CONCORD — Assistant N.H. Attorney General Brian Buonamano Thursday sought to persuade the justices of the state Supreme Court to overturn a lower court ruling that the state cannot regulate what’s called push-polling in federal election campaigns.
The court’s ruling, depending on when it is issued, could have an effect on this year’s federal campaigns, but it will have an effect on the 2016 presidential campaigns in New Hampshire’s first-in-the-nation primary.
The legal dispute over the state’s authority to regulate push polling in federal campaigns began when the attorney general charged in April 2012 that the Bass Victory Committee violated the state law requiring a disclaimer in the polling script.
Then-Attorney General Michael Delaney charged the Bass committee deliberately did not disclose it was one of two groups sponsoring polling calls in September 2010 that contained negative information about Bass’ opponent at the time, now-U.S. Rep. Ann Kuster.
The state law required those making push poll calls to disclose to those being contacted 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.”
While Bass, through attorney Charles Douglas, initially argued the calls in question were not push polls, but were rather a “legitimate message testing” survey, the prime argument then and the one Douglas and Buonamano focused on before the Supreme Court on Thursday is whether federal law supersedes this particular state law in federal elections.
Speaking for Attorney General Joe Foster, who appealed the ruling by Judge Richard McNamara, Buonamano said push polling isn’t addressed in federal election commission rules and hasn’t been addressed by Congress. So there is, he said “no reason not to let the state law stand.”
Douglas, a former New Hampshire Supreme Court justice, disagreed, arguing that the U.S. Constitution specifies that states have the power to regulate only the time, place and manner of federal elections. He said the Federal Election Campaign Act makes it clear that the rules prescribed under the act preempt any provision of state law with respect to federal elections.
Douglas said the Federal Election Commission “has a very broad grant.”
Justice Carol Conboy questioned whether — if there is no federal regulation on polling — states can regulate it.
Douglas said the FEC has been “crystal clear on polling” with respect to federal office in its rulings on other states’ attempts to regulate push polling in federal campaigns.Douglas also argued that because it costs money to do polling, it comes under federal regulation because states cannot regulate spending on federal campaigns.