The New Hampshire Attorney General's (AG) office has appealed a case against the Bass Victory Committee to the New Hampshire Supreme Court after a court dismissed the office's prosecution of a defeated Congressional campaign for violation of the state's "push poll" law on Federal preemption grounds.

New Hampshire statute Section 664:16-a requires “any person who engages in push-polling” to disclose the sponsor of the call to the recipient. Unfortunately, the scope of the term “push poll” in Section 664:2 (XVII) is so broad as to incorporate most any real poll that asks about a candidate’s “character, status, or political stance or record.” This includes not only real research calls testing negative messages, but also more generic polls questioning voters’ opinions on relatively objective or verifiable issues and concerns.

The appeal comes even after a changing of the guard: Joseph Foster replaced Michael Delaney as AG on May 15, 2013, signaling a continuing enforcement of the law despite the court’s rejection of it. 

Delaney had been intent on prosecuting campaign survey and opinion research firms for violations of the push poll law, despite repeated outreach from the Marketing Research Association (MRA) and the American Association of Political Consultants (AAPC).Previously, MRA and AAPC filed an amicus brief in Merrimack County Superior Court on the AG's case against former-Congressman Charlie Bass in favor of dismissal. The two associations also have worked to educate the AG's office and the New Hampshire legislature about the negative impact of the law on legitimate research and assisted legislators in drafting a bill to fix it. That legislation, S.B. 196, passed the Senate this year and will hopefully advance in January 2014.

"The original “push poll” law was intended to prevent deceptive campaign advocacy techniques, but unintentionally harms legitimate research by biasing calls in New Hampshire, distorting research results and making it impossible to accurately reflect the thoughts and opinions of New Hampshire residents," said MRA’s Howard Fienberg.

Due to the law, some researchers have said they will not conduct political research in the state. The new attorney general’s decision to appeal the Bass case could make researchers even more nervous.

Fienberg concluded, "We are optimistic and hopeful that the state legislature can improve New Hampshire law early next year to appropriately deter deceptive campaign activities without impeding bona fide research. Should they fail, many researchers could forgo both federal and state/local polling in 2014. Without this correction, there have even been suggestions that the national GOP and Democrat parties should consider revoking the state's privilege as home to the first-in-the-nation presidential primary. That doesn’t need to happen if the original law is corrected as soon as possible."