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1989-36: Treatment of Certain Organization Payments as Contributions or Expenditures

Wednesday, July 19, 1989

An opinion has been requested whether the cost of events paid for by organizations, other than a candidate's authorized committee, are contributions to or expenditures by the candidate, in circumstances in which the candidate or an agent of the candidate makes an appearance at the event. The Board has addressed the subject of candidate appearances in Advisory Opinions Nos. 1989-18, dated May 2, 1989, 1989-26, dated June 12, 1989, and 1989-34 issued today. The following examples of and questions about candidate appearances have been described:

1) A group, otherwise acting independently of the campaign, organizes a meeting at which the candidate appears and speaks but does nothing more.

2) An agent of a candidate makes an appearance at a function of the kind described in example number 1, at which the candidate does not make an appearance.

3) If the expenditures in connection with the function at which a candidate appears are considered contributions to and expenditures by the campaign, because of lack of independence, will all expenditures made by the group before the function in question, which were made in support of the candidate or in opposition to his/her opponents, be considered contributions to and expenditures by the campaign even if the candidate or his/her agents did not suggest, foster, facilitate, cooperate, etc., in the prior expenditures?

4) Likewise, will all expenditures made by the group after the function at which the candidate appeared, made in support of his/her candidacy or in opposition to his/her opponents, be considered contributions to and the expenditures by the campaign even if the candidate and his/her agents did not suggest, foster, facilitate, cooperate, etc. in subsequent expenditures by the group?

5) Can the candidate, or any agent of the campaign, appear before any group, whether or not the group has endorsed the candidate, without having expenditures for the function at which the candidate or agent appeared being considered a contribution to and an expenditure by the campaign, and, if so, under what circumstances?

6) If the candidate or agent appear before a group which is otherwise acting independently of the candidate/campaign and merely presents the background of the candidate and his/her positions on various issues, without specifically urging those attending the function to support or work for the candidate, will the expenditures made in connection with the function at which the candidate or agent appeared be considered a contribution to an expenditure by the campaign?

New York City Administrative Code §3-702(8) includes within the definition "contribution":

(a) any gift, subscription, advance, or deposit of money or any thing of value, made in connection with the nomination for election, or election, of any candidate; ...

(c) any payment, by any person other than a candidate or a political committee authorized by the candidate, made in connection with the nomination for election, or election, of any candidate,... provided however, that none of the foregoing shall be deemed a contribution if it is made, taken or performed by a person or a political committee independent of the candidate or his or her agents or political committees authorized by such candidate pursuant to section 14-112 of the election law. For purposes of this subdivision, the term "independent of the candidate or his or her agents or political committees authorized by such candidate pursuant to section 14-112 of the election law" shall mean that the candidate or his or her agents or political committees so authorized by such candidate did not authorize, request, suggest, foster or cooperate in any such activity...

In Advisory Opinion No. 1989-26, dated June 12, 1989, the Board stated:

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.

(Emphasis added.) The issues raised in the examples described above require a determination whether an event is a "campaign" event, in other words whether payments for the event by persons other than the candidate or the candidate's authorized committees were "made in connection with the nomination for election, or election, of any candidate." If an event is not related to the candidate's campaign for office, payment for its costs would not be a contribution to, or expenditure by, a candidate appearing at the event.

1, 2, 5, 6) These examples and questions do not state specific facts about the event. It is not possible for the Board in the absence of specific facts to respond to these examples in a manner which would address every conceivable type of event, sponsored by every conceivable type of organization. The Board, however, would consider that the following factors evidence a campaign event, so that the cost of the event would be a contribution to and expenditure by a candidate who makes an appearance at the event1:

1. The event includes solicitation of contributions for the candidate making the appearance or for that candidate's authorized committee.

2. Express advocacy of the election of the candidate making the appearance, or of the defeat of an opponent of that candidate, takes place at an event paid for by a political committee or other entity which has endorsed the candidate, made a contribution to the candidate, made independent expenditures on behalf of the candidate, or solicited contributions or volunteers on behalf of the candidate2.

3, 4) The question raised is whether a candidate's appearance at a campaign event sponsored by an organization means that all other expenditures made by that organization, both before and after the event, are also contributions to and expenditures by the candidate. The fact alone that a candidate makes a single appearance at an event, without more, may not be dispositive of the question whether that candidate has authorized or otherwise cooperated in other expenditures made by the event's sponsor. Therefore, a factual inquiry concerning the relationship between the candidate and the particular sponsor of the event may be required before a determination may be made whether expenditures made by the organization before and after the campaign event are contributions to or expenditures by the candidate making an appearance at the event.

 

NEW YORK CITY CAMPAIGN FINANCE BOARD

1 The appearance by an agent of a candidate on the candidate's behalf is the equivalent of an appearance by the candidate for the purposes of this opinion.

2 The Federal Election Commission has developed a similar standard for determining whether an event is campaign-related. See, e.g., Federal Election Commission, Advisory Opinions 1988-22 (July 5, 1988) (luncheons sponsored by a corporation at which candidates may be featured speakers); 1986-37 (November 10, 1986) (candidate appearances sponsored by nonprofit organization); 1986-26 (August 21, 1986) (candidate appearances before convention sponsored by nonprofit corporation); 1984-13 (May 17, 1984) (candidate appearances at trade association conference); 1982-50 (November 19, 1982) (sponsorship of luncheon meetings with members of Congress); 1980-89 (September 5, 1980) (donation of food and beverages to reception for Congressman); 1980-22 (April 15, 1980) (town meetings sponsored by trade association).