In Advisory Opinion No. 1989-26, dated June 12, 1989, the Board addressed questions concerning the activities of the Friends of Ben DuBose, an independent political action committee (the "Committee"). This advisory opinion is in response to other issues raised on behalf of the Committee, based on the set of facts presented in the earlier advisory opinion.
The following questions are raised:
1) May the Committee solicit volunteers to work on behalf of Mr. Giuliani for a petition drive for the Republican primary election?
2) Would the Committee lose its "independence" if:
a. it collected signatures and gave the petitions to the Giuliani campaign?
b. have a list of volunteers to the Giuliani campaign?
c. gave a list of volunteers to a local Republican club?
3) May the Committee pay for an advertisement which reads:
We need volunteers to put RUDY GIULIANI
on the ballot - can you help?
Contact: Friends of Ben DuBose
4) May Mr. Giuliani appear in public with any member of the Committee, or Mr. DuBose, at an event which is not sponsored by the Committee?
5) May the Committee request photographs of Mr. Giuliani from his campaign for publication or use in advertisements paid for by the Committee?
6) If Mr. DuBose was offered a job on Mr. Giuliani's staff, would the Committee have to change its name?
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 Campaign Finance 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 Rule §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.
1, 2 a) If the Committee incurs expenses in soliciting volunteers to gather signatures on designating petitions or in printing and circulating petitions on behalf of Mr. Giuliani with the authorization or cooperation of Mr. Giuliani, or his authorized committee or agent, those expenses would be in-kind contributions to and expenditures by the Giuliani campaign. Administrative Code §3-702(8) (c); Campaign Finance Board Rule 106. If communication took place between the Committee and Mr. Giuliani or his agent solely for the purpose of complying with the legal requirements for filing petitions, this communication would not, by itself, render the costs incurred by the Committee contributions to or expenditures by Mr. Giuliani. Furthermore, the value of services provided without compensation by volunteers and a volunteer's unreimbursed travel expenses of $500 or less would not, in any case, be contributions to or expenditures by the Giuliani campaign. Administrative Code §3-702(8) (i), (iii).
2 b) If the Committee delivered a list of volunteers to the Giuliani campaign, which then used that list, the cost incurred by the Committee in compiling that list would be a contribution to and an expenditure by the Giuliani campaign.
2 c) The New York City Campaign Finance Act does not govern the provision of names to a political club, if the club is not an authorized committee of a candidate participating in the Campaign Finance Program.
3) The Committee's payment for the advertisement quoted above is not a contribution to or expenditure by the Giuliani campaign, unless the candidate, his or her agent or authorized committee authorized, requested, suggested, fostered, or cooperated in the preparation or placement of the advertisement.
4) The fact alone that Mr. Giuliani makes a public appearance with Mr. DuBose, or any member of the Committee, at an event which is not paid for by the Committee, does not, by itself, demonstrate that Mr. Giuliani has authorized or otherwise cooperated in the Committee's activities. More information would be required, however, before the Board could determine in a particular instance, based upon the purpose of the appearance and the activities carried out at the event itself, whether and to what extent contributions or expenditures would be attributed to the Giuliani campaign. See also Advisory Opinion No. 1989-36, dated July 19, 1989.
5) A request by the Committee for photographs, which are routinely distributed to the press or the public upon request, and the forwarding of photographs by the candidate or his staff in response to the request, without any additional communication or exchange of information whatsoever, would not constitute "cooperation" by the Giuliani campaign in the Committee's activities. If, however, the Committee thereafter pays for the dissemination, distribution, or publication of a photograph received from the Giuliani campaign, it is presumed that this activity is "cooperated in" by the candidate. In these circumstances, a candidate has the burden of demonstrating that neither he, his agent, nor his authorized committee has "authorized, requested, suggested, fostered, or otherwise cooperated in" the Committee's use of the photograph. Campaign Finance Board Rules 102(e); 105(d), see also Advisory Opinion No. 1989-26. Unless the candidate makes this demonstration, the use of the photograph would be a contribution to and an expenditure by the candidate.
6) Neither the Campaign Finance Act nor the rules promulgated by the Board regulate the naming of political committees. If, however, Mr. DuBose has authorized the Committee to act on his behalf pursuant to New York Election Law §14-112, his taking of a position with the Giuliani campaign would bring into question the independent nature of the Committee's activities. Campaign Finance Board Rule 105(c) lists some of the factors the Board will consider in determining whether Committee disbursements in these circumstances are independent of the Giuliani campaign, including:
1. whether the person, political committee, or other entity making the disbursement is also an agent of a candidate or the candidate's authorized committee...
2. whether the treasurer of, or other person authorized to accept receipts or make disbursements for, the person, political committee, or other entity making the disbursement is also an agent of a candidate or the candidate's authorized committee...
The facts presented do not provide enough information about the nature of Mr. DuBose's possible employment to enable the Board to determine whether Mr. DuBose would be acting as an agent of either the candidate or the candidate's authorized committee, or whether the Committee functions as an agent of Mr. DuBose.
NEW YORK CITY CAMPAIGN FINANCE BOARD