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1991-5: Application of Contribution and Expenditure Limit Political Party Committee Spending

Thursday, August 08, 1991

An opinion has been requested whether certain activities of the New York Republican County Committee designed to promote the Republican party are independent of any particular candidates. The New York Republican County Committee seeks to communicate:

to voters throughout New York County the message that voters should support Republican candidates for City Council because this will strengthen the two party system and provide the benefits of a loyal opposition in the City Council.

The types of advertising under consideration are:

1) radio spots disseminated throughout the entire New York metropolitan area;

2) cable television advertisements, which would be broadcast on the two principal cable carriers that service Manhattan; and

3) direct mailings to Republicans and/or Independents throughout the county.

The opinion request further states:

The proposed advertisements would not mention or refer to the name of any particular candidate and would not urge the election or defeat of any particular candidate. The Republican candidates would not be involved in the preparation of this advertising campaign and would not be authorizing or requesting it.

(Emphasis in original.)

Under the New York City Campaign Finance Act, political committees, including party committees and constituted committees1, may make independent expenditures on behalf of candidates participating in the Campaign Finance Program, to the extent permitted by State law2. The New York Republican County Committee is apparently a constituted committee. See Election Law §14-100(3). The Act defines the term "contribution" to include payments "by any person other than a candidate or a political committee authorized by a candidate, made in connection with the nomination for election, or election, of any candidate." Administrative Code §3-702(8). The cost of an "independent" activity, one which the candidate or his or her agents or authorized political committees did not "authorize, request, suggest, foster, or cooperate in," is expressly exempt from the term "contribution". Id. Independent expenditures are therefore not subject to the candidate contribution or expenditure limits applicable under Administrative Code §3-703(1) (f) and 3-706; Campaign Finance Board Rule 1-08(e) (3); see, e.g., Advisory Opinions Nos. 1989-26 (June 12, 1989) and 1989-37 (July 24, 1989).

The cost of an activity is a contribution to and expenditure by a candidate, however, if the following two conditions are met:

1) the payment for the cost of the activity was made in connection with the election of the candidate; and

2) the candidate, an agent of the candidate, or a political committee authorized by the candidate authorized, requested, suggested, fostered, or cooperated in the activity.

The Board's rules codify presumptions that certain expenditures, the nature of which strongly suggest cooperation between the spender and the candidate, are not independent of the candidate. For example, if a person or entity pays to distribute or republish any campaign materials of a candidate, his or her authorized committees, or agents, this is presumed to be a contribution to and expenditure by the candidate. Campaign Finance Board Rule 1-08(f) (2).

In the general election, political party committees are likely to cooperate with the candidates nominated by the party. Because of the likelihood of this cooperation, an expenditure made by a political party committee in the general election on behalf of a particular candidate participating in the Campaign Finance Program who has been nominated by that party will be presumed not to be independent of that candidate. Such an expenditure will be considered an in-kind contribution to and expenditure by the candidate on whose behalf it was made.

The candidate has the burden of demonstrating to the Board that a political party committee's expenditure on his or her behalf is not subject to the contribution or expenditure limits of the Act. Factors the Board will consider in determining whether these expenditures are restricted by the Act, include:

A) whether the expenditure was made for a purpose other than promoting or facilitating the election of the party's clearly identified nominee or the defeat of his or her opponent;

B) whether the expenditure was to "maintain a permanent headquarters and staff and carry on ordinary activities which are not for the express purpose of promoting the candidacy of specific candidates" within the meaning of Election Law §14-124(3);

C) whether the expenditure was intended solely to promote the success or defeat of a political party or principle or of any question submitted to vote at a public election; or

D) whether any other evidence demonstrates that the candidate, his or her authorized committees, or agents did not authorize, request, suggest, foster or cooperate in the particular activity for which the expenditure was made.

The expenditures contemplated by the Republican County Committee, as described above, would not be restricted by the Act's contribution and spending limits because they fail to meet either of the conditions set forth above at page 2. First, the expenditures would not be made in connection with the election of a particular candidate, but would solely promote the success of the Republican party in the City Council election. The advertisements would not identify any particular candidate or opponent and would be run throughout New York County, not just in one or two districts. Second, no candidate would authorize or cooperate in the preparation or placement of the advertisements3. The advertisements would be designed and run solely by the Republican County Committee.

This opinion is predicated on the hypothetical circumstances presented. Any application of this opinion will of course depend on the actual circumstances of the case and even minor changes in the circumstances could result in a different opinion.

NEW YORK CITY CAMPAIGN FINANCE BOARD

1New York City Administrative Code §3-702(11) defines "political committee" to include party committees and constituted committees, as such committees are defined by New York Election Law Article 14.

2 The terms "party", "party committee" and "constituted committee" are defined by New York Election Law §§1-104(3); 2-100; 14-100 (2), (3). Election Law §2-126 prohibits spending by parties and party committees to aid candidates in a primary election. See Werner v. Nassau Co. Republican Committee, 36 Misc. 2d 535 (Special Term, Nassau Co., 1962) (statute restricts spending only by a state committee, county committee, or such other committee as the rules of the party may provide). See also Election Law §14-114(3), (4), (5).

3 To satisfy the second condition, no agents or authorized political committees of a candidate may authorize or cooperate in the expenditure either. Because no facts have been presented to the Board regarding the involvement of any agents or political committees of the Republican candidates in the proposed advertising campaign, the Board will assume, for purposes of this opinion, that there will similarly be no authorization or cooperation by such agents or political committees in the proposed advertising campaign.