CONCORD — The Attorney General’s Office is asking the state Supreme Court to rule that the state has the right to regulate how so-called “push polls” are conducted in New Hampshire elections for federal offices.
The office last week filed a legal brief in its appeal of a lower court ruling in June that dismissed a civil charge that former U.S. Rep. Charlie Bass’s campaign committee violated the state’s push poll law in the 2010 2nd District U.S. House campaign.
The brief argues the superior court judge was wrong to rule that federal campaigns are governed exclusively by the Federal Election Campaign Act, which, the judge said, preempts the state’s push poll statute. The office said that, because the federal law does not specifically address polling, the state is free to step in and do so.
The Bass Victory Committee is challenging the appeal, and has until next month to answer with its own legal argument.
The Attorney General’s Office’s decision to appeal is significant because campaigns for the U.S. Senate and U.S. House are gearing up as 2014 nears.
The state Supreme Court’s final decision is also expected to affect whether push polls are used as a campaign tool in the 2016 first-in-the-nation presidential primary campaign, as they have in past presidential primaries.
The Attorney General charged in April 2012 that the Bass committee violated the state law’s requirement that those who conduct push polls include a disclaimer in the polling script.
The law requires those making the push poll calls to disclose to those being called that the call “is being made on behalf of, in support of, or in opposition to a particular candidate for public office, identify that candidate by name and provide a telephone number from where the push-polling is conducted.”
The Attorney General charged that the Bass committee deliberately did not disclose it was one of two entities sponsoring polling calls in September 2010 that contained negative information about Bass’s opponent at the time, current U.S. Rep. Ann Kuster.
Bass, through attorney Charles Douglas, argued that the calls in questions were not push polls, but were rather a “legitimate message testing” survey.
He also argued that the state push poll statute does not apply to campaigns for federal office, such as the U.S. House, U.S. Senate and President, and only to candidates for state office, such as governor, Executive Council and state Legislature.
Joining the case on Bass’ side were two national groups, the Market Research Association and American Association of Political Consultants, which were concerned about their ability to conduct legitimate political and public opinion research during federal campaigns in New Hampshire.
Superior Court Judge McNamara sided with Douglas and the groups in ruling that the Federal Election Campaign Act supersedes state law in elections for federal office. He dismissed the state’s civil charges against the Bass committee.
McNamara cited a Federal Election Commission advisory opinion issued specifically on the Bass case last year at the request of the national Democratic polling firm Greenberg Quinlan Rosner, which is now the pollster for Sen. Jeanne Shaheen’s reelection campaign.
That FEC opinion said, “The New Hampshire statute requiring disclaimers on certain telephone calls is preempted by the (Federal Election Campaign) Act and (FEC) regulations with respect to the proposed telephone surveys made on behalf of federal candidates, their authorized committees or other federal political committees that refer only to candidates for federal office.”
The judge wrote that while advisory opinions are not binding, in this case he was persuaded by what he called the FEC’s “remarkably consistent” reasoning.
Attorney General Joseph Foster continued the state’s pursuit of the Bass case after succeeding Michael Delaney earlier this year.
Foster said in July the appeal was filed “to preserve the right of New Hampshire to govern how its citizens elect their federal officials.”The Attorney General’s brief, filed last Tuesday, argues that the federal campaign law does not “preempt this area of legitimate state authority” and “does not regulate polling activities conducted by federal campaigns.” It argued the state can legally step in and do so.
The brief cites an FEC ruling in 2009 that said the federal election law “does not impose disclaimer requirements upon polls, survey research or anything of the sort,” but instead applies to “general public political advertising.”
The brief says, “Where disclaimers in federal campaign polls are not subject to federal regulation and (the Federal Election Campaign Act) evidences no intent to regulate campaign polling, the federal preemption doctrine compels the conclusion that polling activities constitute an area of state authority.”
Even if Congress intended that polling in federal elections be entirely unregulated, the Attorney General argues, “such an intent must be reflected in the statutory scheme.”
Since it is not, the AG’s office said, “the trial court was not free to set aside the statute.”The Attorney General also took issue with the superior court’s finding that push polling is a campaign expenditure, which are subject to federal regulation.
The lower court said push polling is an expenditure “because the campaign must expend funds in order to conduct the activity” and noted that because the federal law regulates disclosures along with campaign expenditures, federal law preempts state statute’s attempt to apply an additional disclaimer requirement on those expenditures.
The Attorney General’s brief said such reasoning “does not provide sufficient basis to overcome the strong presumption against preemption.”
The current state law is undergoing a re-write by the House Election Law Committee. Although the committee is considering changes to the definition of a push poll, it continues to require a disclaimer and continues to assert state control over how push polls are conducted in campaigns for federal office.