FEDERAL ELECTION COMMISSION

Washington, DC 

BEFORE THE FEDERAL ELECTION COMMISSION

In the Matter of ) 

 ) 

Unknown Respondent ) MUR 7776

 ) 

 

 

STATEMENT OF REASONS OF CHAIRMAN ALLEN J. DICKERSON AND 

COMMISSIONERS SEAN J. COOKSEY AND JAMES E. “TREY” TRAINOR, III

This Matter came to the Commission’s attention when an individual who responded 

to a telephone survey conducted by Promark Research Services (“Promark”)1 on August 5, 

2020 alleged that that survey was conducted in violation of 11 C.F.R. §110.11, which sets 

forth disclaimer requirements for certain types of political communications.2 Our Office of 

General Counsel (“OGC”) agreed, taking the view that the survey qualified as regulable 

“general public political advertising,” as opposed to legitimate public opinion research, and 

recommended that we find reason to believe the survey’s unknown sponsor violated the 

disclaimer requirements set forth by the Federal Election Campaign Act of 1971, as amended 

(the “Act”) and Commission regulations.3

OGC’s recommendation reflects a fundamental misunderstanding of common 

methods used by the public opinion and political survey research industry. In its analysis, 

OGC conflates garden-variety message testing with “general public political advertising” 

(which falls under the aegis of the Act) by labeling Promark’s call a “push poll”—a term that 

does not appear anywhere in the Act or Commission regulations. Message testing, by its very 

definition, is not a form of advertising; it is designed and used to elicit, rather than 

disseminate, reactions and information about political messaging from the public. The 

available facts indicate that Promark’s call was designed to accomplish just that, and no 

evidence before us suggests that it was intended for any purpose other than gathering 

1 Promark advertises itself as providing “research, data collection and tabulation services to market 

research firms, political analysts, consultants, corporations, public relations, investor relations, 

advertising agencies, universities and independent research organizations.” See

https://www.promarkresearch.com (last accessed May 11, 2022).

2 Compl. at 1, MUR 7776.

3 First Gen. Counsel’s Rpt. at 9, MUR 7776.

MUR777600027
MUR 7776 (Unknown Respondent)

Statement of Reasons of Chairman Allen J. Dickerson and Commissioners Sean J. Cooksey and 

James E. “Trey” Trainor, III

Page 2 of 6 

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information and measuring public sentiment about candidates and messaging.4 Therefore, 

because Promark’s telephone survey did not qualify as “general public political advertising” 

subject to our jurisdiction, we voted against OGC’s recommendation that we find reason to 

believe a violation occurred.5

I. FACTUAL BACKGROUND

The Complaint alleges that on August 5, 2020, an individual representing Promark 

called the Complainant on his cellphone, told him that Promark was conducting an 

“independent research” survey, and asked if the Complainant would participate.6 The 

Complainant agreed, and states to the Commission that the survey consisted of a series of 

multiple-choice questions regarding Representative Andy Kim (the incumbent Democratic 

candidate for New Jersey’s 3rd Congressional District in the 2020 general election) and David 

Richter (Kim’s Republican challenger).7 The Complainant further asserts that despite his 

asking multiple times, the interviewer did not identify the survey’s sponsor.8 According to 

the Complaint, “The interviewer read statements most would believe were facts and asked 

questions that reinforced the statements. Questions beginning like ‘Knowing David Richter 

is a patriot, and Andy Kim voted to give illegal immigrants $6,000 ...’ were typical throughout 

the 34-minute call.”9

In its Response, Promark states that it is a company that offers telephone survey 

research services, as well as online surveying, data collection, and analysis services.10

Promark acknowledges that the Complainant was called to take a survey Promark was 

conducting on August 5, 2020, and asserts that this survey was not a “public communication” 

as defined by 11 C.F.R. § 100.26; rather, it “was a valid research tool used to gather data from 

Respondents on various issues of public and political import,” and therefore could not be 

considered an advertisement.11 

A review of Commission records shows that no disbursements to Promark were 

reported by Richter or any other federal committee or candidate during the 2020 election 

cycle. 

