New Hampshire’s controversial push poll law may be on shaky legal ground when it comes to candidates for federal offices. A member of the Federal Election Commission said Thursday the state cannot force federal candidates to identify themselves to voters when they conduct polling calls calls against their opponents. The Federal Election Campaign Act, which requires no such disclaimer on polling calls, “clearly preempts” the state push poll law for federal elections, Commissioner Donald McGahn said during a meeting of the six-member Federal Election Commission. “This isn’t about federalism,” said McGahn. “It’s different. It’s about federal elections, and the Constitution makes clear that the House and Senate are the judge of their elections and they are the ones who can pass laws.”
Lawyers for Democratic pollster Greenberg Quinlan Rosner Research, which intends to conduct polling for federal candidates and nonprofit special interest groups in New Hampshire this election year, have asked the FEC for an advisory opinion on whether the state statute regulating push polls is superseded by federal law.
Greenberg Quinlan attorney Joseph Sandler told the commission the matter may ultimately be decided in the courts, but he said an advisory opinion favorable to his client’s view by the FEC would be recognized by the New Hampshire Attorney General’s Office “and may obviate the need for litigating the matter.” He said the federal courts have often upheld the FEC on preemption questions. “Congress has made clear that this issue is not to be decided by the State of New Hampshire,” Sandler said. “It’s to be decided by Congress, as interpreted by this commission.”