During the recent legislative session Utah lawmakers approved a bill that would require disclosure of who is paying for any poll that deals with a candidate or ballot proposition. The bill was aimed at adding transparency to the sometimes murky polling process and attempts to at least notify a person receiving a poll phone call who is behind the questions.
The goal was to provide a name behind faceless push polls, a strategy in campaigning that could be used to put candidates or ideas in a negative light.
The ACLU of Utah is now asking Gov. Gary Herbert to strike the law down. On Tuesday the organization drafted a letter arguing that the bill violates the First Amendment because it "compels disclosures that chill political speech." It also argues that the bill is too broad in its definitions of a poll and it could put regular members of the public, as opposed to campaign workers or pollsters, in jeopardy of breaking the law.
The letter explains that the bill's wording could be interpreted to mean all poll-takers, not just in push polls, would be required to notify participants who is paying for the gathering of the information. The ACLU argues that could mean a teacher asking student for their thoughts on a ballot issue could be seen as a poll and teachers could face a fine if they did not disclose who is paying them to ask the question. The ACLU also argued that push polling isn't effective enough to require disclosure of who is paying for the poll.
"Since push polling is an incredibly inefficient means of advertising, requiring a call to each person you are trying to influence, it is highly questionable that there is a sufficient nexus to the overall integrity of the electoral process to justify infringing on the First Amendment right to anonymous speech," the letter stated.
Former Utah House member Brad Daw sees the situation differently. Daw pushed for the disclosure bill before his career at the Legislature came to an end. He lost in a primary election in 2012 and has since wondered if he would not have lost if additional information had been available about the third-party groups that sought to smear him during his campaign. Daw lost his election by 455 votes.
"We have examined laws from other states and found them to be so narrowly construed as to effectively prevent any kind of meaningful enforcement," Daw said. "The example mentioned in the letter is irrelevant because it mentions conversations which no one paid for or authorized. If no one paid for the poll then there is nothing to disclose."
Daw also countered the ACLU's arguments by questioning if the law would really have a result of chilling free speech. He argued that the pollster is not required to disclose who is asking the questions until the end of the phone call, so a person could still answer the questions without knowing who is conducting the poll. He went on to say that if a pollster opts not to conduct a poll because it may reflect badly on a particular candidate then it most likely is a push poll.
"I dispute any potential chilling effect on free speech. At least I dispute any chilling effect that is greater than the chilling effect on other forms of political advertising requiring disclosure," Daw said.
The bill is now making its way to Herbert for action. He has until April 3 to veto any bills passed by the Legislature this session.