Delaney v. Bass: Overzealous Prosecution

Attorney General Michael Delaney’s decision to file a civil suit against Congressman Charlie Bass’s 2010 campaign for conducting legitimate survey research is an unprecedented departure from New Hampshire’s tradition of an apolitical Attorney General’s office. It is the act of an overzealous prosecutor, and opens General Delaney to charges that his suit is politically motivated and self-aggrandizing. It is the sort of suit we might have expected from an Attorney General Spitzer, Coakley, or Blumenthal in other states – but not from a New Hampshire AG.

The problem is not what Bass’s campaign did. He appears to have conducted a standard poll of 400 New Hampshire voters – no different in nature from the kinds of polls all major candidates, Democrat or Republican, conduct in the course of campaigns. Senator Shaheen has conducted similar polls, Governor Lynch has, and Charlie Bass’s 2010 and 2012 opponent, Annie Kuster, has as well.

The problem is not even New Hampshire’s vague and overly broad ban on so-called “push polls.” The problem is Attorney General Delaney’s ridiculous interpretation of that law, and his decision to prosecute cases under it and go on fishing expeditions abusing his broad subpoena power. His enforcement actions have become so out of control that the American Association of Political Consultants has warned its members about polling in New Hampshire. “We don’t face this kind of harassment anywhere else in the country,” said Whit Ayres, president of the group.

Consider the position that General Delaney put Charlie Bass in by offering him a settlement in the case: Admit guilt and pay a fine, or I’m going to sue you. Bass, whom everyone acknowledges sits in a swing district that is expected to be among the most hotly contested elections in the country, looks guilty either way and Delaney has handed a huge political gift to the Democrats. That Bass is being sued by the Attorney General will be a standard Democratic talking point all year. Can there be any doubt the suit will be mentioned in ads for his opponent, Annie Kuster, whether paid for by her own campaign, the DCCC, or some other group? Cue the sinister music and innuendo about a stolen election.

You may remember “push polls,” in vogue during the 1990s. Typically they were computed-generated, recorded robo-calls made to tens of thousands of voters that were designed to convey negative information about a candidate under the guise of a poll. A script might read something like, “If you knew that Michael Delaney voted to make it easier for tobacco companies to sell cigarettes to children, would you be more or less likely to vote for him? If you knew Michael Delaney voted to allow child molesters to live within 10,000 feet of an elementary school, would you be more of less likely to vote for him?” The calls were designed to “push” a voter away from a candidate.

Legitimate survey research sometimes asks questions that can sound similar, in that they present factual but negative information to voters about a candidate: “If you knew Jeanne Shaheen voted for Obamacare, would you be more or less likely to vote for her?” But there are huge differences between this sort of research and “push polls.” Legitimate survey research is characterized by involving scientifically selected samples of about 400 voters, not mass-marketing; the polls are conducted by a recognized and professional survey research firm, which tabulates the results; they are more likely to involve live callers and not be recorded; and the negative questions are usually limited to five or six that are part of a longer, comprehensive survey of 40 questions or more which include positive information as well. What the campaign is trying to determine is what issues matter the most to voters.

Former NH state Rep. Doug Teschner authored New Hampshire’s anti-push polling law in the late 1990s. I tracked Teschner down in Ukraine, where he is now country director for the Peace Corp. I asked him whether Attorney General Delaney’s application of the law is consistent with Teschner’s original intent. Here’s Teschner’s response, via email: “My original idea stemmed from phone calls (typically the last weekend before the election)  that was not so much intended to gather info but to push people to vote in a certain way using negative information, under the cover of  what looked like legitimate polling.  It may be that some tinkering with the law might be appropriate.”

Unrelated to the prosecution, but something that says something about Attorney General Delaney’s interest in the spotlight, local Pandora Radio listeners this week are hearing public service announcements featuring…Michael Delaney and Olympic speed skater Apolo Ohno.

Is Michael Delaney running for something?, April 5, 2012

Author: Fergus Cullen

Fergus Cullen is a former chairman of the New Hampshire Republican Party (2007-2008) and an editorial page columnist for the New Hampshire Union Leader.

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  • C. dog e. doG

    Here’s a novel concept: let the adults in the deep end of the pool decide whether they will answer their phone, or not, pay attention to what some pollster is pushing, or not, and take action on what the pollster pushed, or not.  Yet another example of both the depth and breadth of Nanny’s apron to cover her B.F.A.  Gee, I wunder how such an egregious incursion into liberty’s pantry ever occurred?  Real Republicans™ would remove this wart from the Grate State of NH’s RSA’s, pronto!
    – C. dog steers gullible sheople into un-gated territory

  • David Pittelli

    It is absurd to argue that the motivation behind a 400-person poll is to change votes, as opposed to collect information. It would be nice if there were some analysis of the actual text of the law, and/or a link to the text of the law, so that we can see whether the prosecution is technically warranted, and whether the law needs updating.