AG appeals dismissal of ‘push poll’ charges against Bass to NH Supreme Court
The office said Thursday it will ask the state Supreme Court to overturn a lower court ruling rejecting the state’s claim that the Bass Victory Committee violated the law by deliberately not identifying itself as a cosponsor of calls to voters that provided negative information about his opponent, current U.S. Rep. Ann McLane Kuster. State law requires the caller conducting a push poll to identify who paid for the calls.
Attorney General Joseph Foster said the appeal is being filed “protect New Hampshire’s right to govern its own elections,” rather than having regulation of elections for federal office broadly superseded by federal law.
In a June ruling, Merrimack County Superior Court Judge Richard McNamara agreed with Bass’s attorney, Charles Douglas, that elections for federal office are regulated by federal law and that federal candidates are exempt from the state push poll law. As a result, he dismissed the case.
McNamara did not address the question of whether the Bass calls were a message testing survey, as the Bass campaign had maintained, or whether they were a true push poll, which is essentially a telephone political advertisement done under the guise of a poll.
Push polls are legal in New Hampshire as long as the sponsors are identified.
The judge 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 the federal law addresses push poll calls in that way, “federal law preempts the state statue.”
State legislators, recognizing several problems with the current push poll disclosure law, tried to rewrite the statute in this year’s session. But the bill was retained until next year by the state House Election Law Committee, which cited too many uncertainties in the bill and said it needed more work.
In a statement announcing the appeal, Attorney General Joseph Foster said, “I understand that the Legislature has been reviewing the statute that regulates push polls to see if amendments would help clarify and enhance compliance. This appeal is being filed in order to preserve the right of New Hampshire to govern how its citizens elect their federal officials.”
Foster said the Superior Court order “could have broad implication” regarding the regulation of federal elections, since most activities conducted by federal candidates result in the expenditure of campaign funds.
“Under an expansive reading of the Superior Court’s order, there could be little room left for state election officials to regulate in the case of candidates for federal office,” Foster said.
Bass committee attorney Douglas said he was surprised Foster appealed.
“Judge McNamara wrote an excellent opinion analyzing the role of the state and the federal government when it comes to running for federal office,” he said.
Douglas said the appeal could delay attempts by lawmakers to improve the law with amendments next year.
“This appeaI will take half-a-year to a year and it may not be able to get done in the next legislative session, which is unfortunate,” Douglas said.
He said the existing law remains in effect, “and anyone who is going to file for a federal office next summer may or may not have an answer from the state Supreme Court by that time.”
If the state ultimately wins on appeal, the Bass committee faces potential fines of up to $400,000.
Some national pollsters have warned the state law, and the Attorney General’s Office aggressive enforcement of it in recent years, could 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 for President 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.
There is no dispute that the attorney general’s has authority 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.