THE STATE OF NEW HAMPSHIRE

SUPREME COURT

Michael A. Delaney, A.G., State of New Hampshire

v.

Bass Victory Committee

Case No. 2013-0469

APPEAL FROM THE MERRIMACK COUNTY SUPERIOR COURT

BRIEF FOR BASS VICTORY COMMITTEE

APPELLEE

Charles G. Douglas, III, Esquire, (NH Bar #669)

Jason R. L. Major, Esquire (NH Bar #14782)

DOUGLAS, LEONARD & GARVEY, P.C.

14 South Street, Suite 5

Concord, NH 03301

(603) 224-1988

January 2, 2014

TABLE OF CONTENTS

QUESTIONS PRESENTED ......................................................................................................................................1

STATEMENT OF THE CASE AND FACTS ....................................................................................................2

SUMMARY OF THE ARGUMENT......................................................................................................................4

ARGUMENT ...................................................................................................................................................................5

CONCLUSION ............................................................................................................................................................ 23

CERTIFICATION .......................................................................................................................................................... 23

CERTIFICATE OF SERVICE ............................................................................................................................... 24

ADDENDUM .................................................................................................................................................................. 25

ii

TABLE OF AUTHORITIES

Cases

Bass Victory Committee, 2012 WL 2838425 (D.N.H. July 10, 2012) ............................................................ 2, 3

Bunning v. Com. of Ky., 42 F.3d 1008 (6th Cir. 1994). ................................................................................ 11

Chevron USA Inc. v. NRDC, 467 U.S. 837 (1984)........................................................................................ 18

Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992) .............................................................................. 5, 6

Cook v. Gralike, 531 U.S. 510 (2001) ....................................................................................................................8

Dewald v. Wrigglesworth, No. 1:08-CV-906, 2012 WL 3206021 (Jan. 9, 2012) ................. 8, 11, 13

Doe v. Leavitt, 552 F.3d 75 (1st Cir. 2009) ................................................................................................ 18, 19

Fayard v. Northeast Vehicle Servs., LLC, 533 F.3d 42 (1st Cir. 2008) .......................................................... 2, 3

Fed. Elec. Com. Op. No. 2012-10 at 4 (April 27, 2012)............................................................................... 15

Fidelity Fed. Sav. & Loan Assn. v De la Cuesta, 458 U.S. 141 (1982) .....................................................5

Foster v. Love, 522 U.S. 67 (1997)). .......................................................................................................................9

In re Morton, 158 N.H. 76 (2008) ......................................................................................................................... 19

Janvey v. Democratic Senatorial Campaign Com., 793 F.Supp 825, (N.D. Tex. 2011) .......... 20, 21

Jones v. Rath Packing Co., 430 U.S. 519 (1977)................................................................................................5

Karl Rove & Co. v. Thornburgh, 39 F.3d 1273 (5th Cir. 1994) ......................................................... 21, 22

Maryland v. Louisiana, 451 U.S. 725 (1981) .......................................................................................................5

McCulloch v. Maryland, 4 Wheat. 316 (1819)....................................................................................................5

N.L.R.B v. Bell Aerospace Co. Div of Textron, Inc., 416 U.S. 267 (1974) ......................................... 14

Skidmore v. Swift & Co., 323 U.S. 134 (1944) ....................................................................................... 18, 19

State v. Jude, 554 N.W.2d 750 (Minn. Ct. App. 1996) ................................................................................. 23

Stern v. General Electric Co., 924 F.2d 472 (2d Cir. 1991) ........................................................................ 22

U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) ..............................................................................8

U.S. v. Mead Corp., 533 U.S. 218 (2001) ................................................................................................ passim

Weber v. Heaney, 995 F.2d 872 (1993). ............................................................................................................. 13

Statutes

RSA 664:16-a ...................................................................................................................................................... passim

2 U.S.C. § 431(9)(A). ................................................................................................................................................. 10

2 U.S.C. § 453(a) ......................................................................................................................................5, 12, 13, 14

2 U.S.C. § 441d ............................................................................................................................................................. 17

W. Va. Code § 3-8-9(a)(10) .................................................................................................................................... 16

Other Authorities

Fed. Elec. Com. Op. No. 2012-10 at 4 (April 27, 2012)…………………………………………………15, 18

Fed. Elec. Com. Op. No. 2009-21 (August 28, 2009). .................................................................................. 15

Fed. Elec. Com. Op. No. 1978-24 (May 12, 1978)………………………………………………16 Fed. Elec. Com. Op. No. 1981-27 (July 2, 1981)……………………………………………......17 Fed. Elec. Com. Op. No. 1995-41 (December 7, 1995) ................................................................................ 17

H.R. REP. No. 1239, 93d Cong. 2d Sess. 10-11 (1974) ..................................................................................6

S. CONF. REP. No. 1237, 93rd Cong.2d sess. (1974) ......................................................................................6

U.S. Const.., Art. I, § 4, clause 1 ..............................................................................................................................9

iii

U.S. Const., Art. VI, Clause 2 ....................................................................................................................................5

Regulations

11 C.F.R. 108.7 ................................................................................................................................................... passim

11 C.F.R. 110.11 .......................................................................................................................................................... 17

QUESTIONS PRESENTED

1. Whether the trial court erred by holding that New Hampshire’s campaign law

requiring that disclaimers described in RSA 664:16-a, I be made in “push polls” as

defined by RSA 644:2, XVII is preempted by the Federal Election Campaign Act, 2

U.S.C. § 431, et seq (“FECA”), where the mandate is applied to a federal campaign

committee?

