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John DiStaso's Granite Status: Equipment manufacturers hire prominent NH attorney to fight dealers 'bill of rights'

By John DiStaso, Senior Political Reporter
May 01. 2013 2:25PM

WEDNESDAY, MAY 1: RETAINING VOLINSKY. The national Association of Equipment Manufacturers has hired a prominent New Hampshire attorney as it fights to remove from the so-called "Auto Dealers Bill of Rights" proposed regulations for off-road equipment, such as lawn tractors.

Andru Volinsky, of the Bernstein Shur law firm, we understand, has been retained to ensure lawmakers are aware of AEM's constitutional objections to the provisions of the bill that affect it.

Volinsky, a top constitutional lawyers in the state, will be outlining what AEM believes are "constitutional flaws" in the dealers bill.

Nick Yaksich, vice president of government and industry relations for AEM, said last month that putting his organization's manufacturers under the laws governing automobiles would be unprecedented.

AEM says almost every state, including New Hampshire, currently regulates automobile and off-road equipment separately.

AEM believes the SB 126 has constitutional issues that have not yet been considered by lawmakers and could be addressed by working with in the existing equipment dealer statute.

The full commerce committee is expected to vote a recommendation on the bill next Tuesday, May 7, according to chairman Edward Butler, D-Hart's Location.

WEDNESDAY, MAY 1: NEW HAMPSHIRE CONNECTION. There's a New Hampshire connection to the Gabriel Gomez victory in the Massachusetts U.S. Senate GOP special primary this week.

Lenny Alcivar, senior vice president of Portsmouth-based Hynes Communications is a principle strategist for the Gomez campaign.

Also Alicia Preston and Kaitlyn Smith of the Preston Group served as unsuccessful candidate Mike Sullivan's communications team.

And, by the way, Jill Neunaber, Gomez's campaign manager, was the political director for Ovide Lamontagne's 2010 U.S. Senate campaign and was deputy campaign manager for Mitt Romney's primary campaign in 2012, hired by senior advisor Jim Merrill.

WEDNESDAY, MAY 1: FISHER CATS WEIGH IN. The New Hampshire Fisher Cats on Wednesday went public in opposition to casino gambling in New Hampshire.

The minor league baseball operation said through its president, Rick Brenner, that the team attracts fans from throughout New Hampshire and northern Massachusetts, "and the additin of a casino and entertainment venue in southern New Hampshire will place our team at great risk."

Brenner said in a letter to lawmakers, "The competition for discretionary income of people in our region, in tough economic times, is not easy. When you add a casino to the mix, it becomes incredibly more difficult.

"Across the country, minor league sports teams that are forced to compete for the entertainment dollar with casinos do not fare well."

Brenner said the organization's goal since 2004 has bene to create a safe, affordable attraction for families and businesses."

He said the team's foundation has given "more than $2.5 million in cash, goods and services to thousands of non-profits.

"If a casino moves in, not only is out business threatened, but our ability to impact the community as well."

He also noted that the City of Manchester has made a "significant investment" in the team's ballpark, and, "A casino puts that investment in serious jeopardy."

TUESDAY, APRIL 30: WHAT IS, AND ISN'T A PUSH POLL? With major mid-term election campaigns on the way and the 2016 presidential primary races in the offing, state lawmakers Tuesday continued their review of legislation to tighten up and specifically define the campaign tool known as push polls.

"Push polls aren't polls at all but unethical marketing tools disguised as polls," University of New Hampshire Survey Center Director Andrew Smith told the House Election Law Committee during a public hearing on Senate Bill 196.

The bill, which passed the Senate on a voice vote on April 18, adds specific requirements to what is, and what is not, a push poll in order to try to clearly distinguish them from "bona fide survey and opinion research."

The current New Hampshire law has confused and frustrated some pollsters and campaign officials in recent years, especially after the Attorney General's Office, under former Attorney General Michael Delaney, took an aggressive stance in fining and bring civil actions against four alleged push polls that did not include the required disclosure and other automated calls.

Both push polls and bona fide research calls use positive or negative information about candidates, but a push poll is simply a "paid political advertisement" meant to sway an election rather than gauge voter sentiment and must be identified as such under the bill.

