Joint Opinion 13-99/13-100 and 13-101/13-102

October 24, 2013

Digest:         (1) Subject to certain limitations as set forth herein, a judicial candidate may pay to attend a political fund-raiser for which no tickets are sold and no standard admission price has been set. (2) A judicial candidate may purchase the lowest priced full-page campaign advertisement in a journal that will be distributed at a political party’s fund-raiser during the candidate’s window period, but may not pay a premium over that price for a more prominently displayed advertisement.

Rules:          22 NYCRR part 100, Preface; 100.0(A); 100.0(Q); 100.5(A)(1)(h); 100.5(A)(2)(ii)-(iii); 100.5(A)(2)(v); 100.5(A)(5)-(6); 100.6(A); Opinions 13-60; 12-129(A)-(G); Joint Opinion 06-80 and 06-81; Opinions 99-38 (Vol. XVII); 92-97 (Vol. X); 88-26 (Vol. I).

Opinion:

         In this Opinion, the Committee considers several recurring and significant questions that the Judicial Campaign Ethics Subcommittee has received from judicial candidates regarding attendance at political events and purchase of campaign advertisements.¹

I. Attending a Political Fund-Raiser For Which No Tickets Are Sold

         Although a judicial candidate must not make a contribution to any other political candidate or to any political organization (see 22 NYCRR 100.5[A][1][h]), he/she may purchase two tickets to, and attend, politically sponsored events during the applicable window period (see 22 NYCRR 100.5[A][2][v]; Joint Opinion 06-80/06-81; see also 22 NYCRR 100.0[Q] [defining “window period”]). The ticket price “shall not exceed the proportionate cost” of the event (22 NYCRR 100.5[A][2][v]), and a ticket price of $250 or less is deemed to be the proportionate cost of the function (id.).

         In Opinion 13-60, the Committee stated:

if tickets for a political event are offered at multiple prices, a candidate “must purchase those with the lowest price” (Opinions 12-129(A)-(G); 92-97 [Vol. X]; see also Opinion 88-26 [Vol. I] [judicial candidate “may purchase the lowest priced dinner ticket to the political club fund-raiser, but should not purchase the more expensive tickets denominated as ‘Sponsor' or ‘Patron’”]). Thus, in effect, a judicial candidate may not purchase tickets at a price higher than the price all other attendees are required to pay, because that would be an impermissible political contribution (see 22 NYCRR 100.5[A][1][h]).

However, the Subcommittee has now received multiple inquiries from judicial candidates involving “pay-what-you-wish” style political fund-raising events, where the organizer is not selling tickets and has not otherwise established a standard charge for admission to the event.² The Committee concludes that it is permissible for a judicial candidate to attend such events, although care must be taken to avoid the appearance of an impermissible campaign contribution. Two specific scenarios are raised in the present inquiries and are addressed below; judicial candidates may write in for guidance on additional scenarios that are not covered in the present opinion.

         A. Invitation Suggests Specific Amounts or Levels

         In Inquiry 13-99, a judicial candidate within his/her window period states that he/she was invited to a fund-raising event at a private residence, which is described as “an evening in honor and support of” a recently elected non-judicial official. The invitation does not list any ticket price or specific charge for admission but lists several “levels of donation/sponsorship, starting at $50 (Friend) and then $75 (Supporter).” The candidate asks whether it is permissible to pay the “minimum donation amount” listed, “up to a total of $250."

         Similarly, in Inquiry 13-100, a judicial candidate within his/her window period states that he/she has received an invitation to attend an initial “campaign kickoff” fund-raiser for a candidate for non-judicial office. The invitation again does not list any ticket price or specific charge for admission but lists “suggested donations” ranging from $25 to $1,000. The inquirer asks whether the “suggested donations” are considered a prohibited contribution or whether they are “akin to a ticket price” which is permissible for a judicial candidate subject to certain limitations on price and number of tickets.

         The Committee notes that both events are political fund-raisers to which attendees are expected to pay admission. Moreover, although the organizer of the event is not selling tickets, the list of suggested levels of “donations” or “support” provides guidance as to the amounts expected and thus appear to be roughly analogous to a ticket price for that event (cf. 22 NYCRR 100.5[A][2][v]). Accordingly, a judicial candidate may treat these “suggested donation” levels as ticket prices and may, therefore, pay the lowest priced suggested donation if it is $250 or less (see Opinions 13-60; 12-129[A]-[G]; 92-97 [Vol. X]; 88-26 [Vol. I]).³

         Accordingly, under the circumstances described in Inquiry 13-99, the inquiring judicial candidate may pay $50 to attend the event, while in Inquiry 13-100, the candidate may pay $25.

B. Pure “Pay-What-You-Wish,” with No Suggested Donation Levels

         In inquiry 13-101, a judicial candidate within his/her window period asks how much he/she may pay to attend a pay-what-you-wish political fund-raiser held in a private home, where no tickets, are being sold and the host has not otherwise set any specific price for admission or any suggested levels of donation or sponsorship.

         As with the prior inquiries, this event is a political fund-raiser to which attendees are expected to pay admission. However, the organizer of the event in Inquiry 13-101 has not provided any guidance to attendees about how much they are expected to pay. Thus, there are no suggested levels of donation and no suggested admission price that a judicial candidate may treat as the functional equivalent of tickets to the event.

