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2001-3: Runoff Election in 2001 Democratic Public Advocate Primary Not "Reasonably Anticipated"

Thursday, May 17, 2001

Re: N.Y.S. Election Law § 6-162; N.Y.C. Admin. Code § 3-703(1)(f); Campaign Finance Board Rules 1-04(q), 2-06(c); Advisory Opinion Nos. 1993-8, 1999-1, 2001-1; Op. No. 2001-3.

One of the candidates likely to participate in the Campaign Finance Program1 has requested a determination from the Campaign Finance Board (the "Board") that a Democratic Party runoff primary election for Public Advocate is "reasonably anticipated " within the meaning of Rule 1-04(q).2

Under Rule 1-04(q), once the Board makes a determination that a runoff primary election3 is "reasonably anticipated," participating candidates for citywide office may accept additional contributions for that runoff election totaling up to one-half the amount of the applicable contribution limit for citywide office, as provided in Section 3-703(1)(f) of the New York City Campaign Finance Act (the "Act"). The current contribution limit for participating Public Advocate candidates is $4,500. N.Y.C. Admin. Code § 3-703(1)(f). Participating Public Advocate candidates could thus accept additional contributions of up to $2,250 for a runoff election. Id. The solicitation and use of such contributions are subject to a number of restrictions set forth in Rules 1-04(q) and 2-06(c), including that participants may not raise funds for a runoff election unless the Board has determined that a runoff is "reasonably anticipated," that each runoff primary contribution must be placed in a separate account, that disbursements from that account generally may not be made prior to the day of the primary, and that until a primary election is held, each solicitation of runoff primary contributions must expressly state that such contributions are being solicited only for a runoff primary election that may not occur.

It would appear consistent with the plain language and intent of Rule 1-04(q) to interpret the "reasonably anticipated" standard in light of two distinct meanings associated with the term "reasonableness" in the law. First, the "reasonably anticipated" standard refers to the burden of proof placed upon candidates, implying that this is a lesser burden than, for example, proving that a runoff is "probable." Second, the requirement that a candidate must demonstrate that a runoff is "reasonably anticipated" implies that the Board must ground its determination in objective facts.

As there has never been a runoff election since passage of the Act, the Board has had little occasion to provide guidance concerning when a runoff primary will be considered "reasonably anticipated." The Board has stated that "it would appear that a runoff election will not take place if fewer than three candidates file designating petitions for a party nomination." Advisory Opinion No. 1993-8, n.5 (July 20, 1993). The Board has also stated that it "expects it would be very difficult to make this demonstration early in the election cycle, when the intentions and likely competitiveness of prospective opponents are less clear. * * * In determining whether it is reasonable for a candidate to anticipate a runoff primary, the Board would look for the prospective candidate to produce evidence of a sufficient number of bona fide prospective opponents for that political party nomination. A history of runoff primaries in a particular party for the office at issue might also be relevant."4 Advisory Opinion No. 1999-1 (January 7, 1999).

In Advisory Opinion No. 2001-1, the Board determined that a Democratic Party Mayoral runoff primary was "reasonably anticipated" in 2001. In making its determination, the Board considered both polling information indicating that no candidate could command the 40 percent vote needed to avoid a runoff primary and press reporting which uniformly predicted a runoff primary. Further, the Board noted that four candidates for the Democratic Party nomination for Mayor had raised significant funds, there is no incumbent eligible to run for the office, and that "the possibility that any of these candidates would abandon the race for mayor may be diminished compared with similar situations in years past because of the opportunity provided by public matching funds, and because term limits preclude these candidates from running for their current offices." Advisory Opinion No. 2001-1 (March 13, 2001).

There are at present six known candidates for Public Advocate and there is no incumbent eligible to run for this office. Two of the candidates are precluded by term limits from running for their current offices. However, no polling information was made available to the Board regarding the race for Public Advocate, and few observers have commented on the possibility of a runoff election. Additionally, while four candidates have raised sufficient funds to qualify for public matching funds, and a fifth has raised nearly enough to qualify, no candidates have raised sufficient funds to receive the maximum amount of public matching funds. By way of contrast, in the Democratic Party Mayoral primary race, at the time of the Board's determination, four candidates had appeared to have raised contributions well beyond the threshold for receiving public matching funds.

At this stage in the Democratic Party primary race for Public Advocate, "when the intentions and likely competitiveness of prospective opponents are less clear," it is too early to predict the possibility of a runoff. Some candidates could drop out or fall out of contention, and no polling data exist indicating the competitiveness of the race. Declaring that a runoff is reasonably anticipated may, in these circumstances, serve only to create an avenue for establishing primacy in the race by the accumulation of contributions for a highly speculative runoff election, thus actually undermining some core purposes of the Campaign Finance Program. Based on the information now available, the Board concludes that a runoff election in the Democratic Public Advocate primary is not "reasonably anticipated" within the meaning of Rule 1-04(q) at this time. Candidates for Public Advocate may submit another request for a determination at such time in the future as the race has sufficiently evolved to enable them to demonstrate with concrete evidence that a runoff is "reasonably anticipated."

NEW YORK CITY CAMPAIGN FINANCE BOARD

1Sandra Silverman, Treasurer for the Committee for Betsy Gotbaum, requested the determination.

2Rule 1-04(q) provides, in pertinent part, that "a participant seeking the nomination of a political party may not accept contributions for a runoff primary election, unless the participant has previously demonstrated to the Board that a runoff primary for such party nomination is reasonably anticipated."

3When no candidate for citywide office in New York City receives more than 40 percent of the vote in a primary election, the two leading candidates participate in a runoff primary election. N.Y.S. Election Law § 6-162.

4In 1977, a Democratic Party primary runoff election was held for City Council President, the predecessor office to the Public Advocate.