How unsolicited text messages were sent to Hoosiers to put pressure on Sen. Joe Donnelly

WASHINGTON — Jeff Gleason of Fort Wayne, Indiana, was surprised when he got a text Tuesday encouraging him to call Sen. Joe Donnelly in support of President Trump’s newly-announced Supreme Court nominee.

The text seemed odd because Gleason, who works for the steelworkers union, doesn’t like what he’d heard about Judge Brett Kavanaugh’s record on workers’ issues, so he wasn’t sure why he was getting the prompt.

Gleason was even more confused when he called the phone number that appeared to have sent the text — and got a recorded message from Donnelly thanking him for calling his Senate office.

“I was shocked,” Gleason said. “I knew Sen. Donnelly hadn’t released a position.”

The text hadn’t, in fact, come from Donnelly’s office, but from the Judicial Crisis Network, one of the conservative groups campaigning for Kavanaugh’s confirmation.

The texts may have violated federal laws against spam texts or against caller ID “spoofing,” said Margot Saunders, senior counsel for the National Consumer Law Center.

People can’t receive automated texts without their consent, although Saunders said recent court decisions have muddied the waters about what qualifies as an automated call or text.

“The $64 million question is, `What is an automated telephone dialing system?’” she said.

The Federal Communications Commission is now in the process of coming up with the answer.

Carrie Severino, chief counsel and policy director for the Judicial Crisis Network, said the texts were not automated, but sent manually.

“JCN fully complied with the law,” Severino said in a statement. She said people could opt out by replying to the text, and about 2 percent of recipients did.

Her statement did not address how the use of Donnelly’s phone number in the text message got around a ban on inaccurate or misleading caller identification information. The law prohibits someone from displaying a misleading ID “with the intent to defraud, cause harm, or wrongfully obtain anything of value.”

A scammer, for example, might appear to be calling from city hall when telling a target he owes back taxes.

Saunders said she views the Judicial Crisis Network’s text as violating the anti-spoofing law. But someone could challenge whether the group’s texts show an intent to defraud the recipient of something valuable.

“I would argue that it would, but I can’t say it’s a slam dunk,” she said.

Will Wiquist, a spokesman for the Federal Communication Commission, said he can't comment on the legality of the messages.

"Should consumers file complaints with the commission, we will of course review those," he said.

In addition to the text messages, the Judicial Crisis Network is putting the heat on Donnelly through advertising. The group is spending $1.4 million in national cable and digital ads in Indiana and three other states.

Judicial Crisis Network praises Kavanaugh as a “conservative who will uphold the Constitution.”

Donnelly is a target of groups both supporting and opposing Kavanaugh’s confirmation because he’s up for re-election this year and is one of only three Democrats who voted for Trump’s first Supreme Court nominee, Neil Gorsuch.

Donnelly has said he will "carefully review and consider” Kavanaugh’s record and qualifications. He’s also said that his view of whether Kavanaugh would protect people with pre-existing conditions will be a “central part” of his decision on whether to vote for him.

Demand Justice, a liberal group that opposes Kavanaugh’s nomination, plans to run ads in Indiana urging Donnelly "to stay strong" in this fight and praising his past support for protecting the ACA. The Obama-era health care law faces a fresh legal challenge aimed at unraveling the measure's protections for Americans with pre-existing conditions, and that case could soon land before the high court.

Contact Maureen Groppe at mgroppe@gannett.com. Follow her on Twitter: @mgroppe.

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