-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of
richard@shepardlawoffice.com
Sent: Thursday, June 08, 2006 1:56 PM
To: election-law@majordomo.lls.edu
Subject: RE: Query: Rules Governing TV Surveys
I don't presume to know campaign finance laws as well as
others on this list; neither do I claim a degree or expertise
in social science. I am a lawyer and terminal political
junkie. But it is obvious to me that polls have a much
greater influence on elections than the law of elections and
campaign finance has so far recognized.
My understanding is that the polling companies in question
got paid by the TV stations to conduct the polls, and then
asked for only the information the TV stations told them to
ask for. Then the TV stations broadcasted the results. If
that is the case the TV stations are not reporting the news,
they are creating false results and passing it off as news.
There is also the problem of access to televised debates.
Here in Washington one Seattle TV station admitted that it
used the criteria proposed by the Debate Advisory Standards
Project, http://www.debateproject.com/introduction/ in
connection with the 2004 gubernatorial race (the one that
went to 7 months litigation over a 129 vote spread). The
DASP standards include polling results as one alternative to
qualification for access to the televised debates. It turned
out this station had PAID FOR three polls, which polls asked
about two Democratic candidates and one Republican, even
though there were 9 other candidates (major and third party)
in the primary race. One such poll was taken after the state
primary, when only three candidates were legally qualified
for the general election ballot, a Democrat, a Republican and
a Libertarian. STILL the poll questions named only the D and
the R, or "Other." In this case "Other" polled enough that,
had it been attributed to the Libertarian, she would have
qualified for the televised debates. But it turns out
"Other" can mean anything, support for the L, support for
Mickey Mouse or none-of-the-above.
As an important aside, post election analyses in the 2004
race have shown that the Libertarian candidate got more votes
in Democratic precincts than in Republican precincts. In one
sense this stands to reason because the Libertarian's primary
campaign platform was in favor of gay marriage. But it also
means, if the Libertarian had gotten only a little bit more
exposure, the race could easily have gone to the Republican
and there would have been no lawsuit.
And so at the end of the day the TV station's decision to
poll only for the candidates IT deemed viable determined who
showed up in its televised debates, which it also paid for,
of course, under the rubric of "reporting the news." It
should be obvious on its face that this is not "news" in the
ordinary sense, and the station wrote a "Who's Line Is It?"
script for the candidates who did appear for the debate
beforehand. I don't know how anybody can say this scenario
did not influence the outcome of the election. But the
station got away with it under the rubric of "news,
editorial, or commentary".
But there is still the question of "facility use" under the
"equal opportunity" doctrine. If a TV station "manages" the
data used to qualify candidates for the debates it televises,
what is it doing? Is it a campaign contribution or not? If
not, is it a separate expenditure? If not, why not?
There is also another permutation of polls to consider.
Now, the "hot" contest in Washington State is for the US
Senate. Recently a local pollster measured support for the
leading Democrat and leading Republican (there are 6 other
candidates in the race, including third party candidates, who
were not included) and found that the Democrat was allegedly
leading the Republican by 29 points. Then the local pollster
added a Green Party candidate into the mix. When three
choices were on the table the Green candidate got 2 points
and the Democrat's lead dropped to 22 points.
Where did the other 5 points go? Nobody seems to wonder
about that, but it seems obvious to me that 5 percent of the
voters really did not like any of the listed candidates, and
selected the Democrat only when they thought they had no
meaningful third alternative. While it may be possible this
is a matter of sampling error, I find that difficult to
accept because the same pollster conducted both polls at the
same time.
The other question is what the results would be if
respondents were asked about all 8 candidates. Would any of
the candidates, including the "anointed" frontrunners, show
support in amounts similar to the amounts they show under
current polling practices? How many of them would qualify
under the DASP standards for access to televised debates?
Modern political theory recognizes four general types of
political philosophies, (liberal, conservative, libertarian,
authoritarian) all based on a bivariate (attitude toward
government intervention in economic affairs/attitude toward
government. intervention in personal affairs) typology.
