New Hampshire Attorney Gen. v. Committee, 2013-469

CourtSupreme Court of New Hampshire
Writing for the CourtCONBOY, J.
Docket NumberNo. 2013-469,2013-469
Decision Date15 October 2014


No. 2013-469


Argued: May 8, 2014
October 15, 2014

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


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

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

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

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erroneously determined that the Federal Election Campaign Act, 52 U.S.C. §§ 30101 et seq. (FECA),* preempts RSA 664:16-a. We affirm.

I. Background

The following facts are drawn from the trial court's order or are otherwise undisputed on the record before us. In September 2010, the AG's Office received information regarding polling telephone calls made to New Hampshire residents that were described as containing negative content about United States congressional candidate Ann McLane Kuster. The AG investigated, and concluded that the Committee had engaged in "push-polling" as defined in RSA 664:2, XVII (2008) (amended 2014) without complying with the disclosure requirements set forth in RSA 664:16-a.

At the time of the AG's investigation, RSA 664:2, XVII defined "'push-polling'" as:

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

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

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

RSA 664:16-a provided:

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

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

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

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

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

52 U.S.C. § 30143(a).

The Committee maintained that legislative history of the FECA demonstrates Congress's intent that the Act preempt state law with regard to reporting and disclosing political contributions and expenditures by federal candidates and political committees. The Committee also relied upon an advisory opinion by the Federal Election Commission (FEC) that concluded that RSA 664:16-a is preempted by the FECA because, if applied to candidates for federal office who want to pay for telephone surveys, as defined in RSA 664:2, XVII, the statute would impose additional disclosures as to those expenditures. See F.E.C. Adv. Op. 2012-10, 2012 WL 1529235, at *4 (F.E.C. Apr. 27, 2012). Thus, the Committee argued that RSA 664:16-a "interferes with the intent of Congress, by requiring a candidate for federal office to make disclosures regarding election-related expenditures" and, therefore, is preempted.

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

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a specific type of campaign expenditure, federal law preempts the state statute." The court therefore dismissed the AG's petition, and this appeal followed.

II. Standard of Review

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

We also review the trial court's statutory interpretation de novo. Pelkey v. Dan's City Used Cars, 163 N.H. 483, 487 (2012), aff'd, 133 S. Ct. 1769 (2013). The meaning of the FECA is a question of federal law, and we, therefore, interpret it in accordance with federal policy and precedent. Cf. id. When interpreting a statute, we first look to the language of the statute itself, and, if possible, construe that language according to its plain and ordinary meaning. Id. We do not read words or phrases in isolation, but in the context of the entire statutory scheme. Id.

III. Federal Preemption Principles

We begin by reviewing the general principles of federal preemption. The federal preemption doctrine is based upon the Supremacy Clause in Article VI of the United States Constitution. See Arizona v. United States, 132 S. Ct. 2492, 2500 (2012); Appeal of Sinclair Machine Prod's, Inc., 126 N.H. 822, 826 (1985). Article VI provides that federal law "shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding." U.S. CONST. art. VI, cl. 2. "Under this principle, Congress has the power to preempt state law." Arizona, 132 S. Ct. at 2500. "Consideration of issues arising under the Supremacy Clause starts with the assumption that the historic police powers of the States are not to be superseded by Federal Act unless that is the clear and manifest purpose of Congress." Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992) (quotation, brackets and ellipsis omitted). "Accordingly, the purpose of Congress is the ultimate touchstone of pre-emption analysis." Id. (quotation and brackets omitted).

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To that end, courts look to the language of the pre-emption statute and the statutory framework surrounding it as well as the structure and purpose of the statute as a whole, as revealed not only in the text, but through the reviewing court's reasoned understanding of the way in which Congress intended the statute and its surrounding regulatory scheme to affect interested parties.

Janvey v. Democratic Senatorial Campaign Committee, 793 F. Supp. 2d 825, 838 (N.D. Tex. 2011) (quotations omitted), aff'd, 712 F.3d 185 (5th Cir. 2013).

"Congress' intent may be explicitly stated in the statute's language or implicitly contained in its structure and purpose." Cipollone, 505 U.S. at 516 (quotation omitted). "Explicit statutory or regulatory language provides the clearest...

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