2. Whether the trial court erred by holding that the requirement that a federal campaign

committee provide disclaimers in the script of its polls constitutes a regulation of

campaign expenditures preempted by FECA?

3. Whether the trial court erred by holding that a Federal Election Commission Advisory

Opinion was owed deference?

2

STATEMENT OF THE CASE AND FACTS1

The history of this case is set out in New Hampshire Attorney General v. Bass Victory

Committee, 2012 WL 2838425 at *1 (D.N.H. July 10, 2012). In September 2010, after receiving

information regarding polling calls made to New Hampshire residents— which were described as

containing negative content against United States congressional candidate Ann Kuster ("Kuster")—

the New Hampshire Attorney General’s Office (“AG”) began an investigation of the Bass Victory

Committee. Following its investigation, the AG concluded that the Committee had engaged in

"push-polling" as defined in RSA 664:2, XVII. According to the AG, the Committee violated RSA

664:16-a by asking questions in a polling call that implied or conveyed negative information about Kuster.

The survey did not disclose that the calls were made on behalf of the Committee, which the AG argues is

required by RSA 664:16-a. The AG filed suit in Merrimack County Superior Court against the Committee

seeking statutory civil penalties. The Committee initially removed the case to the U.S. District Court for

the District of New Hampshire, asserting that the federal court had federal question jurisdiction on the

basis that the Federal Election Campaign Act completely preempts RSA 664:16-a to the extent it purports

to apply to telephone calls paid for by federal candidates or their authorized campaign committees.

In deciding the Motion for Remand filed by the AG, the U.S. District Court noted a distinction

between complete preemption and field preemption, and remanded the claim to state court.

Specifically, the court described complete preemption as "a short-hand for the doctrine that in certain

matters Congress so strongly intended an exclusive federal cause of action that what a plaintiff calls a

state law claim is to be recharacterized as a federal claim," and field preemption as "a defense to a state

law cause of action." Bass Victory Committee, 2012 WL 2838425 at *2 (citing Fayard v. Northeast

Vehicle Servs., LLC, 533 F.3d 42, 45-46 (1st Cir. 2008)). The District Court noted that, while field

preemption is a defense to a state law cause of action, it cannot, by itself be a basis for removal to

1 The Statement of the Case and Facts is largely taken directly from Judge McNamara’s Order dated June 17, 2013.

3

federal court. Id. The District Court also explained that the United States Supreme Court had applied the

complete preemption doctrine in only three contexts: usury claims against national banks, benefit claims

under ERISA, and no strike clauses of labor contracts. Id.

The U.S. District Court then explained that the U.S. Court of Appeals for the First Circuit

applies a two- pronged test to determine whether a federal statute completely preempts state law. Bass

Victory Committee, 2012 WL 2838425 at *2 (citing Fayard,, 533 F.3d at 46). A federal statute only

completely preempts state law when there is: “exclusive federal regulation of the subject matter of the

asserted state claim”; and “a federal cause of action for wrongs of the same type.” Id. Because there is

no counterpart federal cause of action under FECA for push-polling – as prohibited by RSA 664:16-a—

the court held that complete preemption did not exist. Id. at *4. In so holding, the court noted, “[a]bsent

a federal cause of action that would replace the AG state claim, there is no complete preemption.” Id.

The court concluded that the action was not removable. However, the District Court did not decide

whether the Committee could rely on field preemption as a defense to the state law claim in this

instance. Id. The federal court explained, “nothing prevents the Bass Committee from asserting a

preemption defense in state court. I have faith that the state court will fulfill its constitutional duty to

enforce federal law.” Id.

After remand to the Superior Court, the Committee then moved to dismiss the AG’s action on

the grounds that federal field preemption law preempted the State’s claim. The Superior Court

agreed, holding that RSA 664:16-a was preempted by FECA, and dismissed the AG’s civil

penalties action. This appeal followed.

4

SUMMARY OF THE ARGUMENT

The plain language of the Federal Election Campaign Act’s express preemption provision

makes it clear beyond any reasonable argument that Congress intended for FECA to “occupy the

field” with regard to all elections to federal office. The Act’s broad preemption provision

overrules all state laws that impact campaign disclosures, receipts of funds, and expenditures of

funds for federal campaign purposes. The legislative history, rule-making, and administrative

agency decisions concerning this subject all support the broad scope of FECA’s preemption

provision, and the conclusion that RSA 664:16-a is preempted in this case. The decisions cited

by the State are distinguishable and not on point. The FEC advisory opinion directly on point

holding that RSA 664:16-a is preempted by FECA should be given considerable deference given

its consistency with the plain language and historical interpretation of the Act’s broad express

preemption provision. The polling activity at issue in this case involved an “expenditure” related

to a campaign for federal office, which puts it squarely within the scope of FECA’s preemption

provision.

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ARGUMENT

A. THE SUPERIOR COURT CORRECTLY HELD THAT THE DISCLOSURE

PROVISION OF RSA 664:16-a IS PREEMPTED BY THE BROAD

PREEMPTION PROVISION SET FORTH IN FECA.

It is well-settled that federal law may preempt state laws that conflict with, or merely

attempt to regulate the same subject matter as, federal legislation. The Supremacy Clause of the

United States Constitution provides that laws enacted by Congress “shall be the supreme Law of

the Land; and Judges in every State shall be bound thereby, any Thing in the Constitution or

Laws of any State to the contrary notwithstanding.” U.S Const., Art. VI, Clause 2. Since 1819,

there has been no question that state laws which conflict or interfere with federal legislative

schemes are “without effect.” See Maryland v. Louisiana, 451 U.S. 725, 746 (1981) (citing to

McCulloch v. Maryland, 4 Wheat. 316, 427 (1819)).

