be avoided merely by refusing to put in a phone. Land-lines are really rather pointless once you have a cell phone. I receive no telemarketing calls on my cell phone (and honestly if a number I didn’t know appeared in my caller id window, I wouldn’t answer anyway).
Back in the dark ages when I owned a land-line phone and I received a telemarketing call, I would either not answer or would tell them to put me on their “no call” list. If they continue to call despite having been notified that I do not wish to receive a call, then this behavior constitutes harrassment, for which there is already a means of redress.
Not the federal government’s business.
Getting a cell phone isn’t necessarily a solution. I get telemarketer calls on mine. There may be some law prohibiting solicitations to cell phones, but well, that pretty much puts us back at square one in this debate. It’s an interesting side issue, though: Where would Radley stand on telemarketing if phone service we priced by the call and paid by the number holder? Marketers cost me scarce cell minutes, which is the main reason I’m so angered by them. Or what about the solicitation by fax issue, where fax spam can run through a ream of paper every night?
Let’s further assume that a patchwork of state and local regulations proves unworkable because Mississippi decides to be “The Telemarketer State”. As call costs fall, it’s not hard to imagine a world where cell phones and faxes are radically less useful technologies because of junk sellers. Would there be a legitimate role for the feds at that point to help “regulate” commerce, in the libertarian sense of “making regular”?
Right on, Radley. Very well articulated.
I think you didn’t call sufficient attention to the fact that existing harassment laws can be used to combat this problem without federal lists or regs. If a salesperson comes to your door once with a sales pitch, that’s really not harassment, and there’s nothing you can or should do about it. If the salesperson keeps coming back day after day, that’s harassment, and you document it and sue the company that sent the guy out. Where’s the line between legitimate sales and harassment? Well, that’s a matter for the courts– the line is defined by precedents set in common law.
Similarly for telemarketers. The libertarian way to respond to harassing phone sales pitches is to document them, get together other people who’ve been harassed, and bring a class-action suit against the companies that make the harassing pitches. If enough people do this, it will deter abusive telemarketing. This approach is slow and unwieldy and uncertain in its effectiveness, true– but it’s the Right Thing To Do ™, and doesn’t have the unintended consequences of the quick-fix federal solution.
I like the cell phone argument myself. Most of the time, they are cheaper, they get free long distance, and they don’t get telemarketing calls. Plus, if they do, they are unavailable. I leave this disclaimer on my voicemail-”This is Travis, blah blah blah, If you are unavailable meaning your number doesn’t show up, then so am I. Don’t call back until you get to a phone where you’re not trying to hide something…..beep”. It eliminates those ridiculous calls and if a friend calls from an unavailable, they then leave a number where you can get back to them.
I love the people who hate the calls so much and are worried about losing minutes on their cell phone or hassling with the guy on the line. The first thing I do when someone starts their pitch is to tell them that I’m not interested and to not call back. I then hang up. Usually about one of these calls get through a week, and it takes me
Sorry, I must have deleted some from the end of my post, so here ya go…
Bart, you said it best. This is great for the telemarketers, instead of having people hang up on you and say rude things to you, the person you call next might actually not mind a pitch. Granted, I don’t think that’ll be a ton of people, or just those who don’t get around to adding their number to the list. I guess I am way out of the loop, I don’t care that the government is involved and telling me I have an option to say I don’t want a specific group of people calling me, they are not FORCING it on me, it remains an option. Yes, it could open the door to future decisions that the government might make for me, that might not be an option. But for once, I choose to believe that the do not call list is a good thing, for all parties involved. Christ, just pay the $5 a month to Verizon and get Call Intercept….I’ve not had one telemarketer in the 6 months I’ve had it. Should I have to pay Verizon to keep people from calling me, no, but I do, and also added my name to the list for extra measure. Sometimes a cigar is just a cigar.
People on Hit & Run were crowing with cleverness over their suggestions to just ditch landlines altogether to get rid of telemarketers. Is this actually a palatable option for that many people? Are you all urban flatlanders with broadband, or what?
The reason that the FCC and the FTC became involved in telemarketing was a response to fraud. A DNC list has nothing to do with fraud and fair trade. Of course the government has expanded its “responsibilities” within this issue to be the overlord of all that occurs. Who can be happy with ever increasing regulations from the federal government on the business sector? But I’m sure there is enough loopholes for politicos and big business to continue calling at will.
Here’s a tip, too busy to answer the phone? don’t. Don’t like who is on the other end of the call when you do pick up? hang up.
Works for me everytime.
A federal government solution imposes the infamous one-size fits-all on everybody.
An advantage of a federalist system is that states can experiment with these types of issues, including doing nothing, similar to how market competition and choice operates for private sector goods.
Two-faced libertarians?
One difference between telemarketing and junk e-mail is that e-mail is processed and carried almost entirely outside the realm of government regulation and restriction in a highly competitive market with multiple service providers available to any given customer. Already ISPs are advertising SPAM screening/blocking services as incentives to potential customers.
Contrast that with heavily regulated telephone service providers who, with complete government approval (if not complicity), sell auto dialing services and caller ID blocking to telemarketing companies and then turn around and sell call screening gimmicks to those who don’t want to receive those telemarketing calls. Their justification is that they cannot impose restrictions without violating First Amendment rights.
So are libertarians really behaving under a double standard by supporting the do-not-call list? Maybe they are under these circumstances, but if you were to ask whether they would prefer the present system with the do-not-call list over a system completely free of government control, I think they would choose the latter. What’s more, the internet is living proof that current technology obsoletes the argument for the government to control telephone service through monopoly grants and “public service” commissions as they once thought necessary.
And this is hardly the only case where government control results in the need for further government control to fix the resulting problems. Public utility regulations are founded on that very principle.
The Registry and the Commerce Clause
In addition to Brian’s entry below about the inherent problems associated with a centralized ’solution’ to unwanted telemarketing calls, there has been some thoughtful writing on the Constitutional legality of the Registry, specifically dealing with th…
The Registry and the Commerce Clause
In addition to Brian’s entry below about the inherent problems associated with a centralized ’solution’ to unwanted telemarketing calls, there has been some thoughtful writing on the Constitutional legality of the Registry, specifically dealing with th…
Oh please! This is ridiculous. The only thing wrong with the national Do Not Call list is that it doesn’t apply to everybody. I pay my own phone bill and I shouldn’t be forced to receive calls from people I don’t want to talk to. I have an answering machine which I use to screen calls but if other people don’t like this option I support their right to have other options.
I really can’t understand why the telemarketers are so against this anyway. I would think it would be to their advantage to know who doesn’t want to receive their calls so they would know not to waste their time on those people.
Telemarketers are paid to make the calls they could care less if you buy the product.
Libertarians and the do-not-call list
Henry Farrell at Crooked Timber has a lengthy response to Tyler Cowan’s (Volokh Conspiracy) libertarian counter-argument against the federal do-not-call list; Will Baude (Crescat Sententia)…
RIGHT BACK AT YA, RADLEY
In response to my Tech Central Station piece from last week, Radley Balko has his own piece arguing that I’m all wet. I’ll take this opportunity to respond. Radley first objects to the enactment of the legislation creating the “do…
Flag on the play - Unconstitutional conduct
The National ‘Do Not Call’ Registry was dealt a serious blow by a federal judge today, who ruled in favor of the Direct Marketing Association in blocking the DNC Registry from being implemented. The judge found constitutional questions in the…
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