"Push poll", Benicia City Attorney Heather McLaughlin, Benicia Municipal Code, EMC Research, Heather McLaughlin, Benicia City Attorney, Local elections, Research America

Attorney for “push poll” firm denies everything

Letter to Benicia City Attorney Heather McLaughlin from Attorney for EMC Research and Research America  (download in PDF format)

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
City Hall
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.

Sincerely,

Gary S. Winuk  GSW:VCC

777 S. Figueroa Street, Suite 4050, Los Angeles, CA 90017
main 213.452.6565   fax 213.452.6575
www.kaufmanlegalgroup.com

"Push poll", Benicia City Attorney Heather McLaughlin, Benicia City Council, Legal action

VIDEO: City Council announcement of legal action on push poll

Excerpt from Benicia City Council video, October 2, 2018

This 7 minute video begins with City Attorney Heather McLaughlin reporting action taken by the Council in closed session to initiate legal action on the recent “push poll” attack, and includes comments by Vice Mayor Steve Young, Council member Tom Campbell and Mayor Elizabeth Patterson. (See transcript and relevant section of Benicia’s Municipal Code below…)

Transcript:

City Attorney Heather McLaughlin announcement on 10/2/2018:
“We also met in closed session on conference with legal counsel regarding anticipated litigation and the initiation of litigation regarding potential enforcement of Benicia Municipal Code Section 140, and this is regarding the push poll that came out in recent days. The Council gave me direction regarding initiating a lawsuit on this. The concern is that the poll did not comply with the disclosure requirements of the ordinance. As follow-up to that, I have been directed to contact the Fair Political Practices Commission regarding enforcement of the disclosure rules. And I’m also to send a letter to EMC and to Research America informing them about our ordinance and demanding that they provide us the questions and who paid for the poll. And then finally, we’re going to provide a press release. And I think some of the Council members would like to add onto that. That was a four-one decision.”

Benicia Municipal Code Section 140
(download PDF or go to City of Benicia website)  Here is a relevant subsection:

1.40.042 Disclaimer requirements for campaign communications funded by independent expenditures.

A. Campaign communications funded by an independent expenditure supporting or opposing city candidates or city measures shall include the phrase “Not authorized by a candidate,” and shall also include the name of any contributor of $2,500 or more made in the past six months to a committee funding the independent expenditure, in the phrase “Major Funding Provided By [Name of Contributor(s)].” Expenditures of $2,500 or more that are earmarked for any other candidate or ballot measure outside of the city of Benicia need not be disclosed.

B. The disclosures required by this section shall be presented in a clear and conspicuous manner to give the reader, observer or listener adequate notice, as specified below:

1. For printed campaign communications that measure no more than 24 inches by 36 inches, all disclosure statements required by this section shall be printed using a typeface that is easily legible to an average reader or viewer, but is not less than 10-point type in contrasting color to the background on which it appears. For printed campaign communications larger than this size in area, all disclosure statements shall constitute at least five percent of the height of the material and shall be printed in contrasting color.

2. For video broadcasts including television, satellite and cable campaign communications, the information shall be both written and spoken either at the beginning or at the end of the communication, except that if the disclosure statement is written for at least five seconds of a broadcast of 30 seconds or less or 10 seconds of a 60-second broadcast, a spoken disclosure statement is not required. The written disclosure statement shall be of sufficient size to be readily legible to an average viewer and air for not less than four seconds.

3. For audio, telephone call or radio advertisement campaign communications, the disclosures shall be spoken in a clearly audible manner at the same speed and volume as the rest of the telephone call or radio advertisement at the beginning or end of the communication and shall last at least three seconds.

C. For purposes of this section, “campaign communication” means any of the following items:

1. More than 200 substantially similar pieces of campaign literature distributed within a calendar month, including but not limited to mailers, flyers, faxes, pamphlets, door hangers, e-mails, campaign buttons 10 inches in diameter or larger, and bumper stickers 60 square inches or larger;

2. Posters, yard or street signs, billboards, supergraphic signs and similar items;

3. Television, cable, satellite and radio broadcasts;

4. Newspaper, magazine, Internet website banners and similar advertisements;

5. Two hundred or more substantially similar live or recorded telephone calls made within a calendar month.

"Push poll", Benicia City Attorney Heather McLaughlin, Benicia City Council, Heather McLaughlin, Benicia City Attorney, Kari Birdseye, Lionel Largaespada, Local elections, November election

Benicia City Council directs city attorney to take action against push poll

Repost from the Vallejo Times-Herald

Benicia City Council directs city attorney to take action against push poll

By JOHN GLIDDEN, October 3, 2018 at 5:55 pm

BENICIA — Fearing an outside group or person is attempting to negatively influence the City Council elections, councilors took action Tuesday night.

The council in closed session directed City Attorney Heather McLaughlin to contact the California Fair Political Practices Commission in response to a series of calls residents received that some say smeared one of the council candidates.

“When an outside force appears to be engaging in activities that are outside of the ordinance and not disclosing who they are — I think we have no choice but to move forward,” Vice Mayor Steve Young said in the meeting.

Several residents, including Young, have received a phone call from Research America, Inc., asking to conduct a survey about the City Council, senatorial and gubernatorial contests. However, Young says that most of the questions centered on candidates Kari Birdseye and Lionel Largaespada.

“The statements about Mr. Largaespada were uniformly positive and stated how, for example, he would use his small business background to improve the city’s economy and relations with its businesses,” Young wrote in a Sept. 20 letter published by the Benicia Independent. “The statements about Ms. Birdseye were the opposite. Among these statements were ‘She wants to shut down Valero, costing hundreds of jobs,’ and ‘She will bring radical left-wing politics to City Hall.’”

A representative with the data collection company Research America previously confirmed to the Times-Herald that the business was hired to conduct the survey by EMC. Representatives with that group didn’t return calls for comment.

McLaughlin was also directed Tuesday to contact Research America, Inc. and EMC Research about the survey, and ask for a copy of the questions asked and provide information on who paid for the poll.

At issue is the alleged failure of the companies to disclose who paid for the poll — a violation of the Benicia Municipal Code.

Many have called the survey a push poll. Such polls are meant to sway public opinion instead of recording objective information from those surveyed.

Councilman Tom Campbell also spoke during Tuesday’s meeting stating that residents support having fair elections in town.

Campbell, who spearhead a campaign reform initiative in 2009, said he got 1,200 signatures during that time with only five people expressing doubt about the initiative. The rest supported the item, he said.

“Ninety-nine percent of the people want the same thing. They want to be fairly informed of who is actually backing a candidate. They want the elections to be clean, and they want people, who spend money on elections, to disclose how much money they spent,” he said Tuesday.

Campbell further said that if Research America and EMC won’t provide answers that are necessary for the city to go to court for those answers.