This is the second installment on the NYC Campaign Finance Board’s proposed rules on independent expenditure (IE) disclosure. The CFB has scheduled a public hearing for October 27.
The NYC Charter requires the reporting of expenditures made in support of or in opposition to a candidate in an election for municipal office or municipal ballot proposal, where no candidate cooperated in that activity. In fleshing out the Charter requirement, the CFB’s proposed rules define ballot proposal but do not define candidate.
: Presumably, “candidate” is limited to a candidate for one of the five covered municipal offices. If so, political committees authorized by other candidates (e.g., for state or federal office) may be subject to the IE reporting requirements, as proposed. This coverage may be unexceptional, except that candidates often authorize committees for unspecified offices and elections – or then change the office sought/election during the course of an election cycle. Should a change in office sought occur between a covered and a non-covered election, how would this change affect the committee’s obligations under the IE reporting rules?
For example, a candidate’s authorized committee for City Council may make express advocacy expenditures attacking the incumbent. What if that candidate then decides to run instead in a different election, such as for State Legislature, or decides not to run for office at all – are the IE reporting rules retroactively applicable to the authorized committee? Conversely, what if a person makes and reports IEs, but then subsequently, in the same election cycle, becomes a candidate for a covered office?
The proposed rules define ballot proposal by reiterating the Charter language. This leaves unresolved the question: when does a proposition become a municipal ballot proposal? Here are some possibilities:
- Before an initiative petition is circulated?
- Upon the initial circulation of an initiative petition?
- Upon the filing of an initiative petition – but which filing in the event the Municipal Home Rule Law’s two-stage initiative procedure is used?
- Upon the City’s clearance of the petition for placement on the ballot?
Are the costs of circulating the initiative petition reportable as IEs? Are litigation or other costs to place a question on the ballot (or to oppose its placement on the ballot) public communications reportable as IEs?
Candidates and Ballot Proposals
: As noted above, the Charter (and the proposed rule) define IE to exclude expenditures cooperated in by a candidate. But, as the NYC campaign finance law and the CFB recognize, candidates may make expenditures for or against ballot proposals.
Do any IE reporting requirements apply to candidate-authorized advocacy for or against ballot proposals? If not, may disclosure of ballot proposal advocacy be avoided altogether simply by the spender discussing its planned public communication with a candidate?