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1993-3: Attributing Expenditures to the Primary Election Expenditure Limit

Wednesday, June 09, 1993

"An advisory opinion has been requested by Council member Millard on whether expenditures on behalf of a candidate participating in the New York City Campaign Finance Program may be attributed to a primary election expenditure limit if that candidate is not in a primary election and does not reasonably anticipate being in a primary election, but does reasonably anticipate a primary election in another party for the office the candidate seeks."

"Previously, the Board has advised that candidates may make expenditures subject to the primary election expenditure limit of New York City Administrative Code §3-706 when there is a contested primary election in any party for the office the candidate seeks, Advisory Opinion No. 1988-4 (December 30, 1988) (codified as Campaign Finance Board Rule 1-08(c) (2) (ii)), and when "the candidate reasonably believes that at least one opposing candidate for the office he or she seeks would file designating petitions for the nomination of the same party", Advisory Opinion No. 1989-21 (May 24, 1989) (codified as Campaign Finance Board Rule 1-08(c) (2) (iii)). The general election expenditure limit first applies after the primary election or after the period in which the primary election was reasonably anticipated ends. Id."

"Given the logic of these previous opinions, the lack of countervailing policy considerations, and the unfairness that would result from a different conclusion, the Board concludes that candidates may attribute expenditures to the primary election expenditure limit if they demonstrate to the Board a reasonable basis for anticipating a party primary election for the office they seek, even though they are not seeking that party's nomination and, thus, would not be in the anticipated primary. The circumstances in which this attribution is permissible are limited. As was stated in Advisory Opinion No. 1989-21:"

"The expenditures will be subject to the primary election expenditure limit... only for as long as the candidate had a reasonable basis to believe that two opponents will file designating petitions for the nomination of another party. Once any basis for maintaining a reasonable belief of this kind is removed, then no more "primary" expenditures may be made. In demonstrating a reasonable basis, the candidate may refer to potential candidates' public statements, campaign activities, filings with the Board, and filings with the New York City Board of Elections."

"NEW YORK CITY CAMPAIGN FINANCE BOARD"