2013-0469 New Hampshire Attorney General v. Bass Victory Committee

polling.” See RSA 664: 21, VI (Supp. 2013). The AG argues that the trial court allegedly violating RSA 664:16 - a (2008) (amended 2014) by engaging in “push campaign committee of former United States Congre ssman Charles F. Bass, for penalties against the Bass Victory Committee (Committee), the authorized order of the Superior Court (McNamara, J.) dismissing his petition for civil CONBOY, J. The New Hampshire Attorney General (AG) appeals an

Committee. Jason R.L. Major on the brief, and Mr. Douglas orally), for Bass Victory Douglas, Leonard & Garvey, P.C., of Concord (Charles G. Douglas, III and

orally), for the New Hampshire Attorney General. general, and Brian W. Buonamano, attorney, on the brief, and Mr. Buonamano Joseph A. Foster, attorney general (Anne M. Edwards, associate attorney

No. 2013 - 469 Merrimack

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh. us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E - mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

of the p. 2 2012 edition of the United States Code. See id. citations to the FECA. Transfer of the printed version of the Code will be effective in supplement II the printed version of Title 52 is not available and, therefore, we have no t included dates in our http://uscode.house.gov/editorialreclassification/t52/index.html. As of the date of this opinion, Reclassification Title 52, United States Code, available at of the United States Code. See Office of the Law Revision Counsel, United States Code, Editorial Effective September 1, 2014, the provisions of the FECA were transferred from Title 2 to Title 52 *

particular candidate for public office, identify that candidate by call is being made on behalf of, in support of, or in opposition to a 664: p. 2 2, XVII, shall inform any person contacted that the telephone I. Any person who engages in push - polling, as defined in RSA

R SA 664:16 - a provide d:

interest group. independent of any particular political party, candidate, or statistical data for entities or organizations which are acting construed by the voter to be a survey or poll to gather (c) Conducting such calling in a manner which is likely to be

record; and the candidates [’] character, status, or political stance or public office which state, imply, or convey information about (b) Asking questions related to opposing candidates for

to, any candidate for public office by telephone; and (a) Calling voters on behalf of, in support of, or in opposition

polling’” as: At the time of the AG’s investigation, RSA 664: p. 2 2, XVII define d “‘push -

requirements set forth in RSA 664:16 - a. 664: p. 2 2, XVII (2008) (amended 2014) without complying with the discl o sure c oncluded that the Committee had enga ged in “push - polling” as defined in RSA States c ongressional candidate Ann McLane Kuster. T he AG investigated, and residents that were described as containing negati ve content about United received information regarding polling telephone calls made to New Hampshire undisputed on the record before us. In September 2010, the AG ’s O ffice The following facts are drawn from the trial court’s order or are otherwise

I. Background

p. 3 30101 et seq. (FECA), preempts RSA 664:16 - a. We affirm. * erroneously determined that the Federal Election Campaign Act, 5 p. 2 2 U.S.C. §§ 3

expenditures, and because RSA 664:16 - a mandates disclosure associated with [the] FECA regulates the required disclosures associated with campaign expend funds in order to conduct the activity.” The court ruled that, “[b]ecause that “[p]ush - polling is a campaign expenditure because the campaign must The trial court ruled that the FECA preempts RSA 664:16, concluding

regarding election - related expenditures” and, therefore, is preempted. Congress, by requiring a candidate for federal office to make disclosures Thus, the Committee argued that RSA 664:16 - a “interferes with the intent of See F.E.C. Adv. Op. 2012 - 10, 2012 WL 15 2 92 p. 3 35, at *4 (F.E.C. Apr. 27, 2012). XVII, the statute would impose additional disclosures as to those expenditures. federal office who want to pay for telephone surveys, as defined in RSA 664:2, RSA 664:16 - a is preempted by the FECA because, if applied to candidates for advisory opinion by the Federal Election Commission (FEC) that conclud ed that candidates and political committees. The Committee also relied upon an reporting and disclosing political contributions and expenditures by federal demonstrates Congress’s i ntent that the Act preempt state law with regard to The Committee maintained that legislative history of the FECA

