Inquiry 19-37

March 14, 2019

Digest:         A judicial candidate’s campaign committee may use an electronic event invitation system that charges 2% of the ticket price per ticket sold to distribute fund-raising invitations and sell tickets.

Rules:          22 NYCRR 100.5(A)(1)(h); 100.5(A)(2); 100.5(A)(2)(i); 100.5(A)(5)-(6); Opinions 18-69; 12-129(A)-(G); 08-43.

Opinion:

         A judicial candidate asks if his/her campaign committee may distribute fund-raising invitations and accept payment for tickets via Eventbrite, an electronic event invitation system. Although Eventbrite charges event organizers 2% of the ticket price, per ticket sold, the candidate has determined this fee is “significantly less than postage, printing, labor, and overall cost based upon rate of return.”

         A judge or non-judge judicial candidate may participate in his/her own campaign for elective judicial office during the applicable window period as permitted by the Rules Governing Judicial Conduct (see 22 NYCRR 100.5[A][2]). However, he/she must not personally solicit or accept campaign contributions from any source (see 22 NYCRR 100.5[A][1][h]; 100.5[A][2][i]). Rather, a committee of “responsible persons” must do so on his/her behalf unless the campaign is entirely self-funded (22 NYCRR 100.5[A][5]; Opinion 08-43). Among other limitations, the candidate also “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]).

         While we have previously addressed use of certain internet-based resources in judicial campaigns (see e.g. Opinion 18-69 [GoFundMe]), we have not previously addressed use of a for-profit electronic event invitation system to distribute invitations and sell tickets to a candidate’s fund-raisers.

         In Opinion 12-129(A)-(G), we said that a judicial candidate must not hire a professional fund-raiser who would be paid either on a commission or percentage basis. We explained that “[e]ven with the best of intentions, the payment structure provides powerful built-in incentives for a paid professional to underestimate the ‘exacting standards’ to which a judicial candidate is held” (id.). We further explained that because the candidate is not permitted to personally solicit funds or familiarize him/herself with the identities of contributors or the amounts contributed, “it would be difficult, if not impossible, for the candidate to personally supervise the work of a professional fund-raiser to the degree necessary to counteract such incentives” (id.).

         Here, the same concerns are not present. We understand the Eventbrite software does not generate the fund-raising message. Instead, the message is crafted solely by the candidate or by his/her campaign committee, subject to the candidate’s approval and oversight. Indeed, unlike a human fund-raising consultant, Eventbrite cannot take the initiative and has no independent discretion to exercise; one might even say it cannot engage in personal solicitation of funds. Thus, it cannot react, consciously or unconsciously, to the “powerful built-in incentives” inherent in the percentage payment structure (Opinion 12-129[A]-[G]).

         Where, as here, the candidate has determined Eventbrite’s 2% fee is “significantly less than postage, printing, labor, and overall cost based upon rate of return,” we note that such determination provides a reasonable basis for the candidate to conclude that he/she will receive fair value for the expenditure (see 22 NYCRR 100.5[A][6]).

         Accordingly, the judicial candidate may permit his/her campaign committee to use an electronic event invitation system which charges 2% of the ticket price per ticket sold, to distribute fund-raising invitations and sell tickets.