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1992-3: Disclosure and Expenditure Limit Requirements for Special Election Candidates (City Council, 4th District)

Wednesday, December 16, 1992

Council member Carolyn Maloney, who represents the fourth Council District, has been elected to the United States Congress. Thus, a special election is likely to be held to fill a vacancy in the fourth district. New York City Charter §25(b). This advisory opinion outlines certain disclosure and expenditure limit requirements that will apply to candidates in that special election who choose to participate in the New York City Campaign Finance Program1.

Disclosure Requirements

The First Disclosure Statement. Committees raising and/or spending funds for the special election ("special election committees") must first file disclosure statements with the Campaign Finance Board 32 days before the special election is held. Campaign Finance Board Rule 3-02(a). The closing date of the first reporting period for every special election committee will be the thirty-sixth day before the special election. The opening date will vary depending on the committee's history. See Rule 3-03(a) .

For special election committees that did not raise or spend funds for an election held in 1992, the opening date will be the day the committee was authorized, but no earlier than January 12, 1992. Id. If a special election committee was previously involved in a 1992 election, Rule 3-03(a) suggests that the opening date of its first disclosure statement would usually be January 12, 1993. To delay the opening date until January 12, 1993, however, would be inappropriate for the special election in the fourth district because prospective candidates have known since November 4, 1992, the day after the general election, that a Council vacancy was pending. In these circumstances, the Board cannot presume that these special election committees delayed initiating fund raising and spending for the special election until January 12, 1993.

Thus, for these committees, the first disclosure statement must include all financial activity from the first day the committee began to raise or spend funds for the special election. The amount of surplus funds from the 1992 election must be determined, reported, and attributed in the first disclosure statement based on the committee's cash balance and outstanding debts as of that day. See Rule 1-07(a) , (c) . In addition, participating candidates carry the burden of demonstrating that any contributions received and expenditures made after the candidate's last 1992 election are not subject to Campaign Finance Program limits and other requirements for the special election.

The Last Disclosure Statement. If a special election committee does not raise or spend funds for the primary or general election in 1993, its last Campaign Finance Board disclosure statement for the special election will be due no later than July 15, 1993.

For those special election committees that go on to raise or spend funds for the primary or general election, the last disclosure statement for the special election will be the 27 day post-special election statement. See Rule 3-02(d). The disclosure statement these committees must then file on July 15, 1993 will be for the 1993 primary and general elections. See Rule 3-02. The July 15, 1993 statement must cover the period from the closing date of the 27 day post-special election statement through July 11, 1993. All transactions reported in this July 15 statement will be presumed to be subject to the Program limits and other requirements for the primary and general elections. This July 15 statement must also report the amount of surplus funds from the special election, if any. This amount is based on the committee's cash balance and outstanding debt as of the closing date of the 27-day post-special election statement. See Rule 1-07(a) , (b) .

A committee must repay unspent campaign funds, if any, when it files its last disclosure statement for the special election, as described above. See Administrative Code §3-710(2) (c) and Rule 1-02, defining "unspent campaign funds"; 5-03(e). Until unspent campaign funds are repaid, special election committees may not make expenditures for the primary or general elections. Id. Furthermore, matchable contribution claims may not be made for the special election after the committee's last disclosure statement for the special election.

Expenditure Limits

The $40,000 expenditure limit for the calendar year preceding a Council election is applicable only to regularly scheduled elections. See Administrative Code §3-706(2) . Thus expenditures incurred in 1992 for a special election held in 1993 are subject to the $105,000 special election limit, not a separate $40,000 limit for calendar year 1992. Administrative Code §3-706(1) (a).

Expenditures will be presumed to be subject to the special election expenditure limit once a special election was reasonably anticipated. Cf. Rule 1-08(c) (2) (iii) (applying primary election expenditure limit during period in which a primary election was reasonably anticipated). In this case, unless information to the contrary is brought to the Board's attention, the Board will consider that a special election was reasonably anticipated as of November 4, 1992. The expenditure limit covers all expenditures made to promote or facilitate the candidate's election, Rule 1-08(d), including expenditures made to "test the waters". See Advisory Opinion No. 1989-9 (January 25, 1989).

Participating candidates carry the burden of demonstrating that any expenditures incurred after the special election were, in fact, for the special election. This demonstration is necessary not only to avoid coverage by the primary and general election expenditure limits, if the special election committee takes part in those elections, but also because special election committees may not make expenditures for a primary or general election until any unspent campaign funds from the special election are repaid. See Administrative Code §3-710(2) (c) and Rule 5-03(e) (2), discussed above.

NEW YORK CITY CAMPAIGN FINANCE BOARD

1 This advisory opinion does not summarize all Campaign Finance Program requirements that apply to candidates in a special election to fill the vacancy pending in the fourth Council district. See, generally, New York City Administrative Code §§3-701, et seq.; New York City Campaign Finance Board Rules (52 RCNY §§1-01, et seq.). The requirements outlined in this advisory opinion may or may not apply in future special elections, depending on when the vacancy occurs in relation to regularly scheduled primary and general elections for the same office. The analysis in this advisory opinion does not apply to committees that do not raise or spend any funds for the special election.