Re: New York City Administrative Code §§3-703(1)(f), 3-705(5), 3-706, 3-708(11), 3-710(1),(3); Op. No. 2001-12.
At a regularly scheduled meeting on September 13, 2001, the New York City Campaign Finance Board (the "Board") made determinations in response to the decision by the New York State Legislature to reschedule the New York State primary election for September 25, 2001 and any required runoff election for October 11, 2001.1 (See attached statement.) Because the Board has been displaced from its offices by the World Trade Center tragedy, the Board met on an emergency basis at Fordham University. This Opinion formally memorializes the determinations made by the Board at and effective as of that meeting:
(1) The Board is not authorized under the Campaign Finance Act to make additional payments of public funds to candidates participating in the Campaign Finance Program (the "Program") because of the postponement of the primary election.
(2) Participating candidates may not raise additional funds for the rescheduled primary election from contributors who already have given the maximum amount permitted by New York City Administrative Code ("Administrative Code") §3-703(1)(f). Subject to the contribution limits, fund-raising for replication of election day goods and services and to replace destroyed or inaccessible campaign facilities (see (3A) and (3B) below) is permitted.
(3) Participating candidates are required to abide by the applicable primary election spending limit set forth in Administrative Code §3-706. Expenditures within the following two categories will not be counted toward the spending limit:
(A) Payments made to replicate election day goods and services actually received by the campaign on September 11, 2001, or which would have been received on that date had the World Trade Center tragedy not occurred2; and
(B) Payments made to replace a campaign office if the candidate's previous office was destroyed or is no longer accessible because of the World Trade Center tragedy.
(4) All participating candidates and their political committees are limited to their expenditures made as of September 11, 2001, except for the two categories of expenditures numbered (3A) and (3B) above.3 This directive of the Board affects campaign expenditures, not campaign activities themselves, which may of course continue to be conducted if they do not involve additional expenditures.
After a scheduled primary election, the Campaign Finance Act provides for an additional contribution limit, payments of public funds, and campaign spending only in certain specified circumstances: for a runoff election or an election held by court order, or if the New York State Board of Elections or a county board of elections authorizes an "additional day for voting" pursuant to New York State Election Law §3-108. See Administrative Code §§3-703(1)(f), 3-705(5), and 3-706(1)(b). On September 13, 2001, the New York State Legislature enacted Chapter 298 of the Laws of 2001, which rescheduled the New York State primary election for September 25, 2001 and any possible runoff election for October 11, 2001, and explicitly stated that no additional pre-primary disclosure statements would be required pursuant to Article 14 of the Election Law.4 This rescheduling does not constitute an "additional day for voting" as provided for in Election Law §3-108. Thus, the Board has no statutory authority to modify the contribution and expenditure limits of the Program or to make additional payments of public funds because of the rescheduling of the primary election.
The Board recognizes that the World Trade Center tragedy placed the primary election in disarray, and that additional campaign spending may be necessary for candidates to conduct election day operations on September 25 and to replace or maintain campaign operations because of the postponement of the primary election. Nevertheless, all participating candidates assumed that spending for the primary election would end on September 11 and that after the primary election they were required to repay to the Board unspent campaign funds in accordance with Administrative Code §3-710(3) if they were not on the general election ballot. A substantial number of primary election candidates can be assumed to have spent the maximum amount of campaign funds permitted by Administrative Code §3-706 and did not elect to hold any campaign funds in reserve for additional primary election expenses.
Candidates whose spending did not reach the applicable limit as of September 11, 2001 may not continue spending funds in support of their campaigns while other candidates are restricted by the Program's expenditure limitations from making further campaign expenditures. The law has as a primary public policy objective leveling the playing field among candidates based upon the provisions (including the dates) contained in the New York State Election Law and the Administrative Code. No provision of the law or public policy supports creating an advantage as a consequence of the events of September 11, 2001 for those candidates who had not reached their spending limit as of that date.
Given the extraordinary circumstances presented by the World Trade Center tragedy, the only legal, practical, and fair course of action is to limit all spending by participating candidates until September 25 except as otherwise described above. The Board's conclusions, resting on its interpretation of the Campaign Finance Act, are also supported by the Board's power to take actions "necessary and proper to carry out the purposes of the Campaign Finance Act." Administrative Code §3-708(11). The Board sees no other procedure that would fall within its mandate and effectuate the law's purpose to preserve a level playing field among candidates, without creating an advantage for some candidates as a result of the tragic events of September 11.
The Board's determinations apply to all candidates participating in the Program, including those general election candidates who did not have a primary election.5 As always, non-partisan activities to encourage participation on election day are permitted, particularly in light of the change in the date of the primary, provided that no participating candidate makes expenditures for this purpose in the period up to September 25, 2001.
NEW YORK CITY CAMPAIGN FINANCE BOARD
* Note: The Board did not apply the ban on further campaign spending discussed in this opinion to candidates in a "bonus situation" (i.e., a participant running against a nonparticipant who spent or raised more than half the applicable expenditure limit in the primary election).
1 The Board's staff, notwithstanding the inaccessibility of the Board's offices, database, and other materials, made every effort to inform every participating candidate of the Board's determinations, which were effective immediately.
2Payments made for continuing overhead expenses such as rent and staff to maintain offices through September 25, 2001 for primary day activities are included in this category. The costs of telephone banking on September 24, 2001 is also understood to fall within this exception provided such telephone banking had been scheduled for September 10, 2001.
3All participating candidates are subject to ongoing auditing of their campaign finances. See Administrative Code §3-710(1). During this audit process, the Board will evaluate all campaign spending between September 11, 2001 and September 25, 2001 for compliance with the Board's September 13 statement and this Opinion, taking into consideration the extraordinary circumstances presented, to ensure full enforcement of the Campaign Finance Act.
4Under Election Law §3-108, an "additional day of voting" may be held if, as a result of certain enumerated circumstances, less than 25% of registered voters actually voted in any general election. Only those persons duly registered to vote upon the original date of the general election who did not vote on such date may vote on the additional day for voting.
5 Pursuant to Rule 1-08(f)(3), any expenditures determined not to be independent are considered to be contributions to and expenditures by the participant and thus would be governed by this Opinion.
Statement of Chairman Joseph A. O'Hare, S.J. Campaign Finance Board
In response to the decision of the New York State Legislature that state-wide primary elections will be held on Tuesday, September 25 and runoff elections, if necessary, will be held on Thursday, October 11, the New York City Campaign Finance Board met in an emergency session and reached the following conclusions. For candidates participating in the New York City Campaign Finance Program the final date for primary election expenditures was Tuesday, September 11. For these candidates there can be no further campaign spending in the primary with the following exceptions: Costs associated with Election Day activities on September 11 can be replicated for the September 25 Election Day, and costs associated with the replacement of campaign facilities that were destroyed or rendered inaccessible by the destruction caused by the World Trade Center tragedy will not count against the expenditure limit. The primary spending limits, with these exceptions, remain in effect, as do all contribution limits. No additional matching funds will be provided for the primary election, and none will be released until after the primary, for use in the next election, whether this proves to be a necessary runoff election or the general election.