Opinion 23-204
February 1, 2024
Digest: (1) A judicial candidate may use the ActBlue online payment system to purchase tickets to attend a variety of political fund-raising events within the applicable window period, subject to the usual limitations on price and number of tickets for each event. (2) The candidate must exercise caution to avoid adding an optional tip or agreeing to make a recurring payment, and should carefully review the online payment screen for any note or indication that a portion of their payment will be sent to additional recipients or used for a purpose other than the political event for which the candidate intends to purchase tickets.
Rules: Election Law § 17-162; 22 NYCRR 100.5(A)(1)(h); 100.5(A)(2); 100.5(A)(2)(v); Opinions 23-29; 22-155; 20-111; 19-94(B); 19-37; 18-69; 15-83; 13-99/13-100/13-101/13-102; 13-60.
Opinion:
A full-time judge and current candidate for election to judicial office asks if he/she may use ActBlue to purchase tickets to attend political fund-raising events during the applicable window period. On its “How does ActBlue work?” page, the entity explains:
ActBlue is a nonprofit tech organization that builds digital fundraising tools for Democratic candidates and committees, progressive organizations, and other nonprofits. These groups use ActBlue’s fundraising platform to create online contribution forms, securely process donations, and track their contributions from grassroots supporters.
The page then describes ActBlue’s process. First, a candidate or organization creates a contribution form on ActBlue and invites supporters to use it. When a supporter does so, ActBlue processes the contribution and sends it “straight to that candidate or organization,” and then reports the contribution to the relevant governmental reporting body (id.). ActBlue emphasizes that when supporters contribute to a candidate or organization, they are giving “through ActBlue, not to ActBlue” (id.).
The inquiring judge draws our attention to the fact that ActBlue is legally organized as a political action committee, notwithstanding the mission and function described above. As explained on its website:
ActBlue is organized as a political action committee, but we serve as a conduit for individual contributions
made through our platform. Under federal law, these contributions are made by individuals; they are not considered PAC donations. We do not fundraise or donate on behalf of anyone or choose candidates to
support. We provide the tools for campaigns and organizations to fundraise online and act as a conduit for their small-dollar donations federally and in many states.
ActBlue says this “legal structure … allows us to do the hard work of campaign finance well while being as transparent as possible” (id.). Further, ActBlue advises “we don’t make money off of your contributions. You can add an optional tip for us on the contribution form when you enter your credit card information” (id.).
A candidate for elective judicial office, including a judge, may personally participate in his/her own campaign for judicial office during the applicable window period, subject to certain limitations (see 22 NYCRR 100.5[A][2]; Election Law § 17-162). As relevant here, a judicial candidate must not “mak[e] a contribution to a political organization or candidate” (22 NYCRR 100.5[A][1][h]), but may “purchase two tickets to, and attend, politically sponsored dinners and other functions” (22 NYCRR 100.5[A][2][v]). The ticket price “shall not exceed the proportionate cost” of the event, but a ticket price of $250 or less is deemed to be the proportionate cost of the function (id.).
We have previously advised that judicial candidates may attend virtual political fund-raising events during their window period, subject to the usual limitations on price and number of tickets, provided they attend and appear on screen along with other attendees (see Opinion 20-111). We have also addressed the use of various internet-based payment systems for judicial campaign fund-raising purposes within the applicable window period (see e.g. Opinions 19-37 [judicial candidate may use Eventbrite invitation system that charges 2% of the ticket price per ticket sold to distribute fund-raising invitations and sell tickets]; 18-69 [judicial candidate may permit a campaign committee member to manage a private GoFundMe account to raise contributions for the campaign]; 15-83 [judicial candidate may set up an account with PayPal payment system to “accept campaign donations paid via credit card”]).
While using such technologies to raise funds implicates different ethical provisions than using them to purchase tickets to political events, ultimately “the question is not whether a judge may use such technologies, but how the judge does so” (Opinion 22-155 [internal quotations, brackets, and citations omitted]).
We start with ActBlue’s representations that it acts as a mere conduit, so that payments made via ActBlue are sent “straight to [the] candidate or organization” that created a contribution form on its website, and that the individual making the payment (rather than ActBlue) determines and selects the intended recipient. This is an ethically significant distinction from a more traditional political action committee, which is commonly understood to be “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’” (Opinion 19-94[B] [citation omitted]).
Where a political candidate or political organization offers tickets to its events via ActBlue, we see ActBlue as a lawful payment system similar to others such as EventBrite, GoFundMe, and PayPal. We do not perceive any ethical impropriety resulting from a judicial candidate’s use of ActBlue to purchase tickets to events within their window period.
Accordingly, the inquiring judicial candidate may, in his/her window period, use ActBlue to purchase tickets and attend a variety of political fund-raising events.
Of course, judicial candidates must abide by the restrictions on price and number of tickets, regardless of the payment method (see 22 NYCRR 100.5[A][2][v]). Our prior opinions have addressed special issues that arise when a political fund-raiser offers tickets at multiple prices (see Opinion 13-60), is structured as a “pay what you wish” event with or without suggested contribution levels in lieu of formal tickets (see Opinion 13-99/13-100/13-101/13-102), or offers special discounted tickets to a group that excludes the candidate (see Opinion 23-29). Judicial candidates must therefore exercise caution when purchasing tickets via ActBlue, in order to avoid paying more than the amount permitted by the rules and our prior opinions to attend a particular event. For example, a judicial candidate must not add an “optional tip” for ActBlue on the contribution form, and must not agree to any recurring payments or contributions. We note that the ActBlue website also identifies the number of recipients to receive political contributions, indicating that contributions may be split between various organizations. Since judicial candidates may not make outright contributions, they must carefully review the online payment screen for any note or indication that a portion of their payment will be sent to additional recipients or used for a purpose other than the specific political event for which the candidate intends to purchase tickets.[1]
[1] A candidate might also consider printing or saving a record of the invitation and the payment screen. This practice, although not mandatory, could be of practical assistance to the candidate in the event of a disputed charge.