KAUFMAN LEGAL GROUP
A PROFESSIONAL CORPORATION
October 1, 2018
Direct: (916) 498-7715
VIA U.S. MAIL & E-MAIL
Heather McLaughlin, City Attorney
City of Benicia
250 East L. Street
Benicia, CA 94510
Re: Poll Conducted by EMC Research and Research America
Dear Ms. McLaughlin:
This letter is in response to your email to Research America dated September 21, 2018 regarding a public opinion research poll conducted by Research America and EMC Research (“professional polling firms”). The public opinion research poll referenced in your e-mail was conducted by the professional polling firms regarding the upcoming Benicia City Elections. The poll was conducted in full compliance with applicable federal, state and local laws, which do not require campaign advertisement disclaimers on telephone polls. This letter will also serve to correct inaccurate facts reported in media articles regarding the poll. Specifically, the contents of the poll were not as stated in the media reports, which also misstated the scope and purpose of the poll.
EMC Research and Research America are professional polling companies with sterling reputations in their field. Neither company engages in campaign advertising communications. Rather, the purpose of their telephone communications is to conduct surveys based on scientific data and modeling to provide information back to campaigns about voter preferences and attitudes.
Political polling is conducted for the purpose of advising a campaign of public opinion as it relates to numerous campaign issues. Among these issues are: overall support for the candidate or measure with the electorate; overall support for the candidate or measure with the electorate versus opponent(s); support for the candidate or measure among specific demographic groups; support for the candidate or measure among registrants of different political parties; and effectiveness of specific campaign messages. Campaigns rely on this polling to guide decisions of where, when and how to spend campaign funds.
The public opinion research survey in question was designed to gather feedback from local voters on issues relevant to the upcoming election. It involved a robust sample methodology, designed to achieve a random sampling of likely voters from within the City of Benicia. The survey was conducted September 6 through September 20, among a random selection of 256 likely voters from within the City of Benicia.
There are no federal, State or local laws that require disclaimers on polls, whether conducted telephonically or by electronic mail. A recent opinion issued by the California Fair Political Practices Commission (FPPC) at their September 2018 hearing confirmed this.1 Polls are not considered campaign communications or “mass mailings” and, thus, do not require campaign advertising disclosures. The Benicia Municipal Code provisions similarly do not apply, as they only apply to campaign communications. As the FPPC has opined, a poll is not a campaign communication.
The survey at issue was also not a “push poll,” as it was referred to in a Benicia Herald Op Ed dated September 23, 2018, and reiterated in a subsequent article dated September 28, 2018. As was noted in the article, “the American Association of Public Opinion Research (AAPOR) … defines a ‘push poll’ as a form of negative campaigning that is disguised as a political poll. ‘Push polls’ are actually campaign communications — telephone calls disguised as research that aim to persuade large numbers of voters and affect election outcomes, rather than measure opinions.”
Polling by professional polling companies is not done to influence voters. The persons who are targeted for the poll solicitation are selected to form as accurate a representation of the electorate as possible. They are not selected for the purpose of finding groups to influence in the election. The communications, which vary in content, are not used for or intended to persuade voters. Even when questions state something positive or negative about a candidate or measure, the purpose of the language is to identify which arguments the campaign can use most effectively. This information is not presented to persuade voters, but rather to gather information to guide the client’s activities, including subsequent communications that actually may be intended to influence the electorate.
The Benicia poll conducted by the polling firms had a limited universe of targeted call recipients. The poll asked questions that included both positive and negative messages about several candidates to determine which messages were most persuasive to voters. These were asked as a part of numerous other questions designed to gather relevant data. This is in contrast to how the poll was reported in the aforementioned media stories, which described it as being communicated to a broad audience and one-sided in the questions presented.
Professional polling firms are not paid to communicate with voters. Instead, they are paid to gather information by conducting a poll. Polling firms seek to communicate with the fewest number of people necessary to obtain a scientific sample, as opposed to a campaign communication, which is designed to reach as many likely voters as possible. Once the poll is completed, the results are analyzed and provided to the client. That is the “product” for which the client is paying — not for a campaign communication.
The poll conducted by the polling firms at issue here was not a campaign communication, and was not a push poll. As a result, it did not require any disclaimer and did not violate any federal, State or local laws, including the provisions of the Benicia Municipal Code. Please contact me immediately should you have any further questions.
Gary S. Winuk GSW:VCC
777 S. Figueroa Street, Suite 4050, Los Angeles, CA 90017
main 213.452.6565 fax 213.452.6575