5 2 U.S.C. § p. 3 30143 (a).

respect to election to Federal o ffice. FECA], supersede and preempt any provision of State law with [T] he provisions of [the FECA], and of rules prescribed under [the

preemption provision states, subject to limitations not relevant here: entire field of election laws concerning campaigns for federal offices.” The demonstrates Congress’s “explicit intent to preempt state law with regard to the contended that the FECA contains an express preemption provision that ground that RSA 664:16 - a is preempted by the FECA. T he Committee to fed eral court, the Committee moved to dismiss the AG’s petition on the pursuant to RSA 664:21. After unsuccessfully attempting to remove the case Superior Court against the Committee, seeking statutory civil penalties were made on behalf of the Committee. As a result, t he AG filed a petition i n data for an independent entity or organization without disclosing that the calls that was likely to be construed by voters as a survey or poll to gather statistical informatio n about her character, status, political stance, or record in a manner questions in the polling calls about Kuster that implied or conveyed negative According to the AG, the Committee violated RSA 664:16 - a by asking

subject to penalty under RSA 664:21, V and VI. II. Any person or entity who violates paragraph I shall be

polling is conducted. name, and provide a telephone number from where the push - p. 4 4

and the statutory framework surrounding it as well as the To that end, courts look to the languag e of the pre - emption statute

pre - emption analysis.” Id. (quotation and brackets omitted). omitted). “Accordingly, the purpose of Congress is the ultimate touchstone of Group, Inc., 505 U.S. 50 p. 4 4, 516 (1992) (quotation, brackets and ellipsis unless that is the clear and manifest purpose of Congress.” Cipol lone v. Liggett historic police powers of the States are not to be superseded by Federal Act arising under the Supremacy Clause starts with the assumption that the preempt state law.” Arizona, 132 S. Ct. at 2500. “Consideration of issues CONST. art. VI, cl. 2. “Under this principle, Congress has the power to Constitution or laws of any state to the contrary notwithstanding.” U.S. l and; and the judges in every state shall be bound thereby, anything in the (1985). Article VI provides that federal law “shall be the supreme law of the 2492, 2500 (2012); Appeal of Sinclair Mach ine Prod ’s, Inc., 126 N.H. 822, 826 of the United States Constitution. See Arizona v. United States, 132 S. Ct. federal preemption doctrine is based upon the Supremacy Clause in Article VI We begin by reviewing the general principles of federal preemption. The

III. Federal Preemption Principles

of the entire statutory scheme. Id. meaning. Id. We do not read words or phrases in isolation, but in the context and, if possible, construe that language according to its plain and ordinary When interpreting a s tatute, we first look to the language of the statute itself, therefore, interpret it in accordance with federal policy and precedent. Cf. id. (2013). The meaning of the FECA is a question of federal law, and we, v. Dan’s City Used Cars, 163 N.H. p. 4 483, 48 7 (2012), aff’d, 133 S. Ct. 1769 We also review the trial court’s statutory interpretation de novo. Pelkey

387 (2012); Carlisle v. Frisbie Mem. Hosp., 152 N.H. 762, 770 (2005). our review is de novo. See Appeal of Bretton Woods Tel. Co., 16 p. 4 4 N.H. 379, Because the trial court’s determination of federal preempti on is a matter of law, recovery.” Gray v. Kelly, 161 N.H. 160, 164 (2010) (quotation omitted). allegations are reasonably susceptible of a construction that would permit court’s ruli ng on a motion to dismiss, we consider whether the [plaintiff’s] associated with campaign expenditures. “Generally, when reviewing a trial campaign expendit ure and the FECA regulates the required disclosures ruled that RSA 664:16 - a is preempted by the FECA because push - polling is a The sole issue for our review is whether the trial court erred when it

