2004 Summer, 10. Survey of New Hampshire Election 2004 Issues.

AuthorBy Attorney James F. Merrill

New Hampshire Bar Journal


2004 Summer, 10.

Survey of New Hampshire Election 2004 Issues

NH Bar JournalSummer 2004, Volume 45, Number 2Survey of New Hampshire Election 2004 IssuesBy Attorney James F. MerrillIn New Hampshire, institutions like the Executive Council and other vestiges of our colonial heritage still predominate our government. Another persistent emblem of our pre-Revolutionary roots is our two-year term for the office of Governor. Today, New Hampshire and Vermont are the only states that provide for a two-year gubernatorial term of office. The basis for this limitation is easily understood when considered in context with the times which bore it, namely, a healthy distrust of an all-powerful sovereign, King George III of England.(fn1)

Many in New Hampshire subscribe to the theory that the two-year term, rather than the prevailing four, keeps our elected state officials "honest." The sacrifice for this frequent check on governmental power is that New Hampshire has a seemingly endless election cycle. As it stands, we are poised to hold another statewide election this fall which will seat a Governor, a United States Senator, two United States Congressmen, five Executive Councilors, twenty-four State Senators, and 400 State Representatives. Additionally, New Hampshire will make its choice for President, and true to form, the Granite State promises to be a defining national player in the upcoming presidential election.(fn2) With this fact in mind, the following article will address some of the new, novel, and/or frequently ignored aspects of New Hampshire election law that seek to shepherd the civic "campaign" through the rigors of New Hampshire politics.(fn3)

Starting a Campaign -- The Exploratory Committee and Fundraising Issues

After consulting with family, friends and political allies, the prospective candidate may form what is known as an "exploratory committee." The term exploratory committee is not defined by New Hampshire election laws,(fn4) but has been characterized by Attorney General opinions as "political committees formed on behalf of individuals who are not yet declared candidates."(fn5) The term "political committee" is defined by RSA 664:2, III as "any organization of 2 or more persons to influence elections or measures. . . ." Under New Hampshire law, an individual must take the steps required to form a political committee no later than twenty-four hours after receiving a contribution in excess of $500, or within twenty-four hours after making an expenditure in excess of $500.(fn6) Upon the occurrence of either milestone, the prospective candidate must fill out a form provided by the Secretary of State's office, pay a fee of $50, designate a New Hampshire citizen as treasurer of the newly formed political committee, and file a statement indicating its purpose.(fn7) In the case of an exploratory committee, recommended language for the statement would be along the lines of "for purposes of exploring the feasibility of a campaign for the office of X." The goal is to make clear the political committee's "exploratory" purpose.

Having formed an exploratory committee, a prospective candidate can begin the "search for support and quest for capital." Money regrettably being considered the lifeblood any political campaign, the prospective candidate may begin to raise money in the form of contributions to further exploratory efforts. The question of the increments in which money can be raised was recently decided by the Attorney General in 2002, through its resolution of an election law complaint brought against the exploratory committee ("WhyBenson.com") of then gubernatorial hopeful Craig Benson ("Governor Benson") by his two Republican primary rivals for the same office, former State Senator Bruce Keough and former United States Senator Gordon Humphrey. In their complaint, Senators Keough and Humphrey argued, albeit unsuccessfully, that WhyBenson.com had broken New Hampshire election laws ("Complaint").

