Re: Charter § 25(b), (2); Administrative Code §§ 3-702(3), 3-703(1)(c), (f), (j), (n), (1-a), (1-b), (2)(a)(iv), 3-705(2)(a), (b), 3-706(1)(a), (2), 3-710.5, 3-711, 3-719(2)(b), 3-801, 3-802; Campaign Finance Board Rules 1-04(f), 1-07(a), 1-08(c)(1), 3-04, 5-01(a), (d), 11-01 – 11-05; Campaign Finance Board Advisory Opinion Nos. 1991-2, 2000-6, 2007-2, 2008-3, 2008-7, 2009-1, 2009-3; Op. No. 2010-2.
Council Member Simcha Felder, who represented the 44th Council District, has resigned.1 As a result, a special election is to be held to fill the vacancy in this district. Under the City Charter, when a vacancy occurs, the Mayor "shall proclaim," within three days of the vacancy, a date for a special election to fill the vacancy which is approximately 45 days after the date of the announcement. See New York City Charter § 25(b), et seq. On February 1, 2010, the Mayor proclaimed that a special election to fill this vacancy will be held on March 23, 2010. This Opinion outlines the general requirements of the New York City Campaign Finance Act (the "Act") and the requirements for participation in the New York City Campaign Finance Program (the "Program") for this anticipated special election.
Deadline to Join the Program
The New York City Campaign Finance Act provides that "the deadline for filing a certification for a special election to fill a vacancy shall be on the seventh day after the proclamation of such election." New York City Administrative Code ("Administrative Code") § 3-703(1)(c). The deadline to file the Certification to participate in the Program for the special election is February 8, 2010. Late Certifications will not be accepted. Following the special election, there will be a subsequent primary2 and general election in September and November 2010. See NYC Charter § 25(b)(2). The deadline for filing a Certification for the 2010 primary and general elections will be June 10, 2010. Administrative Code § 3-703(1)(c).
Candidates who already have been raising funds for the 2013 elections may use their existing committees and bank accounts in the special election provided they amend their registration with the Board of Elections to reflect the change in election. See Advisory Opinion Nos. 2007-2 (March 6, 2007), 2008-3 (April 10, 2008), 2009-1 (January 8, 2009), and 2009-3 (March 19, 2009). Candidates who do not wish to participate in the Program are not required to file a Certification, but must file a Filer Registration with the Board.3
Contribution Limit, Expenditure Limit, and Maximum Public Funds Payment
The following limits apply to candidates in the special elections.
- Contribution limit:4 $1,375 all candidates
- Maximum matchable contribution:5 $87 Program participants only
- "Doing Business" contribution limit:6 $125 all candidates
- Expenditure limit:7 $168,000 Program participants only
- Public funds maximum:8 $92,400 Program participants only
Public Funds Payments
To be eligible for public matching funds, participants in the special elections must meet the same threshold eligibility requirements as participants in a primary or general election. See Administrative Code §§ 3-703(1)(j), (2)(a)(iv). See also Advisory Opinion Nos. 1991-2 (April 9, 1991), 2000-6 (November 16, 2000), 2008-3, 2009-1, 2009-3. Only valid matchable contributions9 are eligible to be counted toward the threshold. See Administrative Code § 3-705(2), Board Rule 3-04. Under the Act, however, the definition of "matchable contribution" for the special elections is different from the definition of "matchable contribution" for a regularly scheduled election. For the special elections, only contributions of up to $87 (approximately one-half of the amount of a matchable contribution in a regularly scheduled election) will be matchable and count toward threshold. See Administrative Code §§ 3-702(3), 3-705(2)(a). After meeting the threshold and other eligibility requirements in the special elections, the first $87 of a contribution will be matched at a rate of $6-to-$1 up to $522 in public funds per contributor. Administrative Code § 3-705(2)(a). Participants who owe repayments of public funds from an earlier election, or who have significant unresolved compliance issues, will not be eligible to receive public funds for the special elections, and will be notified by the Board accordingly. See Advisory Opinion Nos. 2008-3, 2009-1, 2009-3; Administrative Code §3-703(1)(n).
Previous Financial Transactions10
According to Board Rules 1-04(f) and 1-08(c)(1), contributions and expenditures are presumed to be accepted or made for the first election in which the participant is a candidate following the day that it is received. Thus, all contributions received and expenditures made prior to the special elections are presumed to be for that election. Because some contributions will have been accepted with the reasonable belief that they were to be used for the 2013 primary and general elections, the Board will not find a violation provided that:
- the contributions were received on or before the date the special election was first reasonably anticipated;11
- the contributions do not exceed the contribution limit in effect for the 2013 elections; and
- the excess portion of each contribution is returned by the first disclosure statement due after the Mayor's proclamation.
Candidates, whether or not participating in the Program, however, must abide by the applicable contribution limit for the special elections. Therefore, any contribution accepted after the date of the issuance of this advisory opinion which exceeds the contribution limit for the special election will be considered a violation of the Campaign Finance Act, and may be subject to financial penalty. See Administrative Code §§ 3-710.5, 3-711, Advisory Opinion Nos. 2008-3, 2009-1, 2009-3.
Pursuant to Advisory Opinion No. 2008-7 (November 3, 2008), Group 2 candidates (candidates who did not run in 2009 due to the change in the term limits law) were permitted to use their 2009 committee for the 2013 elections. Therefore, candidates running in the special election who meet the requirements of Group 2 are required to use the same committee that was originally intended for the 2009 elections (and which was going to be used for the 2013 elections) for the special election, and will have a fundraising allocation (15 percent of the total amount of funds on hand as of January 4, 2010) applied to their special election expenditure limit. Such candidates are advised to seek guidance from the Candidate Services Unit as soon as possible.
Transition and Inaugural Activities
The winner of the special election, whether a Program participant or a non-participant, will be subject to the limitations and disclosure requirements for the financing of transition and inauguration activities. See Administrative Code §§ 3-801; 3-802; Board Rules 11-01 – 11-05.
NEW YORK CITY CAMPAIGN FINANCE BOARD
7 See Administrative Code § 3-706(1)(a). The separate $45,000 expenditure limit pursuant to Administrative Code § 3-706(2) for the three calendar years preceding the year of the election applies only to regularly scheduled elections and is not available for the special election. See also Advisory Opinion Nos. 2007-2 (March 6, 2007), 2008-3, 2009-1.
10 The Board Rule 1-07(a) prohibition against matching contributions originally received for a different election does not apply to contributions originally received for a future election to an office covered by the Program that, pursuant to Board Rule 1-04(f), are ultimately used for an intervening special election to fill a vacancy in an office covered by the Program.