II. Standard of Review

followed. statute.” The cou rt therefore dismissed the AG’s petition, and this appeal a specific type of campaign expenditure, federal law preempts the state p. 5 5

and registration of political committees; and mandates reporting and disclosure imposes limits and restrictions on contributions; provides for the formation Thornburgh, 39 F.3d 1273, 1281 ( p. 5 5th Cir. 1994). To this end, “[t]he FECA candidates by those who contribute large sums” of money. Karl Rove & Co. v. in order to eliminate pernicious influence — actual or perceived — over “primary purpose. . . is to regulate campaign contributions and expenditures to federal elections.” Teper, 82 F.3d at 994; see Weber, 995 F.2d at 875. Its s tatutory scheme governing campaign contributions and expenditure s related Originally enacted in 1971, the FECA sets forth “an intricate federal

IV. The FECA

sections of the FECA. 1431 (W.D. Ark. 1993). We, therefore, turn to an examination of the relevant alleged preemption. S ee DerGazarian v. Dow Chemical Co., 836 F. Supp. 1429, (quotation omitted), our preemption analysis begins with the source of the congressional intent,” Teper v. Miller, 82 F.3d 989, 993 (11 th Cir. 1996) Since “[p]reemption of any type fundamentally is a question of

Cipollone, p. 5 505 U.S. at 517 (quotations and citation omitted).

substantive provisions of the legislation. need to infer congressional intent to pre - empt state laws from the congressional intent with respect to state authority, there is no that issue, and w hen that provision provides a reliable indicium of included in the enacted legislation a provision explicitly addressing When Congre ss has considered the issue of pre - emption and has

Cipollone: 99 p. 5 5 F.2d 872, 875 (8 th Cir. 1993). As the Supreme Court explained in federal law is governed entirely by the express langu age.” Weber v. Heaney, “When Congress has spoken expressly. . . the preemptive scope of a

clearest expression of preemptive intent.” Janvey, 793 F. Supp. 2d at 838. (quotation omitted). “Explicit statutory or regulatory language provides the implicitly contained in its structure and purpose.” Cipollone, p. 5 505 U.S. at 516 “Congress’ intent may be explicitly stated in the statute’s language or

838 (N.D. Tex. 2011) (quotation s omitted), aff’d, 712 F.3d 18 p. 5 5 (5 th Cir. 2013). Janvey v. Democratic Senatorial Campaign Committee, 793 F. Supp. 2d 825,

and its surrounding regulatory scheme to affect interested parties. understanding of the way in which Congress intended the statute only in the text, but through the reviewing court’s reasoned structure and purpose of the statute as a whole, as revealed not p. 6 6

disclosure of political contributions to and expenditures by Federal candidates intended “F ederal la w [to] occup[y] the field with respect to reporting and 1239, at 10 (1974)). S ignificantly, the legislative history rev eals that Congress such elections will be regulated. ’” Teper, 82 F.3d at 9 94 (quoting H.R. Rep. No. Federal office and that the Federal law will be the sole authority under which that the Federal law is construed to occupy the field with respect to elections to House Committee that drafted the current provision intended ‘ to make certain prohibit conduct permitted by the FECA.” Bunning, 42 F.3d at 1012. “The compliance with state law would result in a violation of the FE CA, or wou ld the statute] which expressly saved state laws from preemption, except where Th e preemption provision, enacted in 1974, “replaced a prior version [of

434, 437 (2007). history. See ATV Watch v. N.H. Dep’t of Resource s & Econ. Dev., 155 N.H. Because the preemption provision is ambiguous, we look to its legislative Bunning, 42 F.3d at 1011 (quotation omitted); see Cipollone, 505 U.S. at 517. and p olitical committees, we must “identify the domain expressly [preempted].” enough to preclude enforcement of RSA p. 6 664:16 - a against federal candidates To determine whether the scope of the preemption provision is broad

39 F.3d at 1280; Weber, 995 F.2d at 875. in light of its legislative history.” Id. (quo tation s omitted); see Karl Rove & Co., that [the provision] is ambiguous and have given [it] a narrow preemptive effect 411755 p. 6 6, at *10 (S.D. Ohio Oct. 19, 2010). “Rather, courts have recognized that manner.” Krikori an v. Ohio Elections Comm ’ n, No. 1: 10CV103, 2010 WL appears to have an exceedingly broad scope, courts have not interpreted [it] in o ffice.” 5 2 U.S.C. § 30143(a). “While at first blush, [the preemption provision] shall “preempt any provision of State law with respect to election to Federal The critical language in the preemption provision states that the FECA