         Under these circumstances, the Committee concludes that a judicial candidate may pay up to $250 (cf. 22 NYCRR 100.5[A][2][v]). Although it is possible that other attendees will pay a smaller amount, the Rules Governing Judicial Conduct are “rules of reason” (22 NYCRR 100, Preface). The Committee therefore declines to adopt an interpretation of the Rules that would require a judicial candidate to attempt to discern how much other attendees will pay to attend a “pay-what-you-wish” fund-raiser, when the organizer has declined to set any guidelines for attendees.

         Accordingly, under the circumstances described in Inquiry 13-101, the inquiring judicial candidate may pay up to $250 to attend the event.

II. Purchasing a Campaign Advertisement

         In Inquiry 13-102, a judicial candidate states that he/she has purchased tickets to a political party’s fund-raiser, which will take place in the candidate’s post-election window period. The candidate asks whether he/she may also purchase either a “standard” full-page advertisement or a “prominently displayed” full-page advertisement in the political party’s “victory magazine” which will be distributed at the event. The candidate states that the charge for the standard full-page advertisement is $1,000, while the “fee for the ad to be prominently displayed” on the inside of the front or back cover is $1,500. In addition, on review of the order form, the Committee notes that the lowest-priced option offered by the political party is a half-page advertisement for $600.

         A candidate for elective judicial office may appear in newspaper, television and other media advertisements supporting his/her candidacy (see 22 NYCRR 100.5[A][2][ii]-[iii]) and may authorize a campaign committee to “conduct campaigns for the candidate through media advertisements ... and other means not prohibited by law” (22 NYCRR 100.5[A][5]). However, the candidate “may not permit the use of campaign contributions or personal funds to pay for campaign-related goods or services for which fair value was not received” (22 NYCRR 100.5[A][6]) and may not pay an assessment to, or make a contribution to, a political organization or candidate (see 22 NYCRR 100.5[A][1][h]).

         A judicial candidate may purchase campaign advertisements in political journals that will be distributed at political events throughout the candidate’s window period (see Opinion 99-38 [Vol. XVII]). Like other campaign advertisements, such an expenditure is justified by its purpose in promoting the judicial candidate’s campaign (see generally 22 NYCRR 100.5[A][2][ii]-[iii]). The expenditure is, therefore, analyzed independently of any amount the candidate has paid, as permitted by Section 100.5(A)(2)(v) and applicable Opinions, to attend the event itself.

         The Rules Governing Judicial Conduct do not set any specific dollar limitation on the amount a candidate may spend on a campaign advertisement, as long as the amount paid does not create the appearance that the candidate is making an indirect contribution to a political organization or candidate (see 22 NYCRR 100.5[A][1][h]). To help “guard against a public perception that candidates are attempting to make disguised political contributions” (Opinion 12-129[A]-[G]), the Committee has previously advised that a judicial candidate may use campaign funds to purchase the “lowest priced advertisement” in a political organization’s journal, in which the candidate’s supporters are thanked, where the journal is being distributed at a politically sponsored dinner held after the election but during the window period (see Opinion 99-38 [Vol. XVII] [suggesting the possibility that paying $3,000 for an advertisement might be regarded as an impermissible political contribution]).

         The same principle applies here, but the Committee wishes to clarify that the candidate may purchase the lowest-priced full-page advertisement. Thus, the judicial candidate in Inquiry 13-102 may purchase the lowest-priced full-page advertisement for $1,000, even though it is possible to purchase a half-page advertisement for $600.⁴

         The only novel question presented in Inquiry 13-102 is whether a judicial candidate may pay a premium (in this case 50% over the price of the lowest priced full-page advertisement) for the increased exposure of an inside cover or other prominent placement of the advertisement. The Committee believes that this is inappropriate. Although it is theoretically possible, under different factual circumstances, that a candidate might obtain fair value for a premium paid for such additional exposure (see 22 NYCRR 100.5[A][6]), the Committee believes there is a far greater risk that the public will perceive the candidate’s voluntary, additional payment as a contribution to the political organization or party (see 22 NYCRR 100.5[A][1][h]). Moreover, the Committee believes that a simple, bright-line rule in this area will make it easier for judicial candidates to comply with the Rules Governing Judicial Conduct; and it may even help judicial candidates resist any pressure they may feel from political organizations or other candidates to make “contributions” disguised as premium advertisements.

         The Committee therefore concludes that a judicial candidate may purchase the lowest priced full-page campaign advertisement in a political journal that will be published or distributed at a political event that will take place during the candidate’s window period but may not pay a premium over that price for a more prominently displayed advertisement (see Opinion 99-38 [Vol. XVII]; 22 NYCRR 100.5[A][1][h]).

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     ¹ The term “judicial candidate” refers to any candidate for elective judicial office and does not distinguish between judges and non-judges (see generally 22 NYCRR 100.0[A] [defining “candidate”]; 100.6[A] [discussing applicability of rules]).

     ² It is possible that the “pay-what-you-wish” structure is intended, among other things, to inspire generosity on the part of attendees in proportion to their financial means and/or to provide broad exposure for candidates by making it possible for individuals at every economic level to attend.

     ³ The present inquiries do not raise the question of how much a judicial candidate may pay for two people to attend the event, and, therefore, the Committee does not comment on the issue.

     ⁴ Opinion 99-38 (Vol. XVII) is hereby modified to make clear the Committee’s intention that the “lowest priced advertisement” refers to the lowest-priced full-page advertisement rather than the lowest possible price which would almost certainly mean a very small advertisement.