John DiStaso's Granite Status: Judge dismisses AG's 'push poll' case against former US Rep. Charlie Bass
THURSDAY, JUNE 20: BASS WINS DISMISSAL. A judge has ruled the state's "push poll" law does not apply to candidates for federal office, dismissing a civil suit brought by the state Attorney General's Office against former U.S. Rep. Charlie Bass' campaign committee in the 2010 election.
The Attorney General's Office charged in April 2012 that the Bass Committee violated the law because in poll-style telephone calls the campaign committee cosponsored in September 2010 to provide voters with information about his opponent, current U.S. Rep. Annie Kuster, it deliberately did not disclose that it was one of the entities sponsoring the calls, as the state law requires.
The Bass Committee, through Concord attorney Charles Douglas, argued in court that the calls in question were not "push poll" calls, but rather legitimate public opinion research and message testing.
Douglas also argued that the state has no jurisdiction over how campaigns for federal office are conducted.
Merrimack County Superior Court Judge Richard McNamara agreed that the Federal Election Campaign Act supersedes state law in elections for federal office. He did not address the question of whether the Bass calls were part of a legitimate message testing survey or a true push poll, which is essentially a telephone political advertisement.
McNamara, in an eight-page ruling, cited a Federal Election Commission advisory opinion issued specifically on the Bass case last year at the request of the national 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."
McNamara wrote in his opinion that advisory opinions are not binding, but in this case, "The consistent interpretation of federal law and regulations by those familiar with its enforcement is persuasive.
"Here," wrote McNamara, "the FEC is most familiar with the enforcement of (the federal campaign law) and its reasoning is both persuasive and remarkably consistent."
He wrote that federal law considers such telephone polling only in the context of being a campaign expenditure, and because it addresses such calls, "federal law preempts the state statue."
The Attorney General's Office has the option of seeking reconsideration and appealing the decision to the state Supreme Court.
It is unknown if it will. Officials at the office did not respond to requests for comment.
Douglas said he was pleased by the ruling and credited Bass for challenging the state civil action.
Bass faced potential fines of up to $400,000. But Douglas said, "Charlie just didn't say, 'Oh, I'll pay a fine and move on.' He said, 'No. It's not right. It's wrong to apply this law to federal races and it's going to hurt the New Hampshire Primary if someone doesn't stand on principle here and fight it.' I'm proud of him."
National pollsters had complained that the state law definition a push poll incorrectly covers legitimate opinion research calling. The Market Research Association and the American Association of Political Consultants intervened in the Bass case, supporting Bass' motion to dismiss.
Some national pollsters had warned the state law, and the Attorney General's Office aggressive enforcement of it in recent years, would deter pollsters from becoming involved in the New Hampshire first-in-the-nation primary campaign, and could, as a result, hurt the primary.
They said candidates may be reluctant to campaign in the state if they cannot have their pollsters fully explore voter sentiment on key issues and test messages about themselves and their opponents without fear of being sued by the state..
State legislators, recognizing a problem with the current push poll disclosure law, tried to rewrite the statute in earlier in the current session. But the bill was retained until next year by the House Election Law Committee, which cited too many uncertainties in the bill and said it needed more work.
McNamara's ruling has no effect on the Attorney General's ability to enforce the push poll statute in campaigns for state office, such as governor, Executive Council or the state Legislature. The Federal Election Campaign Act does not apply to state elections.
(For earlier Granite Status reports, click on "Granite Status" above.)