Bar Journal - Summer 2004
Survey of New Hampshire Election 2004 Issues
By: Attorney James E. Merrill
In New Hampshire, institutions like the Executive Council and other vestiges of our colonial heritage still predominate our government. Another persistent emblem of our pre-Revolutionary roots is our two-year term for the office of Governor. Today, New Hampshire and Vermont are the only states that provide for a two-year gubernatorial term of office. The basis for this limitation is easily understood when considered in context with the times which bore it, namely, a healthy distrust of an all-powerful sovereign, King George III of England.1
Many in New Hampshire subscribe to the theory that the two-year term, rather than the prevailing four, keeps our elected state officials "honest." The sacrifice for this frequent check on governmental power is that New Hampshire has a seemingly endless election cycle. As it stands, we are poised to hold another statewide election this fall which will seat a Governor, a United States Senator, two United States Congressmen, five Executive Councilors, twenty-four State Senators, and 400 State Representatives. Additionally, New Hampshire will make its choice for President, and true to form, the Granite State promises to be a defining national player in the upcoming presidential election.2 With this fact in mind, the following article will address some of the new, novel, and/or frequently ignored aspects of New Hampshire election law that seek to shepherd the civic "campaign" through the rigors of New Hampshire politics.3
STARTING A CAMPAIGN – THE EXPLORATORY COMMITTEE AND FUNDRAISING ISSUES
After consulting with family, friends and political allies, the prospective candidate may form what is known as an "exploratory committee." The term exploratory committee is not defined by New Hampshire election laws,4 but has been characterized by Attorney General opinions as "political committees formed on behalf of individuals who are not yet declared candidates."5 The term "political committee" is defined by RSA 664:2, III as "any organization of 2 or more persons to influence elections or measures. . . ." Under New Hampshire law, an individual must take the steps required to form a political committee no later than twenty-four hours after receiving a contribution in excess of $500, or within twenty-four hours after making an expenditure in excess of $500.6 Upon the occurrence of either milestone, the prospective candidate must fill out a form provided by the Secretary of State’s office, pay a fee of $50, designate a New Hampshire citizen as treasurer of the newly formed political committee, and file a statement indicating its purpose.7 In the case of an exploratory committee, recommended language for the statement would be along the lines of "for purposes of exploring the feasibility of a campaign for the office of X." The goal is to make clear the political committee’s "exploratory" purpose.
Having formed an exploratory committee, a prospective candidate can begin the "search for support and quest for capital." Money regrettably being considered the lifeblood any political campaign, the prospective candidate may begin to raise money in the form of contributions to further exploratory efforts. The question of the increments in which money can be raised was recently decided by the Attorney General in 2002, through its resolution of an election law complaint brought against the exploratory committee ("WhyBenson.com") of then gubernatorial hopeful Craig Benson ("Governor Benson") by his two Republican primary rivals for the same office, former State Senator Bruce Keough and former United States Senator Gordon Humphrey. In their complaint, Senators Keough and Humphrey argued, albeit unsuccessfully, that WhyBenson.com had broken New Hampshire election laws ("Complaint").
RSA 664:4, V(1) provides that no candidate or political committee can accept contributions in excess of $1,000 where such a candidate declines New Hampshire’s voluntary campaign spending caps.8 The Complaint first argued that in light of the WhyBenson.com purpose statement to "elect Craig Benson Governor," an expensive advertising campaign touting Governor Benson’s candidacy, and news accounts suggesting Governor Benson’s actual, rather than theoretical candidacy, WhyBenson.com was actually a candidate committee.9 By not agreeing to the "spending cap," the Complaint argued that WhyBenson.com accepted numerous contributions exceeding $1,000 when under the circumstances, it was legally restricted to contributions of $1,000 or less.10
Second, the Complaint alleged that even assuming that WhyBenson.com was merely an exploratory committee rather than candidate committee, it still violated the law by accepting a contribution in excess of $5,000, the maximum amount allowed to an exploratory committee.11 In this case, the allegedly offending contributor was none other than Governor Benson himself, who infused $1,425,000 of his own funds into WhyBenson.com during the reporting period ending June 19, 2002.12 Interestingly, the statute contains an exception to the $5,000 maximum contribution which indicates that candidates may contribute in excess of $5,000 in support of their own candidacy.13 Thus, the argument continued, if WhyBenson.com was only an exploratory committee, then Governor Benson could not have been a "candidate," and was not exempt from the $5,000 ceiling on contributions.
Under the first argument, the Attorney General considered when an individual exploring a potential candidacy could agree to, or decline, the spending cap and when the concomitant contribution restrictions came into play. In short, it was determined that the RSA 664:4, V contribution restrictions applied at the moment when an individual’s opportunity to file an affidavit with the Secretary of State agreeing to, or declining, the spending cap, expired.14
The law provides that in order to voluntarily limit expenditures, a prospective candidate must file an affidavit with the Secretary of State expressing such intent "within 3 days after the date on which a candidate files his declaration of candidacy or his declaration of intent, or is declared a write-in winner of a primary election."15 In turn, the law strictly regulates how and when a declaration of candidacy must occur by setting forth specific criteria that a potential candidate must meet before having his or her name placed on the primary ballot.16 In particular, the statutory declaration of candidacy can only be filed "between the first Wednesday in June and the Friday of the following week."17 In accordance with this requirement, Governor Benson filed his declaration of candidacy on June 12, 2002, and, at the same time, executed an affidavit indicating that his campaign would not voluntarily limit its expenditures in conformity with RSA 664:5-a.
