Opinion 16-79

June 16, 2016

Digest:         A judicial candidate may not personally distribute campaign materials that, on their face, invite the public to “donate” to his/her campaign, but may permit his/her campaign committee to do so.

Rules:          22 NYCRR 100.0(Q); 100.5(A)(2)(i)-(ii); 100.5(A)(4)(c); 100.5(A)(5); Opinions 15-121; 13-126; 12-84/12-95(B)-(G); 11-65; 07-135; 01-44.

Opinion:

         A non-judge candidate for judicial office asks whether he/she may personally distribute palm cards and other campaign literature that exhort supporters “[t]o volunteer and/or donate to” the candidate by accessing the campaign committee’s website.

         A judicial candidate, i.e., a judge or non-judge who is seeking public election to judicial office, may personally participate in his/her campaign during the applicable window period (see 22 NYCRR 100.0[Q]), but may not personally solicit or accept campaign donations (see 22 NYCRR 100.5[A][2][i]; 100.5[A][5]). For example, to support his/her candidacy, a judicial candidate may appear in media advertisements; distribute pamphlets and other campaign literature; and appear and speak at his/her own gatherings, provided he/she does not personally solicit donations (see 22 NYCRR 100.5[A][2][i]-[ii]). Nevertheless, he/she may establish a committee of responsible persons to conduct campaigns on his/her behalf, and solicit and accept reasonable campaign donations and public support (see 22 NYCRR 100.5[A][5]).¹

         The Committee has previously observed that a judicial candidate’s campaign committee may maintain a campaign website and social media pages on the candidate’s behalf during his/her applicable window period (see Opinions 15-121; 13-126; 12-84/12-95[B]-[G], at question 5; 22 NYCRR 100.5[A][5]). Also, it may solicit campaign donations on its website, provided they are directed to the campaign committee (see Opinion 07-135).

         Although a judicial candidate may not personally solicit campaign contributions, neither in person nor on his/her own website or social media page, he/she may nevertheless seek non-financial support from the public (see Opinions 13-126; 11-65; 01-44). Indeed, it is ethically permissible for a judicial candidate to use an email signature block that states “Please support me in my campaign for [position]! Like us on Facebook” and provides links to the Facebook page and campaign website, where the message contains no explicit reference to financial support or contributions (see Opinion 13-126).

         Thus, if these campaign materials merely encouraged people “[t]o volunteer” for the candidate by accessing the campaign’s website, the candidate could personally distribute them. Instead, they exhort supporters “[t]o volunteer and/or donate to” the candidate. As the campaign materials’ explicit reference to donations constitutes a direct solicitation of contributions, the candidate may not personally distribute them. Plainly, members of the candidate’s campaign committee may solicit contributions and may therefore distribute such campaign materials on his/her behalf (see 22 NYCRR 100.5[A][5]). But the candidate may not personally distribute materials expressly requesting donations (see id.).

         In sum, the candidate may not personally distribute campaign materials that, on their face, invite the public to “donate” to his/her campaign, but may permit his/her campaign committee to do so.

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           ¹ This is an express exception to the rule that a candidate “shall not authorize or knowingly permit any person to do for the candidate what the candidate is prohibited from doing under this Part” (22 NYCRR 100.5[A][4][c]).