Campaigns don't like the law, but some say they've been able to adjust.
LEBANON, NH – Just how big of a factor is the push poll law New Hampshire’s attorney general has been aggressively enforcing in the state? According to some Granite State campaigners, it hasn’t had the negative impact they feared it might. Attorney General Michael Delaney’s enforcement of the law has consultants and pollsters on edge. The law blurs the lines between push polls, which are largely used to tarnish the character of an opponent under the guise of being a legitimate poll, and broad surveys that campaigns use to fine tune their messaging. Under the law, or at least the attorney general’s reading of the law, both are being classified as “push polls.” Some pollsters have stayed away from the Granite State altogether, while others have decided to tread more carefully. In August, President Obama’s pollster Joel Benenson told C&E that the campaign wasn’t message testing in New Hampshire because of the law. Still, other campaigns in the state say while the law has changed their approach, it hasn’t proven to be the impediment they initially feared. “I don’t really think it’s affected anything,” says a senior New Hampshire Republican campaign official who asked not to be named in order to give a candid assessment. “The concern was that you could not do a legitimate poll and negative message test. Now that there’s a better understanding of the law, that’s not a problem.” The fear was stoked after Delaney leveled what could amount to $400,000 in fines against the campaign committee of Rep. Charlie Bass (R-N.H.) for a poll conducted during his 2010 race against Democrat Ann Kuster. That suit is still winding through the courts, but in the meantime another suit was dismissed because the pollster’s script identified the campaign at the bottom. “There was trepidation in the spring over putting the disclaimer in the front, which would totally invalidate the results,” says a senior official with one of the state level Democratic campaigns. During this cycle, according to the official, most campaigns are “erring on the side of caution – waiting to see what comes of the [Bass] lawsuit.”
Enough pollsters say there’s too much risk involved in running polls in New Hampshire that they’ve sworn off the Granite State until the law is either reworded by the legislature or revisited by the attorney general. And pollsters say that even if some campaigns can manage the law now, it doesn't mean they won't get hit with an enforcement action after Election Day. “If campaigns don’t think there’s been any impact it’s just because they haven’t been caught in the web yet,” according to Republican pollster Whit Ayres, who also chairs the American Association of Political Consultants (AAPC). “The attorney general is using a law designed to limit negative persuasion phone calls and applying it to legitimate political research,” he argues. “We bend over backwards in an effort to get unbiased data. Not to let respondents know what campaign is paying for a survey, because once a respondent knows which campaign is paying for a survey the answers immediately get affected.” While consultants are up in arms over the interpretation of the law, Attorney General Delaney’s office maintains any complaints need to be taken up with the legislature. “Our office enforces the law,” says Assistant Attorney General Matthew Mavrogeorge. “The legislature has defined push poll in the manner that it’s defined in statute and that’s the measure we go by.” There’s no rush to address the law in the legislature, however. Part of the reason is that most state office holders aren’t impacted by it. State Sen. Lou D’Allesandro (D) is running for reelection in Manchester—New Hampshire’s largest city. He says his campaign will spend just over $100,000 this cycle and that money won’t go toward phone surveys that could fall under the push poll law. “We haven’t done any of that,” D’Allesandro says. And he has no plans to, which means neither will most of his colleagues in the state legislature. The chair of New Hampshire’s House Election Law Committee, State Rep. David Bates (R), says he wants to revisit the law in January, but the Democrat that sits opposite him, State Rep. David Pierce, opposes the idea. “This law is going to make it more difficult to run professional political campaigns in New Hampshire,” argues Ayres. “It will give states that want to supplant New Hampshire’s first in the nation primary an argument to use with their respective Democratic and Republican National Committees.”