Re: Board Rules 1-02, 1-04(p)(1), 1-08(f); Advisory Opinion Nos. 1997-6, 1999-10, 2000-1, 2001-2; Op. No. 2001-4.
The New York City Campaign Finance Board (the "Board") has received requests1 for an advisory opinion on the implications, if any, of City Council Member A. Gifford Miller's involvement with Council 2001 should Mr. Miller join the Campaign Finance Program in connection with his 2001 re-election campaign.2 Council 2001 is a political committee registered with the Board whose mission is to promote the election of qualified Democrats to the New York City Council and to support the Democratic Party on the national, state, and local levels.
The Campaign Finance Act (the "Act") and the Rules of the Board (the "Rules") regulate candidates who choose to participate in the New York City Campaign Finance Program and their candidate committees. The Act and the Rules do not regulate political committees per se. However, political committees authorized or otherwise controlled by a participant by definition operate on the participant's behalf, and thus contributions to or expenditures by the political committee may be contributions to and expenditures by the participant, subject to the Act's limits.3See Advisory Opinion Nos. 1999-10 (August 5, 1999), 2000-1 (March 7, 2000).
The burden of establishing that a political committee is not authorized by and functions independently of control by a participant rests with the participant. Factors the Board considers relevant include, but are not limited to, whether the participant exercises authority or control over decisions of the political committee; whether an agent of the participant exercises authority or control over decisions of the political committee; and whether expenditures of the political committee can be considered independent of the participant within the meaning of the independent expenditure provisions of Rule 1-08(f).4
As a separate matter, if the participant "makes expenditures in connection with, or otherwise cooperates in, raising contributions for any other candidate or political committee...the participant shall be deemed to have accepted an in-kind contribution equal to the full cost of the fundraising that was not paid for by the participant..." unless the participant overcomes a presumption that the participant has received a benefit from the political committee. Rule 1-04(p)(1); see Advisory Opinion No. 2001-2 (May 17, 2001).5
Mr. Miller has represented to the Board in his request that he is an active member of Council 2001 who participates in the political committee's meetings, and has agreed to raise funds on its behalf to support its activities in districts and races other than his own. In addition, Mr. Miller has represented that he is not on Council 2001's executive committee, has not authorized Council 2001 to take action on his behalf, and that "Council 2001 has indeed committed not to aid in his re-election in any way, either directly or indirectly." Standing on their own, these representations would appear to establish that activities of Council 2001 would not be attributable to Mr. Miller's campaign under the Act. Assuming additionally that, as a factual matter, Mr. Miller can establish that no individuals exercising authority or control over the decision-making mechanisms for Council 2001 are operating on his behalf, this is the conclusion of the Board. If, however, Mr. Miller is able to exercise control, for example, through agents who work both for Mr. Miller and Council 2001, activities of Council 2001 may be attributed to Mr. Miller's campaign. A relationship between a participant and an individual who exercises control over a political committee which suggests that the participant has control over the political committee would trigger an inquiry into whether the individual is acting truly independently of the participant or whether activities of the political committee should properly be attributed to the participant's campaign.6
Further, as discussed above, actions of Council 2001 may still be considered contributions to and/or expenditures by Mr. Miller's campaign and his authorized political committee if Mr. Miller's fundraising activities on behalf of Council 2001 are performed in cooperation with a political committee within the meaning of Rule 1-04(p)(1) or publicity is given to Mr. Miller or his campaign by Council 2001 that might be considered an in-kind contribution to Mr. Miller. Finally, Council 2001 may be considered a multi-candidate committee, and its activities may be attributed to more than one participant, if decision-makers of this political committee include agents of more than one candidate. Cf. Advisory Opinion No. 1999-10, fn. 1.
NEW YORK CITY CAMPAIGN FINANCE BOARD
1City Council Member A. Gifford Miller requested this advisory opinion in a letter dated April 25, 2001. Additionally, Laurence Laufer made a request on behalf of Council 2001 in a letter dated April 23, 2001.
2For the purposes of this advisory opinion, the Board has assumed Mr. Miller will participate in the Campaign Finance Program. If Mr. Miller does not join the Program, neither his activities nor the activities of Council 2001 with respect to his campaign will be subject to the Act or the Rules.
4The Board notes that this analysis is applicable even if a political committee and a participant appear to have distinct constituencies or audiences. See Advisory Opinion No. 1997-6 (June 24, 1997), where the Board stated: "given the routine practice by political committees of contributing money to other candidates and political organizations located in other geographic constituencies, the Board is very skeptical that such expenditures could be excluded from a candidate's spending limit."
5Participants who are unsure whether cooperating in certain activities with a political committee will result in attribution to their campaigns should consult with Board staff or request advisory opinions prior to engaging in such activities.
6As an example, an actual overlap between employees of a participant's campaign, or of the participant's elective office, or who have some other employer-employee relationship with the participant and those who exercise authority at a political committee would likely lead to a conclusion that those staff members do operate on behalf of the candidate and that therefore the activities of the committee should properly be attributed to the participant's campaign. In this regard, according to the Council 2001 Political Committee Registration Form filed with the Board on February 23, 2001, the Council 2001 executive committee includes individuals identified as employees of the City of New York, some of whom, according to information on file with the Board, are or appear to have been staff members of various elected officials, including Mr. Miller. Neither advisory opinion request alluded to this set of circumstances.