Opinion 21-30

March 11, 2021

Digest:       Provided a judicial candidate determines they will receive fair value for the expenditure, the candidate may permit their campaign committee to purchase subscriptions during the window period to a web-based service that (1) provides information on potential donors for use by the candidate’s campaign committee for a flat monthly fee and/or (2) allows the judge’s campaign committee to communicate live with voters by telephone or text for a flat per-call fee.

Rules:        22 NYCRR 100.0(Q); 100.5(A)(1); 100.5(A)(1)(h); 100.5(A)(2); 100.5(A)(2)(i); 100.5(A)(5)-(6); Opinions 19-37; 18-69; 12-129(A)-(G); 08-125/08-147/08-148/08-149; 07-135.

Opinion:

         An individual seeking election to judicial office asks if their campaign committee may purchase a monthly subscription to Call-Time during the applicable window period. The service uses artificial intelligence software to facilitate calling potential donors from one political party; it provides information about the donors’ identity and past donations. Campaign committee members would call using a script approved by the judicial candidate, and the candidate would be shielded from knowledge of contributors and contributions. The subscription is available on a month-to-month basis for a flat monthly charge; there are no bonuses or percentages from total amounts raised. The candidate also asks if their campaign committee may use Thrutalkdialer, a web-based service that enables campaign workers in a phone bank to call and text voters live on an integrated software platform. The service charges a flat fee per call, and allows the candidate to reach a large number of people.¹

         A judge or non-judge candidate for elective judicial office may personally participate in their own campaign during the applicable window period, subject to certain limitations (see 22 NYCRR 100.5[A][1]; 100.5[A][2]; see also 22 NYCRR 100.0[Q] [defining “window period”]). For example, a judicial 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 any other candidate (see 22 NYCRR 100.5[A][1][h]). The candidate must not personally solicit or accept campaign contributions from any source (see id.; 22 NYCRR 100.5[A][2][i]), but may establish a campaign committee of “responsible persons” to solicit and accept reasonable campaign contributions during the applicable window period (22 NYCRR 100.5[A][5]). Moreover, “judicial candidates should be shielded, to the extent possible, from learning the identity of campaign contributors and the amount or value of their contributions” (see Opinion 08-125/08-147/08-148/08-149).

         We have previously advised that, subject to compliance with all applicable rules and statutes, a judicial candidate may permit a campaign committee member to manage a private GoFundMe account to raise contributions for the campaign, provided (1) the candidate is insulated from knowing who contributed and (2) such contributions are properly reported by the campaign treasurer (see Opinion 18-69). We have also advised that a judicial candidate’s campaign committee may solicit donations on a campaign website it sponsors, provided that contributions will go directly to the campaign committee and not to the candidate (see Opinion 07-135).

         Conversely, we have said a judicial candidate may not hire “a professional fund-raiser who would be paid either on a commission or percentage basis,” as this would provide “built-in incentives” to “underestimate the ‘exacting standards’ to which a judicial candidate is held” (Opinion 12-129[A]-[G]).² Here, Call-Time and Thrutalkdialer apparently charge set fees on a neutral basis (per-month or per-call), completely independent of the amounts raised or the candidate’s electoral results.

         Accordingly, we conclude that the judicial candidate may authorize their campaign committee to purchase subscriptions to both Call-Time and Thrutalkdialer services during the applicable window period, provided the candidate determines that they will receive fair value for the expenditure (see 22 NYCRR 100.5[A][5]-[6]). We note that, as always, any fund-raising message should be “crafted solely by the candidate or by his/her campaign committee, subject to the candidate’s approval and oversight” (Opinion 19-37).

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¹ We understand the per-call fee is measured in pennies, and there are no subscription costs or minimum usage requirements (see https://www.getthru.io/pricing).

² For completeness, we note that the 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, where “the [fund-raising] message is crafted solely by the candidate or by his/her campaign committee, subject to the candidate’s approval and oversight” (Opinion 19-37). We noted that, “unlike a human fund-raising consultant, Eventbrite cannot take the initiative and has no independent discretion to exercise.... Thus, it cannot react, consciously or unconsciously, to the ‘powerful built-in incentives’ inherent in the percentage payment structure” (Opinion 19-37).