Congress’ intent to preempt state laws may be “explicitly stated in the [federal] statute’s

language or implicitly contained in its structure and purpose.” Jones v. Rath Packing Co., 430

U.S. 519, 525 (1977). Even in the absence of an express federal preemption provision, a state

law will be preempted if it actually conflicts with federal law, or “if federal law so thoroughly

occupies a legislative field ‘as to make reasonable the inference that Congress left no room for

the States to supplement it.’” Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992)(quoting

Fidelity Fed. Sav. & Loan Assn. v De la Cuesta, 458 U.S. 141, 153 (1982)).

In this case, the federal law in question, the Federal Election Campaign Act (“FECA”),

contains a broad express preemption provision which removes any doubt as to Congress’ intent

to “occupy the field” in the realm of elections to federal office. 2 U.S.C. § 453(a) provides in

relevant part that:

Subject to subsection (b) of this section [concerning office buildings of state and

local committees of political parties], the provisions of this Act, and of rules

6

prescribed under this Act, supersede and preempt any provision of State law with respect to election to Federal office.

(emphasis added). As the Supreme Court noted in Cipollone, “[w]hen Congress has considered

the issue of pre-emption and has included in the enacted legislation a provision explicitly

addressing that issue, and when that provision provides a ‘reliable indicium of congressional

intent with respect to state authority,’” it is not necessary to engage in any convoluted analysis to

discern Congress’ clear “intent to pre-empt state laws from the substantive provisions of the

legislation.” Cippolone, 505 U.S. at 517.

However, to the extent § 453(a)’s exceedingly plain statement of Congressional intent

could be argued to contain any “ambiguity,” the legislative history underlying its enactment

conclusively does away with any hesitations about Congress’ intent to completely preempt state

laws purporting to regulate federal elections. The report of the House of Representatives

Committee which drafted the language of the Act quoted above states:

It is the intent of the Committee to make certain that Federal law is construed to occupy the field with respect to elections to federal office and that the Federal law will be the sole authority under which such elections will be regulated.

H.R. REP. No. 1239, 93d Cong. 2d Sess. 10-11 (1974)(emphasis added). This clear statement of

intent was then echoed in the report of the Conference Committee that reconciled the House and

Senate drafts of the bill and adopted the House’s preemption language. The Conference

Committee Report stated:

The conference substitute follows the House amendment. It is clear that Federal law occupies the field with respect to reporting and disclosure of political contributions to and expenditures by Federal candidates and political committees, but does not affect State laws as to the manner of qualifying as a candidate or the dates and places of elections.

S. CONF. REP. No. 1237, 93rd Cong.2d sess. (1974) (emphasis added). So, in addition to the

unequivocal language of the Act itself, the legislative history makes it plain that Congress did, in

7

fact, mean exactly what it said with its language – that candidates for federal election would not

be subjected to any state law requirements with regard to disclosures and expenditures pertaining

to their campaigning activities.

Added to that, the Federal Election Commission has promulgated administrative rules

which further confirm the broad scope of FECA’s preemption provision. 11 C.F.R. 108.7

provides as follows:

EFFECT ON STATE LAW (a) The provisions of the Federal Election Campaign Act of 1971, as amended,

and rules and regulations issued thereunder, supersede and preempt any provision of State law with respect to election to Federal office.

(b) Federal law supersedes State law concerning the –

(1) Organization and registration of political committees supporting Federal candidates;

(2) Disclosure of receipts and expenditures by Federal candidates and political committees; and

(3) Limitation on contributions and expenditures regarding Federal candidates

and political committees.

(emphasis added). Notably, the C.F.R. also sets forth the narrow categories of State laws which

FECA and its associated rules do not preempt:

(c) The Act does not supersede State laws which provide for the –

(1) Manner of qualifying as a candidate or political party organization;

(2) Dates and places of elections;

(3) Voter registration;

(4) Prohibition of false registration; voting fraud, theft of ballots, and similar

offenses;

(5) Candidates personal financial disclosure; or

8

(6) Application of State law to the funds used for the purchase or construction

of a State or local party office building to the extent described in 11 C.F.R.

300.35.

Disclosures concerning the financing or control of polling efforts like those at issue in this case

are not among the narrow categories of legitimate state regulation that escape the ambit of

FECA’s preemption provision that are described in 11 C.F.R. 108.7 (c).

While the AG suggests that federal preemption should be the exception and not the rule,

only to be grudgingly acknowledged in the most explicit cases (of which this is one), it is worth

noting that under the U.S. Constitution, the States have “no inherent authority to regulate

elections to federal offices created by the Constitution.” Dewald v. Wrigglesworth, No. 1:08-CV-

906, 2012 WL 3206021 (Jan. 9, 2012)(citing U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779,

804 (1995)). “Any State authority over federal elections ‘had to be delegated to, rather than

reserved by, the States.’” Id.

The only power concerning federal elections granted to the States by the U.S.

Constitution is found in Article 1, § 4, Clause 1, which delegates to the States the power to

regulate only the “Times, Places and Manner of holding Elections for Senators and

Representatives.” See Id. “No other constitutional provision gives States authority over

congressional elections, and no such authority could be reserved under the Tenth Amendment.”

Id. (citing Cook v. Gralike, 531 U.S. 510, 523 (2001)). “By process of elimination, the States

may regulate the incidents of such elections, including balloting, only within the exclusive

delegation of power under the Elections Clause.” Id.

Furthermore, even this limited state authority over federal elections is conditional under

the Elections Clause of the U.S. Constitution. Congress retains the authority under the Elections

9

Clause to override any State regulation except those concerning the place of choosing Senators.

