In N.H., a tricky landscape for campaign finance

CONCORD, N.H. — When attorney Jay Surdukowski had to explain New Hampshire’s election laws to an outsider, he put it like this: The legislation, he said, is sparse enough that it could be “written on the back of a napkin.”

At the time, Surdukowski was working as legal counsel for Governor Maggie Hassan’s reelection campaign — a job that underscored for him the unique challenges of campaign finance in a state with few formal election laws on the books.

The state attorney general must make frequent administrative rulings about what campaigns can and cannot do. New Hampshire’s outsized role in national politics has attracted a growing number of outside groups injecting cash into local races. And last summer, the Legislature enacted a law that attempts to rein in that so-called dark money — contributions to political organizations that need not disclose their donors — by requiring such groups to register with the state and report some of their financial activities.

All of this has made politicking in the Granite State more confusing. Surdukowski, now a partner at the Sulloway & Hollis law firm, recently wrote an article for the University of New Hampshire Law Review describing the state’s election landscape as “some of the most complicated and sporadically-enforced campaign finance laws in any jurisdiction” and exploring changes he says “are likely to demarcate battle lines in New Hampshire elections for years to come.”

In an interview and a few followup e-mails, Surdukowski explained some of the intricacies of election law in New Hampshire. Here’s an edited transcript:

What are some of the factors complicating the legal landscape in New Hampshire politics?

We’ve been historically reluctant to take steps towards tinkering [with the laws]. It’s a very convoluted statutory scheme with a whole wash of administrative decisions coming in. Then you’ve got the rise of these groups that are operating under the umbrella of federal law. All of that has a very messy intersection. There’s no real rhyme or reason to it.

What is the relationship between state-level election laws and federal rules that allow for dark money groups?

States have their own campaign finance systems, but they also exist in a world where someone could bring them to federal court over their law. The Constitution is always going to be paramount, especially in areas about free speech, so states have to work within the federal framework. . . . States can only go so far with when it comes to matters that implicate the federal Constitution.

New Hampshire’s Legislature passed legislation last year that put some limits on “dark money” groups, also known as 501(c)(4)s. What is the significance of that new law?

That was pretty momentous, the fact that you had Republicans who saw along with some Democrats the threat of 501(c)(4)s. Even under this law, we aren’t entitled to know who the donors are but at least this law makes it optional that they can disclose. They’re also supposed to register, and they’re supposed to say what the amount of the expenditures are. There are plenty of groups that are complying, but there are at least three that are not.

What does this mean for how people like you do your jobs during election years?

As a campaign finance lawyer, you really have to wear two hats. You have to know what’s legal and what’s not legal and how to justify when areas are gray, but at the same time you’ve always got to wear a political hat.

Sometimes what you would do in traditional litigation is not what you would do in the middle of a campaign. . . . You’ve got to be aware of the political ramification, not just the legal ramification, of every move.

How does this change the way voters will educate themselves about campaigns?

It’s a new world where folks have got to be attentive to the messages they’re receiving and the messenger. It’s no longer just the candidates or the parties. There’s now a chorus of voices that are shouting through their TVs and their mail. People will have to drill down and figure out what’s coming from candidates and what’s coming from people who are for or against them.

What does all of this mean for the 2016 presidential primary?

The super PAC age has made the New Hampshire primary more important than ever. New Hampshire has always been a place where David can prevail against Goliath — John McCain, Jimmy Carter, and Gary Hart come to mind. The $2.5 billion question will be, will New Hampshire live up to its independent reputation and give all candidates an equal shot no matter how much some candidates or their super PACs raise?

I have faith that Granite Staters will do their quadrennial due diligence and continue to be talent scouts for the nation. Face time — not ad air time — is what has and always will win New Hampshire voters’ hearts.

If you could write a new campaign finance law from scratch for New Hampshire, what are some of the key issues you would address?

I would scrap the statute completely and replace it with bipartisan legislation so it has buy-in from all players. The new law would be consistent, clear, and cherish transparency above all else.

For the immediate future, big money in politics is here to stay. One of the best things we can do is at least be honest as a state about what individuals or corporations are influencing our elections by instituting and enforcing rigorous disclosure laws.

It might also be useful to find ways to bring more everyday people back into the process and reward contributions by natural persons so there is an incentive for participation by everyday voters — perhaps with some manner of a tax deduction or credit for political gifts the way we incentivize charitable giving.