U.S.C. §§ 30107(a)(7), 30108. FEC also is empowered to give advisory opinions when requested.” Id.; see 52 of [the] FECA.” Weber, 995 F.2d at 875 (quotation and citation omitted). “The and authorized it to prescribe rules and regulations to carry out the provisions “Congress delegated the FEC extensive rulemaking and adjudicative powers administration and enforcement of the Act.” Bunning, 42 F.3d at 1011. “The FECA also created the [FEC], which is empowered wit h the

election for Federal off ice.” 52 U.S.C. § 30101(9)(A)(i). or anything of value, made by any person for the purpose of influencing any “any purchase, p ayment, distribution, loan, advance, deposit, or gift of money political committees). The FECA defines “[t]he term ‘ expenditure ’” to include dealing with the organization, registration, and reporting requirements for Ky., 42 F.3d 1008, 1011 ( p. 6 6th Cir. 1994) (referring to provisions in the FECA of receipts and disbursements made by such committees.” Bunning v. Com. of p. 7 7

provision itself and its interpretative regulation, along with the legislative 11 C.F.R. § 108. p. 7 7. Thus, our examination of the language of the preemption

the extent described in 11 CFR 300.35. purchase or construction of a State or local party office building to (6) Application of State law to the funds used for the

(5) Candidate’s personal financial disclosure; or

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

(3) Voter registration;

(2) Dates and places of elections;

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

the — (c) The Act does not supersede Sta te laws which provide for

Federal candidates and political committees. (3) Limitation on contributions and expenditures regarding

candidate s and political committees; and (2) Discl osure of receipts and expenditures by Federal

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

(b) Federal law supers edes State law concerning the —

election to Federal office. supersede and preempt any provision of State law with respect to 19 p. 7 71, as amended, and rules and regulations issued thereunder, (a) The provisions of the F ederal Election Campaign Act of

411 p. 7 7556, at *11; see 11 C.F.R. § 108.7 (2014). That regulation provides: statute’s plain la nguage and its legislative history.” Krikorian, 2010 WL regulation interpreting the scope of [this provision] in accordance with the under’ [the] FECA,” and, pursuant to its authority, “[t]he FEC has issued a The preemption provision “incorporates by reference ‘rules prescribed

19 p. 7 74 U.S.C.C.A.N. 55 p. 8 87, 5668 (empha sis added). and political committees.” S. Rep. No. 93 - 1237 (1974) (Conf. Rep.), reprinted in 8

true that funds are expended to conduct polls, this does not support or suggest spending in the area of telephone surveys” and that, “[w]hile undoubtedly it is The AG argues that RSA 664:16 - a “does not directly limit campaign

expenditures related to the election of a candidate for federal office. this way, RSA 664:16 - a imposes a di sclosure requirement on campaign sponsor of the telephone calls, i.e., to disclose who is paying for the calls. In I. The effect of requiring such discl aimers is to reveal the identity of the telepho ne number from where the push - polling is conducted.” RSA 664:16 - a, candidate for public office, identify that candidate by name, and provide a “being made on behalf of, in support of, or in opposition to a particular this action required the Committee to disclose that the telephone call s were Here, the version of RSA 664:16 - a in effect at the time the AG brought

no matter how admirable or unrelated the purpose o f that law.” Id. federal regulation, or trespasses on a field occupied by federal law, must yield, Supremacy Clause, state law that in effect substantially impedes or frustrates preemption, not its intent or p urpose.” Teper, p. 8 82 F.3d at 99 5. “Under the “Nonetheless, it is the effect of the state law that matters in determining impact on the political process” caused by anonymous push - polling. Id. Laws 1998, 12:1. The statute’s aim, therefore, is to prevent the “adverse accountable for the statements and messages generated by their campaigns.” candidates engage in push - polling” by requiring “candidates [to] be fully 664:16 - a “is intended to insure that the public is fully informed when the areas specifically preempted or excepted in 11 C.F.R. § 108.7. Indeed, RSA On its face, RSA 664:16 - a does not fit neatly within the ambit of any of

