AO 2012-10: FECA preempts New Hampshire disclaimer statute

A New Hampshire statute requiring disclaimers on certain campaign-related telephone surveys is preempted by the Federal Election Campaign Act (the Act) and Commission regulations in cases where the surveys refer only to federal candidates and are paid for by federal candidates or other federal political committees. The Commission was unable to approve a response by the required four affirmative votes as to whether the New Hampshire statute is preempted with respect to telephone surveys made on behalf of nonprofit organizations other than federal political committees.

Background

Greenberg Quinlan Rosner Research, Inc. (Greenberg Quinlan) is a Washington, D.C., corporation that provides political research and strategic consulting services, including surveys conducted on a national, state and local basis. Greenberg Quinlan plans to use live operators to conduct telephone surveys of New Hampshire voters, asking respondents questions about their views on various issues, their impressions of political parties and national political figures, their likelihood to vote for particular federal candidates, etc. These telephone surveys will refer only to federal candidates and will not refer to any state or local candidates. The surveys will not expressly advocate the election or defeat of a clearly identified federal candidate. The proposed surveys will be paid for by federal candidates and nonprofit organizations.

Greenberg Quinlan believes that its proposed activities may be subject to New Hampshire’s disclaimer law, which requires that, “Any person who engages in push-polling… shall inform any person contacted that the telephone call is being made on behalf of, in support of, or in opposition to a particular candidate for public office, identify that candidate by name, and provide a telephone number from where the push polling is conducted.” N.H. Rev. Stat. sec. 664:16-a(I). The New Hampshire law defines “push polling” to include asking questions related to opposing candidates for public office which convey information about the candidates’ character, status or political stance or record. N.H. Rev. Stat. sec. 664:2(XVII).

Greenberg Quinlan asked the Commission to determine whether the Act and Commission regulations preempt New Hampshire’s disclaimer statute as it applies to Greenberg Quinlan’s proposed surveys referring only to federal candidates and not to any state or local candidates, when the proposed polls are paid for by: 1) federal candidates, their authorized committees or other federal political committees; and 2) nonprofit organizations that are not federal political committees.

Analysis

The Act and Commission regulations “supersede and preempt any provision of State law with respect to election to Federal office.” 2 U.S.C. § 453; 11 CFR 108.7(a). The legislative history of the Act makes clear that Congress intended “to make certain that the Federal law is construed to occupy the field with respect to elections to Federal office and that the Federal law will be the sole authority under which such elections will be regulated.” H.R. Rep. No. 93-1239, 93d Cong., 2d Sess. 10 (1974).  Under the Act and Commission regulations, expenditures by federal candidates and other federal committees is an area to be regulated only by federal law. Both the Act and Commission regulations regulate this area, including expenditures for polling. See, e.g., 2 U.S.C. §§ 431(9), 439a, 441a(j); 11 CFR 100.111, 106.4, pt. 113.

The Commission determined that the New Hampshire statute in question is preempted to the extent that it attempts to regulate Greenberg Quinlan’s telephone surveys paid for by federal candidates, their authorized campaign committees and other federal political committees. If the New Hampshire statute were applied to federal candidates and federal political committees who wish to pay for such telephone surveys, it would impose an additional disclaimer requirement on those expenditures. Under the Act’s preemption clause, only federal law may require disclosure regarding expenditures by federal candidates and federal political committees. 2 U.S.C. § 453; 11 CFR 108.7(b)(2).

Date issued: April 27, 2012; Length: 5 pages.

Resources:

• Advisory opinion 2012-10 [PDF; 5 pages]
• Commission discussion of AO 2012-10