Entities engaged in true push polling must, under the bill, identify the organization making the call and the organization paying for the call, and provide a valid, current, publicly-listed telephone number for the organization making the call.

It is not illegal to conduct a push poll in New Hampshire, but the purveyors of push polls must be disclosed to call recipients, under both the current law and the overhaul proposed in Senate Bill 196.

The bill's sponsor, Sen. David Pierce, D-Etna, said Tuesday the proposal was developed in consultation with national pollsters and political consultants who are wary about doing business in the state because the current law is vague. That issue, combined with the Attorney General's aggressive stance, puts them they risk fines or potentially costly court proceedings and as a result they have threatened to stop legitimate polling in the state, which some perceive as a threat to the national attention state's first-in-the-nation primary receives every four years.

Under the bill, a push poll is newly defined as making telephone calls "as part of a series of like telephone calls that consist of 2,000 connected calls that last less than two minutes in presidential, gubernatorial, United States senatorial or United State congressional elections."

A push poll, under the bill, can also be "conducting such calling as part of a series of like telephone calls that consist of 500 connected calls that last less than two minutes in executive council, state senate, state representative" or local elections.

The bill further specifies that a push poll is calling for purposes other than "bona fide survey and opinion research."

If then defines "bona fide survey" and "opinion research" as collecting and analyzing data on voters' views "in which no sales, promotional, or marketing efforts are involved" and "there is no attempt to influence a participant's attitudes or behavior."

That includes "message testing," which the bill defines as "the study for research purposes of how individuals react to positive or negative information" about someone running for office.

"This bill is meant to switch the orientation of the current push polling statute away from subjective criteria to objective criteria," Pierce told the committee.

"It does not prohibit push polling but requires disclosure if you engage in push polling," he said.

He noted the current law says a push poll is a telephone call "likely to be construed by the voter to be a survey or poll. That leaves it in the subjective mindset of the voter."

Senate Bill 196, said Pierce, "sets out some clear bright line rules" which, he said, will remove much of the discretion from the Attorney General's investigations of future push polls.

"Whether we like it or not, campaign polling is here to stay and it gives valuable information" about voter attitudes, said Pierce. "Legitimate polling should be protected."

Pierce acknowledged that there will be ways for campaigns to skirt the disclosure requirements in the bill by, for instance, making calls that last just more than two minutes in length or go to just more than 2,000 recipients.

"But we had to draw bright lines," he said, "and after consulting with polling professionals, this is the number we came up with."

Assistant Attorney General Stephen LaBonte said his office is not taking a stand on the bill but asked that a requirement be added that bona fide opinion research and message calls include statements with "a truthful element."

He said the office still has "several investigations open" stemming from the 2012 campaign. In January, the office said it had 12 probes underway of potential push poll violations.

UNH pollster Smith backed the bill, saying, "It is important to clarify what push polling is in New Hampshire."

He said the revised language of the bill "clarifies the intent without leaving it open to investigations that can be politically motivated."

The bill grew out of several actions brought by former Attorney General Michael Delaney in recent years against political campaigns and pollsters, most recently a civil action against former U.S. Rep. Charles Bass's 2010 campaign committee. That case is still in Merrimack County Superior Court.

The Bass committee is arguing in court it was not engaged in a push poll in 2010, but rather legitimate opinion research. And the committee points to an advisory opinion last year by the Federal Election Commission that the state's push poll law does not apply to elections for federal office.

Despite the FEC opinion, the new bill subjects candidates for federal office to the state law, but it is unclear if that provision would be upheld in court.

The action against Bass is the most recent development in stepped-up enforcement of the push poll law and related statutes by the Attorney General:

- In October 2010, polling company Mountain West Research reached a $20,000 civil settlement for an improper poll made on behalf of Democrat Paul Hodes' campaign for the U.S. Senate.

- In August 2011, the state Democratic Party paid a $5,000 fine for pre-recorded political messages made on behalf of the party that the Attorney General did not properly identify who paid for the call.

- In January 2012, OnMessage, Inc., a Virginia polling firm, paid a $15,000 fine for a poll made for Republican U.S. Rep. Frank Guinta that provided neither the telephone number nor the name of the candidate on whose behalf the call was being made.

(For earlier Granite Status reports, click on "Granite Status" above.)

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