RSA 664:4, V(1) provides that no candidate or political committee can accept contributions in excess of $1,000 where such a candidate declines New Hampshire's voluntary campaign spending caps.(fn8) The Complaint first argued that in light of the WhyBenson.com purpose statement to "elect Craig Benson Governor," an expensive advertising campaign touting Governor Benson's candidacy, and news accounts suggesting Governor Benson's actual, rather than theoretical candidacy, WhyBenson.com was actually a candidate committee.(fn9) By not agreeing to the "spending cap," the Complaint argued that WhyBenson.com accepted numerous contributions exceeding $1,000 when under the circumstances, it was legally restricted to contributions of $1,000 or less.(fn10)

Second, the Complaint alleged that even assuming that WhyBenson.com was merely an exploratory committee rather than candidate committee, it still violated the law by accepting a contribution in excess of $5,000, the maximum amount allowed to an exploratory committee.(fn11) In this case, the allegedly offending contributor was none other than Governor Benson himself, who infused $1,425,000 of his own funds into WhyBenson.com during the reporting period ending June 19, 2002.(fn12) Interestingly, the statute contains an exception to the $5,000 maximum contribution which indicates that candidates may contribute in excess of $5,000 in support of their own candidacy.(fn13) Thus, the argument continued, if WhyBenson.com was only an exploratory committee, then Governor Benson could not have been a "candidate," and was not exempt from the $5,000 ceiling on contributions.

Under the first argument, the Attorney General considered when an individual exploring a potential candidacy could agree to, or decline, the spending cap and when the concomitant contribution restrictions came into play. In short, it was determined that the RSA 664:4, V contribution restrictions applied at the moment when an individual's opportunity to file an affidavit with the Secretary of State agreeing to, or declining, the spending cap, expired.(fn14)

The law provides that in order to voluntarily limit expenditures, a prospective candidate must file an affidavit with the Secretary of State expressing such intent "within 3 days after the date on which a candidate files his declaration of candidacy or his declaration of intent, or is declared a write-in winner of a primary election."(fn15) In turn, the law strictly regulates how and when a declaration of candidacy must occur by setting forth specific criteria that a potential candidate must meet before having his or her name placed on the primary ballot.(fn16) In particular, the statutory declaration of candidacy can only be filed "between the first Wednesday in June and the Friday of the following week."(fn17) In accordance with this requirement, Governor Benson filed his declaration of candidacy on June 12, 2002, and, at the same time, executed an affidavit indicating that his campaign would not voluntarily limit its expenditures in conformity with RSA 664:5-a.

The Attorney General ruled that contributions are limited to $1,000 "starting at the moment in time when the candidate's opportunity to file an affidavit with the Secretary of State agreeing to the voluntary spending cap expires. Prior to that time either an exploratory or a candidate committee may accept contributions up to but no greater than $5,000." (fn18) The $1,000 contribution limit is applicable only to those persons or political committees that decline the spending cap. However, where there is only a limited time period in which this decision can be made formally, the Attorney General's office used this marker to clarify what had previously been unclear. Exploratory or candidate committees for candidates who decline the voluntary spending cap upon filing a declaration of candidacy in the June prior to a primary election may accept up to $5,000 in contributions from any individual or corporation until the time of filing. The Opinion acknowledged that this ruling "has the effect of minimizing the disadvantages imposed on a candidate who declines to agree to the expenditure limitations . . . [but] it is the privilege of the Legislature . . . to write laws that would clearly prevent this practice."(fn19) In short, there appears to be a want for legislative enhancement of the existing protections for candidates of lesser means, with a mind to level the playing field.

Under the second argument of the Complaint, the Attorney General considered whether potential candidates can contribute in excess of $5,000 to their exploratory committees, much like candidates can do for their campaigns. The Attorney General answered this question in the affirmative. Under the statute, a candidate's "personal resources" are excluded from the definition of "contribution,"(fn20) but no mention is made about a potential candidate's personal resources. Additionally, when considering prohibited contributions under RSA 664:4, V, an exception to the $5,000 limit exists when made by "a candidate in behalf of his own candidacy."(fn21) Again, the statute does not address or define limits on a potential candidate's contributions on behalf of exploratory efforts. This ambiguity led to the allegation in the Complaint that Governor Benson had violated the law by contributing well in excess of $5,000.

The Opinion clarified that where the statutes in question already exempted a candidate's personal resources from...

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