Judge tosses push-polling lawsuit against Bass campaign
A Merrimack County judge has thrown out a lawsuit filed by the state attorney general’s office against former congressman Charlie Bass’s campaign committee without actually ruling whether the automated calls in question were illegal “push polling,” as the state alleged. Instead, the judge decided candidates for federal office are exempt from the state’s push-polling laws.
Associate Attorney General Anne Edwards said officials in her office have not yet decided whether to appeal the decision to the New Hampshire Supreme Court.
Push polling – calls made to appear as surveys but
that are really intended to spread negative information about an opponent – are illegal in New Hampshire when they don’t say that the call is being paid for by a candidate’s campaign.
Last year, the New Hampshire attorney general’s office accused the Bass Victory Committee of making about 400 illegal push-polling calls to New Hampshire households during Bass’s 2010 campaign against Democrat Annie Kuster for the 2nd District seat. Bass won that election; two years later, Kuster beat him in a rematch.
According to the lawsuit, an original draft of the call included the disclosure, “The Tarrance Group wishes to thank you for participating in this survey – which was commissioned and paid for by the Bass Victory Committee. . . . Good night.”
But in a September 2010 email, authorities say Bass’s campaign manager asked: “Could we change the disclaimer at the end to NRCC (National Republican Congressional Committee) since they are paying for half of it? I’d rather have any issues about ‘push polling’ be blamed on them . . . rather than us – especially with the date rape drug question in there.”
The attorney general’s office declined to provide the content of the calls, but the date rape drug question likely referred to Kuster’s work as a lobbyist for a company that made the rohypnol, a powerful sedative often used to aid in sexual assaults.
As a result of the request by Bass’s campaign, the state said the call went out to voters with a disclosure saying it was paid for by the “National Republican Congressional Committee.”
The Bass Victory Committee, which was represented by Concord attorney Chuck Douglas, has denied that the calls were push polling, which they said normally targets a much larger group of voters.
Before Merrimack County Superior Court Judge Richard McNamara issued his order Monday, though, the lawsuit took a detour to federal court. Douglas moved it to U.S. District Court in Concord, arguing federal laws applied because the calls were made during a federal election.
But Judge Paul Barbadoro sent the case back to the state court, saying federal laws do not always supersede New Hampshire statutes regarding polling. Barbadoro wrote in his order that he had “faith that the state court” would “fulfill its constitutional duty to enforce federal law.”
McNamara ultimately ruled that federal law does pre-empt state statute because push polling is a campaign expenditure and therefore regulated by the Federal Election Campaign Act. In making his decision, the judge relied on a 2012 advisory opinion by the Federal Elections Commission that said federal candidates in New Hampshire were exempt from the state’s push-polling statute.
Yesterday, Edwards said the attorney general’s office still believes that because federal laws are silent on push polling, state laws should take precedence.
“We’re not doing anything in contravention of any federal law, so as a result we believe this is an area the federal government has chosen not to regulate,” Edwards said. “Therefore it should be open to the state to go ahead and regulate that.”
Douglas said yesterday he’s happy with McNamara’s order, even though the judge didn’t decide whether the calls in question were push polling.
“I’m very pleased for Charlie that he didn’t just roll over and pay a fine to get rid of this, but felt it was important to our first-in-the-nation primary to get this question resolved,” Douglas said.
A bipartisan bill was filed this year in the Legislature to reform New Hampshire’s 1998 push-poll ban, which national pollsters have said is so broad that it could interfere with legitimate political polling. The legislation passed the Senate but has been retained by the House Election Law Committee for more work.
(Tricia L. Nadolny can be reached at 369-3306 or
firstname.lastname@example.org or on Twitter @tricia_nadolny.)