federal office, falls within the scope of the preemption provision. omitted), we nonetheless conclude that RSA 664:16 - a, as applied to election to light of its legislative history,” Karl Rove & Co., 39 F.3d at 12 p. 8 80 (quotation “courts have given [the preemption provision] a narrow preemptive effect in “strong presumpti on against pre - emption,” Cipollone, 505 U.S. at 523, and that ambit of” the preemption provision. Although w e recognize that there is a among the narrow categories of legitimate state regulation that escape the financing or control of polling efforts like those at issue in this case are not candidates and political committees because “[d]isclosures concern ing the to the extent it applies to disclosures of campaign expenditures by federal Committee disagrees, contending that RSA 664:16 - a is preempted by the FECA disclaimer requirement, not a statute regarding campaign expenditures.” The the FECA governs campaign expenditures and “RSA 664:16 - a constitutes a The AG argues that the FEC A does not preempt RSA 664:16 - a because

V. Application of the Preemption Provision to RSA 664:16 - a

federal campaign expenditures and disclosure of such expe nditures. history of the FECA, d emonstrate s that the FECA preempts laws related to p. 9 9

Id. at * 2, 4 (quotation omitted).

candidates. may require disclosure regarding expenditures by Federal e xpend itures. Under the Act’s preemption clause, only Federal law impose an additional disclaimer requirement on those to pay for the telephone surveys described in the request, would Here, [RSA 664:16 - a], if applied to Federal candidates who wish

. . . .

candidate, or the dates and places of elections. but does not affect State laws as to the manner of qualifyin g as a and expenditures by, Federal candidates and political committees, respect to reporting and disclosure of political contributions to, election s will be regulated.. . . Federal law occupies the field with the Federal law will be the sole authority under which such occupy the field with respect to elections to Federal office and that intended to make certain that the Federal law is construed to The legi slative history of the [FECA] makes clear that Congress

candidates for Federal o ffice.” Id. According to the FEC: authorized committees, or other Federal political committees that refer o nly to to the proposed telephone surveys made on behalf of Federal candidates, their 664:16 - a, I, is preempted by the FECA and the FEC ’s regulations “with respect 152 p. 9 9235, at *2; see also 52 U.S.C. § 30108(C). The FEC concluded that RSA addressing the precise issue here. See F.E.C. Adv. Op. 2012 - 10, 2012 WL We note that our conclusion is in accord with the FEC advisory opinion

committee, is preempted by the FECA. conclude that RSA 664:16 - a, as applied to a federal candidate or political RSA 664:16 - a is to require disclosure of expenditure s. Ac cordingly, we in connection with legislative history). The logical effect of the requirements in 348, 352 - 53 (1 p. 9 962) (title of act not conclusive, but significant when considered “Disclosure of Federal Campaign Funds.” S e e Bourne v. Sullivan, p. 10 104 N.H. 1237 (Conf. Rep.). Mo reover, the title of subchapter one of the FECA is entitled expenditures by Federal candidates and political committees.” S. Rep. No. occup y “the field with respect to. . . disclosure of political contributions to and legislative history above makes clear that Congress intended the FECA to C.F.R. § 108.7(b)(2) (emphasis added). Indeed, our discussion of the FECA’s regulate “[d]isclosure of . . . expenditures by . . . political committees.” 11 on campaign expenditures by federal political committees, but also those that regulated by the FECA. The FECA not only preempt s laws that regulate limit s added.) The AG’s argument, however, addresses only a part of the domain limits the amount of money that c an be spent on polling activity.” (Emphasis the conclusion that requiring a disclaimer be included in the script of a poll 10

Congressional Campaign Committee to argue that “the FEC has explicitly The AG also cites the FEC’s decision in In the Matter of Democratic