The Attorney General ruled that contributions are limited to $1,000 "starting at the moment in time when the candidate’s opportunity to file an affidavit with the Secretary of State agreeing to the voluntary spending cap expires. Prior to that time either an exploratory or a candidate committee may accept contributions up to but no greater than $5,000." 18 The $1,000 contribution limit is applicable only to those persons or political committees that decline the spending cap. However, where there is only a limited time period in which this decision can be made formally, the Attorney General’s office used this marker to clarify what had previously been unclear. Exploratory or candidate committees for candidates who decline the voluntary spending cap upon filing a declaration of candidacy in the June prior to a primary election may accept up to $5,000 in contributions from any individual or corporation until the time of filing. The Opinion acknowledged that this ruling "has the effect of minimizing the disadvantages imposed on a candidate who declines to agree to the expenditure limitations . . . [but] it is the privilege of the Legislature . . . to write laws that would clearly prevent this practice."19 In short, there appears to be a want for legislative enhancement of the existing protections for candidates of lesser means, with a mind to level the playing field.
Under the second argument of the Complaint, the Attorney General considered whether potential candidates can contribute in excess of $5,000 to their exploratory committees, much like candidates can do for their campaigns. The Attorney General answered this question in the affirmative. Under the statute, a candidate’s "personal resources" are excluded from the definition of "contribution,"20 but no mention is made about a potential candidate’s personal resources. Additionally, when considering prohibited contributions under RSA 664:4, V, an exception to the $5,000 limit exists when made by "a candidate in behalf of his own candidacy."21 Again, the statute does not address or define limits on a potential candidate’s contributions on behalf of exploratory efforts. This ambiguity led to the allegation in the Complaint that Governor Benson had violated the law by contributing well in excess of $5,000.
The Opinion clarified that where the statutes in question already exempted a candidate’s personal resources from consideration as a contribution, they should be read most broadly to "exclude any personal resource, including money, belonging to the exploratory candidate used by the exploratory committee on behalf of the exploratory candidacy." 22 The Opinion also favored a broad interpretation of the statute, citing Buckley v. Valeo, the seminal federal case on limiting political contributions.23
In Buckley, the United States Supreme Court struck down a federal law that set limits on expenditures "by a candidate from his personal funds . . . ."24 The Court held that it was constitutionally permissible for Congress to enact limits on political contributions in order to avoid corruption in public officials.25 The Court noted, however, that "the core problem of avoiding undisclosed and undue influence on candidates from outside interests has lesser application when the monies involved come from the candidate himself . . . ."26 In other words, while there is a constitutional interest in limiting third-party contributions in order to prevent corruption or the appearance of corruption, this interest is far less compelling when a prospective candidate uses his or her own personal resources to support an exploratory effort or candidacy. When a prospective candidate uses his or her own funds, it is less likely that the potential candidate will succumb to potentially corrupt or dishonest persuasion from third parties.
RUNNING A CAMPAIGN – POLITICAL ADVERTISING AND TELEMARKETING ISSUES
Once the campaign is up and running, two often reviled staples of New Hampshire’s election season will be soon to follow. The first staple is political yard signs, thick as crabgrass, for months on end. The second is a deluge of telephone calls polling, identifying supporters, "getting out the vote," and, in the waning days of a campaign, passing along pre-recorded messages. In the case of political yard signs, it is little known that there are New Hampshire laws that regulate their placement and removal. With regard to telemarketing services, two new statutes have been passed within the last year that make efforts to regulate telemarketing practices and will get their first true test this fall.
