New Hampshire push poll law gets it wrong

This article originally appeared on CommonwealthMagazine.org EVERY FOUR YEARS, Granite State residents are bombarded with calls from political pollsters, gauging the state of the first-in-the-nation presidential primary.  Then, but a few months later, the shelling begins again, with general election polls flying thick and fast. This is to say nothing of each side’s get-out-the-vote calls, and the various other calls which are made in the run-up to election days. So one can perhaps understand why New Hampshire legislators would seek ways to shield their constituents from some of the noise.

That being said, the current law which regulates what the law refers to as “push polling” is misguided. It conflates ideas that are largely unrelated and makes haphazard and damaging use of terms that have very specific meanings.

There is a world of difference between push polling, one of the truly dark, unethical practices of the political arena andmessage testing, which is done by just about every political campaign with sufficient resources to conduct a sustained polling program. The Marketing Research Association describes the difference this way.

The term “push poll” refers to a political advocacy telephone call designed to “push” a voter away from a particular candidate or issue and toward another – it bears no relation to a legitimate, scientific poll. A persuasion call under the guise of a poll is a particularly unethical and deceptive activity.

A push poll is essentially a telemarketing call, where the intent is to communicate a message to a very large number of voters. There is no intent to gather information from such a call; it is simply intended to advance a specific message. Message testing, on the other hand, is often a sub-section of a political poll. Such polls will also include demographic questions, screening questions, and usually include a combination of horserace questions, job approval, favorability, and other conventional question forms.

Message testing is conducted to discern which messages could potentially be the most effective for a given campaign as they seek to move voter opinions. Such polls will usually last much longer than the quick-hit push poll calls, given the many ingredients.  They often even include messaging on both sides of a specific campaign or issue, since the campaign strategists need to know which messages are effective in both directions to effectively plan the campaign.

By mixing up message testing and push polling, the New Hampshire legislature make conducting legitimate political polling in the Granite State a dicey proposition that leaves pollsters potentially liable for tens or hundreds of thousands of dollars in fines.

New Hampshire Statute Section 664:2 (XVII) reads, in relevant part:

"Push-polling'' means…calling voters on behalf of, in support of, or in opposition to, any candidate for public office by telephone; and…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.

Several campaigns and call centers have already run afoul of the rule while using what appears to be widely accepted methods of message testing. The latest casualty is the campaign of Charlie Bass (R-NH), who is running for re-election in New Hampshire’s second congressional district. The Bass campaign allegedly sponsored a poll of 400 interviews, which has been described as a push poll using the definition from New Hampshire statutes.  This small number of calls should right off the bat disqualify this project from any conventional definition of push polling.

The specifics of the complaint actually have to do with how the sponsorship of the poll was described to respondents, which is part of the specifics of the law regulating what it calls push polling. Because this was not a push poll by any orthodox definition, the specifics of how the sponsorship was described should not be an issue.

Be that as it may, the 400 calls that were placed leave the campaign open to up to $400,000 in fines, or $1,000 per call. Fines of this size (or any size) for what appears to be widely accepted polling methods are misguided and will make conducting legitimate political polling and other survey research in the Granite State much more difficult. More to the point, the fact that the New Hampshire state legislature has failed to distinguish between push polling and message testing means that the Bass campaign is treated the same as the shadowy operators a well-written push polling statute would focus on.

I would imagine that consensus could be achieved if the definition of push polling were more narrow. I would venture to guess (without data to support my guess) that most voters resent anonymous messaging calls, whether they pose as a poll or not. But simply slapping a derogatory term and threats of large fines on legitimate message testing confuses the entire conversation.