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