TRADITIONAL POLITICAL ADVERTISING AND THE CONSTITUTIONALITY OF SIGN RESTRICTIONS
Political advertising is defined as "any communication, including buttons or printed material attached to motor vehicles, which expressly or implicitly advocates the success or defeat of any party, measure or person at any election."27 The most ubiquitous and, some might argue, traditionally American form of political advertising is the yard sign. As most New Hampshire citizens have come to recognize, this form of speech comes in the standard 2’ by 2’ version, or the more prodigious 4’ by 8’ version, and allows an individual or business to proclaim to the world their support for a particular candidate or measure. Regulation of yard signs and other forms of political advertising falls under the provisions of RSA 664:17. The statute prohibits placement of yard signs on any sort of public property, including highway rights-of-way, or on private property without the owner’s permission.28 However, as anyone who has lived in New Hampshire longer than six months can attest, yard signs invariably find their way onto the sides of highways or in the middle of intersections. In these instances where signs are improperly found in a State right-of-way, agents from the New Hampshire Department of Transportation are authorized to remove the advertisement..29 According to the Attorney General’s office, when signs are removed in this fashion, the general practice is to remove all improperly positioned signs "to ensure there is no actual or perceived bias or favoritism towards any particular campaign."30 If a sign is placed improperly on private property, i.e., without the landowner’s permission, then the landowner may lawfully remove the sign or may contact the appropriate law enforcement official to do so.31 If a law enforcement official is asked to remove a sign, the candidate generally will be contacted and given 24 hours to pick up the signs themselves. Failing compliance with the request, law enforcement can and will remove such signs. Additionally, following an election, the candidate has an affirmative obligation to cause his or her yard signs to be removed "no later than the second Friday following the election unless the election is a primary and the advertising concerns a candidate who is a winner in a primary." 32
The durational limitations imposed on the placement of yard signs, namely that no yard signs shall be placed prior to "the last Friday in July prior to a state primary," or 45 days, raise questions of constitutional import.33 Arguably, the statute restricts political speech protected under the First Amendment, by limiting the time in which yard signs can be displayed. While this issue has not received treatment by the New Hampshire Supreme Court, the matter has been adjudicated elsewhere. With few exceptions, durational limits on the placement of yard signs have been held to be unconstitutional content-based restrictions of political speech.34
According to the Eighth Circuit Court of Appeals, "the First Amendment has its fullest and most urgent application to speech uttered during a campaign for political office."35 It has been noted in particular that "the posting of signs displaying political messages is a traditional method of speaking, and, indeed, ‘communication by signs and posters is virtually pure speech.’"36 Although yard signs represent protected political speech, they also present certain problems that a municipality may regulate.37 Specifically, yard signs may be regulated by content-neutral time, place and manner restrictions which will be constitutionally permissible so long as the restriction "is justified without reference to the content of the regulated speech."38 Accordingly, municipalities may, on the basis of legitimate safety or aesthetic concerns, regulate the size of such political signs and their location on public property, in addition to setting a date for removing them following an event.39 However, where a restriction is content-based and makes distinctions solely upon the content or message displayed by a political sign, the restriction must pass the far more rigorous "strict scrutiny" level of examination. In that event, the political sign restriction must be shown to be necessary to serve a compelling government interest, and be narrowly drawn to achieve that end.40
As stated above, a number of cases have found durational limits on yard signs to be unconstitutional content-based restrictions. This is due largely to the fact that when durational limits are placed on yard signs, the same limits are not applied to similar signs conveying non-political messages.41 It has been noted that such durational distinctions result in the treatment of certain commercial forms of speech more favorably than political speech.42 In the case of Whitton v. City of Gladstone, the Eighth Circuit Court of Appeals struck down a durational restriction of political signs by saying that the City of Gladstone "has not seen fit to apply such restrictions to identical signs displaying nonpolitical messages which present identical concerns.43 In the end, durational limitations on political signs are often deemed to be content-based because "determining whether a sign may stay up or must come down requires consideration of the message it carries."44
Additionally, RSA 664:17 does not carve out any exception for owners of private property, and can be read as creating an obligation for individuals to not place political advertising on their private property earlier than forty-five days prior to an election.45 This effectively impinges upon the ability of an individual to engage in political speech through the use of private signage. In the case of Ladue v. Gillio, the United States Supreme Court considered a statute which banned all residential signs, excluding those that fell within one of ten exceptions, for the principal purpose of reducing "visual clutter."46 In Gillio, it was argued that a residential sign conveying a political message relating to the first Gulf War was prohibited by a city ordinance.47 The restriction exempted signs that advertised property as for sale or lease, signs for religious institutions, and commercial signs located in districts zoned commercial or industrial, with no exemption for political signs.48 In overturning the ordinance, the Gillio Court determined that the restrictions in question had "almost completely foreclosed a venerable means of communication that is both unique and important."49 The Court continued by noting that "residential signs play an important part in political campaigns, during which they are displayed to signal the resident’s support for particular candidates, parties, or causes."50 In a succinct concurring opinion, Justice O’Connor stated that "content discrimination in regulations of the speech of private citizens on private property. . . is presumptively impermissible, and this presumption is a very strong one."51
In light of this authority, it has been the position of the Attorney General’s office since the Ladue decision that the RSA 664:17 durational restraints on political advertising located on private property conflict with the freedom of speech clause found in the First Amendment to the United States Constitution, and are therefore unenforceable.52 Nonetheless, unlike the ban on corporate political contributions found in RSA 664:6, which was found to be unconstitutional by New Hampshire’s Federal District Court in Kennedy v. Gardner, the enforceability of RSA 664:17 has yet to be considered by the New Hampshire Supreme Court.53 In the event that the Attorney General’s pronouncement stifles New Hampshire municipalities from seeking to enforce the durational restraints on political advertising set forth in RSA 664:17, it is uncertain whether this issue will ever receive more significant treatment in a New Hampshire court.