See Id.; U.S. CONST., Art. I, § 4, clause 1. As such, the Elections Clause should be treated

merely as a “default provision; it invests the States with responsibility for the mechanics of

congressional elections, but only so far as Congress declines to pre-empt state legislative

choices.” Id. (citing Foster v. Love, 522 U.S. 67, 69 (1997)). FECA, with its explicit, broadly-

worded express preemption provision, indicates that rather than “declining” to preempt state

legislative choices, Congress chose to act as expansively as possible, overriding any and all State

laws aimed at impacting the conduct of federal election campaigns, including RSA 664:16-a.

B. THE SUPERIOR COURT’S HOLDING THAT RSA 664:16-a’s DISCLOSURE

PROVISION DIRECTLY IMPACTS EXPENDITURES MADE BY A FEDERAL

CAMPAIGN WAS CORRECT AND SHOULD BE UPHELD.

In this case the Superior Court correctly ruled that the alleged “push polling” activity that

the State seeks to regulate pursuant to RSA 664:16-a constituted an “expenditure” related to a

campaign for federal office as defined by FECA, and that as such an “expenditure,” it fell within

the broad preemption language of 2 U.S.C. 453(a) and 11 C.F.R. 108.7 (b)(2). The legal

correctness of the Superior Court’s decision is beyond any reasonable argument to the contrary.

While the State attempts to parse out “disclaimers” from “polling” and “expenditures,”

there is simply no logic in the argument that a polling effort undertaken by a campaign for

federal office does not amount to an “expenditure” of federal campaign funds. FECA defines

“expenditure(s)” as

(i) any purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value, made by any person for the purpose of influencing any election for Federal office; and

(ii) a written contract, promise, or agreement to make an expenditure.

10

2 U.S.C. § 431(9)(A). Under this definition, the polling effort undertaken by the Bass

Committee was clearly an “expenditure” because it involved the payment of money to a phone

bank, polling organization, etc. and the purpose of the poll was to gather2 information in

furtherance of “influencing [an] election for Federal office.”

Nor is there any logic in the argument that any particular state law requirements added to

that polling effort will not necessarily impact the expenditure of those federal campaign funds.

A state law requirement like that set forth in RSA 664:16-a would require the Bass federal

campaign to, inter alia, (1) research and identify the state law requirement, (2) determine the

appropriate method of compliance with the state law requirement; (3) actually undertake steps to

meet those compliance requirements; and (4) defend its efforts to comply with its understanding

of the statute’s requirements. Each of these steps would require an investment of time, money,

and staff effort. As such, each of these steps would require a “purchase, payment, distribution …

gift of money or anything of value, made by any person [connected with the campaign].”

Compliance with RSA 664:16-a would therefore clearly require some form of “expenditure” as

defined by FECA in connection with the Bass Campaign’s efforts to obtain federal office.

Attempting to reach a contrary conclusion requires tortured logic and ignoring both the Act’s

broad preemptive scope and its definition of “expenditure.”

It is therefore not surprising that both Federal Court decisions and the Federal Election

Commission’s advisory opinions concerning disclosure requirements like those set forth in RSA

664:16-a are consistent in their determination that such requirements are preempted by FECA.

(1) Federal Court Decisions Supporting Preemption:

2 If, arguendo, the poll at issue were truly a “push poll,” it would also have the purpose of disseminating information for the purpose of “influencing [an] election for Federal office,” putting it even more squarely in the scope of FECA’s preemption provision.

11

The most “on point” Federal appellate level decision that appellee’s counsel is aware of is

Bunning v. Com. of Ky., 42 F.3d 1008 (6th Cir. 1994). In Bunning, the Kentucky Registry of

Election Finance (“the Registry”) attempted to investigate a poll conducted by U.S.

Congressman James Bunning’s election committee. Id. at 1009. Among the various purposes of

the poll was exploration of Congressman Bunning’s potential as a future gubernatorial candidate.

Id. The Registry took the position that such exploratory activity was prohibited under Kentucky

state law. The Congressman filed suit based on federal preemption. Id. The U.S. District Court

held that FECA preempted the Kentucky statute and enjoined the Registry from taking any

further action with respect to the Bunning Committee’s polling activity. Id.

The Registry appealed to the U.S. 6th Circuit Court of Appeals. Id. at 1011. The 6th

Circuit upheld the District Court’s holding of preemption:

We conclude that § 453 preempts state law in this case. It is undisputed that the expenditure for the poll was made by a federal political committee…and there is no claim that an expenditure for a poll…is in any way unlawful under the FECA...the Registry’s intrusion into Congressman Bunning’s federal regulated activity constituted an attempt to impose on a federal political committee Kentucky’s requirements on both the disclosure of expenditures and the limits on expenditures made by such a committee. The Registry’s claimed right to do so is preempted by § 453 and 11 C.F.R. § 108.7(b)(2) and (3).

Bunning v. Com. of Ky., 42 F.3d 1008, 1012 (6th Cir. 1994). The facts of the instant case closely

parallel those of Bunning. As with Congressman Bunning’s poll, the Bass Committee’s poll was

undertaken via an expenditure made by a federally-registered political committee. The AG’s

attempt to “impose on a federal political committee [New Hampshire’s state law] requirements

on … the disclosure of expenditures … made by such a committee” are subject to preemption by

§ 453 and 11 C.F.R. § 108.7(b)(2) and (3) just as the Kentucky law was in Bunning. See Id.

