Everyone voting for H.B. 44 misunderstood the folly of trying to restrict the behavior of good actors in hopes of combating bad behavior from bad actors.
Despite a spirited advocacy campaign from the research profession, the governor of Utah will shortly sign into law a bill intended to combat so-called "push polls" but which actually harms real polling.
Utah H.B. 44 requires almost any survey regarding a declared political candidate or ballot proposition to disclose who sponsored the study to the respondent.
"We find it especially disheartening to see Utah hurting the research profession in this way, and their own ability to discover insights, at the same time New Hampshire is successfully working to correct a similar mistake in legislative drafting," lamented Howard Fienberg, Director of Government Affairs for the Marketing Research Association (MRA).
MRA and the American Association of Political Consultants (AAPC) worry that the Utah law may introduce bias into bona fide survey and opinion research and taint research in the eyes of the public by equating polling with advertising. The two organizations mobilized a grassroots advocacy campaign among researchers in the state, discussed the legislation with the sponsor and many members of the legislature, and proposed several substitute amendments.
"It is unfortunate that some legislators confuse negative advocacy phone calls with legitimate scientific research. We urge the Governor to veto this bill in the interest of legitimate research," said AAPC Chairman Whit Ayres.
House Majority Whip Greg Hughes (R) introduced H.B. 44 on behalf of his former colleague, Rep. Brad Daw (R), who was defeated in the 2012 election. Both Daw and Hughes, who claimed to have been targeted by "push polls," were concerned about transparency in campaign finance and wanted to do something about it.
Utah political consultant Brian Chapman, the Managing Director of BCR Political, contacted MRA and AAPC for help after the bill passed the House Government Operations Committee on February 28. MRA and AAPC outreach to Rep. Hughes and House leadership did not prevent the House from passing H.B. 44 by a vote of 64 to 8 on February 6. MRA and AAPC then appealed to the Senate Government Operations Committee, the bill’s next destination, and mobilized MRA members and other researchers in Utah to share their concerns with their respective Senators. CASRO sent a letter to Rep. Hughes in opposition to H.B. 44.
The hearing on H.B. 44 in the Government Operations Committee on February 15 demonstrated some clear opposition. For instance, a representative of the American Civil Liberties Union testified that H.B. 44 could restrict political speech, which is “one of the highest protected forms of speech we have,” and impact “non-advocacy sorts of polls that wouldn’t necessarily impact an election outcome” or be for purposes of influencing an election. Brian Chapman also testified to the problems with the bill and pointed the Committee members to the legislative fix proposed by MRA and AAPC.
But in making a motion to vote on H.B. 44, Senator David Thatcher (R) asked, "Is this bill better than what we currently have in practice? Yes."
Following committee passage, MRA and AAPC shared a proposed substitute amendment (outlined below) with the whole Senate and had grassroots volunteers contact their Senators again. The bill sponsor agreed to minor amendments limiting a researcher’s legal liability in case a respondent breaks off a survey before disclosure can be made, and that seemed to satisfy some important holdouts. In the end, the bill passed the Senate on March 1 by a vote of 19 to 6, and the House concurred with the Senate amendments on March 4 by a 63 to 11 vote.
The research profession’s grassroots volunteers mobilized
In addition to the extensive efforts of Brian Chapman, the volunteer who spearheaded the MRA/AAPC efforts in Utah from beginning to end, a number of other researchers deserve a huge note of thanks from the research profession:
- MRA member Ed Ledek (Key Research Solutions) didn’t just email his Senator, he also visited the capitol building to meet with him in person about H.B. 44;
- MRA member Vic Walsh (Thoroughbred Research Group) engaged in a lengthy discussion with his Senator (who also happened to be the chair of the relevant committee) and several others to try to change their minds on the bill;
- Quin Monson (Brigham Young University) didn't settle for the MRA/AAPC 1-pager on H.B. 44 -- he drafted his own position paper and engaged as many legislators on H.B. 44 it as he could reach;
- MRA members Aaron Hill (Sawtooth Software), Shane Clark (DataWise) and Vaughn Mordecai (Discovery Research Group) responded to the call to action and contacted their legislators;
- And numerous other research professionals took up the challenge to contact their legislators about H.B. 44, including Luis Carter (BRG Research Services), Ryan Horne (EMpanel Online), Robert Maccabee (Survey Sampling International), Mary Spain (Opinion Resources), Ron Hinckley (Research Strategy Mgmt), Vince Breglio (Breglio and Associates Consulting) and Edward "Paul" Johnson (Survey Sampling International).