4 Nor do we have any indication that any candidate or committee (or agent of either) authorized, 

commissioned, or paid for Promark’s survey.

5 Certification ¶ 1, MUR 7776 (April 4, 2022).

6 Compl. at 1, MUR 7776.

7 Id.

8 Id.

9 Id.

10 Resp. at 1, MUR 7776.

11 Id.

MUR777600028
MUR 7776 (Unknown Respondent)

Statement of Reasons of Chairman Allen J. Dickerson and Commissioners Sean J. Cooksey and 

James E. “Trey” Trainor, III

Page 3 of 6 

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II. APPLICABLE LAW

Under the Act, a disclaimer is required: 

• “Whenever a political committee makes a disbursement for the purpose of 

financing any communication through any broadcasting station, newspaper, 

magazine, outdoor advertising facility, mailing, or any other type of general public

political advertising; [...]

• Whenever any person makes a disbursement for the purpose of financing 

communications expressly advocating the election or defeat of a clearly identified 

candidate, or solicits any contribution through any broadcasting station, 

newspaper, magazine, outdoor advertising facility, mailing, or any other type of 

general public political advertising[;] or

• [Whenever any person] makes a disbursement for an electioneering 

communication (as defined in section 30104(f)(3) of this title).”12 

Commission regulations interpret the disclaimer requirement to reach “public 

communications” made by political committees, “public communications” containing express 

advocacy or solicitations of contributions, and electioneering communications.13 A “public 

communication” is a communication “by means of any broadcast, cable, or satellite 

communication, newspaper, magazine, outdoor advertising facility, mass mailing, or 

telephone bank to the general public, or any other form of general public political 

advertising.”14 A telephone bank means that more than 500 calls of an identical or 

substantially similar nature were made within a 30-day period.15

When a communication is not authorized by a candidate, an authorized political 

committee of a candidate, or its agents, it must clearly state the name and permanent street 

address, telephone number, or World Wide Web address of the person who paid for the 

communication and state that the communication is not authorized by any candidate or 

candidate’s committee.16 The disclaimer must be “presented in a clear and conspicuous 

manner, to give the reader, observer, or listener adequate notice of the identity of the person 

or political committee that paid for, and where required, that authorized the 

communication.”17

III. ANALYSIS

The key question before the Commission in this Matter is whether Promark’s 

telephone call—which was allegedly made on a recorded line nearly three months before the 

2020 general election, lasted for 34 minutes, and included both questions and statements 

12 52 U.S.C. § 30120(a). 

13 11 C.F.R § 110.11(a).

14 52 U.S.C. § 30101(22); 11 C.F.R. § 100.26 (emphasis added).

15 52 U.S.C. § 30101(24); 11 C.F.R. § 100.28.

16 52 U.S.C. § 30120(a)(3); 11 C.F.R. § 110.11(a)(2).

17 11 C.F.R. § 110.11(c).

MUR777600029
MUR 7776 (Unknown Respondent)

Statement of Reasons of Chairman Allen J. Dickerson and Commissioners Sean J. Cooksey and 

James E. “Trey” Trainor, III

Page 4 of 6 

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that appeared to be intended to elicit the recipient’s reaction—is the type of communication 

that requires a disclaimer. In our view, the answer to that question is no. The plain language 

of the Act governs only communications that qualify as general public political advertising or 

electioneering communications, and message testing calls like Promark’s do not qualify as

either. This very issue has come before the Commission in the past, and we adopt and 

incorporate by reference our predecessors’ statement of reasons contrasting legitimate survey 

research and message testing with so-called “push polls” and holding that the former does

not require a disclaimer.18

In its analysis, OGC first presumes—without citing any concrete evidence—that 

Promark’s survey must have involved at least 500 calls, thus making it a “telephone bank,” 

that qualified as a “public communication” and required a disclaimer.19 Even assuming 

arguendo that Promark did, in fact, make more than 500 calls while its survey was in the 

field, this argument ignores the language of the Act, relevant legislative history, and the 

