Argued May 8, 2014.
Under New Hampshire procedural rule this decision is subject to motion for rehearing, as well as formal revision before publication in the New Hampshire Reports.
Joseph A. Foster, attorney general ( Anne M. Edwards, associate attorney general, and Brian W. Buonamano, attorney, on the brief, and Mr. Buonamano orally), for the New Hampshire Attorney General.
Douglas, Leonard & Garvey, P.C., of Concord ( Charles G. Douglas, III and Jason R.L. Major on the brief, and Mr. Douglas orally), for Bass Victory Committee.
CONBOY, J. DALIANIS, C.J., and HICKS, J., concurred.
The New Hampshire Attorney General (AG) appeals an order of the Superior Court ( McNamara, J.) dismissing his petition for civil penalties against the Bass Victory Committee (Committee), the authorized campaign committee of former United States Congressman Charles F. Bass, for allegedly violating RSA 664:16-a (2008) (amended 2014) by engaging in " push-polling." See RSA 664:21, VI (Supp. 2013). The AG argues that the trial court erroneously determined that the Federal Election Campaign Act, 52 U.S.C. § § 30101 et seq. (FECA),[*] preempts RSA 664:16-a. We affirm.
The following facts are drawn from the trial court's order or are otherwise undisputed on the record before us. In September 2010, the AG's Office received information regarding polling telephone calls made to New Hampshire residents that were described as containing negative content about United States congressional candidate Ann McLane Kuster. The AG investigated, and concluded that the Committee had engaged in " push- [166 N.H. 800] polling" as defined in RSA 664:2, XVII (2008) (amended 2014) without complying with the disclosure requirements set forth in RSA 664:16-a.
At the time of the AG's investigation, RSA 664:2, XVII defined " '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.
RSA 664:16-a provided:
I. Any person who engages in push-polling, as defined in RSA 664:2, XVII, 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.
II. Any person or entity who violates paragraph I shall be subject to penalty under RSA 664:21, V and VI.
According to the AG, the Committee violated RSA 664:16-a by asking questions in the polling calls about Kuster that implied or conveyed negative information about her character, status, political stance, or record in a manner that was likely to be construed by voters as a survey or poll to gather statistical data for an independent entity or organization without disclosing that the calls were made on behalf of the Committee. As a result, the AG filed a petition in Superior Court against the Committee, seeking statutory civil penalties pursuant to RSA 664:21. After unsuccessfully attempting to remove the case to federal court, the Committee moved to dismiss the AG's petition on the ground that RSA 664:16-a is preempted by the FECA. The Committee contended that the FECA contains an express preemption provision that demonstrates Congress's " explicit intent to preempt state law with regard to the entire field of election laws concerning campaigns for federal offices." The preemption provision states, subject to limitations not relevant here:
[T]he provisions of [the FECA], and of rules prescribed under [the FECA], supersede and preempt any provision of State law with respect to election to Federal office.
[166 N.H. 801] 52 U.S.C. § 30143(a).
The Committee maintained that legislative history of the FECA demonstrates Congress's intent that the Act preempt state law with regard to reporting and disclosing political contributions and expenditures by federal candidates and political committees. The Committee also relied upon an advisory opinion by the Federal Election Commission (FEC) that concluded that RSA 664:16-a is preempted by the FECA because, if applied to candidates for federal office who want to pay for telephone surveys, as defined in RSA 664:2, XVII, the statute would impose additional disclosures as to those expenditures. See F.E.C. Adv. Op. 2012-10, 2012 WL 1529235, at *4 (F.E.C. Apr. 27, 2012). Thus, the Committee argued that RSA 664:16-a " interferes with the intent of Congress, by requiring a candidate for federal office to make disclosures regarding election-related expenditures" and, therefore, is preempted.
The trial court ruled that the FECA preempts RSA 664:16, concluding that " [p]ush-polling is a campaign expenditure because the campaign must expend funds in order to conduct the activity." The court ruled that, " [b]ecause [the] FECA regulates the required disclosures associated with campaign expenditures, and because RSA 664:16-a mandates disclosure associated with a specific type of campaign expenditure, federal law preempts ...