The case of Dewald v. Wrigglesworth, No. 1:08-CV-906, 2012 WL 3206021 (Jan. 9,

2012), involved a habeas corpus petition filed by a prisoner convicted of obtaining money under

12

false pretenses. Id. at *1. The petitioner’s convictions arose out of his operation of two political

action committees in connection with the 2000 presidential election. The petitioner’s PACs

purported to raise money on behalf of both parties’ presidential candidates. The PACs utilitized

donor lists compiled by the FEC to send solicitation letters to political donors and obtain

campaign donations from them. Id. at *2. The PACs raised approximately $750,000, much of

which was retained by a for-profit corporation utilized by the petitioner to administer the PACs’

activities. The PACs did, however, make contributions to actual political organizations. Id. at

*3. The Michigan Attorney General’s office concluded that the petitioner’s activities constituted

fraud and obtaining money under false pretenses, and filed criminal charges. Id. The petitioner

was convicted and sentenced to prison terms. He then filed for habeas corpus relief, arguing that

the state criminal statutes were preempted by FECA, because of his PAC’s connection to a

federal election.

The U.S. District concluded that Michigan’s criminal statutes were preempted by FECA

in the context of the petitioner’s case. The court specifically noted that the “language of FECA’s

preemption clause is broad and evinces a Congressional intent to ‘supersede and preempt’ all

State laws ‘with respect to election to Federal office,’” and that when faced with “such broad

preemption language in similar contexts, the Supreme Court has found a Congressional intent to

occupy the field of regulation falling with the scope of the statute.” Id. at *15. Based on the

explicit Congressional intent found in 2 U.S.C. § 453(a) and the accompanying regulations

promulgated by the FEC at 11 C.F.R. 108.7(b), the District Court held that:

… the preemptive effect of section 453(a) certainly covers Michigan’s attempts to criminalize, through laws of general applicability, the use by a federally regulated PAC of a candidate’s name in solicitations for a Presidential election, and the misuse of donor lists published by the FEC. Both of these areas of conduct are expressly governed by the FECA and the FEC’s regulations.

13

Id. at *16. If the preemption provision of FECA is broad enough to encompass a state criminal

law of otherwise general applicability when that state law intrudes upon FECA’s subject matter

in a particular case, then an election-polling specific statute like RSA 466:16-a must certainly be

subject to FECA preemption. It directly and purposefully seeks to intrude upon federally-

regulated election campaigns by forcing them to make expenditures and disclosures not required

by federal law, and therefore falls even more squarely within the scope of 2 U.S.C. § 453(a) than

the general fraud laws at issue in Dewald.

The Minnesota Congressional Campaign Reform Act (“CCRA”) was the state law at

issue in Weber v. Heaney, 995 F.2d 872 (1993). This campaign finance reform-directed act

established a system by which federal Congressional candidates could agree to limit their

expenditures in order to receive public funding. The CCRA was challenged by then current

members of Minnesota’s Congressional delegation. The FEC issued an advisory opinion stating

that the CCRA was preempted, and then the plaintiffs filed suit in federal court. The federal

District Court also held that the CCRA was preempted. On appeal to the U.S. Court of Appeals

for the 8th Circuit, the District Court’s preemption ruling was upheld.

Noting FECA’s express preemption provision, the legislative history of the Act, and the

FEC’s regulations, the Court of Appeals held that “under every plausible reading of § 453, the

[CCRA] falls squarely within the boundaries of the preempted domain.” The Court of Appeals

noted that Congress’ refusal to make any changes to § 453 after the FEC promulgated 11 C.F.R.

108.7 was persuasive evidence that Congress did in fact intend for FECA to have the broadest

possible preemptive effect:

The FEC regulation states that “Federal law supersedes state law concerning … [l]imitation on contributions and expenditures regarding Federal candidates and political committees.” By law, the FEC must submit a proposed regulation and an accompanying statement to both the House and Senate. If neither house

14

disapproves the proposed regulation within thirty days, the FEC may issue it. We find this duly authorized regulation is a further express preemption of the [CCRA]. Congress did not reject this regulation when the Commission submitted it for review in 1977 or when Congress substantially revised FECA in 1979. Such “congressional failure” to revise or repeal the agency’s interpretation is persuasive evidence that the interpretation is the one intended by Congress.

Id. at 876-77 (internal citations omitted).

Federal case law is therefore clear that 2 U.S.C. § 453(a), particularly when read in

conjunction with the regulation at 11 C.F.R. § 108.7, should be given a broad preemptive scope,

encompassing any state law that seeks to mandate additional requirements on expenditures

(whether in the form of an additional “disclosure” or some other requirement). RSA 466:16-a

clearly falls within the scope of FECA’s preemption provision based on these cases.

(2) FEC Decisions Supporting Preemption:

“In addition to the importance of legislative history, a court may accord great weight to

the longstanding interpretation placed on a statute by an agency charged with its

administration…[and] congressional failure to revise or repeal the agency’s interpretation is

persuasive evidence that the interpretation is the one intended by Congress.” N.L.R.B v. Bell

Aerospace Co. Div of Textron, Inc., 416 U.S. 267, 274 (1974). This legal maxim has particular

weight in this case because the Federal Election Commission has specifically addressed the

specific New Hampshire statute at issue, RSA 664:16-a.

Advisory Opinion 2012-10, issued by the FEC on April 27, 2012, in response to an

inquiry by a national polling research organization, held that RSA 664:16-a was preempted in a

context exactly like that at issue in the instant case:

The New Hampshire statute at issue here is preempted to the extent that it purports to regulate [the polling company’s] telephone surveys paid for by Federal candidates, their authorized campaign committees and other Federal political committees…and both [FECA] and Commission regulations regulate this area, including expenditures for polling expenses.

