Re: Charter § 25(b); Administrative Code §§ 3-702(3), 3-703(1)(c), (f), (i), (j), (1-a), (1-b), (2)(a)(iv); 3-705(2)(a), (b); 3-706(1)(a), (2); 3-710(2)(c); 3-710.5; 3-711; 3-719(2)(b); 3-801; Campaign Finance Board Rules 1-04(f); 1-05(h); 1-07(a); 1-08(c)(1), (d)(1); 5-03(e)(2); 7-03(c); 11-01 – 11-05; Advisory Opinion Nos. 1991-2, 2000-6, 2007-2, 2008-3; Op. No. 2009-1.
Council Member Hiram Monserrate, who represented the 21st Council District, and Council Member Joseph Addabbo, who represented the 32nd Council District, have been elected to the New York State Senate, and Council Member Michael E. McMahon, who represented the 49th Council District, has been elected to the United States Congress1. As a result, special elections are to be held to fill the vacancies in these districts. Under the City Charter, when vacancies occur, the Mayor "shall proclaim," within three days of the vacancies, a date for a special election to fill the vacancies which is approximately 45 days after the date of the announcement. See New York City Charter § 25(b), et seq. On January 3, 2009, the Mayor proclaimed that special elections to fill these vacancies will be held on February 24, 2009. 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 these anticipated special elections.
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." The deadline to file the Certification is January 12, 2009. New York City Administrative Code ("Administrative Code") § 3-703(1)(c). Late Certifications will not be accepted. Following the special elections, there will be a subsequent primary2 and general election in September and November 2009. See NYC Charter § 25(b)(5). The deadline for filing a Certification for the 2009 primary and general elections will be June 10, 2009. Administrative Code § 3-703(1)(c).
Candidates who already have been raising funds for the 2009 elections may use their existing committees and bank accounts in the special elections 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). However, all candidates wishing to participate in the Program for the special elections must file a Certification with the Board specifically for the special elections. Candidates who do not wish to participate in the Program are not required to file a Certification, but must file a new Filer Registration with the Board3.
Contribution Limit, Expenditure Limit, and Maximum Public Funds Payment
The following limits apply to candidates in the special elections.
- Contribution limit4: $1,375 all candidates
- Maximum matchable contribution5: $87 Program participants only
- "Doing Business" contribution limit6: $125 all candidates
- Expenditure limit7: $161,000 Program participants only
- Public funds maximum8: $88,550 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) and 2008-3. 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 No. 2008-3; Administrative Code §3-703(1)(n).
Previous Financial Transactions10
For candidates running in the special elections, disclosure statements filed with the Board after the candidate's most recent election11 will be considered to be for the special election, as provided in Board Rules 1-04(f), 1-05(h), 1-08(c)(1), and 7-03(c), notwithstanding any original intent that these statements pertained to the 2009 primary and general elections.
According to Board Rules 1-04(f) and 1-08(c)(i), 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 2009 primary and general elections, the Board will not find a violation for any contributions over the special election limit, that:
- were received on or before the date the special election was first reasonably anticipated,12
- do not exceed the contribution limit in effect for the 2009 elections, and
- the excess 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 No. 2008-3.
Transition and Inaugural Activities
The winners of the special elections, whether Program participants or non-participants, 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.
7 See Administrative Code § 3-706(1)(a). The separate $43,000 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) and 2008-3.
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.