03/18/2010 05:12 am ET Updated May 25, 2011

Anonymous Push Polls: Coming Soon to a Phone Near You?

Where is the line between neutral telephone polling designed to gather information from voters, and a push poll designed to influence voters through carefully crafted, loaded questions?  That's the interesting question the Longmont Election Committee is scheduled to consider at a public meeting on October 26.  But if the advocacy organization Western Tradition Partnership has its way, the Election Committee won't be permitted to even consider the question -- and push polls might become a popular way to influence elections while staying underneath the radar of campaign finance disclosure laws.

Western Tradition Partnership is the lead plaintiff in a suit asking U.S. District Judge Walker
Miller to enter a preliminary injunction prohibiting Longmont from
enforcing its new campaign finance law.  The new law requires reporting of all campaign expenditures in excess
of $100 and replaces criminal penalties for violations with civil
sanctions to be issued by the new Election Committee.  In our 2009 Ethics Roundup, Colorado Ethics Watch praised City Council members Gabe Santos and Sarah Levison for leading a bipartisan Election Task Force whose work resulted in the new law. 

The Election Committee is scheduled to hear its first complaints on October 26.  One complaint, filed by incumbent Council member Karen Benker, concerns a telephone poll allegedly conducted by Western Tradition and Longmont Leadership Committee that Benker claims went beyond merely collecting information to advocating against her candidacy.  The Election Committee's decision could be of great interest, because the Colorado Court of Appeals decided in 2006 that a telephone poll did not constitute express electoral advocacy, and therefore was not subject to electioneering communication disclosure requirements, when it "did not seek to influence voters or sway public opinion, but instead merely asked neutral questions to collect data and measure public opinion."  (PDF here.)  The Election Committee's decision as to whether the Longmont telephone poll sought to influence voters, and therefore is subject to reporting requirements, could give guidance as to what kinds of polls should be considered to actually be campaign advertisements.

The Election Committee may not be allowed to decide, however, if Judge Miller agrees with Western Tradition Partnership and the other plaintiffs that the threat of having to respond to a campaign finance complaint unconstitutionally chills its free speech rights.  (The plaintiffs raise several other objections to the law, including that Longmont's requirement that campaign mailings disclose the cost of the advertisement unduly burdens free speech.)  If the Longmont Election Committee is barred from even considering whether a poll could become a campaign ad, expect push polls to become an even more popular campaign tool during the 2010 election cycle as outside groups rely on his decision as a justification for not reporting spending on such polls.

Judge Miller held an evidentiary hearing last Thursday and called the lawyers in to answer questions Monday.  He has advised the parties to expect a ruling no later than Wednesday.

Update:  Judge Miller partially granted the preliminary injunction late Wednesday.  Under the judge's order, Longmont cannot regulate electioneering communications unless they expressly advocate for or against a candidate, which could permit the challenge to the alleged "push poll" to go forward under the standard set forth in his order.  Longmont has not announced whether the hearing will take place.