Opinion 19-94(B)

December 12, 2019

Digest:         A judicial candidate may not permit a political action committee to host a joint fund-raiser for him/her and another candidate.

Rules:          22 NYCRR 100.5(A)(1)(ii); 100.5(A)(1)(b)-(d), (f), (h); 100.5(A)(2); Opinion 19-94(A).

Opinion:

         A judicial candidate asks if a political action committee (PAC) may host a joint fund-raiser for him/her and another judicial candidate. All proceeds would go to the two judicial candidates.

         A judicial candidate may “identify himself or herself as a member of a political party” (22 NYCRR 100.5[A][1][ii]) and 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 engage in partisan political activity unrelated to his/her own campaign (see 22 NYCRR 100.5[A][1][c]) and thus must not, for example, permit his/her “name to be used in connection with any activity of a political organization” (see 22 NYCRR 100.5[A][1][d]) nor make speeches on behalf of a political organization or another candidate (see 22 NYCRR 100.5[A][1][f]).

         In Opinion 19-94(A) (citations omitted), we said:

A judicial candidate may not hold a joint fund-raiser with an individual seeking non-judicial office, “because the candidate for non-judicial office is not subject to the same exacting standards.” By contrast, two judicial candidates on the same slate may hold a joint fund-raiser, provided they and their campaign committees take care “to avoid any implication of a cross-endorsement or solicitation.” For example, they may not form a single campaign committee or commingle funds received from the event. However, it is appropriate for the two separate campaign committees “to share their proportionate costs” and issue an “instruction to the attendees to write separate checks to the respective campaigns for 50% of the ticket price.”

Here, we conclude three judicial candidates may allow an individual otherwise unaffiliated with their campaigns to host a fund-raiser for them, subject to all applicable limitations in Section 100.5. However, the candidates may not permit attendees to write checks initially to the host for later distribution among the three committees. Instead, attendees must write separate checks to each candidate’s campaign committee to avoid any commingling of funds.

         We now consider the propriety of a PAC — rather than a private individual or a law firm — hosting a fund-raising event on behalf of a judicial candidate.

         In common understanding, a PAC is a highly partisan political entity, “formed by a special-interest group to raise and contribute money to the campaigns of political candidates who seem likely to promote its interest” (Black’s Law Dictionary [11th ed 2019], political-action committee). We believe it would be difficult, if not impossible, for a judicial candidate to avoid the appearance of being involved in partisan political activity unrelated to his/her own campaign for elective judicial office (see 22 NYCRR 100.5[A][1][c]), if the candidate allowed a PAC to raise funds for him/her.¹

         Thus, we conclude that a judicial candidate may not permit a PAC to host a fund-raiser for him/her and another candidate.

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¹ While not determinative here, we note at least two provisions of the Rules distinguish a “political party” from other kinds of “political organization[s]” (22 NYCRR 100.5[A][ii]; 100.5[A][1][b]). Presumably, this reflects the distinctive role of political parties in providing ballot access to their nominees. On these facts, we see no reason why a judicial candidate should permit a partisan political entity with no such traditional role or function in judicial elections to associate itself with the prestige of judicial office by hosting a fund-raiser for him/her (cf. 22 NYCRR 100.5[A][1][d]).