748 F.3d 295, 308 (6 th Cir. 2014) (Cole, J., dissenting). aspects of federal elections the states may regulate.” Dewald v. Wriggelsworth, acknowled ge a long - standing constitutional dichotomy concerning which (quotation omitted). Thus, t he exceptions in section p. 10 108.7(c) “merely canvassers, and making and publication of election returns.” Id. at 523 - 24 of fraud and corrupt practices, counting of votes, duties of inspectors and like notices, registration, supervision of voting, protectio n of voters, prevention Cook, 531 U.S. at 523. These procedural mechanisms encompass “matters prescribe the procedural mechanisms for holding congressional elections.” Supreme Court has constr ued this clause to grant states “‘broad power’ to e lections for Senators and r epresentatives.” U.S. CONST. art. I, § 4. The to the Sta tes the power to regulate the “times, places and manner of holding S tates.” Id. The Elections Clause to the United States Constitution delegated election of federal officers had to be delegated to, rather than reserved by, the Inc. v. Thornton, 514 U.S. 779, 804, 833 - 34 (1995). Rather, “powers over the inherent authority to regulate elections to federal office. See U. S. Term Limits, The United States Supreme Court has explained that S ta tes have no

(2001). unre lated to campaign expenditures. See Cook v. Gralike, 531 U.S. 5 p. 10 10, 523 regulate broad election m atters related to the voting process itself — matters exceptions are grounded in the constitutional authority granted to States to “regulate federal campaigns directly and specifically,” however, those for by the campaign.” To the extent that the exceptions in section 108.7(c) campaigns directly and specifically, even if it regulates activities that are paid maintains that “[f]ederal regulations establish that a state may regulate federal Citing the exceptions to preemption in 11 C.F.R. § 108.7(c), the AG

2d at 28 - 2 9; see 52 U.S.C. § 30 p. 10 109(a)(1). complaint with the FEC alleging a violation of [the] FECA.” Kean, 398 F. Supp. note that the FECA “permits ‘any pe rson’ to file a signed, sworn administrative Election, 398 F. Supp. 2d 26, 28 (D. D. C. 2005); see 52 U.S.C. § 30106(b)(1), we enforcing” the provisions of the FECA, Kean for Congress Committee v. Federal action under RSA 664:16 - a because the FEC has “exclusive jurisdiction over law did not preempt state law). Moreover, although the AG cannot bring an private injuries of the kind allegedly suffered supported concl usion that federal Cf. Pelkey, 163 N.H. at 49 6 (noting that absence of any federal remedy for has manifested a clear intention to preempt certain state law causes of action. direct cause of action alone is no bar to pree mption if, as in this case, Congress 52 U.S.C. §§ 30106(b)(1), 30107 (e), 30109. Nonetheless, the absence of a private action against a federal candidate or committee under the FECA. See 664:16 - a against a federal candidate or committee. Nor can the AG bring a We recognize that our decision prevents the AG from enforcing RSA p. 11 11

Jude, 554 N.W.2d 750 (Minn. Ct. App. 1996). However, t h e se cases are (2d Cir. 1991); United States v. Trie, 21 F. Supp. 2d 7 (D.D.C. 1998); State v. 2013); Karl Rove & Co., 39 F.3d 1273; Stern v. Gene ral Elec. Co., 924 F.2d 472 Janvey v. Democratic Senatorial Campaign Committee, 712 F.3d 185 (5 th Cir. funds or involve transactions that could, in theory, affect expenditures.” See not found preemption “[e]ven where state regulations deal with the transfer of The AG cites several cases from other jurisdictions in which courts have

other state statutes. analysis, and we express no opinion with respect to the preemption of any campaign expenditure s so as to be similarly preempted does not control our provision. We have concluded that it does. Whether other statutes involve expenditures such that it falls within the bound a ries of the preemption here is to determine whether RSA 664:16 - a requires disclosure of campaign involve expenditures by a campaign committee would be preempted.” Our task preempted by the FECA, then “virtually all state statutes that in any way Nor are we persuaded by the AG’s argument that if RSA 664:16 - a is

