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1989-26: Candidate Liability for PAC Activities

Monday, June 12, 1989

An opinion has been requested whether certain activities undertaken by a political action committee (the "Committee") are independent of the candidate supported by that Committee. The following facts are presented in an advisory opinion request, dated May 11, 1988:

The "Friends of Ben DuBose" was organized in 1988 to support the efforts of Ben DuBose when he ran for the position of State Senator for the 17th Senatorial District in Brooklyn.

Although he is not a candidate this year, he has shown an interest in running for State office in 1990, thus the committee has decided to remain active. This will enable the committee to "gear-up" at any time since it is registered with the State Board of Elections, has a checking account, and a bulk-mailing permit.

We would like to concentrate our efforts in support of Mr. Giuliani this year, and would like to continue to operate under the above name. Mr. DuBose has agreed to allow his good name to be used in this effort, but it should be noted that he IS NOT a member of the PAC team.

We intend to operate TOTALLY INDEPENDENT of Mr. Giuliani, with no input from him or any members of his staff.

The New York City Campaign Finance Act (NYC Administrative Code §3-701, et seq.) does not restrict activity which is independent of candidates participating in the public financing program. An activity is independent, and not subject to the candidate contribution or expenditure limits applicable under Administrative Code §3-703(1) (f) and 3-706, if:

the candidate or his or her agents or political committees...did not authorize, request, suggest, foster or cooperate in any such activity...

Administrative Code §3-702(8); Campaign Finance Board Regulation §105(b) (3). Political committees engaged solely in independent activities are not in any way limited by the Act in the amount of funds which they may solicit and expend.

The Committee may most clearly establish and maintain the independent nature of its activities by simply not communicating with the candidate or his or her agents for any purpose.

The question is raised whether the cost of a campaign event paid for by the Committee, at which the candidate makes an appearance, is an independent expenditure. An appearance by a candidate at a campaign event paid for by the Committee clearly indicates that the candidate has "cooperated in" the activity. This is precisely the kind of activity that is conclusively not "independent." The cost of the event would be an in-kind contribution by the Committee and an expenditure by the candidate.

The question is also raised whether the Committee may request "opinion papers" or "press releases" from the candidate, without having the Committee's expenditures be considered expenditures by the candidate. A mere request for information by the Committee and the forwarding of material by the candidate in response to that request, without any additional communication or exchange of information whatsoever, would not constitute "cooperation" by the candidate in the Committee's expenditures.

If the Committee thereafter pays for the dissemination, distribution, or republication of opinion papers or press releases received from the candidate, however, it is presumed that this activity is "cooperated in" by the candidate. A candidate would have the burden of demonstrating that the activity was not "authorized, requested, suggested, fostered, or otherwise cooperated in by the candidate." Campaign Finance Board Regulation §102(e); 105(d). Unless the candidate can make this demonstration, the activity would be an in-kind contribution to and an expenditure by the candidate.