Joint Opinion 18-121/18-122/18-123

September 6, 2018

Digest:         (1) During the applicable window period, a judicial candidate generally may purchase campaign advertisements at a picnic organized by a labor union or a political party, subject to the fair value rule, even if the advertisements are labeled as “sponsorships.” (2) Where purchase of any level of sponsorship at the picnic will result in the identical advertisement (a mere listing of the candidate’s name in a brochure), the candidate may only purchase the least expensive level of sponsorship. (3) Where the picnic is sponsored by a political organization and the advertising opportunities are bundled together with tickets to the event, the judicial candidate must also comply with the limitations on price and number of tickets. (4) Where different levels of sponsorships reflect distinctly different levels of advertising visibility at the picnic, the candidate may purchase a mid-range sponsorship package resulting in mid-level visibility and one-time recognition by the master of ceremonies, provided the candidate decides his/her campaign will get fair value for the expense.

Rules:          Election Law § 17-162; 22 NYCRR 100.0(Q); 100.5(A)(1); 100.5(A)(1)(h); 100.5(A)(2)(v); 100.5(A)(5)-(6); Opinions 13-99/13-100/13-101/13-102; 06-80/06-81; 92-97.

Opinion:

         Three judicial candidates separately ask about purchasing advertisements in the form of “sponsorships” for informal outdoor gatherings (e.g., picnics or cook-outs). Each event is organized by a labor union or a political party and held during the window period.

         In Inquiry 18-121, the candidate plans to attend a cook-out sponsored by a labor union that endorsed him/her. The candidate asks if his/her campaign committee may “contribute” at any of sponsorship levels set forth in the union’s invitation. Each sponsorship level, ranging from a $25 “Copper Level Sponsorship” to a $200 “Platinum Level Sponsorship,” results in a simple advertisement for the sponsor — specifically, a “Listing in our Picnic Brochure.”

         Inquiry 18-122 involves a political party’s annual picnic. The picnic’s sole advertising opportunity is purchasing a sponsorship, which again results in the sponsor’s name being included in written materials distributed at the event but also includes tickets to the event. Sponsorships are available at $250 (two tickets), $375 (four tickets), $500 (six tickets), $750 (eight tickets), and $1,000 (ten tickets). As with Inquiry 18-121, there is no indication the various levels of sponsorship result in materially different advertisements.

         Finally, in Inquiry 18-123, a county court judge seeking re-election plans to attend a political party’s free summer picnic and asks if he/she may purchase an advertising sponsorship at the event. The political party states that its car-themed annual picnic “draws hundreds of guests from in and around [the] County” over a four-hour period on a weekend afternoon. The picnic offers four advertising sponsorship levels:

         •  “Antique” level (any amount under $100) - Name listed in the program only;

         •  “Muscle” level ($100) – Name listed on the program and the sponsor board;

         •  “Roadster” level ($500) - “Midlevel visibility” on the program and the sponsor board, plus “[o]ne time recognition” by the master of ceremonies;

         •  “Vintage” level ($1,000) - “Top visibility” on the program and sponsor board, recognition throughout the day by the master of ceremonies, and “a street named after [you] and displayed throughout the event.”

         Both judge and non-judge judicial candidates may engage in limited political activity to further their own candidacy during their window period (see 22 NYCRR 100.5[A][1]; 100.0[Q]). For example, a judicial candidate may buy two tickets to a politically-sponsored dinner or function in his/her window period if the ticket’s cost does not exceed the proportionate cost of the dinner or function (see 22 NYCRR 100.5[A][2][v]). If the general admission ticket is $250 or less, it “shall be deemed to constitute the proportionate cost of the dinner or function” (id.). However, a candidate must not make direct or indirect contributions to a political organization or candidate (see 22 NYCRR 100.5[A][1][h]); must not permit the use of campaign contributions for any “private benefit” (22 NYCRR 100.5[A][5]); and must 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]).

         Generally, a candidate may attend a politically sponsored event, subject to limits on the price and number of tickets, and also purchase a campaign-related advertisement at the same event. All advertising expenditures must comply with the fair value rule. In interpreting these rules, our goal is to allow candidates to obtain reasonable advertising coverage, while minimizing the risk of a public perception that the payments are merely disguised contributions. Thus, for example, a judicial candidate may purchase the lowest-priced full-page advertisement in a journal to be distributed at a politically sponsored fund-raiser during the window period (see Opinion 13-99/13-100/13-101/13-102). Of course, the candidate should not pay a higher price than other attendees for tickets or advertising, because this would be an impermissible political contribution and/or an impermissible use of campaign funds for the sponsor’s private benefit (see 22 NYCRR 100.5[A][1][h]; 100.5[A][5]-[6]; see also Election Law § 17-162).

         In Inquiry 18-121, all the differently priced sponsorship levels will result in the identical minimal advertising — the candidate’s name will merely be listed in a brochure that is distributed at the picnic. Where, as here, a greater price does not result in materially different advertising, the candidate should select the lowest priced sponsorship level to avoid the risk “that the public will perceive the candidate’s voluntary, additional payment as a [prohibited] contribution” (Opinion 13-13-99/13-100/13-101/13-102). Thus, the candidate in Inquiry 18-121 may purchase the lowest level “Copper Level Listing” in the picnic brochure for $25, provided that he/she concludes the campaign will receive fair value for this expenditure (see 22 NYCRR 100.5[A][6]).¹

          In Inquiry 18-122, the higher priced sponsorships include more tickets to the event. Under the Rules, however, a candidate may not purchase more than two tickets to a politically sponsored event, even if the price per ticket is significantly less than $250 (see Opinions 06-80/06-81; 92-97; 22 NYCRR 100.5[A][2][v]). Here, only one advertising option (the least expensive) complies with the two-ticket limit. We thus conclude this candidate may pay $250 for a sponsorship which provides him/her with two tickets and a simple campaign advertisement. As a reminder, because the sponsorship already includes the two permitted tickets, the candidate must not purchase any additional tickets separately (see 22 NYCRR 100.5[A][2][v]).

         In Inquiry 18-123, the different sponsorship levels provide increasing levels of advertising exposure for candidates. Although it is a matter of first impression, we again look to our standard for advertising in a political journal for a rough analogy (see Opinion 13-99/13-100/13-101/13-102 [permitting purchase of cheapest full-page advertisement]). We believe a mid-range sponsorship package resulting in mid-level visibility and one-time recognition by the master of ceremonies is appropriate, provided the candidate determines his/her campaign will obtain fair value for the expenditure.

         Applying this principle to these facts, the advertising opportunities range from the minimal “Antique” or “Muscle” level (merely listing the candidate’s name for $100 or less) to the top-level “Vintage” level (prominent, high-profile recognition throughout the day for $1,000). Here, we conclude a purchase of the mid-level “Roadster” advertising sponsorship for $500 gives an appropriate mid-level exposure to the estimated “hundreds” of weekend picnic attendees, in compliance with the fair value rule, without risking that the candidate will be perceived as making an impermissible political contribution (see 22 NYCRR 100.5[A][1][h]; 100.5[A][5]-[6]). It is therefore permissible.

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¹ A candidate may ask the event’s sponsors if other advertising opportunities are available at the picnic, such as campaign signs or banners that would provide greater exposure for the campaign. Any such expenditures are subject to the same principles discussed herein.