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1993-4: Expenditure Limit for Candidate Who No Longer Reasonably Anticipates a Primary Election

Wednesday, June 09, 1993

An advisory opinion has been requested on behalf of Giuliani for New York regarding "the disparity in the total expenditures made by different campaigns at the time a previously contested primary becomes an uncontested primary." The request asks the Board to determine that if a disparity exists between the total expenditures made by candidates for the same office at the date the Board determines the general election spending period begins, the candidate who has spent the lesser amount may spend by the date of the scheduled sic primary election an amount equal to the disparity without those expenditures being counted against the candidate's general election expenditure limit.

New York City Administrative Code §3-706(1) establishes separate spending limits for the primary and general elections for candidates participating in the New York City Campaign Finance Program. Expenditures made prior to or on the date of the primary election "shall be deemed" to have been made for the primary election. Administrative Code §3-706(1) (c). An expenditure is made on the date on which the "services, materials, facilities, advertising, or other things of value are received, rendered, published, distributed or broadcast," regardless when the expenditure is paid. Administrative Code §3-706(1); Campaign Finance Board Rule 1-08(b).

Board rules implementing the primary and general election expenditure limits of Administrative Code §3-706(1) provide:

(i) If there is no contested primary for an office, expenditures by participating candidates for that office are subject to the general election limit. Rule 1-08(c) (2) (i).

(ii) If there is a contested primary in any party for an office, all participating candidates for that office, regardless whether they are in that party's primary, may make expenditures subject to the primary election limit. Rule 1-08(c) (2) (ii); Advisory Opinion No. 1988-4 (December 30, 1988).

(iii) Even if no primary will be held, a participating candidate who demonstrates to the Board that the candidate reasonably anticipated being a candidate in a primary may attribute expenditures made during this period of "reasonable anticipation" to the primary election limit. Rule 1-08(c) (2) (iii); Advisory Opinion No. 1989-21 (May 24, 1989). Advisory Opinion No. 1993-3, issued today, concluded that participating candidates who demonstrate to the Board that they reasonably anticipated a primary for the office they seek, but do not anticipate being in that primary, may similarly attribute to the primary election limit expenditures made during the period of "reasonable anticipation."

In all instances, once it appears that, regardless of any previous reasonable anticipation, none of the party nominations for a particular office will be contested in a primary election, expenditures made for that office will be subject to the general election limit. Rule 1-08(c) (2) (iv).

The request argues that an additional allowance should be made to exempt from the general election limit an amount of expenditures made after the period in which a primary is "reasonably anticipated." The size of the exemption would be the amount by which the candidate was outspent by his or her opponent during the time period in which a primary was "reasonably anticipated." The request asks the Board to consider that:

campaign expenditures are either political impact in nature (such as media, polling, campaign materials, or overhead), which in this situation will directly or indirectly affect the general election, or they are fundraising expenditures. Fundraising expenditures directly affect the general election both by creating for a committee a cash balance which will be used in the general election, and by allowing a committee to submit any qualifying donations for matching funds, which will then be used in the general election.

Neither the Campaign Finance Act nor Board rules recognize a distinction between expenditures that are "political impact in nature" as opposed to "fundraising" expenditures. Indeed, the legislative history of the Campaign Finance Act shows that distinguishing "fundraising" from other expenditures has been rejected as overly complicated and unnecessary for achieving the purposes of expenditure limits. See Local Law No. 69 of 1990 § 5, repealing former Administrative Code § 3-706(5) (b) (separate spending allowance for fundraising costs, following a recommendation made by the Board in its 1990 report to the mayor and City Council: Dollars and Disclosure: Campaign Finance Reform in New York City (September 1990) at 88-89, 139). Instead, the Act protects against the kind of "frontloading" of general election expenditures during the primary election period that appears to be the core concern of the instant request by specifying that expenditures are "made" when their value is received. Administrative Code § 3-706(1); Rule 1-08(b), noted above; see also Advisory Opinion Nos. 1988-2 (December 22, 1988), 1989-2 (January 3, 1989), 1989-3 (January 25, 1989), and 1992-1 (January 21, 1992). Thus if, during the period in which a primary election is reasonably anticipated, a candidate purchases literature which will be distributed, or television time for commercials that will be broadcast, after the primary election period, these purchases will be subject to the general election limit. Thus, no special allowance for spending after the primary election period is needed to curb this potential abuse.

The Board has previously found that fundraising expenditures made before a primary election are not subject to the general election limit even if the funds raised are set aside for use in the general election. Advisory Opinion No. 1989-22 (June 8, 1989) 1. Fundraising expenditures made during the period in which a participating candidate demonstrates he or she reasonably anticipated a primary election for the office sought will be likewise subject to the primary election expenditure limit, regardless whether the funds raised thereby are set aside for use in, or matched for, the general election.

Finally, it should be clear that the Act was not intended to equalize the amounts opposing candidates in fact spend in an election. The expenditure limits are mandatory ceilings that participating candidates must adhere to. In abiding by these limits candidates may make any number of strategic decisions, including decisions on the timing of expenditures and how much to spend within the limits.

As a matter of logic and fairness, Advisory Opinion No. 1993-3, issued today and noted above, concludes that all candidates who anticipate a primary election in any party for the office they seek have the same flexibility to make expenditures under a primary election limit during the time period in which they demonstrate that anticipation was reasonable. Whether those candidates in fact choose to make any expenditures, equal expenditures, or greater or fewer expenditures during this time period is simply a matter of strategic choice.

The primary election expenditure limit exists in order to allow candidates who reasonably anticipate a primary to make appropriate expenditures. Once this anticipation is no longer reasonable, the purpose of making expenditures is no longer for an anticipated primary and instead can only be for the purpose of promoting or facilitating the election of the candidate in the general election. This is precisely the reason that the general election spending limit must apply once a primary is no longer reasonably anticipated. To interpret the Act otherwise would vitiate the purposes of the separate primary and general election spending limits.

NEW YORK CITY CAMPAIGN FINANCE BOARD

1 The 1990 amendments to the Campaign Finance Act, eliminating distinctions between primary and general election contributions for purposes of both the contribution limit and qualification for matching funds, lend additional support to the conclusion that it is irrelevant that the funds raised are set aside for general election use. See Local Law No. 69 of 1990 §§2, 3 amending, inter alia, Administrative Code §§ 3-702(3); 3-703(1) (f).