consistent state regulation is preempted as well.” Id. Weber, 995 F.2d at 876 n.4 (quotation s omitted). “Thus, supplemental and that [the] FECA’s pre - emption is limited to inconsistent state regulation.” We disagree. “Nothing in the language of” the preemption provisi on “suggests consideration of RSA 664:16 - a duplicates. . . those expenditure regulations.” made by reference to [the] FECA’s own expenditure regulations and whether The AG further contends tha t our determination in this case “must be

applicable in this case. requirements for the former type of polls, we decline to find its decision at 10 (quotation omitted). Since the FEC addressed only the disclaimer him or her and pull the voter toward the can didate p aying for the polling.” Id. information about the candidate which is designed to push the voter away from change the opinion of contacted voters, generally by divulging negative described as “a su rvey instrument containing questions which attempt to from the push - polls alleged to have occurred in this case, which the FEC issue in that case, which it referred to as “legitimate forms of survey research,” FECA not at issue in this case. Moreover, the FEC distinguished the polls at publication and distribution of statements and solicitations, a provision of the U.S.C. § 441d (20 p. 12 12), now reclassified as 52 U.S.C. § 30120, dealing with the the FECA. Id. at 1, 4. That decision, however, examined the reach of former 2 telephone on beha lf of a political committee does not require disclaimers under determined that survey research (referred to as “polls”) conducted over the http://eqs.fec.gov/eqsdocs/29044244624.pdf. In that decision, the FEC Committee & a., MUR 5835 (F. E. C. July 1, 2009), available at requirements.” See In the Matter of Democratic Congressional Campaign found that polling activities are not subject to [the] FECA’s disclaimer 12

requirement on campaign expenditures related to the election of a candidate for In summary, we conclude that RSA 664:16 - a imposes a disclosure

VI. Conclusion

requ irement up on campaign expenditures. examined in tho se cases, the effect of RSA 664:16 - a is to mandate a disclosure prohibits certain nonfinancial campaign practices”). Unlike the state laws and other false statements in the course of a campaign” because law “merely FECA does not preempt state law prohibiting “false camp aign advertisements, other possible criminal sanctions); Jude, 554 N.W.2d at 753, 752 (finding that express any inten t that misdemeanor sanctions of FECA be a substitute for all general felony statute on preemption ground s because Congress did not defendant’s motion to dismiss certain counts in indictment brought under similar conclusions. See a lso Trie, 21 F. Supp. 2d at 1 8 - 1 9 (denying were not preempted. Id. The courts in other cases cited by the AG reached expenditure of corporate funds,” and that the state law corporate was te claims interest in ensuring that corporate directors exercise sound judgment in the that the FECA did not “preclude New York from pursuing its independent election - related activities.” Id. at 475 (qu otation omitted). The court concluded Congress did not intend to preempt state regulation with respect to non the court explained that “[t]he narrow wording of this provision suggests that “relates only to state - law provisions with respect to election to Federal o ffice,” Stern, 924 F.2d at 474. Noting that the preemption pr ovision of the FECA funds to support federal political campaigns were preempted by the FECA. whether state law corporate waste claims based upon a corporation’s use of Likewise, in Stern, the Second Circuit Court of Appeals addressed

at p. 12 1280. feder al candidates personally liable” for such debts. Karl Rove & Co., 39 F.3d “stretch . . . far enough to create a preemptive bar to applying state law to hold Karl Rove & Co., 39 F.3d at 1280, finding that the preemption provision did not c ause of action against him for the debts of his campaign committee,” id.; see federal candidate’s argument that FECA preempte d a company’s state law Id. at 200. Similarly, in Karl Rove & Company, the Fifth Circuit “rejected a law that happen[ed] to apply to [the] federal political committees in [that] case.” TUFTA was not preempted by the F ECA because the “TUFTA is a general state Fifth Circuit Court of Appeals concluded that the claim brought under the made as fraudulent conveyances. Janvey, 712 F.3d at 189. In that case, the to reco ver certain political contributions made to the committees alleged to be Fraudulent Transfer Act (TUFTA) against several national political committees For instance, Janvey involved a suit brought under the Texas Uniform

expenditures or disclosure of expenditures related to election to f ederal office. inapposite because they pertain to state laws that did not regulate p. 13 13

DALIANIS, C.J.