John DiStaso's Granite Status: National groups argue against state 'push poll' law
TUESDAY, FEB. 19: WEIGHING IN: A state law requiring campaign groups to identify the sponsors of so-called push poll telephone calls is deterring legitimate "political and public opinion telephone research" in New Hampshire, two influential national associations said in court papers filed Tuesday.
A Superior Court judge took under advisement a motion by the 2010 campaign committee of former U.S. Rep. Charlie Bass to dismiss a civil charge lodged by the Attorney General that it violated the state's so-called push poll law because it "deliberately avoided" identifying itself as a sponsor.
The Bass campaign cited a federal advisory opinion that the state law does not apply to federal elections.
At the same time, the Washington-based Market Research Association and the American Association of Political Consultants moved to intervene in the case, supporting Bass's motion to dismiss.
The associations argued in a "friend of the court" brief filed in Merrimack County Superior Court that the law's disclosure requirements make objective market research difficult if not impossible.
"This demand for bias-inducing disclosures in bona fide research," the two associations argued, "has led researchers who understand the law (and its implications) to avoid doing political and public opinion telephone research in New Hampshire, a crucial federal electoral battleground."
The Attorney General's Office last year charged the Bass Victory Committee violated the law, which requires those who make push poll telephone calls to tell those being called that the call is being made "on behalf of, in support of, or opposition to," a particular candidate.
The law defines a push poll as a call to voters asking questions about opposing candidates "which state, imply or convey information about the candidate's character, status or political stance or record."
The law also describes a push poll as a call aimed at having voters believe it is an independent survey meant only to gather "statistical data" for entities independent of any party or candidate.
Such calls are legal in the state as long as the proper disclosures are made.
As part of a stepped-up enforcement initiative, the Attorney General last April charged that the Bass campaign in September 2010 "deliberately avoided" identifying itself as a sponsor of negative calls against then-challenger Annie Kuster, who was defeated by Bass that year but who beat Bass in a 2nd District U.S. House rematch in 2012.
The calls were cosponsored by the Bass Victory Committee and the Washington-based National Republican Congressional Committee. But the Attorney General says emails show those two committees decided to have only the NRCC identified as the sponsor in the call script because the Bass campaign manager wanted "any issues about 'push polling' (to) be blamed on them." The Bass committee faces a potential maximum fine of $400,000 for allegedly violating the law 400 times at $1,000-per-violation.
Bass campaign attorney Charles Douglas told Merrimack County Superior Court Judge Richard McNamara Tuesday that the state law does not apply to candidates for federal offices.
He cited an advisory opinion issued last year by the Federal Election Commission that addressed New Hampshire's law in response to a request by national Democratic pollster Greenberg Quinlan Rosner Research, which is the pollster for Sen. Jeanne Shaheen's reelection campaign.
The FEC said in its non-binding opinion that the state push poll law is preempted in federal elections by the Federal Election Campaign Act, which requires no disclaimers on calls.
But Assistant Attorney General Anne Edwards challenged the FEC's opinion, saying that federal law neither regulates polling nor shows any congressional intent to "preclude state action" in that area.
That, she said, leaves the state open to step in and regulate polling and campaign calls even in federal elections.
Douglas said the market research and political consultants associations represent a total of nearly 2,000 organizations, which poll nationally.
"They do it for corporations. They do surveys, market research for customers," Douglas said, "and their concern is, as is ours, that this law has a very negative effect going forward on our (presidential) primary and people running for federal office in this state."
Douglas pointed out he is not challenging the law as it applies to candidates and campaigns for state offices, such as governor or state Legislature.
"But we are asking that for federal candidates, that the Federal Election Commission opinion has it correctly and should be the basis for the court ruling," Douglas said.
Edwards noted to Judge McNamara, "The people of New Hampshire hate these phone calls."
"They hate all phone calls," said McNamara, "especially between 5 and 7 p.m." He joked that if a law were proposed could be passed banning phone calls during those hours it would probably be passed with "bipartisan support."
Douglas also told the judge that if he rules against the Bass motion to dismiss on the federal preemption argument, the Bass campaign will then argue the state law still does not apply because Bass-NRCC calls were legitimate research calls, not push polls.
"Push polls are an automated quick phone device that says something like, 'If you knew so-and-so was a child molester, are you more likely to vote for him or not?'" said Douglas.
He said such calls go out to "thousands and thousands" of voters.
The Bass campaign and NRCC, he said, made only 400 calls with a lengthy script, which, he said, falls under the category of legitimate message testing and does not fall under the purview of the state push poll law.
The judge gave both sides until March 8 to file responses to the "amicus" brief by the market research and political consultants associations.