NEW HAMPSHIRE’S EFFORTS AT REGULATING POLITICAL TELEMARKETING
If yard signs represent a quaint, yet viable, method of political advertising, rapid advances in telemarketing symbolize a more modern approach, which is popular with campaigns but not so popular with voters. In order to address this new paradigm of campaigning, the New Hampshire Legislature has passed related telemarketing provisions in the last nine months, designed to protect homeowners weary of fending off unrelenting telemarketing phone calls. The first, RSA 359-E:7, effective as of September 16, 2003, is entitled "Telemarketing Sales Calls."54 The second, RSA 664:14-a, effective as of January 1, 2004, is entitled "Prerecorded Political Messages."55
Under RSA 359-E:7, the terms "telemarketer" and "telemarketing sales call" are specifically defined. A telemarketer is essentially any person who, for financial gain in connection with telemarketing, makes telephone sales calls to natural persons in New Hampshire.56 A telemarketing sales call is a "telephone call made by a telemarketer to a customer for the purpose of inducing payment or the exchange of any other consideration for any goods or services," among other stated purposes.57 However, one of the exceptions to the definition of a telemarketing sales call is a phone call made "[o]n behalf of a political campaign, except that a call made on behalf of a political campaign by a vendor using automatic dialing equipment shall be deemed a telemarketing sales call . . . ."58
As recently noted, there appears to be a tension in the new RSA 359-E:7 in a political context which has yet to be resolved, given the recent vintage of the statute.59 On one hand, the definition of a "telemarketing sales call" includes calls made for the purpose of inducing payment, which could be read to mean a call seeking financial contributions to a candidate or party.60 At the same time, the statute exempts calls made on behalf of a "political campaign," unless automatic dialing equipment is used.61 This raises several issues. For example, the statute contains no definition of a "political campaign." If a political party pursuant to party building activities makes manual phone calls seeking financial contributions, would that call be exempt from the definition of a "telemarketing sales call" as being on behalf of a "political campaign,"? What of a call on behalf of a political action committee? What if a candidate has individuals making manual phone calls seeking financial contributions? These calls would be on behalf of a political campaign, and would be made without use of automatic dialing equipment. Yet they are still calls made with the ostensible purpose of "inducing payment." The question remains whether or not these calls fall within the scope of the "telemarketing sales call" exception.
The practical ramifications of the law are unclear. On its face, the statute seemingly excludes from its reach traditional grassroots phone banks manned by local citizens, and other volunteer phoning efforts on behalf of a political campaign. The statute also appears to exempt paid phone calls made by a vendor on behalf of a political campaign so long as the calls are made without the assistance of "automatic dialing equipment."62 However, assuming that a telemarketer is making telemarketing sales calls on behalf of a political campaign, the telemarketer now has an affirmative obligation to refrain from calling any individual whose name is listed on the now well-known "Do Not Call List" generated by the Federal Trade Commission.63 To comply with this requirement, telemarketers now have an additional obligation to obtain the Do Not Call List quarterly from the Federal Trade Commission, in order to keep track of those individuals who have registered for inclusion on the list.64
While RSA 359-E covers a broad range of telemarketing activities in New Hampshire, RSA 664:14-a addresses a subset of the telemarketing issue that is more unique to politics—the prerecorded political phone message. In recent years, this practice has become more common as campaigns use prerecorded messages to mobilize their base and get out the vote, or perhaps, to depress turnout on behalf of their opponent.
The statute defines "prerecorded political message" as a "prerecorded audio message delivered by telephone by either (a) a candidate or political committee; or (b) any person when the content of the message expressly or implicitly advocates the success or defeat of any party, measure, or person at any election, or contains information about any candidate or party."65 The statute prohibits persons from delivering, or knowingly causing to be delivered, any prerecorded phone message unless within the first 30 seconds of the message two pieces of information are provided: (a) the name of the candidate or organization that the call is on behalf of; and (b) the name of the person or organization paying for the delivery of the message and the name of the fiscal agent, if applicable.66 The statute’s apparent purpose is to shed light on the source of prerecorded political messages, and to help prevent anonymous calls that make derogatory or misleading statements about a particular candidate.67 Similar to RSA 359-E, the statute also prohibits persons from causing prerecorded phone messages to be delivered to any person registered with the federal Do Not Call List.68
PENALTIES WITH TEETH
The Legislature has sent a clear message to persons or entities employing telemarketing services that it means business when it comes to telemarketing abuses by establishing mandatory penalty provisions that are exceptionally stiff. The Attorney General’s office is authorized to investigate complaints concerning either RSA 359-E or RSA 664:14-a. If a violation of any provision of either statute is found, a civil penalty of $5,000 shall be imposed for each violation.69 As indicated, the Attorney General has no discretion once a violation is found, and each violation will constitute a separate offense punishable by a $5,000 penalty.
Additionally, a person allegedly injured by another’s violation of either RSA 359-E or RSA 664:14-a, may pursue a legal action for damages or equitable relief in the form of an injunction.70 For a successful plaintiff, recovery is to be the greater of actual damages or $1,000, with double or treble damages awarded in the case of knowing or willful violations.71 Finally, a prevailing plaintiff may receive its reasonable attorney’s fees and costs, at the court’s discretion.72 As an added protection, RSA 359-E provides that any attempted waiver of the right to damages is void and prohibited.73
In the face of these daunting penalties, telemarketers may avail themselves to certain defenses under RSA 359-E, although unavailable for RSA 664:14-a infractions. In particular, telemarketers may not be liable for a violation of RSA 359-E if by clear and convincing evidence the telemarketer can demonstrate that as part of its routine business practice, it took steps such as establishing written procedures to comply with the statute, training its personnel in the requirements of the statute, and using a process to prevent telemarketing to any phone number listed on the federal Do Not Call List.74
With the fall elections fast approaching, campaigns would be wise to review their telemarketing strategies to ensure maximum compliance with these new statutes. Given the nature of telemarketing, it is not unforeseeable that a mere twenty improperly made phone calls could subject a telemarketer or other person to statutory penalties of $100,000, not to mention the additional exposure to liability through a court action, where a prevailing plaintiff can secure double or treble damages and, potentially, attorney’s fees and costs.75 Not only would the penalties threaten a campaign’s financial viability, but the negative publicity associated with telemarketing violations cannot be overlooked or taken lightly. Prudence is advisable, considering the lack of guidance or judicial interpretation of these statutes.
