September 10, 2020
Digest: 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.
Rules: 22 NYCRR 100.0(Q); 100.5(A)(1); 100.5(A)(1)(h); 100.5(A)(2); 100.5(A)(2)(i), (iii), (v); Opinions 13-99/13-100/13-101/13-102; 13-60; 12-129(A)-(G); 12-84/12-95(B)-(G); 07-64; 06-80/06-81; 01-99.
In light of current public health concerns and related restrictions on in-person gatherings, two candidates for elective judicial office ask if they may attend virtual fund-raisers for political organizations or other candidates during their window period.1 We understand the hosts have invited paying participants to attend remotely via computer, using a videoconferencing service, so everyone can “see and be seen” on screen during the event. The service may also include a mechanism for participants to communicate with each other and/or with the host, whether via audio or a chat function.
A judge or non-judge candidate for elective judicial office may personally participate in his/her own election campaign during the applicable window period, subject to certain limitations (see 22 NYCRR 100.5[A]; 100.5[A]; see also 22 NYCRR 100.0[Q] [defining “window period”]). For example, judicial candidates may attend politically-sponsored events and may appear at such gatherings with other candidates on their slate (see 22 NYCRR 100.5[A][i], [iii]; Opinion 01-99). While a judicial candidate may not make any political contributions (22 NYCRR 100.5[A][h]), he/she may purchase two tickets to, and attend, a politically sponsored event, including a fund-raiser for a political organization or candidate, (see 22 NYCRR 100.5[A][v]; Opinion 06-80/06-81), provided the ticket price does “not exceed the proportionate cost” of the event (22 NYCRR 100.5[A][v]). A ticket price of $250 or less is deemed to be the proportionate cost of the function (id.).
The threshold question is how to interpret Section 100.5(A)(2)(v) in the context of a virtual political fund-raiser. We have noted that purchasing “tickets to politically sponsored dinners or other functions beyond what is specifically permitted by the Rules would constitute an impermissible political contribution” (Opinion 07-64). Thus, a judicial candidate “should not purchase tickets to a political function unless he/she intends and expects to use the tickets,” either personally or by sending bona fide campaign representatives on his/her behalf in case of a conflict (id.). Further, as we have noted (Opinion 12-84/12-95[B]-[G]):
judicial candidates need to attend a wide variety of events during their window period in order to connect with prospective voters, supporters, and campaign workers; to otherwise generate awareness of their qualifications and their candidacy; and to thank those who have helped their campaign efforts and/or those who voted for them.
Here, we believe attendance at a virtual fund-raiser will likewise provide exposure for the candidate’s campaign, as long as the candidate is shown on screen along with the other attendees.
It is therefore permissible for these candidates to 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. As a reminder, candidates may not purchase more than two tickets to a political function. While a general admission charge of $250 or less is permissible (see 22 NYCRR 100.5[A][v]), “if tickets … are offered at multiple prices, [the] candidate ‘must purchase those with the lowest price’” (Opinion 13-60, quoting Opinion 12-129(A)-(G) n 3).2
1 It appears that hosting and attending in-person fund-raisers has become significantly more difficult in light of social distancing guidelines and other measures adopted in response to the coronavirus pandemic. Indeed, many formerly in-person events are now held remotely using videoconferencing services (see e.g. https://www.wired.com/story/6-popular-video-conferencing-tools-compared-zoom-skype-houseparty/).
2 Since the inquiring candidates have not described the price structure or ticketing for these virtual political fund-raisers, we also note two common issues we have previously addressed. If the host is not selling tickets, but provides a list of “suggested donation” levels, we have said “a judicial candidate may treat these ‘suggested donation’ levels as ticket prices and may, therefore, pay the lowest priced suggested donation if it is $250 or less” (Opinion 13-99/13-100/13-101/13-102). Conversely, if it is a pure pay-what-you-will fund-raiser, where attendees are expected to pay admission, but “no tickets are being sold and the host has not otherwise set any specific price for admission or any suggested levels of donation or sponsorship,” the candidate may pay up to $250 to attend (see id.).