Opinion 22-129 (Amended)

September 8, 2022

Digest:       A judicial candidate may not authorize a political party committee to solicit and accept campaign contributions on their behalf in lieu of forming a campaign committee.

Rules:        22 NYCRR 100.5(A)(1); 100.5(A)(1)(c), (h); 100.5(A)(2); 100.5(A)(2)(i); 100.5(A)(4)(c); 100.5(A)(5); Opinions 22-38; 19-94(B); 14-167; 12-129(A)-(G); 12-95(A); 06-162; 08-43; 08-40; Matter of Raab, 100 NY2d 305 (2003).

Opinion:

         The inquiring candidate for town justice is running on a major political party’s ballot line. The inquirer has not established a campaign committee to raise funds or collect contributions for their judicial campaign, and does not wish to form one. According to the inquirer, the town political party committee has offered to collect contributions to pay for the candidate’s lawn signs and other campaign materials. The inquirer asks if it is ethically permissible to authorize the political party committee to solicit and accept these contributions on their behalf, when there is no other candidate for any town office on the party’s ballot line.

         A judge or non-judge candidate for elective judicial office may personally participate in their own campaign for judicial office during the applicable window period, subject to certain limitations (see 22 NYCRR 100.5[A][1][c]; 100.5[A][2]). For example, a judicial candidate must not make “a contribution to a political organization or another candidate” (22 NYCRR 100.5[A][1][h]) and must not “use or permit the use of campaign contributions for the private benefit of the candidate or others” (22 NYCRR 100.5[A][5]). Further, although a judicial candidate “may contribute to his or her own campaign as permitted under the Election Law” (22 NYCRR 100.5[A][2]), the candidate must not “personally solicit or accept campaign contributions” (22 NYCRR 100.5[A][5]; see also 22 NYCRR 100.5[A][2][i]). Only a “committee[] of responsible persons” may “solicit” or “accept” campaign contributions for the candidate, and they may do so “only during the Window Period” (22 NYCRR 100.5[A][5]). Beyond this single exception for fund-raising by a judicial candidate’s campaign committee, the candidate must “not authorize or knowingly permit any person to do for the candidate what the candidate is prohibited from doing” under the Rules Governing Judicial Conduct (see 22 NYCRR 100.5[A][4][c]).

         Preliminarily, we note that a judicial candidate is subject to “exacting standards” in fund-raising, and is responsible for ensuring that these standards are met (see Opinions 19-94[B] [impermissible for political action committee to hold a fund-raiser for judicial candidates]; 12-129[A]-[G] [impermissible to “hire a professional fund-raiser ... on a commission or percentage basis”]; 08-40 [impermissible to hold a joint fund-raiser with a candidate for non-judicial office]). A candidate may “not authorize or knowingly permit” anyone to bypass these exacting standards on their behalf (22 NYCRR 100.5[A][4][c]).

         Turning now to the core issue here, we conclude that a judicial candidate may not authorize a political party committee to solicit and accept campaign contributions on the candidate’s behalf in lieu of forming a campaign committee. The only time a judicial candidate is not required to form a campaign committee is when the candidate “finances his/her entire campaign with personal funds and neither solicits nor accepts any campaign contributions from any source” (Opinion 08-43 [emphasis added]). Here, the judicial candidate is the sole member of the political party’s slate. Under these circumstances, even if the political party committee raised funds independently and then purchased materials for the inquiring candidate’s campaign, such materials would create the appearance of an in-kind contribution, which the candidate cannot personally accept (see 22 NYCRR 100.5[A][5]). In-kind contributions, like monetary contributions, can only be accepted by the candidate’s campaign committee.

         Of course, if the inquiring judicial candidate ultimately decides to form a campaign committee of “responsible persons” to solicit and accept contributions from the political party committee or elsewhere, all funds raised on the candidate’s behalf must be used in accordance with the rules (see e.g. 22 NYCRR 100.5[A][5]; Opinion 22-38). For example, any unexpended funds must ordinarily be returned to contributors on a pro rata basis (see e.g. Opinions 12-95[A]; 06-162) and must not be retained by the party for other purposes, including “general party needs” (see 22 NYCRR 100.5[A][1][h]; Opinion 14-167 [discussing limitations on reimbursement of a political organization for expenditures on the candidate’s behalf]; Matter of Raab, 100 NY2d 305, 316 [2003] [candidate sanctioned for paying a substantial sum to a political party “without verifying that the payment was used to cover expenditures related to his [or her] own campaign and not applied to other candidates’ races or to general party needs”]).