No-call battle is democracy in action

The battle over the no-call list -- which has been waged from courts to Congress to the office watercooler -- has demonstrated the strengths and the follies of American democracy.

In one of the simplest displays of democratic choice, over 50 million people signed their names to the list that would make telemarketing companies subject to stiff fines for calling their homes. That's nearly one-third of all people who have residential numbers and a loud cry for the right to privacy.

If left entirely to elected lawmakers, the list would have gone into effect Wednesday with no questions asked. But there are some questions.

Why, for example, was it so easy for Congress and the president to support the list? Before the list ever landed in the courts, elected officials had installed a safety net that allowed them to continue calling to solicit campaign funds. Then, their own interests covered, they finally did what politicians should do: They listened to the public and whipped the legislation through with no hesitation.

Then, in a textbook display of the governmental balance of power, the courts reined in the lawmakers. Federal judges do not have to answer to a restive public at the election booths every two years, so they have the luxury of being able to defend unpopular points of view. In this case, a defense of the minority position, that of the telemarketers, is a hard one to mount, but our right to a freedom of speech applies to even the most detested opinions -- or sales pitches.

Telemarketers say that the proposed list would cut 2 million jobs -- something that should give us pause in today's poor economy -- and $50 billion a year in lost sales. Also, those voices that annoy us at dinner every night are largely from the mouths of people who can ill afford to lose their low-skill jobs.

Though the courts have defended telemarketers against the tyranny of the majority, the manner in which they did so was disheartening for fans of government. First, U.S. District Court Judge Lee R. West in Oklahoma ruled against the list by pouncing on what looks like a technicality. He decided that the Federal Trade Commission was not the department that had the authority to enforce the list -- it was the Federal Communications Commission. Then lawmakers disputed the ruling, but in such befuddled terms as "we firmly believe that congress gave the FTC authority ..." from a joint statement by Billy Tauzin, R-La., and John Dingell, D-Mich.

They believe it had the authority? Does anyone there know for sure? To clarify the issue, Congress and the president passed new legislation that gave the FTC the power it needed to enforce the list. U.S. District Judge Edward W. Nottingham in Denver then declared the list unconstitutional, but his decision did not put an end to the debate.

The FTC had been selling the no-call list to telemarketing companies before the court put a damper on their operation. When it realized that the fate of do not call was uncertain, the FTC stopped selling the list and made it unavailable to companies on Sunday. Now the FCC has taken it upon itself to enforce the list but they will only be able to fine those companies that already bought it. And how will they know that a company has the list? They will just ask them. FCC Chairman Michael Powell assured us, though, that lying to the FCC could result in serious legal action. That is, assuming that other serious legal action already in motion does not make the list illegal.

In the end, the judges have had the presence of mind to take the unpopular position and check the power of the politicians, Congress exempted itself from the no-call list before throwing its full support behind it, and 50 million people spoke their minds.

Although this exercise in democracy has proved fascinating -- and, for some, irritating -- one would hope that the will of the people ultimately will prevail. And, among residents of this nation, one is hard pressed to find those who support sales phone calls.