THE BIPARTISAN CAMPAIGN REFORM ACT
It is widely acknowledged that New Hampshire, via its fabled first-in-the-nation primary, exerts influence over the nomination of presidential candidates far greater than its population or landmass would suggest possible. Acknowledging this unique positioning, it can be argued that New Hampshire facilitated the passage of a comprehensive federal campaign finance reform package, the Bipartisan Campaign Finance Reform Act of 2002 ("BCRA"). Whether Granite Staters take credit, or simply take heed, these regulations effect campaigning on both a national and statewide level, and are worth a closer look.
On Primary Day, February 1, 2000, Republican Senator John McCain of Arizona reached the zenith of his grassfire presidential campaign with a convincing victory over future president George W. Bush. One of Senator McCain’s defining themes, which helped propel him to victory in New Hampshire, was his relentless zeal in advocating the overhaul of the nation’s campaign finance system. Although Senator McCain eventually lost the Republican presidential nomination in 2000, his New Hampshire upset made him a national sensation. Upon returning to the Senate, McCain leveraged his newfound quasi-celebrity status to help pass the BCRA, which President Bush signed into law on March 27, 2002. In short, the BCRA effected the most far reaching amendments to the Federal Election Campaign Act of 1971 ("FECA") in a generation,76 and has been described by the United States Supreme Court as "the most recent federal enactment designed to ‘purge national politics of what was conceived to be the pernicious influence of `big money' campaign contributions.’"77 The BCRA, the essential provisions of which were recently upheld by the United States Supreme Court in McConnell et al. v. Federal Election Commission, is divided into five titles, three of which enact substantial reforms to the FECA and are briefly discussed below.78
Title I – Reduction Of Special Interest Influence
Title I of the BCRA, which bans "soft money," is considered the Act’s centerpiece. The distinction between hard and soft money is elusive. Under the FECA, a "contribution" is defined, in part, as "any gift, subscription, loan, advance, or deposit of money or anything of value made by any person for the purpose of influencing any election for Federal office."79 Prior to the BCRA’s passage, the FECA’s contribution source and amount limitations, along with disclosure requirements, were applicable only to those contributions made for the purpose of influencing a federal election. These kinds of contributions are known as "hard money."80 For example, an individual contribution of $100 directly to the campaign of Senator Judd Gregg or Congressman Jeb Bradley is considered a hard money contribution, which would be regulated by the FECA.
On the other hand, soft money is funding contributed or expended towards activities unregulated by the FECA (i.e., contributions that are not for the purposes of influencing a federal election). These activities take the form of influencing state or local elections, generic party advertising, legislative advocacy, or what is known as get-out-the-vote ("GOTV") drives.81 In this fashion, political parties and candidates have long avoided the FECA contribution limitations. An example of a soft money expenditure would be an "issue ad," amounting to a television advertisement which expresses opposition to a particular piece of federal legislation, followed by an indication of whether a given candidate for federal office supported or opposed that piece. At the end of the advertisement, depending on the candidate’s position, viewers might be encouraged to "call Candidate X and thank him for standing up for your rights," or to "call Candidate X and tell him what you think about this important issue." Such efforts did not offend the FECA regulations despite the naming of a federal candidate, so long as generic or legislative ads did not expressly advocate the candidate’s election or defeat.82 In this way, legislative advocacy ads were able to avoid FECA regulations and, with a wink and a nod, work to influence public opinion.83
Title I takes steps to close this "soft money" loophole. For example, national committees of political parties, including national congressional campaign committees, may no longer "solicit, receive, or direct to another person a contribution, donation, or transfer of funds or any other thing of value, or spend any funds, that are not subject to the limitations, prohibitions, and reporting requirements of [FECA]."84 This new provision constitutes a significant restriction on what was previously the unfettered ability of both the Republican National Committee ("RNC") and Democratic National Committee ("DNC"), to participate in state and local elections.85 Additionally, federal candidates and officeholders are not permitted to "solicit, receive, direct, transfer, or spend funds in connection with an election for Federal office, including funds for any Federal election activity, unless the funds are subject to the limitations, prohibitions and reporting requirements of the [FECA]."86 So while federal office holders can still assist state and local political parties in raising federal funds permissible under the FECA, they can neither solicit nor direct soft money to their party.87 Additionally, this provision takes on greater significance locally where the new regulations prevent a state or local candidate, office-holder, or their agent, from spending nonfederal funds on public communications that refer to, promote, support, attack or oppose a clearly identified federal candidate.88 This is true even if a state or local candidate is identified in the communication, regardless of whether express terms are used.89 For example, if an ad funded with nonfederal resources were run by state Governor touting his or her close working relationship with a Member of Congress who was at that time a candidate for election, it would be prohibited under the new BCRA guidelines.
