2008-1: $175 is the Maximum Portion of a Contribution Counting Toward Dollar Amount Threshold for Elections after January 1, 2008

Re: New York City Administrative Code § 3-703(2)(a); Op. No. 2008-1.

Under the New York City Campaign Finance Act (New York City Administrative Code ("Admin. Code") § 3-701 et seq.) (the "Act"), a candidate participating in the Campaign Finance Program (the "Program") must meet a two-part threshold in order to demonstrate eligibility to receive public funds: the candidate must receive matchable contributions of $10 or more from a minimum number of New York City residents living in the area the candidate seeks to represent, and the candidate must raise a minimum dollar amount of matchable contributions from New York City residents. See Admin. Code § 3-703(2)(a). The threshold requirements vary according to the office sought.¹

Beginning with elections in 2005, the first $250 of each matchable contribution was counted towards the dollar amount threshold requirement.² Local Law No. 67 of 2007 ("Local Law 67"), however, amended Admin. Code § 3-703(2)(a) to provide that only the first $175 of each matchable contribution will be counted.³ Local Law 67 was intended to address "inadvertent errors" contained in Local Law No. 34 of 2007 ("Local Law 34"),⁴ and became effective immediately when signed into law on December 31, 2007. Local Law 34 was signed into law on July 3, 2007, and most of its provisions became effective on January 1, 2008.

The Campaign Finance Board (the "Board") is issuing this advisory opinion in order to clarify that $175 is the maximum portion of a contribution which may be counted towards the dollar amount threshold requirement for elections held after January 1, 2008, even if the contribution was received prior to that date. The Board's threshold determinations are made during the year of the election as part of the Board's public funds payment determinations, and the date the underlying contributions were received—provided the matchable contributions were timely reported to the Board—has never been relevant to these determinations.

Admin. Code § 3-703(2)(a), as amended by Local Law 67, states, in pertinent part:

"The threshold for eligibility for public funding for participating candidates in a primary or general election, or special election to fill a vacancy, shall be in the case of … mayor, not less than one hundred fifty thousand dollars in matchable contributions comprised of sums up to one hundred seventy-five dollars per contributor including at least one thousand matchable contributions of ten dollars or more…." ⁵

The plain language of the amendment to the Act thus directs the Board to count only the first $175 of each matchable contribution towards the dollar amount threshold, with no indication that any other amount—i.e., $250—should be counted towards threshold in the case of contributions received prior to the effective date of the new law.⁶

The language of the amendment is substantially the same as that of Local Law No. 58 of 2004 which lowered the amount of a matchable contribution that could count towards the dollar amount threshold from $1,000 to $250. Following that amendment, which also became effective immediately, the Board counted only the first $250 of a matchable contribution towards the dollar amount threshold regardless of the date the contribution was received.⁷

Therefore, for regularly scheduled elections after January 1, 2008,⁸ a maximum of $175 of each matchable contribution may be counted towards the dollar amount threshold requirement.⁹

NEW YORK CITY CAMPAIGN FINANCE BOARD

¹ The threshold requirements for the 2009 elections are as follows:

²See Local Law No. 58 of 2004, § 4 (effective December 15, 2004). Prior to the Council's amendment in 2004, matchable contributions comprised of sums of up to $1,000 per contributor were counted toward threshold. Local Law No. 58 of 2004, § 2.

³ Local Law 67, § 24.

⁴See Report of the Governmental Affairs Division, Committee on Governmental Operations, on Proposed Intro No. 651-A (Dec. 18, 2007) ("December 18 committee report"), p. 2.

⁵ The language "comprised of sums of up to one hundred seventy-five dollars per contributor" is repeated for public advocate, comptroller, borough president, and member of the city council. Admin. Code § 3-703(2)(a).

⁶ Local Law 67 also amended the effective date provisions of Local Law 34 to apply the new matching formula "to all public funds claims for elections held on or after January 1, 2008, regardless of whether the claim for public funds was submitted prior to January 1, 2008." (Emphasis added.)

⁷Local Law 58 of 2004 was passed by the City Council on December 15, 2004 — substantially later in the election cycle than the current amendment.

⁸ The maximum matching claim counted toward threshold for special elections is half the regular claim, or $87.

⁹ The Board will assist campaigns in updating their reporting of previous matchable contribution claims for purposes of calculating threshold and public funds eligibility.