CONCORD -- A federal judge ruled this week that if U.S. Rep. Charlie Bass wants to argue that federal law preempts the state law governing push polling, he must do so in state court.

U.S. District Court Judge Paul Barbadoro found in favor of the Attorney General's Office's request to remand its civil action against the Bass Victory Committee back to state court after Bass attorney Charles Douglas had case removed to federal court.

While ruling that state court is the proper venue for the case to be heard, Barbadoro said the Bass campaign is free to argue in state court that the case should be dismissed because federal campaign law, which requires no disclaimers on push polls, preempts the state law, which essentially requires candidates to identify themselves to voters when they conduct push polling calls against their opponents.

“I note that nothing prevents the Bass Committee from asserting a preemption defense in state court,” Barbadoro wrote. “I have faith that the state court will fulfill its constitutional duty to enforce federal law.”

Bass campaign attorney Douglas said the final sentence from the judge “has given us a clear roadmap as to how this case will be dismissed in Merrimack Country Superior Court.

“The ruling essentially states that the federal court does not have jurisdiction over this matter, but that it expects the state court to rule that federal law trumps state law when it comes to alleged push polling,” Douglas said.

Assistant Attorney General Matthew Mavrogeorge disagreed.

“The court essentially agreed with our argument that this case properly belongs in state court, not federal court, and we believe the order itself did not get to any of the merits of the case, including any defenses.

“We dispute any suggestion that any wording in the federal court order could be meant to suggest some sort of a roadmap,” said Mavrogeorge, “or that the ruling can be used to suggest how the state court should be ruling on the merits of this case.”

Douglas in late June had filed a motion asking the federal court to dismiss the case immediately after finding that it, and not the state court, has jurisdiction.

That motion was rendered moot by the ruling that the state court does have jurisdiction over the case, although Douglas is free to file a similar motion in state court.

The Attorney General's Office sued the Bass campaign in state court in April, charging that it “deliberately avoided” identifying itself as a sponsor of a negative push poll against Bass' Democratic opponent, Ann McLane Kuster, during the 2010 campaign for the 2nd District U.S. House seat, as required by state law.

If the state's suit is successful, the Bass campaign could be fined as much as $400,000 -- $1,000 for each of 400 calls.

The Bass campaign denied the charge, saying the calls in question did not constitute a push poll as defined by the state law.

The suit against Bass was the most recent in a series of high-profile actions enforcing the state's push poll statute by the Attorney General. Those actions have alarmed national pollsters who have said the law was written too broadly and has been applied to message testing surveys that "bear no resemblance to push polls," Whit Ayers, chairman of the American Association of Political Consultants, has said.

Douglas moved the case to federal court after the Federal Election Commission in April issued an advisory opinion that the state's push poll law does not apply to candidates for federal offices. The FEC said the state law is preempted for federal elections by the Federal Election Campaign Act, which requires no disclaimers on polling calls.

Barbadoro, in a 10-page ruling, agreed with the Attorney General's Office's assertion that the FEC's opinion could provide Bass with an argument for preemption in state court, but that the opinion does not mean the case must be heard in federal court.

The judge said the Bass committee “has confused the doctrines or ordinary and complete preemption.

“Unlike complete preemption, which creates federal subject-matter jurisdiction over preempted state law claims, field preemption is a defense to a state law cause of action and cannot, by itself, be a basis for removal to federal court,” the judge wrote.

“The existence of a federal agency enforcement mechanism -- here the FEC's right to sue under the (Federal Election Campaign) Act-- does not convert the AG's state cause of action into a federal one,” he wrote.

The judge added, “Absent a federal cause of action that would replace the AG's state claim, there is no complete preemption.”

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, did not properly identify who was paying for negative calls made in September 2010 against Kuster.

The Attorney General's Office said 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 Bass campaign manager, “they (the NRCC) are paying for half of it” and, “I'd rather have any issues about 'push polling' be blamed on them rather than us.”

The NRCC, a Washington-based group that supports GOP House candidates across the country, later gave its approval for the disclaimer change.

The state's push poll law allows political entities to make telephone calls that convey either positive or negative information about a candidate for public office under the guise of a legitimate poll.

But the law requires the caller to say 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 Bass campaign has insisted that its poll did not “adhere to the form, purpose or statutory definition of a push poll.”

The Attorney General's Office said its investigation began in September 2010. Its petition says it subpoenaed the Bass Victory Committee on Oct. 24, 2011, seeking documents related to the calls.

In response, the petition says, the Bass committee provided a script for the poll, but its lawyer told the attorney general the campaign “could not locate any correspondence between the campaign and the Tarrance Group.”

But after a second subpoena, the Bass campaign provided the Attorney General's Office with more than 500 pages of email records, including drafts of the script and emails between the Bass Committee and the Tarrance Group, the attorney general said.

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 the poll was commissioned by the Bass Victory Committee.

But, according to the suit, in an email to the Bass campaign dated Sept. 16, 2010, the Tarrance Group wrote that the disclaimer had been changed to the NRCC, which was included in the final script of the telephone poll.

The Attorney General said the change showed the Bass campaign “deliberately avoided compliance with New Hampshire's disclosure requirements for all push polls.”