On April 26, the Federal Election Commission (FEC) approved Advisory Opinion 2012-10, declaring that federal campaign finance and election law supersedes New Hampshire's push poll law, for certain political polls.

The New Hampshire statute includes a poorly-drafted provision that is supposed to target "push polls", but actually restricts bona fide research by requiring political polls to disclose the sponsor of the call to the recipient. MRA has been advocating to change the New Hampshire law to protect research, in alliance with the American Association of Political Consultants (AAPC).

In response to a request from polling firm Greenberg Quinlan Rosner Research, for which MRA submitted comments in support, the FEC yesterday concluded that the provision requiring disclaimers on "certain campaign-related telephone surveys made on behalf of federal candidates, their authorized campaign committees, or other federal political committees that refer only to candidates for federal office is preempted by" federal law. Unfortunately, the FEC was unable to agree "as to whether the New Hampshire statute is preempted with respect to telephone surveys made on behalf of nonprofit organizations (other than federal candidates’ authorized campaign committees or other federal political committees) where the surveys do not contain express advocacy."

The New Hampshire statute requires "any person who engages in push-polling" 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 unfortunately defines "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; and (c) Conducting such calling in a manner which is likely to be construed by the voter to be a survey or poll to gather statistical data for entities or organizations which are acting independent of any particular political party, candidate, or interest group."

Now, at least, federal campaign polling that strictly mentions federal candidates or issues will not be subject to the New Hampshire law. However, the misguided law may still apply to survey research mentioning federal candidatres or federal issues if conducted by an entity other than an electoral candidate, committee or party. And, it definitely still applies to research calls mentioning state or local candidates or issues. So there is still more work to be done.