Commission’s regulatory intent. When the Commission promulgated regulations 

implementing the 2002 Bipartisan Campaign Reform Act (“BCRA”), it determined that 

Congress had expanded disclaimer requirements to reach disbursements to finance any 

communication made by political committees through any type of general public political 

advertising, as well as electioneering communications.20 The regulatory history, as well as

the plain language of 52 U.S.C. § 30120(a), thus indicate that particular “communications” 

must take the form of either “general public political advertising” or “electioneering” to be 

subject to the disclaimer requirement.21 And in passing BCRA, Congress evidenced no intent 

that the disclaimer requirements should also capture political survey research and polling.22 

In an apparent attempt to shoehorn Promark’s call into the “general public political 

advertising” category, OGC suggests that the survey, by virtue of including statements that 

18 See generally Statement of Reasons of Vice Chairman Matthew S. Petersen and Comm’rs Caroline 

C. Hunter and Donald F. McGahn, MUR 5835 (DCCC) (“Petersen/Hunter/McGahn Statement”).

19 Apart from the call cited in the Complaint, OGC’s only basis for concluding that Promark made more 

than 500 calls is the notion that because “[New Jersey’s 3rd Congressional] district has a population of 

approximately 735,981 people, consists of 53 municipalities, and is comprised of Burlington and 

portions of Ocean counties,” “it would not be unreasonable to assume that over 500 surveys were 

conducted within a 30-day period.” First Gen. Counsel’s Rpt. at 7, MUR 7776.

20 Disclaimers, Fraudulent Solicitation, Civil Penalties, and Personal Use of Campaign Funds, 67 Fed. 

Reg 76,962, 76,963 (Dec. 13, 2002) (“each form of communication specifically listed in the definition of 

‘public communication,’ as well as each form of communication listed with reference to a

‘communication’ in 52 U.S.C. § 30120(a), must be a form of ‘general public political advertising’” 

(emphasis added)). “Electioneering communications” are defined as broadcast, cable or satellite 

communications that refer to a clearly identified federal candidate, are publicly distributed within 30 

days of a primary or 60 days of a general election, and are targeted to the relevant electorate. 11 C.F.R. 

§ 100.29(a).

21 52 U.S.C. § 30120(a).

22 Then-Senator Russell Feingold, one of BCRA’s primary sponsors, issued a section-by-section 

analysis of BCRA noting, in a section entitled “Standards for Identification of Sponsors of ElectionRelated Advertising,” that the bill’s section amending the disclaimer provision “applies the 

requirement to any disbursement for public political advertising.” 148 Cong. Rec. SI994 (Mar. 18, 

2002).

MUR777600030
MUR 7776 (Unknown Respondent)

Statement of Reasons of Chairman Allen J. Dickerson and Commissioners Sean J. Cooksey and 

James E. “Trey” Trainor, III

Page 5 of 6 

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were “disparaging of one candidate and supportive of the other,” was a so-called “push poll.”23

The term “push poll” is not defined by the Act or Commission regulations, but it is colloquially 

used to describe telephone calls, disguised as research, which aim to persuade voters and 

affect election outcomes rather than measure public opinions.24 While both push polls and 

message testing can involve the use of negative or politically-charged statements, the intent 

and methodology for each are distinguishing factors. 