Title II – Noncandidate Campaign Expenditures
One of the most interesting and far-reaching effects of Title II is the limitation of "electioneering communications" and the restriction of independent and coordinated expenditures on behalf of candidates or political parties. An "electioneering communication" is defined as "a broadcast, cable, or satellite communication which refers to a clearly identified candidate for federal office and is made within 60 days before a general, special or runoff election for the office sought by the candidate or 30 days before a [primary or caucus] for the office sought by the candidate, in the case of a communication which refers to a candidate for an office other than President or Vice President, targeted to the relevant electorate."90 An electioneering communication targets a ‘relevant electorate’ when it refers to a clearly identified candidate for federal office, and can be received by 50,000 or more persons in either the elective district of a Representative, or the state of a Senator.91 The most controversial aspect of this new provision is its prohibition on corporations and labor unions from making expenditures for electioneering communications.92 The enactment of this provision has prompted one affected organization, the National Rifle Association, to begin offering internet broadcasts dubbed "NRA News" in an acknowledged effort to "circumvent the campaign-finance restrictions which would bar [the NRA] from communicating to our members before elections."93
Title III - Miscellaneous
Title III is entitled "Miscellaneous," though it too contains important revisions to the FECA. Notably, Title III increases hard money contribution limits and establishes what is known as the "Millionaire’s Amendment" which summarizes the aptly titled "Modification of Individual Contribution Limits in Response to Expenditures from Personal Funds" section of the BCRA.94
Recognizing the elimination of large portions of soft money funding under the BCRA’s new provisions, Title III increases allowable hard money contributions across the board. In the case of individuals: (a) allowable contributions to candidates have been increased from $1,000 to $2,000 per election; (b) allowable contributions to national political party committees have been increased from $20,000 to $25,000 per year; (c) allowable contributions to political action committees, state or local party committees have been increased from $5,000 for each entity to $10,000 per year for each state or local party committee, while remaining at $5,000 for political action committees; and (d) allowable contributions in the aggregate have been increased from $25,000 per year to $95,000 per two-year election cycle, with an allowable breakdown of $37,500 per cycle to candidates and $57,500 per cycle to all national party committees and political action committees, with no more than $37,500 per cycle going to political action committees.95
The Millionaire’s Amendment permits candidates running against a wealthy, self-financed opponent to accept enhanced individual "hard money" contributions, and have increased coordinated party expenditures made on their behalf.96 It takes into account the growing trend of candidates for federal office financing their own campaigns with personal funds, and attempts to level the playing field for the opponents of self-financing candidates who must rely on contributions that would otherwise be subject to FECA limitations.
The Millionaire’s Amendment weighs one candidate’s personal spending against another’s, and in some instances may allow for an increase in contribution limits for House and Senate candidates facing opponents who spend personal funds in excess of certain threshold amounts.97 The thresholds and triggering events for increased contribution limits differ for House and Senate candidates. For House candidates, the threshold amount is $350,000, and when an opponent’s personal spending exceeds $350,000, increased limits may be triggered.98 For Senate candidates, the threshold amount is $150,000, plus an amount equal to the voting age population of the State in question multiplied by $0.04, and candidates may qualify for increased contribution limits only when an opponent’s personal spending exceeds twice the threshold amount.99
In New Hampshire, we enjoy a venerable and robust political system that has been lauded and lamented for over two centuries. Critics and champions alike will agree, however, that ours is a government uniquely accessible, accountable and responsive to its constituents. Walk into our historic State House on a particular Wednesday for example, and you can pull up a chair and watch the Governor and Executive Council debate all state government contracts exceeding $5,000, as well as consider the nomination or confirmation of volunteers to serve on our state’s boards and commissions. These attributes of New Hampshire government have inspired generations of public servants who volunteer their time in the name of community and statewide betterment.100
While this continuing interest in serving New Hampshire demonstrates the vitality of our body politic, it is accompanied by a prolific stream of campaigns. This effort requires attention to, and compliance with, numerous state, and, often federal laws, designed to promote elections that are fair, just and transparent. Be it as citizen or candidate, all Granite Staters have an interest in the election laws that help guide our fellow citizens in their quest for public office. Whether it be compliance with telecommunication statutes, understanding the distinction between political committees, or respecting limitations on campaign signage, information is key to any successful political process.
- This distrust of, and enmity for, the sovereign stretched to the representative of King George III in New Hampshire, Royal Governor John Wentworth, II. Wentworth served as Governor of New Hampshire from 1766 until the American Revolution began, when a group of revolutionaries forced him to flee his residence. Sometime thereafter, Wentworth continued serving the crown as Royal Governor of Nova Scotia. See http://www.state.nh.us/nhsl/nhbooks/people.html
- In the 2000 general presidential election, President Bush defeated Vice President Gore in New Hampshire by only 7,211 votes out of 567,805 votes cast, securing New Hampshire’s four electoral votes and the margin of victory. If President Bush had not won New Hampshire, the debate over hanging chads and ballot dimples in Florida would have been moot, and Vice President Gore would have won the Presidency outright.
- For those interested in additional New Hampshire election law insight, an article done by Assistant Attorney General Bud Fitch in the March 2002 edition of the New Hampshire Bar Journal, A Survey of Federal Judicial Decisions that Affect New Hampshire Election Law, is an outstanding source.
- New Hampshire RSA Title LXIII, Elections, Chapters 652 – 671 et seq.
- Atty. Gen. Op. August 12, 2002.
- RSA 664:3, I.
- See id.
