New Hampshire election law doesn't apply to federal candidates. It's the argument made this week by Congressman Charlie Bass's legal team and two industry groups who joined in the former Republican lawmaker's effort to dismiss the civil case against him.  

Attorney General Michael Delaney’s office has 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 Bass committee faces a potential maximum fine of $400,000.

Its case for dismissal largely hinges on a Federal Election Commission advisory opinion issued last April which 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.

The Marketing Research Association (MRA) and the American Association of Political Consultants (AAPC) filed a brief of "amicus curiae" in support of Bass Victory Committee in Merrimack County Superior Court on Feb. 15. Their brief points to the FEC ruling.

"Since federal preemption occupies the requirements for telephone disclosures in federal campaign telephone calls; and because bona fide survey research telephone polls are not designed to be push polls, but message testing" the groups called for the dismissal.

Delaney’s office has pursued a half dozen push-polling cases since Gov. John Lynch (D) appointed him in 2009. Some 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.

Bass campaign attorney Charles Douglas said if the federal preemption tactic didn't work, they would argue the 400 joint Bass-National Republican Congressional Committee phone calls were legitimate research not covered by the push-poll law.

The parties have until March 8 to file a response.  

Meanwhile, Whit Ayres, a Republican pollster who chairs the AAPC, said survey consultants remain cautious about working in New Hampshire. "People who have an interest in working in New Hampshire are keeping a very close eye on this case," he tells C&E.