Our predecessors have observed that, in general, push polls do not record the 

respondent’s answers to the questions asked, are very short in duration, involve only a few 

statements or questions, and occur very close to Election Day (to influence the respondent’s 

vote most effectively).25 Legitimate message testing calls, by contrast, are used to gauge the 

effectiveness of various possible political and campaign messages, generally last for more 

than just a few minutes, and involve more than five or six questions.26 Promark’s call, which 

(by the Complainant’s own account) lasted for over a half an hour, was received more than 

three months prior to the general election, and was reportedly made on a recorded line, fits 

comfortably in the latter category. Instead of probing this distinction, however, OGC simply 

ignores it, concluding that the call was part of a telephone bank and was therefore a form of

“general public political advertising” that required a disclaimer under the Act and 

Commission regulations.27 

OGC also seems to imply that Promark’s declining to identify the client that 

commissioned the survey is indicative of nefarious intent. But as any experienced pollster 

knows, the results of a political survey are only as good as the data input—and a key aspect 

of maintaining the quality of that data is ensuring that survey recipients’ responses are not 

unduly influenced by their knowledge of a poll’s sponsor.28 In other words, if the recipient of 

a telephone poll must be told that the poll is being paid for by a certain institution (or 

company, or candidate), it could degrade the quality of the data. 

If the Commission had approved this line of reasoning—that is, that all calls that 

happen to present negative information or messaging about candidates are “push polls” 

23 First Gen. Counsel’s Rpt. at 5, MUR 7776.

24See, e.g., AMERICAN ASSOC. FOR PUBLIC OPINION RESEARCH, What is a “Push” Poll?, available at 

https://www.aapor.org/Education-Resources/Resources/What-is-a-Push-Poll.aspx (last accessed May 

11, 2022). AAPOR is a § 501(c)(3) non-profit entity that describes itself as “a professional organization 

dedicated to advancing the science and practice of survey & opinion research”). 

25 Petersen/Hunter/McGahn Statement at 11.

26 Id. at 11–12. 

27 First Gen. Counsel’s Rpt. at 5, MUR 7776.

28 See, e.g., Petersen/Hunter/McGahn Statement at 13 (“[A]s a policy matter, legitimate political survey 

research does not identify the campaign, committee, entity, group, or individual paying for the survey 

or telephone poll because doing so undermines the validity of the results. Many survey respondents, 

especially those who are less well-informed, look for clues to give the “correct” answer to a question ... 

If an interviewer reveals who is paying for the poll, that knowledge can influence the response to the 

interviewer’s questions.... If the responder knows who is sponsoring the poll, he or she is more or likely 

to think there is a “right” answer and may adjust his or her response accordingly. Introducing such 

bias degrades the value of the data obtained.”).

MUR777600031
MUR 7776 (Unknown Respondent)

Statement of Reasons of Chairman Allen J. Dickerson and Commissioners Sean J. Cooksey and 

James E. “Trey” Trainor, III

Page 6 of 6 

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qualifying as “general public political advertising” that fall within the Commission’s 

jurisdiction—it would have significantly affected pollsters’ ability to elicit information from 

the public to guide their own decision-making, as well as that of their clients (political or 

otherwise). This interpretation would make message testing difficult, if not impossible, in the 

political world. 

OGC’s suggested interpretation also bears implications for First Amendmentprotected speech. Although the Supreme Court has held that regulators can require that a 

communication bear a disclaimer, that requirement must be narrowly tailored to serve an 

overriding government interest, such as helping the electorate parse the content of campaign 

advertising or protecting against corruption.29 In this situation, such overriding government 

interests simply do not exist. A decision to enforce on OGC’s theory would ultimately upend

the entire political survey research industry and, relatedly, would likely flood the 

Commission’s enforcement docket with meritless complaints about legitimate political survey 

and polling operations, while doing nothing to inform the public as to the sources of funding 

for true political advertisements.

Accordingly, we voted against finding reason to believe that an Unknown Respondent, 

acting through Promark, violated the Act or Commission regulations.

May 11, 2022 ___________________________ 

Date Allen J. Dickerson

 Chairman

 

May 11, 2022 ___________________________ 

Date Sean J. Cooksey

 Commissioner 

May 11, 2022 ___________________________ 

Date James E. “Trey” Trainor, III

 Commissioner 

29 McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 347 (1995) (holding that state’s prohibition against 

distribution of anonymous campaign literature did not satisfy exacting scrutiny and therefore violated 

the First Amendment).

MUR777600032