- See RSA 664:4, V(1). New Hampshire’s voluntary spending caps, otherwise known as its "political expenditure limitation amounts", are found at RSA 664:5-b. The spending caps are $625,000 in a gubernatorial primary election and $625,000 in a gubernatorial general election.
- See Complaint of Senator Gordon J. Humphrey and Senator Bruce Keough, as filed with the Attorney General’s office on June 20, 2002, received by the author pursuant to service as counsel to WhyBenson.com.
- See WhyBenson.com Statement of Receipts and Expenditures for Political Committees, June 19, 2002, filed with Secretary of State and available at http://www.sos.nh.gov/2002Receipts%20&%20Expenditures/index.htm. WhyBenson.com did in fact accept a number of contributions – legally as it turns out – in excess of $1,000.
- See RSA 664:4, V(1).
- See WhyBenson.com Statement of Receipts and Expenditures for Political Committees, June 19, 2002, filed with Secretary of State and available at http://www.sos.nh.gov/2002Receipts%20&%20Expenditures/index.htm.
- See RSA 664:4, V(1)
- Atty. Gen. Op., August 12, 2002, at 3.
- RSA 664:5-a, III.
- See RSA 655:14.
- Atty. Gen. Op., August 12, 2002, at 3.
- See RSA 664:2, VIII. A contribution means "a payment, gift, subscription, assessment, contract, payment for services, dues advance, forbearance or loan to a candidate or political committee made for the purpose of influencing the nomination or election of any candidate."
- See RSA 664:4, V(1).
- Atty. Gen. Op., August 12, 2002, at 4.
- 424 U.S. 1 (1976).
- Id. at 51.
- See Buckley, 424 U.S. at 426-27; see also Atty. Gen. Op., August 12, 2002, at 4.
- Buckley, 424 U.S. at 53.
- RSA 664:2, VI.
- RSA 664:17.
- See id.; Atty. Gen. Op. February 26, 2003, p. 2.
- See Sugarman v. Village of Chester, 192 F.Supp. 2d 282 (S.D.N.Y. 2002); Christenson v. City of Wheaton, No. 99 C8426 (N.D. Ill. 2001); City of Painesville Building Department v. Dworken & Bernstein, 89 Ohio St. 3d 564 (2000); Union City v. Justice Outdoor, 266 Ga. 393, 401 (1996); Whitton v. City of Gladstone, 54 F.3d 1400 (8th Cir. 1995); McCormack v. Township of Clinton, 872 F.Supp. 1320 (D.N.J. 1994); Collier v. Tacoma, 121 Wn. 2d 737 (1993); But see City of Waterloo v. Markham, 234 Ill. App. 3d 744 (5th Ill. App. Ct. 1992).
- Whitton, 54 F.3d at 1403.
- Dworken & Bernstein, 89 Ohio St. at 567; see also Arlington County Republican Committee v. Arlington County, 983 F.2d 587 (4th Cir. 1993).
- See Ladue v. Gillio, 512 U.S. 43, 48 (1994).
- Whitton, 54 F.3d at 1403.
- See Gillio, 512 U.S. at 48; McCormack, 872 F.Supp. at 1325.
- Whitton, 54 F.3d at 1408.
- See id. at 1404; McCormack, 872 F.Supp. at 1324; Union City, 266 Ga. at 401.
- See id.; Cf. Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981). The Metromedia case found that a general prohibition of billboards that excepted on-site commercial billboards was a content-based restriction where it granted commercial speech more protection than non-commercial speech.
- Id. at 1407 (emphasis in original).
- Ackerley Communications v. City of Cambridge, 88 F.3d 33, 36 fn. 7 (1st Circuit 1996).
- RSA 664:17. The particular provision says that "The earliest date on which political advertising may be placed or affixed shall be the last Friday in July prior to a state primary."
- Gillio, 512 U.S. at 43.
- See id. at 45.
- See id. at 46.
- Id. at 54.
- Id. at 55. In elaborating on why it believed residential signs to be so deserving of protection as political speech, the Gillio court noted that the display of a sign from one’s own residence created a distinct message associated with the resident’s identity, and that additionally, residential signs are cheap and convenient forms of communication, which allows people or candidates of modest means to effectively communicate their political message.
- Id. at 58.
- Atty. Gen. Op. July 3, 2002.
- In Kennedy v. Gardner, USDC Docket No. 98-608-M, the Federal District Court for New Hampshire considered a challenge to RSA 664:4, I by current New Hampshire State Representative Richard "Stretch" Kennedy, which prohibited corporations from making political contributions to a candidate or political committee. The Court found that particular provision of the statute to be unconstitutional. Following the Kennedy decision, the Attorney General’s office issued an opinion on June 6, 2000, indicating that while the prohibition on corporate contributions under RSA 664:4, I was unconstitutional and unenforceable, corporate contributions were still limited by the restrictions on such contributions by RSA 664:4, V. Despite the Kennedy ruling being made over four years ago, RSA 664:4, I is still on the books today, punctuated with a reference note to the decision and the Attorney General’s opinion.
- RSA 359-E:7 et seq.
- RSA 664:14-a.
- RSA 359-E:7, IX.
- Id. at § XI. The additional purposes of a telemarketing call include "for the purpose of soliciting an extension of credit for consumer goods or services, or for the purpose of obtaining information that may be used for the direct solicitation of a sale of consumer goods or services or an extension of credit for such purposes."
