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State Supreme Court Gives A Leg Up To Deceptive Election Polling

“Push polling” is a tactic where political operatives masquerade as a polling operation, often to spread negative information — or even outright falsehoods — about a political opponent. Think of a poll which asks questions like “would you be more or less likely to vote for President Obama if you knew he was born in Kenya?” or “if you knew that Mitt Romney beat his wife, would that make you less likely to support him?” Although push polling is legal in New Hampshire, a state law requires people who engage in it to “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.” (The law has since been amended, and now requires the caller to identify the push poll as a “paid political advertisement”).

That law, however, can no longer be enforced against federal candidates thanks to a decision handed down by the New Hampshire Supreme Court.

The court’s decision is rooted in a federal regulation invalidating state laws concerning “[d]isclosure of receipts and expenditures by Federal candidates and political committees.” According to the court, the push poll law required callers “to reveal the identity of the sponsor of the telephone calls, i.e., to disclose who is paying for the calls.” This, the justices wrote, “imposes a disclosure requirement on campaign expenditures related to the election of a candidate for federal office.” And thus it conflicts with the federal regulation.

This decision is not particularly surprising. Among other things, an advisory opinion from the Federal Election Commission agrees with the state court that New Hampshire’s law cannot be enforced with respect to federal candidates. Nevertheless, it highlights just how fully the deck is currently stacked against campaign finance regulation. Supreme Court decisions like Citizens United inject hundreds of millions of dollars into our elections. The filibuster prevents Congress from expanding federal disclosure laws, even when such an expansion is supported by majorities in both houses. And, as the New Hampshire Supreme Court’s decision indicates, states are hobbled by federal laws that undermine their own ability to address many of the problems arising from money in politics.

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