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1999-9: Unopposed Primary Election Candidates May Not Receive Public Funds for That Election

Tuesday, July 13, 1999

Re: Administrative Code §3-703(1)(a), (5); 3-705(3); Campaign Finance Board Rules 5-01(q), 5-02(b); Op. No. 1999-9

To be eligible for public funds payments in an election, a candidate participating in the New York City Campaign Finance Program must "meet all the requirements of law to have his or her name on the ballot" and not be "unopposed" in that election. New York City Administrative Code §3-703(1)(a), (5); see Advisory Opinion Nos. 1989-44 (September 11, 1989) and 1989-50 (October 17, 1989). Pursuant to these requirements, and its duty to ensure the proper disbursement of public funds, the Board has determined to adopt the following rule:

Ballot disqualification by Board of Elections; primary candidate not opposed on the ballot. The Board will not make payment to any participant disqualified from the ballot by the Board of Elections, or to any participant for an election in which all other candidates have been disqualified from the ballot by the Board of Elections, until after such participant or other candidate, as the case may be, is restored to the ballot by a subsequent determination by a court of competent jurisdiction. A participant who appears as the only candidate on the ballot in a primary election shall not be eligible to receive public funds for that primary election, notwithstanding the filing of an opportunity to ballot petition in that primary election pursuant to Election Law §6-164, except as otherwise provided in Rule 5-02(b).

Campaign Finance Board Rule 5-01(q), adopted as a final rule by the Board today.

In considering the promulgation of this new rule, the Board has had occasion to review the Act's provisions for public funds payments and to reflect further on the fundamental purposes these provisions were intended to serve. One of the Act's purposes is to promote competition among opposing candidates and indeed the Act prohibits disbursing public funds to unopposed candidates. Disbursing public funds to a candidate without an opponent on the ballot is thus contrary to the Act and is at odds with the Board's mandate to disburse public funds in a fiscally responsible manner.

The Board has thus reconsidered the conclusion it had reached in Advisory Opinion No. 1997-11 (October 9, 1997): that a candidate may receive public funds in a primary election held because of an opportunity to ballot petition in which he or she is the only candidate on the ballot. As originally proposed, Rule 5-01(q) would have created an anomaly by permitting public funds payments to the only candidate on the ballot in such a primary if no other candidate had been disqualified from the ballot by the Board of Elections, but prohibiting payments in such a primary if at least one candidate had been disqualified from the ballot by the Board of Elections.

First, a primary brought about by an opportunity to ballot petition is not sufficiently distinguishable from a general election in which only one candidate appears on the ballot but there remains the right to write in the name of a different candidate. The Board has previously concluded that in such circumstances the candidate on the ballot is "unopposed" and thereby ineligible for public funds, citing the legislative history of the Act. Advisory Opinion No. 1989-50, supra.

Moreover, as suggested in footnote 1 of Advisory Opinion No. 1997-11, the possibility of a public funds payment to a candidate unopposed on the primary ballot poses a risk of collusion in the filing of opportunity to ballot petitions, which need not identify the name of an opposing candidate. Public funds payments in these circumstances could also facilitate abuse of the Act's general election spending limit, by enabling greater expenditures against a theoretical primary write-in opponent that are actually intended to help the public funds recipient against a general election opponent.

Thus, as now provided in Rule 5-01(q), which was amended and adopted as final today, a participating candidate who is the only candidate on the ballot in a primary election will not be eligible to receive public funds in that primary election, notwithstanding the filing of an opportunity to ballot petition1. By the issuance of this Advisory Opinion No. 1999-9 and the promulgation of Rule 5-01(q), the Board overrules Advisory Opinion No. 1997-112.

NEW YORK CITY CAMPAIGN FINANCE BOARD

1 The exception provided in Rule 5-02(b) is limited to circumstances in which an opposing candidate had, at one time, been ruled to be on the ballot, either by the Board of Elections or a court of competent jurisdiction, but was ultimately disqualified from the ballot.

2 If the participating candidate is on the ballot in a second primary election, and opposed by at least one other candidate on the ballot, however, public funds payments may be made for that second primary election pursuant to Administrative Code §3-705(3).