15

Fed. Elec. Com. Op. No. 2012-10 at 4 (April 27, 2012) (emphasis added), Addendum (“Add.”) at

37. The Commission specifically held that the “New Hampshire campaign finance statute

requiring disclaimers on certain campaign-related telephone surveys made on behalf of Federal

candidates, their authorized campaign committees, or other Federal political committees is

preempted by the Act and Commission regulations.” Id. at 1 (emphasis added). The Commission

reasoned that if applied to Federal candidates or their committees who pay for telephone surveys

like that at issue here, RSA 466:16-a “would impose an additional disclaimer requirement on

those expenditures.” The Commission then noted that under FECA’s broad preemption

provision, “only Federal law may require disclosure regarding expenditures by Federal

candidates.” Id. at 4-5 (citing 2 U.S.C. § 453; 11 C.F.R. 108.7(b)(2), Add. at 37-38.

In its 2012-10 opinion addressing RSA 466:16-a, the Commission cited Advisory

Opinion 2009-21(West Virginia Secretary of State) as a previous decision reaching an identical

conclusion in similar circumstances. In fact, the 2009-21 West Virginia case may actually be

even closer to the mark. As the AG does in this case, the West Virginia Secretary of State

sought to enforce a state law that prohibited “deceptively design[ing] or intentionally

conduct[ing] [polls] in a manner calculated to advocate the election or defeat of any candidate or

group of candidates or calculated to influence any person or persons so polled to vote for or

against any candidate, group of candidates proposition or other matter to be voted on by the

public in any election.” W. Va. Code § 3-8-9(a)(10). Fed. Elec. Com. Op. No. 2009-21 at 2, Add.

at 40.

In other words, the West Virginia statute sought to regulate a variation of so-called “push

polls,” much like RSA 466:16-a does. In Advisory Opinion 2009-10, the FEC reasoned that the

West Virginia statute, “if applied to Federal candidates, would impede those candidates’ ability

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to make payment[s] of polling expenses that are governed by the Act and Commission

regulations.” Id. at 4, Add. at 42. As the Commission held in Opinion 2012-10, the same

reasoning applies with full force to RSA 466:16-a.

The FEC’s decisions in this area are remarkably consistent. Going all the way back to

1978, in Advisory Opinion 1978-24, the Commission held that a Washington law requiring party

designation on all campaign advertising was preempted by FECA. The Commission’s decision

in 1978-24 points out that “in light of stated Congressional intent that the Act preempt State law

as to required disclosures in conducting political campaigns for Federal office, the Commission

concludes that the provisions of [FECA] would supersede and preempt the cited Washington

statute….” Fed. Elec. Com. Op. No. 1978-24 (May 12, 1978) at 2, Add. at 45.

Another decision consistent with those cited above was rendered by the Commission in

Fed. Elec. Com. Op. No. 1981-27 (July 2, 1981), Add. at 46. In that case the FEC held that a

Houston, Texas city ordinance requiring that all election-related public notices, including

communications from Federal candidates, contain an anti-littering warning, was preempted. The

Commission noted that in addition to the express preemption provisions of 2 U.S.C. § 453 and

11 C.F.R. 108.7, the state statute conflicted with other sections of FECA and its associated

regulations. The Commission cited 2 U.S.C. § 441d and 11 C.F.R. 110.11, which require “notice

of the identity of the persons who paid for or authorized any communication expressly

advocating the election or defeat of a clearly identified candidate.” The Commission held that

Houston’s ordinance exceeded the Act’s disclosure requirements, and was therefore preempted

on the basis of conflict preemption as well as express field preemption. Id. at 2, Add. at 47.

Given that “push polling” as defined by RSA 664:16-a (I) includes “[c]alling voters on

behalf of, in support of, or in opposition to, any candidate for public office…” and “[a]sking

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questions related to opposing candidates … which state, imply or convey information about the

candidates[’] character, status or political stance or record,” it would seem to come into direct

conflict with 2 U.S.C § 441d and 11 C.F.R. 110.11’s federal disclosure requirements, providing

another ground for holding that RSA 466:16-a is preempted by federal law.

In Advisory Opinion 1995-41, the FEC addressed a New York state law requiring

campaigns to furnish detailed polling information preceding the release of poll results. The

Commission held that the New York statute’s reporting requirements were preempted by FECA.

In that decision, and of particular interest to the case at hand, the Commission said:

The Commission has previously concluded that the Act supersedes and preempts state law with respect to the reporting requirements of Federal committees and State committees which engage in Federal Activity. Given this legal authority, the Act would preempt New York State law with respect to the reporting of contributions, disbursements and expenditures, including expenditures for polling activity in Federal election campaigns. New York State may not impose any obligation for reporting Federal contributions, disbursements and expenditures since those obligations fall only within the purview of the Act and Commission regulations.

Fed. Elec. Com. Op. No. 1995-41 (December 7, 1995) at 2 (emphasis added and internal

citations omitted), Add. at 50.

In light of the consistency of the Commission’s decisions holding that federal law

preempts requirements similar to those of RSA 466:16-a, Advisory Opinion 2012-10,

specifically preempting RSA 664:16-a’s disclosure requirements, should be viewed by the Court

as a strongly persuasive analysis as to why the AG’s case against the Bass Committee should be

dismissed as preempted by federal law in this case.

C. THE CONSISTENT DECISIONS BY THE FEC HOLDING THAT RSA 664:16-a

AND OTHER SIMILAR STATUTES ARE PREEMPTED BY FECA ARE

ENTITLED TO CONSIDERABLE DEFERENCE.

