An opinion has been requested whether a candidate who chooses to participate in the public financing program of the New York City Campaign Finance Act (New York City Administrative Code §3-701, et seq.) may make expenditures in an amount up to the expenditure limit for a primary election, in circumstances in which the candidate has anticipated a primary election for the office he or she seeks, but ultimately that primary election is not held. The following examples have been described:
1) Candidate X, running in the only party primary for a particular office, is opposed during the petitioning period. X ultimately succeeds, through litigation and after appeal, in efforts to knock all primary election opponents off the ballot. Prior to eliminating these opponents, X spends an amount equal to ninety percent of the applicable primary election expenditure limit. X's opponent in the general election receives the nomination of another political party without opposition.
2) X is an announced candidate who is opposed by an unannounced opponent. X is vigorously campaigning in the pre-petitioning period. X has rented office space, commissioned a poll, hired staff and consultants, incurred production expenses for a TV spot for the primary, produced literature for the primary, held fundraising events, and made other expenditures in anticipation of a primary. X's opponent has filed financial disclosure forms with the Board of Elections and engaged in public campaigning. The opponent has not filed a candidate certification with the Campaign Finance Board. During the petitioning period, it becomes clear that X's opponent will not qualify for the primary. The opponent does not circulate designating petitions.
In Advisory Opinion No. 1988-4, dated December 30, 1988, the Board stated:
if there is a contested primary election for an office, an eligible candidate for that office, who is either unopposed for party nomination or not entered in a primary election, may make expenditures in the contested primary election in an amount not to exceed the primary election expenditure limit... If there is no contested primary election for an office, expenditures made by an eligible candidate seeking election to that office will be attributed to the general election expenditure limit...
The above-emphasized sentence applies only to situations in which there is no contested primary. The unresolved issue raised by the examples described is whether expenditures may be attributed to the primary election expenditure limit in instances in which a party nomination contest exists but is brought to a conclusion before a primary election is held1.
1) In the first example, more than one candidate has filed designating petitions for party nomination at a primary election. The nomination is therefore contested until the opponents' petitions are invalidated. Expenditures made prior to the invalidation would be attributed to the primary election expenditure limit because until the invalidation, the nomination was contested and a primary election was possible. Subsequent expenditures would be subject to the general election expenditure limit.
2) In the second example, only one candidate has filed a designating petition. Thus, the candidate has been designated for an uncontested office and is deemed nominated without the holding of a primary election. New York Election Law §6-160(2) . Expenditures made after the candidate is deemed nominated would be subject to the general election expenditure limit. Expenditures made prior to nomination would also be covered by the general election expenditure limit unless the candidate reasonably believed that at least one opposing candidate for the office he or she seeks would file designating petitions for the nomination of the same party. In these circumstances, the candidate must report to the Board his or her reasons for making expenditures in anticipation of a primary election. The expenditures will be subject to the primary election expenditure limit if the Board determines that the candidate has a reasonable basis for anticipating a primary election. The expenditures will be subject to the primary election expenditure limit, however, only for as long as the candidate has a reasonable basis to believe that an opponent will file designating petitions. Once any basis for maintaining a reasonable belief of this kind is removed, then no more "primary" expenditures may be made. In demonstrating a reasonable basis, the candidate may refer to potential opponents' public statements, campaign activities, filings with the Board, and filings with the New York City Board of Elections.
NEW YORK CITY CAMPAIGN FINANCE BOARD
1 For purposes of this opinion, it is assumed that the nominations of other political parties for the same office are not contested. If there is a contested primary election in any party for a particular office, every candidate for that office may make expenditures in the primary election subject to the primary election expenditure limit. See Advisory Opinion No. 1988-4, quoted above.