Legislation (authored with MRA's assistance) is advancing in New Hampshire that would fix the state's misguided "push poll" law and alleviate the law's threat to real research.
The Senate Public Works and Municipal Affairs Committee met on March 6 to hear testimony on, and then amend and pass, S.B. 196. The bill is scheduled for a vote on the Senate floor on March 14.
This bipartisan legislation was introduced at the request of MRA and the American Association of Political Consultants (AAPC) and has the support of party leaders and the Governor's office.
The trouble with current New Hampshire Law
Many researchers avoid doing political survey and opinion research in the state to avoid compromising their science and their clients.
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 law biases legitimate political research calls in New Hampshire, distorting the results of research and making it impossible to accurately reflect the thoughts and opinions of New Hampshire residents. Disclosure of who paid for or commissioned a poll can distort the answers provided by respondents and makes it extremely difficult to produce scientifically and statistically valid data in New Hampshire.
Real research does not seek to influence a participant’s attitudes or behavior. Disclosing sponsorship like in a political ad potentially impugns all research studies by making them comparable in the eyes of the public to advertising and advocacy. This stigmatizes all bona fide research (not just political-related research) and hurts participation in research studies (which already face all-time low response rates).
Real researchers doing real research have been ensnared by this law. MRA filed an amicus brief in a state supreme court case last month in opposition to the law. We also supported a succesful request for an advisory opinion from the Federal Election Commission (FEC) in April 2012 that the New Hampshire law should not apply to polls regarding candidates for federal office.
The fix: S.B. 196
As amended, S.B. 196 would define "push polling" as: "(a) Calling voters on behalf of, in support of, or in opposition to, any candidate for public office by telephone; and (b) Asking questions related to opposing candidates for public office which state, imply, or convey information about the candidates character, status, or political stance or record; (c) Conducting such calling as part of a series of like telephone calls that consist of more than 2,000 completed calls that last less than 2 minutes; and (d) Conducting such calling for purposes other than bona fide survey and opinion research."
It would also carve out real research by adding the following paragraph: "XVIII. “Bona fide survey and opinion research” means the collection and analysis of data regarding opinions, needs, awareness, knowledge, views, experiences, and behaviors of a population, through the development and administration of surveys, interviews, focus groups, polls, observation, or other research methodologies, in which no sales, promotional, or marketing efforts are involved, and through which there is no attempt to influence a participant’s attitudes or behavior. Bona fide survey and opinion research includes message testing, which is the study for research purposes of how individuals react to positive or negative information on a candidate, elected public official, or ballot question."
Finally, the amended bill will change Section 664:16-a to the following:
I. Any person who engages in push-polling, as defined in RSA 664:2, XVII, shall, prior to asking any person contacted a question relating to a candidate: (a) Inform the person that the telephone call is a “paid political advertisement;” and (b) Identify the organization making the call; and (c) Provide a valid, current, publicly-listed telephone number for the organization making the call; and (d) Identify that the telephone call is being made on behalf of, in support of, or in opposition to a particular candidate for public office and identify that candidate by name.
The Committee meeting
The Senate Committee approved the amended version of S.B. 196 by a vote of 5 to 0.
The Committee provided draft notes regarding the testimony from the meeting to MRA, to be shared only with our members.
Senator David Pierce (D), sponsor of the legislation:
- We know what push-polling is conceptually. Statutorily, we don’t know what it is with clarity.
- The word “poll” is very misleading in the use of the term push-poll.
- A push-poll is not intended to gather data and make extrapolations from the data to assess the nature of a particular race, like we think of bona fide research in surveys. A push-poll is intended to spread negative misinformation in order to affect the outcome of an election, rather than to assess the status of an election.
- This bill seeks to draw some very bright lines as to what is and what is not a push-poll.
- The current push-polling statute, RSA 664:2, XVII, is very subjective. It is beginning to sweep in bona fide research, and we can’t do that. Like it or not, polling is an inherent part of the political process, especially in the presidential primary process here in New Hampshire.
- Because of the Attorney General’s rather aggressive enforcement of the current statute, the polling industry is considering pulling out of NH.
- Is the person who is being called swayed or misled by the information being conveyed during a push-poll?
- Senator Pierce is proposing to revise the definition of push-polling as conducting such calling as part of a series of like telephone calls that consist of more than 2,000 completed calls lasting less than 2 minutes. The calling is conducted for purposes other than bona fide survey and opinion research.
- The issue is due process.
- Senator Pierce offered further identification of push-polling in Amendment #2013-0709s.
Senator Jeb Bradley (R), cosponsor of the legislation:
- This is a bipartisan issue; it affects all parties in the same way.
- As a candidate, Senator Bradley fully supports Amendment #2013-0709s. It clearly sets out what the candidate can and cannot do.
- SB 196-FN will protect the NH Presidential Primary.
Andrew Smith, Director, UNH Survey Center:
- This bill would not impact the Survey Center directly, as the Center does not conduct push-polling or message testing. It does not perform work for candidates or parties.
- Mr. Smith highlighted some of the pollsters’ concerns with SB 196-FN.
- Political consultants who conduct political polls for candidates as well as those who do media polling for organizations are quite concerned that they would be prosecuted under the current statute if they asked questions that reflected negatively on one of the candidates.
- The current law doesn’t clarify the difference between push-polls and message testing clearly.
- The American Association for Public Opinion Research believes push- polls are not surveys at all, but rather unethical political telemarketing—telephone calls disguised as research that aim to persuade large numbers of voters and affect election outcomes, rather than measure opinions.
- Political message testing is a long standing practice.
- Political campaigning is protected speech. Political polling is exempt from any “Do-Not-Call” list because it is considered to be protected speech.
Steve LaBonte, Assistant Attorney General:
- Atty. LaBonte enforces the election laws of the state.
- With regard to the bona fide survey and opinion research definition, Atty. LaBonte offered the committee might want to consider a truthfulness or factually supported aspect to the information. He suggested it might better clarify the statute. Senator Pierce felt such a change may give the Attorney General more discretion than this proposal intends.
If you are interested, you can also listen to an audio recording of the meeting.
We have been told that S.B. 196 should sail through the Senate next week, but that the House is more unpredictable. We will be rallying researchers in New Hampshire to contact their Representatives and have already lined up at least one MRA member willing to help by testify when the bill comes up for a hearing in the House.
MRA and AAPC will continue to work together, as we have been doing for the last few years, to fix New Hampshire's law and protect the conduct of real research.