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The AG asserts that the FEC’s Advisory Opinions are not entitled to deference under

Chevron USA Inc. v. NRDC, 467 U.S. 837 (1984), and are not even to be given persuasive

weight by this Court. However, contrary to their analysis, FEC Advisory Opinions are entitled to

consideration under the doctrine adopted by the U.S. Supreme Court in Skidmore v. Swift & Co.,

323 U.S. 134, 140 (1944), and are in fact persuasive authority. “Mead indicates … that even if

an informal agency interpretation is deemed not to warrant Chevron deference, it may

nonetheless lay claim to a lesser degree of deference under the Skidmore banner.” Doe v.

Leavitt, 552 F.3d 75, 79-80 (1st Cir. 2009) (citing U.S. v. Mead Corp., 533 U.S. 218, 234

(2001)).

Opinions issued by administrative agencies like the FEC are weighed differently than

regulations: “here…we confront an interpretation contained in an opinion letter, not one arrived

at after, for example, a formal adjudication or notice-and-comment rulemaking. Interpretations

such as those in opinion letters…do not warrant Chevron-style deference.” Christensen v. Harris

County, 529 U.S. 576, 587 (2000). However, “interpretations contained in formats such as

opinion letters are ‘entitled to respect’ under our decision in Skidmore, … to the extent that those

interpretations have the ‘power to persuade.’” Id.

So, while advisory opinions may not be binding, if an agency continues to issue opinions

that are consistent and draw the same conclusions in similar circumstances, those opinions will

be entitled to consideration as persuasive interpretations of how a particular statute should be

construed and enforced. That should be especially true in this case, where Congress has taken no

action to change or override the FEC’s decisions with regard to preemption. As the U.S. Court

of Appeals for the First Circuit has held, “what the Skidmore standard entails is a sliding-scale

approach under which the degree of deference accorded to an agency interpretation hinges on a

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variety of factors, such as the thoroughness evident in [the agency’s] consideration, the validity

of its reasoning, [and the] consistency [of its interpretation] with earlier and later

pronouncements.” Doe v. Leavitt, 552 F.3d 75, 81(1st Cir. Ct. App. 2009) (citing Skidmore, 323

U.S. at 140).

As set forth in Section B(2), supra, the FEC has consistently held that FECA preempts

state laws seeking to impose additional requirements on polling in connection with elections to

federal office and thus, “the consistency of the Secretary’s interpretation, over time, furnishes

some degree of support for deferring to that interpretation.” Doe at 82. As the Superior Court

noted in its decision in this case, “[h]ere, the FEC is most familiar with the enforcement of

FECA, and its reasoning is both persuasive and remarkably consistent.” Order at p. 7.

The New Hampshire Supreme Court has also ruled on the issue of an agency’s

interpretation of the legislation it reviews. When considering an agency interpretation of a statute

or regulation, the Court reviews it de novo but “ascribe[s] the plain and ordinary meanings to

words used…looking at the rule or statutory scheme as a whole, and not piecemeal.” In re

Morton, 158 N.H. 76, 78 (2008). The deference afforded to the agency interpretation is based on

its consistency “with the language of the regulation and with the purpose the regulation is

intended to serve.” Id. Looking at the plain language of FECA’s preemption provision, the

Congressional record surrounding the original legislation, and its consistent and persuasive

interpretation by the FEC in similar cases, the Commission’s advisory opinions should be given

considerable deference and persuasive weight by this Court pursuant to Skidmore.

D. THE STATE’S PREEMPTION ANALYSIS, AND THE DECISIONS IT RELIES

ON, ARE FLAWED AND/OR DISTINGUISHABLE.

The State asserts that push-polling, even in the context of elections for federal candidates,

does not fall under FECA and is governed by RSA 664:16-a. It bases this conclusion on a series

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of Federal cases in which state laws of general application were not preempted by FECA.

However, in none of these cases did the courts find that polling or expenditures related to polling

were outside the scope of FECA’s preemption provision. For example, the State relies heavily

on the U.S. District Court for the Northern District of Texas’ holding in Janvey v. Democratic

Senatorial Campaign Com., 793 F.Supp 825, (N.D. Tex. 2011), to argue that both express and

conflict preemption do not apply with regard to RSA 664:16-a.

Janvey involved a claim by a Receiver seeking to obtain restitution of funds donated to a

campaign committee via an illegally-conducted ponzi scheme. The return of the illegally-

obtained funds was based on a state fraudulent transfer statute. See Id. at 828-29. The senatorial

campaign committee which received the illegal ponzi funds argued that the Receiver’s attempt to

recover the money under the Texas Uniform Fraudulent Transfer Act (“TUFTA”) was preempted

by FECA. The District disagreed, holding that FECA was not intended to preempt state laws of

general application to the extent they regulated internal campaign committee conduct, including,

i.e., compliance with ordinary state contract law. See Id. at 842, 847. Notably, the U.S. District

Court’s Order carefully explained exactly why Janvey is distinguishable from the case at bar:

The Receiver's claims, however, do not implicate those uses or attempt to regulate contributions or expenditures as made for the purpose of influencing any election for Federal office.

Forcing the Political Committees to disgorge funds that presumably will come from present-day monies they would rather spend on core campaign-related activities may have a connection to topical areas, such as campaign finance, regulated by FECA. "'[B]ut that possibility does not change [the Receiver's] case from one about [fraudulent transfer] into one about'" election to Federal office.

* * *

In this light, the Receiver's claims fall outside of section 108.7(b)(3)'s scope. The Receiver deploys TUFTA here to compel the Political Committees to disgorge the value of contributions made by the Stanford Defendants—with others' money— years ago, not to effect a restriction on any person's ability to influence elections

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to federal office. Similarly, although disgorgement will entail a "payment" by the Political Committees, they will make it for the purpose of satisfying a money judgment rather than influencing election for federal office.

