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2002-1: City Council Candidate Expenditure Limit for 2003 Elections

Tuesday, November 12, 2002

Re: New York City Charter §§ 25, 51; Administrative Code §3-706; Campaign Finance Board Rules 1-08(c), 1-08(j); Advisory Opinion No. 2000-6; Op. No. 2002-1.

The New York City Campaign Finance Board (the "Board") has determined to issue an Opinion clarifying the expenditure limits applicable to the 2003 City Council elections.

Expenditure limits may be found in both the Campaign Finance Act (New York City Administrative Code §§ 3-701, et seq.) (the "Administrative Code") and the Board's Rules. Administrative Code §3-706(1) provides for expenditure limits applicable to "all expenditures made...on or after the first day of January preceding the election...and to expenditures made at any time prior to such date for services, materials, facilities, advertising or other things of value received, rendered, published, distributed or broadcast on or after such date."

Administrative Code §3-706(2) provides for expenditure limits applicable to "all expenditures made...in the calendar year preceding the year of the election...and to expenditures made at any time prior to such date for services, materials, facilities, advertising or other things of value received, rendered, published, distributed or broadcast in such calendar year."1

Administrative Code §3-706(5) provides that the Board may promulgate rules regulating the first two calendar years of an election cycle. Pursuant to the Board's authority under Administrative Code §3-706(5), the Board in 1997 established a $24,000 expenditure limit for participants running for City Council member for the 24-month period prior to the year before the year of an election. Rule 1-08(j).

Following the completion of the federal government's decennial census, the Charter provides that City Council districts shall be subject to redistricting. New York City Charter §51. For the 2000 census, the Charter provides that City Council members elected in 2001 serve two-year terms, instead of the usual four-year terms, to permit voters to elect City Council members representing the newly-redistricted districts. The 2003 election cycle is also two years, returning to a four-year election cycle in 2005. New York City Charter §25. The text of Rule 1-08(j) does not refer to either a four-year or a two-year election cycle. Thus, based on the plain language of the Rule, the expenditure limit contained in Rule 1-08(j) would be applicable to the period from January 1, 2000 through December 31, 2001, or from the beginning of the 24-month period prior to the year before the year of the election until the beginning of "the calendar year preceding the year of the election." Administrative Code §3-706(2).2

Pursuant to Rule 1-08(c)(1), however, expenditures made prior to January 12, 2002 by a candidate in the 2001 elections will be presumed to be made in furtherance of the candidate's 2001 campaign. Further, under Rule 1-08(c)(3), participants have the burden of demonstrating that expenditures made during the period prior to January 12, 2002 were for the 2003 elections; failure to meet this burden will result in the treatment of the participant's spending as made in furtherance of the candidate's 2001 election. Thus, any expenditures made during the period from January 1, 2000 to December 31, 2001 by a candidate in the 2001 elections will be presumed to be for the 2001 election or post-2001 election spending unless the participant can demonstrate that the expenditures were made for a 2003 election campaign.

The Board will consider whether it needs to address the expenditure limits for the 2005 City Council elections, another two-year cycle. In the meantime, City Council campaigns intending to commence spending for the 2005 elections prior to January 12, 2004 will be subject to the Rule 1-08(c) presumption that their spending is made in furtherance of a 2003 campaign. Accordingly, prior to making any expenditures in furtherance of a campaign for the 2005 City Council elections, candidates are urged to contact the Board to ensure that the proper mechanisms are in place to make the demonstration referred to in Rule 1-08(c)(3).

NEW YORK CITY CAMPAIGN FINANCE BOARD

1Expenditures in excess of these limits do not constitute a violation of the limits, but would count against the first expenditure limit contained in Administrative Code §3-706(1)(a), which applies to the candidate in the calendar year of the election. Administrative Code §3-706(2-a)(a).

2This Opinion is applicable to the 2003 regularly scheduled election; the expenditure limits contained in Administrative Code §3-706(2) and Rule 1-08(j) are not available for special elections. Advisory Opinion No. 2000-6 (November 16, 2000).