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Bass campaign attorney: State ‘push poll’ law does not apply to elections for federal offices

Senior Political Reporter

January 07. 2014 7:00PM

CONCORD -- An attorney for former U.S. Rep. Charlie Bass 2010 campaign committee argues in newly filed court papers that the state has no authority to regulate the polling activities of those involved in campaigns for federal offices.

Charles Douglas, representing the Bass Victory Committee, filed a response last week to the state Attorney General’s October brief with the state Supreme Court.

The state is appealing a Superior Court ruling last June that dismissed a civil charge that Bass’s 2010 campaign committee violated the state’s push poll law in that year’s 2nd District U.S. House campaign. The court has yet to schedule oral arguments in the case.

The Attorney General argued 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 Attorney General said that because the federal law does not specifically address polling, the state is free to step in and do so.

But Douglas wrote that Superior Court Judge Richard McNamara correctly pointed out that the federal law governs how campaign funds are spent in federal elections and that polling is one form of an expenditure.

“The plain language of the Federal Election Campaign Act’s express preemption provision makes it clear beyond any reasonable argument that Congress intended for (the federal law) to ‘occupy the field’ with regard to all elections for federal office,” Douglas wrote

Douglas wrote that the federal law “overrules all state laws that impact campaign disclosures, receipts of funds, and expenditures of funds for campaign purposes.”

Polling falls under the purview of how campaign funds are spent, Douglas argued.

The State Legislature, meanwhile, has been working to revamp the state’s push poll law to more clearly define a push poll and distinguish a push poll from “bona file survey and opinion research.”

But the bill, scheduled to be taken up by the House on Wednesday, continues to attempt to regulate candidates for federal offices and, if passed by the House and Senate and signed into law by the governor, will clearly be affected if the Supreme Court eventually rules in the Bass committee’s favor.

The Attorney General’s Office’s decision to appeal McNamara’s decision appeal was significant because campaigns for the U.S. Senate and U.S. House are gearing up.

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 the past.

The case began in April 2012, when the Attorney General charged the Bass committee violated the state law’s requirement that those who conduct push polls must include a disclaimer in the polling script.

The state 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 Republican 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 Douglas, first argued that the calls in questions were not push polls, but were rather a “legitimate message testing” survey.

He also argued that even if it were a push poll, the state law applies only to state elections, such as such as governor, Executive Council and state Legislature, while federal elections are governed by the federal law, which have no disclaimer requirements.

Superior Court Judge McNamara sided with the Bass committee 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 in 2012 at the request of the national Democratic polling firm Greenberg Quinlan Rosner.

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.”

Judge McNamara wrote that while advisory opinions are not binding, in this case he was persuaded by what he called the FEC’s “remarkably consistent” reasoning.

Douglas’ brief argues  that the FEC has been “consistent and persuasive” in several opinions on similar cases and as a result “should be considerable deference and persuasive weight by this court.”

Attorney General Joseph Foster said in July the appeal was filed “to preserve the right of New Hampshire to govern how its citizens elect their federal officials.”

But Douglas wrote, “While the state attempts to parse out ‘disclaimers’ from ‘polling’ and ‘expenditures,’ there is simply no logic in the argument that a polling effort undertaken by a campaign for federal office does not amount to an ‘expenditure’ of federal campaign funds.”

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