The impact of H.B. 44 on survey, opinion and marketing research
This new law presents several problems for both the affected election research studies and the broader research profession:
- Stigmatizing research: Research is not advertising or marketing and, as stated in our accepted legal definition (utilized most recently in Congress in the Research Fairness Act of 2012, H.R. 5915), does not seek to “influence a participant’s attitudes or behavior.” The required disclosure of sponsorship would potentially impugn all research studies by making them comparable in the eyes of the public to political advertising and advocacy. This would stigmatize all bona fide research (not just political-related research) and hurt participation in research studies where we already face all-time low response rates.
- Biasing research results: Disclosure of who paid for or commissioned a poll can distort the answers respondents provide to research questions. Researchers go to great lengths to eliminate bias from all aspects of the research process, from the wording and order of questions to the accent of the interviewers. In most instances, the interviewer or programmer administering the questions is unaware of who sponsored the research, or why. While postponing the sponsorship disclosure until the end of the poll will avoid biasing that specific research interaction, it could potentially bias future participation in the same study. Any research participant informed of who sponsored and commissioned a poll while the study is still ongoing could share that information and potentially bias future respondents to the same study. In addition, the sponsor will be known to the interviewers or administrators, potentially injecting bias in how they run the survey and interact with respondents. The bias that would result from such disclosure would make it difficult to produce statistically valid data.
- Limiting research: Message testing is a legitimate survey research function. Message testing is used in order to gauge responses on whether an issue is useful or meaningful in an election. Such messages can be considered positive, negative or plainly neutral. The required disclosures would likely end bona fide message-testing election research in Utah.
MRA-AAPC amendment proposal
The final substitute amendment proposed by MRA and AAPC would have targeted "bad guys" engaging in potentially deceptive behavior (e.g., "push polls") instead of “good guys” conducting real research. MRA derived the language from the “push poll” law in Louisiana, which MRA helped craft in 2008.
It would have added definitions for "political advocacy communication" (as distinct from advertising), "poll" and "push poll." It would also have:
- Required polls to disclose who is conducting the study – this is the professional standard today and would help respondents decide if they can trust the entity conducting the study (Brigham Young University or Gallup might elicit trust, but Fly-By-Night Research LLC might not);
- Subject political advocacy communications, including “push polls,” to the same sponsorship disclosure requirements as election advertising; and
- Subject advertisements and political advocacy communications regarding ballot propositions to the same disclosure requirements as are already required for those regarding candidates.
This amendment should have satisfied the concerns of H.B. 44’s supporters for transparency in election campaigns and “push polls” in Utah without harming the practice of research and research results in Utah.
The new Utah polling law, H.B. 44
(36) (a) "Poll" means the survey of a person regarding the person's opinion or knowledge of an individual who has filed a declaration of candidacy for a public office, or of a ballot proposition that has legally qualified for placement on the ballot, which is conducted in person or by telephone, facsimile, Internet, postal mail, or email.
(b) "Poll" does not include: (i) a ballot; or (ii) an interview of a focus group that is conducted, in person, by one individual, if: (A) the focus group consists of more than three, and less than thirteen, individuals; and (B) all individuals in the focus group are present during the interview.
20A-11-905. Election polls -- Disclosure required.
(1) A person who conducts a poll shall disclose to the person being surveyed who paid for the poll before or at the conclusion of the poll.
(2) The lieutenant governor shall: (a) impose a $100 fine on a person who fails to make the disclosure required under Subsection (1); and (b) deposit the fine described in Subsection (2)(a) in the General Fund.
(3) A person does not violate Subsection (1) if the person is prevented from making the disclosure at the conclusion of the poll, because the person being surveyed terminates the survey before the survey is completed.
It is unfortunate that the legislators did not agree to adopt the proposed substitute.
Rep. Hughes was reluctant to accept any changes to the legislation and rejected any explanation of how the bill would harm real research. Many other legislators, seemingly scarred by tough campaigns, are taking out their frustrations though legislation, patting themselves on the back for making election campaigns transparent. Everyone voting for H.B. 44 misunderstood the folly of trying to restrict the behavior of good actors in hopes of combating bad behavior from bad actors. They will eventually learn that bad actors are not keen on ethical or legal behavior, and good actors will limit their research work in Utah as a result of this law.
Perhaps the biggest problem with the new Utah law is the bad precedent. New Hampshire can at least contend that their "push poll" law, and its deleterious impact on research, was a result of bad drafting. Utah, on the other hand, has taken a thoroughly misguided approach that will hurt the research profession (and the research Utah residents and politicians rely upon) while doing little or nothing to diminish deceptive and abusive election campaign behavior.