There is a recent report from the Pew Research Center that
suggests, when polling participants are not asked to
self-identify their political type 9% provide libertarian
responses and 16 % provide authoritarian responses. But the
only groups that seem to get any attention from the
pollsters, and hence the media, and ultimately the public,
are those in the liberal or conservative groups, which, when
combined, total only 33%. See, e.g., In Search of Ideologues
in America, http://pewresearch.org/obdeck/?ObDeckID=17.
Yet little if any effort has been made to go beyond the
conservative-liberal spectrum in polling. Most polling is
presented in "either/or" format, albeit sometimes with an
"other" alternative thrown in for the iconoclasts of the
world. And then the "others" are treated as outcasts, if
they are considered at all. I simply cannot understand why
this kind of polling is not recognized for the humongous
distortion of the public will that it is.
I don't presume to know the answer. I am, after all, a
Libertarian dyed in the wool. Perhaps all of this would not
be a problem if election laws were more friendly to third
parties, including, for example, abandonment of the single
member district. But as Munro and Timmons especially have
shown, anything that threatens the hegemony of the two-party
system is summarily beaten down with a bludgeon.
Richard Shepard, Attorney at Law
Shepard Law Office, Inc.
818 S. Yakima Ave., #200
Tacoma, WA 98405
253-383-2235
-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu]On Behalf Of
Volokh, Eugene
Sent: Thursday, June 08, 2006 11:40 AM
To: election-law@majordomo.lls.edu
Subject: RE: Query: Rules Governing TV Surveys
How is this a campaign contribution rather than an
independent expenditure, unless the poll was coordinated with
one of the campaigns (unlikely, given that the initial
inquiry said the poll was conducted by a local TV station)?
I have to say that it seems pretty outrageous to me
that the law could ban "unfair" polls, or decide which
candidates are "quality" and must be included and which are
not "quality" and may be excluded; that seems like a
quintessential judgment call for speakers to make. That's
even so given the looser standards applicable to
broadcasters, it seems to me.
Eugene
-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of
richard@shepardlawoffice.com
Sent: Thursday, June 08, 2006 10:10 AM
To: rkgaddie@ou.edu; election-law@majordomo.lls.edu
Subject: RE: Query: Rules Governing TV Surveys
I think the poll may represent an over limit campaign
contribution to
candidates "a" and "b", particularly if the TV station
broadcasts the
results as a verity.
Richard Shepard, Attorney at Law
Shepard Law Office, Inc.
818 S. Yakima Ave., #200
Tacoma, WA 98405
253-383-2235
-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu]On Behalf Of
rkgaddie@ou.edu
Sent: Thursday, June 08, 2006 5:18 AM
To: election-law@majordomo.lls.edu
Subject: Query: Rules Governing TV Surveys
I had an inquiry from a political campaign regarding the rules
governing the conduct of surveys and the broadcast of
results. One of
our local television affiliates contracted SurveyUSA to
perform a poll
of potential voters for a primary in an open congressional
seat. There
are six candidates for the seat, including five "quality"
candidates.
However, SUSA, in conducting the robocall survey, presented
respondents with three options:
(1) candidate "a"
(2) candidate "b"
(3) "others".
79% of respondents picked either "1" or "2". Now, the
problem is that
internal polling for multiple campaigns (using better pollsters tha
SUSA) show a much tighter race and a more even spread of the vote.
One candidate has lawyer telling her/him that this poll, by not
presenting all legitimate alternatives and then being broadcast,
constitutes a legal violation by the station. Bad polls are not
illegal, and this is a bad poll, but is there a legal issue here?
_____________________________
Ronald Keith Gaddie
Professor of Political Science
The University of Oklahoma
455 West Lindsey Street, Room 222
Norman, OK 73019-2001
Phone 405-325-4989
Fax 405-325-0718
E-mail: rkgaddie@ou.edu
http://faculty-staff.ou.edu/G/Ronald.K.Gaddie-1