- Id. at § XI(e).
- Jonathan Finer, NH Voters Getting Robo-Calls, Manchester Union Leader (as reprinted from The Washington Post), January 2, 2004, at A1.
- RSA 359-E:7, XI.
- Id. at § XI(e).
- RSA 359-E:7 also fails to define "automatic dialing equipment," although the distinction between automated and manual efforts at making phone calls appears to be more easily distinguished. By "letting your fingers do the walking" to make a political call, rather than using a machine to do it, you will find yourself on firmer ground.
- RSA 359-E:8.
- RSA 359-E:9.
- RSA 664:14-a, I(a)-(b).
- Id. at § II(a), (b).
- See also RSA 664:2, XVII and :16-a. These provisions define "push polling", and prevent such practices without source identification, in a similar effort to prevent anonymous and misleading phone calls.
- RSA 664:14-a, III.
- See RSA 359-E:11, I; RSA 664:14-a, IV(a).
- See id. at 359-E:11, II; 664:14-a, IV(b).
- See id.
- See id.
- See id.
- RSA 359-E:11, III. In addition to those primary points referenced above, the telemarketer must maintain the current, quarterly version of the Do Not Call List and maintain records documenting this process. The telemarketer must monitor and enforce compliance with any written procedures it develops, and must use a version of the Do Not Call List obtained no more than 3 months prior to the date that any call is made. Additionally, the telemarketer will not be liable for subsequent phone calls that otherwise violate RSA 359-E, which are not shown to be part of a pattern of calls made in violation of the statute, but rather are the result of a good faith error.
- See RSA 359-E:11; RSA 664:14-a, IV.
- The Federal Election Campaign Act of 1971 is found at 2 U.S.C. § 431 et seq. ("FECA").
- McConnell et al. v. Federal Election Commission, 124 S. Ct. 619, 644 (2003) (citing United States v. Automobile Workers, 352 U.S. 567, 572 (1957)).
- The other two provisions are Title IV entitled "Severability; Effective Date", which established the BCRA effective date as November 6, 2002, one day after the 2002 national general elections, and Title V entitled "Additional Disclosure Provisions", which establishes new requirements for the Internet posting and availability of campaign reports filed with the Federal Election Commission. The Supreme Court decision is McConnell et al. v. Federal Election Commission, 124 S.Ct. 619 (2003). As Kenneth Starr, lead counsel for the plaintiffs and former United States Solicitor General said succinctly after the decision, "they won, we lost." See Event Summary: The Legal and Political Impact of McConnell v. FEC, Brookings Institution, December 11, 2003. http://www.brook.edu/comm/op-ed/20031211cfr.htm.
- 2 U.S.C. § 431(8)(A).
- See McConnell, 124 S. Ct. 619 (2003).
- See id.
- See id.
- See id.
- 2 U.S.C. § 441i(a).
- See Republican National Committee et al. v. Federal Election Commission, No. 1.02CV00874 (D. DC May 7, 2002), Republican National Committee Complaint for Declaratory Judgment and Injunctive Relief, 32. To illustrate, the RNC indicated that under the pre-BCRA regime, it provided "political advice and assistance including voter mobilization and contact assistance on behalf of the entire ticket, fundraising advice and assistance, candidate training, research, voter education and money...during the 2000 election cycle, the national committees of the Republican Party contributed $12.8 million to state and local candidates...[and] assisted state and local party committees by transferring to them approximately $130 million."
- 2 U.S.C. § 441i(e)(1)(A).
- See Id.
- See Federal Election Commission BCRA Campaign Guide Supplement, January 2003, v. 29, p. 8.
- 2 U.S.C. §434(f)(3).
- See id. at §434(f)(3)(C)(i), (ii).
- See id. at §441b(b)(2).
- Jennifer Harper, New NRA Online Broadcast Takes Aim at Campaign Law, Washington Times, April 20, 2004.
- See Public Law 107-155 of 2002, sec. 304.
- See 2 U.S.C. §441(a), original and BCRA-revised.
- See http://www.fec.gov/pages/brochures/millionaire.htm (FEC Brochure concerning Millionaire Amendment)
- See 11 CFR 400.4. Federal regulations indicate that personal spending means: (a) an expenditure made by a candidate from personal funds for the purpose of influencing his or her own race; (b) a contribution or loan made by a candidate to his or her authorized committee; (c) a loan made by any person to the campaign committee that is authorized by the candidate; and (d) any obligation to make an expenditure from personal funds that is legally enforceable by the candidate.
- See http://www.fec.gov/pages/brochures/millionaire.htm (FEC Brochure concerning Millionaire Amendment)
- See id.
- In the case of our state Senators and Representatives not only is their commitment to public service laudable, but they make little money for doing so. Article 15 of the New Hampshire Constitution provides that members of the New Hampshire House and Senate each receive a salary of two hundred dollars ($200) per year, along with mileage reimbursements. The Senate President and House Speaker do a little better, each receiving an additional fifty dollars ($50) in annual salary for their trouble.
About the Author
Jim Merrill is an associate with Devine, Millimet & Branch, P.A. in Manchester. He serves as legal counsel to the New Hampshire Republican Party.