To poll or not to poll in New Hampshire, that is the question for an increasing number of survey research firms this cycle. Given the state’s new push polling law, is it better for business to take work in the battleground state and risk getting hit with a fine, or is it best to boycott the state and pressure lawmakers to reform the statute?
It’s a Hamletesque dilemma for the polling industry, which has been rallying in recent weeks to force a change to New Hampshire’s law. In the past year, several firms have been slapped with hefty fines, and with more enforcement action in the works both sides are digging in.
“They used to send cease-and-desist letters and now they have moved to leveling fines and threatening people with bankruptcy,” says Whit Ayres, a Republican pollster who chairs the American Association of Political Consultants (AAPC). “There are a number of firms that simply refuse to do work in New Hampshire because of this law.”
The state’s bad-cop approach to the polling industry recently intensified. Attorney General Michael Delaney’s office filed a lawsuit in early April against Rep. Charlie Bass’s (R) campaign committee after subpoenaing close to 500 documents. Delaney’s office accused Bass’s camp of making a “deliberate attempt to avoid” the state’s disclosure requirements while conducting a poll during his 2010 race against Democrat Ann Kuster.
The future of the case is in doubt, though. A Federal Election Commission advisory opinion issued April 27 determined that federal candidates and their campaign committees aren’t subject to the state’s survey disclaimer requirements. The FEC opinion, which had been sought by Greenberg Quinlan Rosner Research, doesn’t cover polling for state-level candidates or their committees. In the wake of the decision in the GQRR case, Delaney’s office said it was considering its “legal options.”
The attorney general’s case against the Bass Victory Committee centers on a tweaked polling script used by The Tarrance Group in a September 2010 survey. David Kanevsky, Bass’s campaign manager, asked the polling firm to name the National Republican Congressional Committee in place of Bass as the poll’s sponsor, which New Hampshire authorities claim was a violation of the state’s law. Bass’s camp was sued because Delaney’s office decided it was responsible for the wording of the script.
The Tarrance Group is not currently part of the lawsuit. “There’s been no lawsuit filed against this firm,” says Tarrance partner Dave Sackett.
In the meantime, Bass’s committee faces up to a $400,000 fine—$1,000 for the 400 phone calls that were made during the poll. The Bass case is the fourth high profile enforcement by Delaney’s office since Gov. John Lynch (D) appointed him in 2009. The other cases have resulted in $20,000 and $15,000 fines against Mountain West Research Company and OnMessage, Inc., respectively. And a $5,000 fine was leveled against the state’s Democratic Party for a robocall in 2011.
Two other polling firms are in negotiations with Delaney’s office to settle push-polling cases, according to Ayres, who has run herd on the issue for the industry.
“I think he’s trying to make a name for himself,” he says of the state’s AG. Ayres notes that the law has been on the books in New Hampshire since 1998, but it had rarely been enforced before the 2010 cycle. In fact, the fine against Mountain West Research was the first of its kind, according to state lawmakers.
Delaney’s office dismissed the notion that he’s mounting a politically motivated crusade. The law wasn’t enforced before because, until recently, there were no civil penalties that could be leveled under it, according to Anne Edwards, an associate attorney general. Once the legislature changed the law to allow for civil instead of criminal penalties, the AG’s office says it became enforceable.
The heavy fines aren’t the only problem, according to pollsters who have worked in the state. The disclosure requirement can also taint a survey’s results.
“You could not write a credible political survey that doesn’t fall under their determination of a negative persuasion call,” says Ayres. The attorney general’s office hasn’t been forthcoming in telling pollsters what they need to do to comply with the state’s law. As a result, he adds, the AAPC has warned its members about the dangers of polling in the state.
Edwards admits that the state’s definition of a push poll “is broad enough [to include] what is considered message testing by other people.” To a campaign or pollster, the calls in question are the furthest thing from a bona fide push poll, but if a call meets the state’s broad definition contained in the law, then it’s subject to certain disclosure requirements in the call script.
New Hampshire’s law considers calls about a candidate’s “character, status, or political stance or record” a push poll. Moreover, “calling voters on behalf of, in support of, or in opposition to, any candidate for public office by telephone” is considered a push poll. And if you give the voter the impression the call came from an organization “acting independent of any particular political party, candidate, or interest group,” well, that’s a push poll, too. That’s where Bass allegedly ran into trouble.
There is now a growing recognition among state lawmakers that changes to the new law may be necessary before pollsters write off the state altogether.
“I’d like to be able to help solve this problem,” says State Rep. David Bates (R), who chairs the state House’s election law committee. “But I would need much more specific information—what were the calls? What was the content of them? At this point nobody’s giving me documentation that would give me the clear details I’d need to move forward with something.”
Bates says he’s heard about the memo circulated by the AAPC that warns members of the dangers of working in New Hampshire. “That gave me pause,” he says. “If polling companies are reluctant to do business [in New Hampshire], that creates a real problem.”
“Until we are successful in keeping this law from being wrongfully enforced against genuine survey research, be very careful when conducting legitimate survey research in New Hampshire,” Ayres, and Democratic pollsters Mark Mellman and Jefrey Pollock wrote to AAPC members in a memo circulated earlier this year. The AAPC has vowed to continue to fight the interpretation of the law.
In order for that problem to be resolved, New Hampshire will have to sort out its own internal politics.
Of the four recent push-polling cases, all were brought to the attorney general’s attention by state lawmakers, including two by Bates.
“It appears,” says Ayres, “that they don’t want professional campaigns to be run in the state.”