2008-5: Clarification of Factors to Determine Whether a Runoff Election is "Reasonably Anticipated"

Re: Administrative Code § 3-703(1)(f); Campaign Finance Board Rule 1-04(q); Campaign Finance Board Advisory Opinion Nos. 1997-2, 1997-10, 1999-1, 2001-1, 2001-3, 2001-10, 2001-11, 2005-2; Op. No. 2008-5.

The New York City Campaign Finance Board (the "Board") has been asked by Melinda R. Katz to make a determination that a Democratic Party runoff primary election in 2009 is "reasonably anticipated" for the position of City Comptroller.¹

In Demonstrating that a Runoff Election is "Reasonably Anticipated," a Candidate Must Provide Concrete Evidence to Meet the Burden of Proof

Board Rule 1-04(q) provides in pertinent part that "a candidate seeking the nomination of a political party… may not accept contributions for a runoff primary election … unless the candidate has previously demonstrated to the Board that a runoff election is reasonably anticipated."² The Board has opined that "participating candidates have the burden of showing that a runoff primary is reasonably anticipated." Advisory Opinion 1999-1 (January 7, 1999). The standard "refers to the burden of proof placed upon candidates, implying that this is a lesser burden than, for example, proving that a runoff is ‘probable.'" Advisory Opinion 2001-3 (May 17, 2001). However, "the Board must ground its determination in objective facts" to find that a runoff primary is "reasonably anticipated". Advisory Opinion 2001-3. The Board requires "the prospective candidate to produce evidence of a sufficient number of bona fide prospective opponents for that political party nomination". Advisory Opinion 1999-1. Further, the evidence must be "concrete". Advisory Opinion 2001-3.

In the request, which consisted of a letter with no supporting documentation, Mr. Kaye stated that: 1) five candidates were running for comptroller; 2) three of Ms. Katz's opponents had raised over one million dollars; 3) public polling was unlikely to occur until late in the primary process; and 4) no incumbent was running for re-election. However, a review of candidates who have filed a Filer Registration form with the Board indicates that there are currently four, not five, candidates who have declared themselves to the Board as running for comptroller, although there is a fifth candidate who has made a public declaration.³ Moreover, the most recent campaign finance summaries of these four campaigns indicate that only one of these potential opponents has raised more than one million dollars.⁴ Finally, the request lacks any supporting documentation, providing the Board with insufficient objective facts upon which to base a finding that a runoff election is "reasonably anticipated".

A Finding that a Runoff Primary is "Reasonably Anticipated" must be Based on Objective Facts, Including the Amount of Time Between the Date the Request is Made and the Date of the Anticipated Primary

Factors considered by the Board in its advisory opinions assessing whether a runoff election was "reasonably anticipated" include: 1) "a history of runoff primaries in a particular party for the office at issue" (Advisory Opinion No. 1999-1); 2) press reporting regarding the likelihood of a runoff primary (Advisory Opinion Nos. 2001-1, 2001-3, 2001-10 August 23, 2001); 3) polling information (Advisory Opinion Nos. 2001-1, 2001-3, 2001-10); and 4) the amount of time between the date that the request is made and the date of the primary (Advisory Opinion Nos. 1999-1, 2001-3, 2001-10, 2005-2 July 7, 2005).

The Board opined in Advisory Opinion No. 1999-1 (where the request was dated December 4, 1998 and inquired about the 2001 elections), that "it would be very difficult to make a demonstration that a runoff election was ‘reasonably anticipated' early in the election cycle, when the intentions and likely competitiveness of prospective opponents is less clear." In contrast, the Board responded to two requests made in June 2005 by finding that a runoff election in the 2005 Democratic mayoral primary was "reasonably anticipated" where polling indicated that none of the four candidates "could command the 40 percent vote needed to avoid a runoff primary". Advisory Opinion No. 2005-2. The importance of the timing of a request for a finding that a runoff is "reasonably anticipated" is exemplified by Advisory Opinion Nos. 2001-3 (May 17, 2001) and 2001-10 (August 23, 2001), both of which assessed the reasonableness of anticipating a Democratic runoff election for Public Advocate in 2001. In finding that a runoff election was not "reasonably anticipated," the Board noted on May 17, 2001 that it was "too early to predict the possibility of a runoff" given the information available at that time.⁵ Advisory Opinion No. 2001-3. Three months later, while observing that new information had become available, the Board noted that there had "been recent comment on the tightness and intensity of the race and unusually large amounts of funds raised by the Democratic Primary candidates, suggesting the likelihood of a runoff primary." Advisory Opinion No. 2001-10.

In the instant matter, the request for a finding that a runoff election is "reasonably anticipated" precedes the potential runoff election by more than a year. ⁶ The Board never has found that a runoff election is "reasonably anticipated" when the request for such a finding was submitted a year or more before the date of the anticipated primary. See Advisory Opinion Nos. 1997-2 (May 15, 1997), 1997-10 (Sept. 18, 1997), 1999-1, 2001-1, 2001-3, 2001-10, 2001-11 (Sept. 7, 2001), 2005-2. Further, no documentation of the history of runoff primaries for the Democratic comptroller primary, polling information or press reporting was presented to the Board to support the request. Cf. Advisory Opinion 2001-1. "Declaring that a runoff is reasonably anticipated may, in these circumstances, serve only to create an avenue for establishing primacy in the race by the accumulation of contributions for a highly speculative runoff election, thus actually undermining some core purposes of the Campaign Finance Program." Advisory Opinion 2001-3. Based on the information now available, the Board concludes that a runoff election in the Democratic Party primary for comptroller is not "reasonably anticipated" within the meaning of Rule 1-04(q) at this time. Candidates for comptroller may submit another request for a determination at such time in the future as the race has sufficiently evolved to enable them to demonstrate with concrete evidence that a runoff is "reasonably anticipated."

NEW YORK CITY CAMPAIGN FINANCE BOARD

¹ The letter, dated June 30, 2008, is from Ronald A. Kaye, treasurer of Katz for New York. In the letter, Mr. Kaye requests permission to begin raising funds for an anticipated runoff election for the 2009 New York City comptroller's race. Ms. Katz has filed a Filer Registration Form with the Board for the office of comptroller for the 2009 elections.

² Under Rule 1-04(q), once the Board makes a determination that a primary is "reasonably anticipated," participating candidates 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"). The current contribution limit for participating candidates running for city comptroller is $4,950. New York City Administrative Code § 3-703(1)(f). Therefore, participating candidates running for city comptroller could accept additional contributions of up to $2,475 for a runoff election. Id.; see also Advisory Opinion 2001-1 (March 13, 2001).

³ The Katz campaign did not specifically identify the five candidates whom it believes are running for comptroller, compromising the Board's ability to confirm the campaign's contention.

⁴ The additional candidate who has declared publicly that he is running for comptroller has raised more than $1 million.

⁵ As here, the only information about a possible runoff was the number of candidates running (six in that race) and the amount of funds raised. See Advisory Opinion 2001-3.

⁶ The potential primary would be held in September 2009. The current fluidity of the race for comptroller is exemplified by the fact that a potential candidate, who raised over $1.5 million and was thought to be entering the race for comptroller, currently is running for a State Senate seat instead.