2005-2: Runoff Election in 2005 Democratic Mayoral Primary is "Reasonably Anticipated"

Re: Election Law §6-162; Administrative Code §3-703(1)(f); Campaign Finance Board Rules 1-04(q); 2-06(c); Advisory Opinions Nos. 1993-8, 1999-1, 2001-1, 2001-3, 2001-10; Op. No. 2005-2.

Two candidates participating in the Campaign Finance Program have requested that the Board make a determination that a Democratic Party mayoral runoff election is "reasonably anticipated."¹

Under Rule 1-04(q), once the Board makes a determination that a runoff primary election is "reasonably anticipated," participants and non-participants running for citywide office may accept contributions for that runoff election up to one-half the amount of the applicable limitation for citywide office, as provided in section 3-703(1)(f) of the New York City Campaign Finance Act (the "Act").² The current contribution limit for mayoral candidates is $4,950. New York City Administrative Code §3-703(1)(f). Mayoral candidates could thus accept additional contributions of up to $2,475 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), such as the requirement that each runoff primary contribution be placed in a separate account, subject to certain restrictions on use, and that until a primary election is held, each solicitation of runoff primary contributions shall expressly state that these contributions are being solicited only for a runoff primary election that may not occur.

The Board has issued three Advisory Opinions providing guidance concerning when a runoff primary will be considered "reasonably anticipated," and in each has interpreted this as an objective standard with a lesser burden placed upon candidates than showing that a runoff is "probable." Advisory Opinions Nos. 2001-1 (March 13, 2001), 2001-3 (May 17, 2001), 2001-10 (August 23, 2001). See also Advisory Opinions Nos. 1993-8 (July 20, 1993), 1999-1 (January 7, 1999). In applying this standard, the Board has looked to whether there are sufficient prospective candidates likely to attract significant public support, and has given weight, inter alia, to fundraising records, polling data, and press reports. See Advisory Opinions Nos. 2001-1 (March 13, 2001), 2001-3 (May 17, 2001), 2001-10 (August 23, 2001). The Board concluded in previous elections that Democratic Party runoff primaries were reasonably anticipated for the offices of mayor in 2001 (Advisory Opinion No. 2001-1 (March 13, 2001)) and public advocate in 2001 (Advisory Opinion No. 2001-10 (August 23, 2001), after concluding in May 2001 that a Democratic Party runoff primary election for the office of public advocate was not yet reasonably anticipated. Advisory Opinion No. 2001-3 (May 17, 2001)).

There are at present four candidates who have raised significant funds for the Democratic Party mayoral primary race, and polling data indicate that, as of now, no candidate could command the 40 percent vote needed to avoid a runoff primary.

Based on information now available, the Board determines that a runoff election in the Democratic Party mayoral primary is "reasonably anticipated" within the meaning of Rule 1-04(q). It should be noted that the allowance for accepting contributions for a runoff election is not open-ended. Rule 1-04(q) provides that "runoff contributions may not be accepted once it is no longer reasonable to anticipate such a runoff primary." Should that time arrive, any person may apply to the Board for a finding that a runoff primary is no longer reasonably anticipated, or the Board may so find on its own initiative.

NEW YORK CITY CAMPAIGN FINANCE BOARD

¹ The Board received letters from the campaigns of C. Virginia Fields and A. Gifford Miller dated June 28, 2005 and June 29, 2005, respectively.

² When no candidate for citywide office in New York City receives 40 percent or more of the vote in a primary election, the two leading candidates participate in a runoff primary election. Election Law §6-162. The contribution limits do not apply to limited participants or other entirely self-funded candidates.