AG: Bass campaign tried to duck responsibility for 2010 push poll against Kuster
If the state is successful in its suit, the Bass campaign could be fined as much as $400,000 for the alleged violations of the state's push poll statute. The campaign said it "strongly denies" the allegations and will "vigorously defend the suit."
It is the fourth time in the past 18 months that the Attorney General has reached settlements or initiated civil enforcement actions related to election laws on push polling and so-called 'robo' calls.
Associate Attorney General Anne Edwards said Tuesday, 'There was an attempt at settlement' in this case, 'but we couldn't come to terms.'
In a statement Tuesday night, the Bass campaign said, "The poll in question was a legitimate message testing survey, not a push poll. Our survey was the same type of message testing poll conducted by virtually every major candidate for a federal office.
"It tested voters' attitudes and opinions among a relatively small sample of voters, unlike a push poll, which targets a much larger group of voters, with the intent of negatively persuading the voter,' said Bass Victory Committee spokesman Scott Tranchemontagne.
According to the Attorney General's petition filed in Merrimack County Superior Court, the Bass Victory Committee, with the help of an outside political shop called the Tarrance Group, failed to properly identify who was paying for about 400 negative push poll calls made in the fall of 2010 against Kuster, who was Bass' Democratic opponent for the U.S. House that year and is challenging him again this year.
The Attorney General's Office charged that at the request of Bass' campaign manager, the identification of the group paying for the negative calls was changed from the 'Bass Victory Committee' to the 'National Republican Congressional Committee' because, according to an email by the campaign manager released by the Attorney General, "they (the NRCC) are paying for half of it" and:
"I'd rather have any issues about 'push polling' be blamed on them (the NRCC) rather than us _ especially with the date rape drug question in there.'
The NRCC, a Washington-based group that supports GOP House candidates across the country, later gave its approval for the disclaimer change.
The Attorney General says that 'as a result of the alleged deliberate attempt to avoid the requirement of the New Hampshire push poll law, the lawsuit against the Bass committee seeks civil penalties of up to $1,000 per call.
The Attorney General's petition does not identify the campaign manager who wrote the email seeking the change in disclosure, either in its press release or in its petition to the court.
But Edwards confirmed the person who wrote the email was David Kanevsky, an out-of-stater who was hired by Bass to oversee his close election victory over Kuster. He is not involved in the Bass campaign this year.
Kanevsky was last known to be at a political research firm called American Viewpoint in Alexandria, Va. The phone numbers at that firm's office were disconnected on Tuesday.
The state's push poll law allows telephone calls that convey either positive or negative information about a candidate for public office under the guise of a legitimate poll or attempt to gather information.
But the law requires the caller to say 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."
In its petition to the court, the Attorney General's Office charged that the Bass Victory Committee deliberately tried to misidentify who was sponsoring the call.
But Bass campaign spokesman Tranchemontagne said, 'The Bass Victory Committee has never conducted a push poll. The poll in question does not adhere to the form, purpose or statutory definition of a push poll. Though we are disappointed that the Attorney General has chosen to litigate this matter, we are confident that we have the law on our side and will ultimately prevail."
The Attorney General's Office says its investigation began in September 2010, when it received a complaint about a push poll from state Rep. Kathleen Taylor, D-Franconia. The suit says the calls 'were described as being negative against' Kuster.
The petition says the Attorney General's Office subpoenaed the Bass Victory Committee on Oct. 24, 2011, more than a year after the initial complaint was made, seeking documents related to the calls.
In response, the petition says, the Bass committee provide a script for the poll, but its legal counsel told the Attorney General the campaign 'had checked its records and could not locate any correspondence between the campaign and the Tarrance Group.' The Attorney General's Office then withdrew its subpoena.
But on Feb. 2, 2012, 'after further investigation,' a second subpoena was issued 'to verify the accuracy of prior representations that no correspondence between the campaign and the Tarrance Group could be located.'
The office specifically sought 'all communications between the Bass Committee and the Tarrance Group relating to polling calls made in September 2010,' the petition says.
In response to the second subpoena, the Bass campaign 'provided the Attorney General's Office with over 500 pages of email records, including drafts of the script and numerous email communications between employees and agents of the Bass Committee and the Tarrance Group.'
The petition says the final version of the script 'demonstrates that the calls were made on behalf of the Bass Committee' and the documents provided in response to the second subpoena 'establish the Bass Campaign was involved with editing the final drafts of the script.'
According to the Attorney General, the first four drafts of the script said at the end, 'The Tarrance Group wishes to thank you for participating in this survey, which was commissioned and paid for by the Bass Victory Committee, 603-226-6000.'
But, according to the suit, in an email to the Bass campaign dated Sept. 16, 2010, the Tarrance Group attached a fifth draft of the script and stated:
'I changed the disclaimer to the NRCC (National Republican Congressional Committee), BUT I need Brock's permission to do that.'
The petition does not identify 'Brock.'
Brock McCleary is currently deputy political director at the NRCC and its past Northeast political director, according to his 'LinkedIn' profile.
The petition says the NRCC then approved replacing the Bass Victory Committee with the NRCC, and the fifth and sixth (final) draft of the script contained the same closing line except it said the calls were 'commissioned and paid for by the National Republican Congressional Committee, 202-479-7050.'
Edwards, asked if the Bass campaign deliberately withheld the documents until a second subpoena was issued, said, "We are not sure why we received all of these documents after the second subpoena but not the first. We have never received a clear answer on this."
Edwards said violations of the push poll law formerly called for criminal penalties. But, she said, the Legislature changed it in recent years to a civil penalty 'because it was a challenge to enforce because generally we couldn't prove that someone intentionally violated it, which is necessary for a criminal penalty.'
She said, 'At this time the investigation is focused on the push poll and the push poll violation and not any other potential inappropriate acts.'
The action against Bass is the most recent development in stepped up enforcement of the push poll law by the Attorney General.
- In October 2010, polling company Mountain West Research reached a $20,000 civil settlement for a poll made on behalf of Democrat Paul Hodes' campaign for the U.S. Senate.
- In August 2011, the New Hampshire Democratic Party paid a $5,000 fine for pre-recorded political messages made on behalf of the party. The Attorney General said the messages did not properly identify who paid for the call.
- In January of this year, OnMessage, Inc., a Virginia polling company, 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.
News reports last month that the Attorney General has been intensifying its enforcement prompted criticism from leading national pollster Whit Ayers, who told the New Hampshire Union Leader that, by "harrassing" pollsters, the Attorney General was "handing ammunition to those who would like to supplant New Hampshire's primary as first-in-the-nation."
But in a statement Tuesday, Attorney General Michael Delaney said, "My office will continue to enforce New Hampshire's election laws that require disclosures to citizens by candidates or political organizations engaging in campaign-related telephone calls or push polls. Our elected officials are calling for these investigations, and it is my obligation to enforce violations of the laws brought to my attention."