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1988-4: Expenditure Limits for Unopposed/Non-Primary Candidate

December 30, 1988

An opinion has been requested whether a candidate who chooses to participate in the public financing program of the New York City Campaign Finance Act (New York City Administrative Code §3-701, et seq.) may make expenditures in an amount up to the expenditure limitation for a primary election, if that candidate is not opposed or not entered in a primary election.

The opening paragraph of Administrative Code §3-706(1) and paragraph (a) of that subdivision provide:

The following limitations apply to all expenditures made by a candidate and his or her authorized committees on or after the first day of January preceding the election for which such candidate chooses to participate in the public funding provisions of this chapter and to expenditures made at any time prior to such date for services, materials, facilities, advertising or other things of value received, rendered, published, distributed or broadcast on or after such date:

(a) Except as provided in paragraph (b) of this subdivision, in each primary election and in each general election, expenditures by an eligible candidate for one of the following offices and his or her authorized committees shall not exceed the following amounts:

mayor: $3,000,000
president of the city council or comptroller: $1,750,000
borough president: $625,000
member of the city council: $60,000

(Emphasis added). This provision suggests that the expenditure limitation applies not only to candidates entered and opposed in a primary election, but also to eligible candidates, not entered or opposed in the primary election, who are seeking an office for which nomination is contested by other candidates in a primary election.

Support for a separate primary election expenditure limitation for candidates not entered or opposed in a primary election is provided by other provisions of the act. "Eligible candidate" is defined to mean "any candidate for nomination for election, or election,...who meets the requirements of eligibility..." Administrative Code §3-702(1). (Emphasis added). This definition includes: (1) candidates who are opposed in a primary election; (2) candidates who enter a primary election by filing designating petitions but are not opposed therein; and (3) candidates who do not enter a primary election, but otherwise seek election to an office covered by the act. Among the other requirements of eligibility, the eligible candidate agrees not to exceed the applicable expenditure limitations. Administrative Code §3-703(1) (i). The expenditure limitation in each primary election applies to expenditures made by "an eligible candidate." See Administrative Code §3-706(1) (a), quoted above. (Emphasis added).

Administrative Code §3-703(5) provides that candidates who are unopposed in an election are not eligible to receive public funds for that election. This prohibition, however, does not extend to the making of expenditures for that election. Indeed, if all opponents of a candidate in a primary election have been disqualified, the act prohibits the expenditure of public funds for that election, but does not prohibit the expenditure of private contributions. See Administrative Code §3-704(2) (d) (ii) .

Further, this provision permits public funds received by a candidate whose primary election opponents have been disqualified to be "carried over" for expenditure in the general election. See also Administrative Code §3-706(3) . By allowing "carry over" for a candidate without opposition in a primary election, the act strongly suggests that this candidate may make expenditures subject to an expenditure limitation for any primary election contested by other candidates for the office sought by the candidate in the general election. An interpretation that expenditures made after all primary opponents have been disqualified are subject to the general election limitation would render the reference to carry over in this provision superfluous and illogical.

It is therefore the opinion of the Board that if there is a contested primary election for an office, an eligible candidate for that office, who is either unopposed for party nomination or not entered in a primary election, may make expenditures in the contested primary election in an amount not to exceed the expenditure limitation applicable under Administrative Code §3-706(1). Expenditures by these eligible candidates will be attributed to the applicable primary or general election limitation in the manner provided in Administrative Code §3-706(1) (c). If there is no contested primary election for an office, expenditures made by an eligible candidate seeking election to that office will be attributed to the general election limitation of Administrative Code §3-706(1).