NYC CFB Issues First Advisory Opinion on Independent Expenditure Rules

At its most recent meeting in late June, the New York City Campaign Finance Board (CFB) issued its first advisory opinion on its new independent expenditure rules.

SEIU Local 32 BJ posed the question of whether the costs of a flyer promoting a union’s pre-election rally at which two candidates will speak must be attributed to the candidates as an in-kind contribution.  The opinion request specifically notes that each candidate “fostered or cooperated in” the content and distribution of the flyer.   A follow-up to the original advisory opinion request puts a finer point on it:

“…whether an “electioneering communication” as defined in Rule 13-01 constitutes an in-kind contribution to a campaign if it was a “non-independent expenditure” within the meaning of Rule 13-05.”

In AO 2012-1, CFB cites two sections of the NYC Administrative Code, eight of its own rules and a 2009 advisory opinion to conclude that “it depends.”  In this case, CFB concludes that because those expenditures were made in cooperation with a candidate — rather than independently – may constitute an in-kind contribution, but they do not constitute an independent expenditure.

There are many variables here — CFBsays that in determining whether the event “promotes or facilitates the candidate’s campaign,” they factors they will consider include (but are not limited to):

  • the temporal proximity of the event to the election;
  • the number of speakers scheduled to appear at the event, and how many of those speakers are other candidates;
  • whether any or all of the candidates scheduled to appear are seeking the same office;
  • whether the sponsoring entity has endorsed or participated in joint campaign-related work with the candidate;
  • whether the event is a recurring event held on a regular basis; and
  • the focus of the event.

Laurence Laufer, in his Corporate Political Activity blog, says that AO 2102-1 may raise some practical concerns for entities that have previously interviewed candidates for a potential endorsement.  It is worth a read.