Id. at 840-841 (emphasis added).

These points concisely state why the Janvey holding has no application in the instant

case. Unlike the application of the TUFTA statute in Janvey (which was not aimed at regulating

federal-election related communications, research efforts, or other expenditures geared toward

actually influencing an election) RSA 664:16-a, as applied by the AG against the Bass

Committee, directly seeks to regulate polling-related communications that were conducted by the

Committee for the purpose of influencing an election to federal office. Simply put, Janvey

involves use of a general purpose state law against a federal election campaign unrelated to its

campaigning/election-influencing activities. The instant case involves use of a State statute to

regulate a federal election campaign’s campaign related activities and expenditures – which falls

precisely into FECA’s preemption provision.

The same reasoning effectively distinguishes all of the federal cases relied upon by the

AG. The case of Karl Rove & Co. v. Thornburgh, 39 F.3d 1273 (5th Cir. 1994) dealt with the

issue of a contractual debt owed to a campaign committee. Like the Janvey case, the Rove case

implicated a state law of general application, in the context of payment of a campaign committee

debt. Unlike the present case, the Rove case had nothing to do with state regulation of campaign

expenditures for the purpose of influencing a federal election campaign. Interestingly, Court of

Appeals in Rove pointed out that the FEC had issued an opinion holding that state law was not

preempted with regard to liability for campaign committee debts.

Finally, the Federal Election Commission ("FEC") has opined that state law supplies the answer to the question who may be held liable for campaign committee debts. Accordingly, in light of the FEC's view, the strong presumption against preemption, the historically narrow reading of § 453, and FECA's silence

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on the issue of candidate liability, we conclude that Thornburgh's argument for express preemption must fail.

Rove, 39 F.3d at 1280-81.

Stern v. General Electric Co., 924 F.2d 472 (2d Cir. 1991), also relied upon by the AG,

was a shareholders’ derivative action filed against General Electric for using corporate funds to

support a political action committee. See Id. at 473. It is not surprising that the Court of Appeals

held that the shareholders’ action based on corporate waste was not preempted by FECA. The

case involved internal corporate governance and had nothing to do with influencing a federal

election.

Like the other cases relied upon by the AG, Stern did not involve a state statute which

directly impacted a campaign committee expenditure in the context of conducting a federal

election-related polling activity. The statute at issue in Stern, like that in Rove, was aimed at

general corporate governance and fairness toward shareholders – an area historically reserved to

the states to regulate – which just happened to involve political contributions in that particular

case. Stern certainly does not stand for the proposition that state laws like RSA 664:16-a, which

require additional disclosures on an expenditure made by a federal campaign committee in the

context of efforts to influence a federal election campaign, escape FECA preemption.

U.S. v Trie, 21 F.Supp.2d 7 (D.D.C. 1998), reviewed a decision by a federal prosecutor to

charge a suspect under a federal felony statute rather than the misdemeanor FECA statute

governing similar conduct. The U.S. District Court in that case decided that the U.S.

Government was not preempted from bringing felony counts in addition to or instead of the

FECA-based misdemeanors. The Trie decision contained no meaningful analysis of FECA

preemption of state laws, and is clearly distinguishable on the grounds that the question in that

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case was federal legislative preemption of other conflicting federal laws – not state laws as in

this case. See Id. at 19.

State v. Jude, 554 N.W.2d 750 (Minn. Ct. App. 1996), is also distinguishable from this

case. Jude involved a claim of dissemination of false campaign material, which was prohibited

under Minnesota statute. The Minnesota Court of Appeals ruled that the Minnesota state law

was not preempted by FECA because:

The statute under which Jude was charged does not regulate the expenditures of, or campaign contributions to, candidates for federal office, or any other office. See Minn. Stat. § 211B.06. It merely prohibits certain nonfinancial campaign practices by all candidates in Minnesota, specifically the use of false campaign materials or advertising.

State v Jude at 752. By contrast, RSA 664:16-a requires a campaign to make an additional

expenditure in the form of a disclosure in connection with federal election-related polling

activity, falling squarely within FECA’s preempted zone of activity.

Simply put, the cases relied upon by the AG do not support its argument that RSA

664:16-a should escape federal preemption under FECA in this case.

CONCLUSION

For the reasons set forth above, the Supreme Court should uphold the decision of the

Superior Court dismissing the Attorney General’s penalty action against the Bass Committee.

CERTIFICATION

The decision and order of the Merrimack County Superior Court being appealed from is

appended to this brief.

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RESPECTFULLY SUBMITTED: BASS VICTORY COMMITTEE By its attorneys, DOUGLAS, LEONARD & GARVEY, P.C. Date: January 2, 2014 By: __________________________________________ Charles G. Douglas, III, N.H. Bar No. 669 Jason R.L. Major N.H. Bar No. 14782 14 South Street, Suite 5 Concord, NH 03301 603-224-1988

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing has been mailed by first-class mail this 2nd day of January, 2014, to Stephen G. LaBonte, Esq. and Anne Edwards, Esq., at the Office of the Attorney General, 33 Capitol Street, Concord, NH. ____________________________________ Charles G. Douglas, III

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ADDENDUM TO BRIEF TABLE OF CONTENTS

Order, Merrimack Superior Court (McNamara, J.), dated June 17, 2013…………………….26 Federal Election Commission, Advisory Opinion 2012-10, dated April 27, 2012……………34 Federal Election Commission, Advisory Opinion 2009-21, dated August 28, 2009………….39 Federal Election Commission, letter dated May 12, 1978…………………………………….44 Federal Election Commission, Advisory Opinion 1995-41, dated December 7, 1995………..49