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MEMORANDUM

TRINITY CENTER
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NEW YORK, NEW YORK 10006
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CONFIDENTIAL ATTORNEY WORK PRODUCT


ATTORNEY-CLIENT COMMUNICATION
TO:

EMMA WOLFE; JOSHUA GOLD

FROM:

LAURENCE LAUFER

DATE:

OCTOBER 8, 2014

RE:

EARMARKING

When a contributor makes a contribution to a county committees campaign account, it


is presumably with knowledge that the contribution will be used for expenditures and transfers
for candidates supported by the county committee. See Election Law sec. 14-100(10), 14114(5) and (10). The only time a contributor would have a reasonable expectation that a
contribution made to a county committee would not be used to support candidates is when that
contribution is made to a housekeeping account. See Election Law 14-124(3).
Thus, a contributors knowledge that a county committee will use its contribution to
support candidates is not earmarking. Earmarking occurs only when the contributor gives
some kind of direction to an intermediate recipient regarding the ultimate use of the
contributors contribution. See State Board of Elections Op. 2 (1976) (addressing statutory
antecedent to Election Law 14-120). For example, if the contributor, either directly or through
his agent, places restrictions on how the intermediate recipient may use his contribution that
may be seen as earmarking.

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You have described the following circumstances: 1) individuals are soliciting maximum
contributions for various county committees as part of a coordinated effort to win a Democratic
majority in the State Senate; 2) while contributors would surely have an understanding that
their contributions to county committees in this context would be used for this coordinated
effort, representatives of the coordinated effort do not communicate with contributors as to the
candidates for whom the contributors contribution may be used; 3) no contributions are
accepted with any direction from any contributor as to their ultimate use and, in any event, no
such direction is communicated to the county committee.
You ask whether in delivering contributions that have not, in any way, been earmarked
by the contributor, representatives of the coordinated campaign (who are neither the
contributors nor their agents) may also advise the county committee as to the optimal use of the
funds that have been raised for the coordinated effort? In other words, may persons raising
funds for a coordinated effort to support Democratic Party candidates also advise Democratic
Party committees regarding the optimal use of the funds they raise?
There is no provision of the Election Law that would preclude a campaign consultant or
volunteer from both raising funds and providing advice to the funds-recipient regarding the
optimal campaign use of the funds raised. I daresay this happens in every political campaign.
The only caveats are (i) the fundraiser/consultant/volunteer should not convey any direction
from the contributor to the county committee regarding the use of that contributors
contribution, and (ii) the person providing advice to the county committee should not be an
agent of the contributor.
Finally, Election Law 14-108(2) requires recipient committees to report contributions
and loans received in the last two weeks of an election within 24 hours. See also 9 NYCRR
6200.2(g). Neither provision requires the disclosure of transfers received within 24 hours.
Thus, transfers received within the last two weeks of the general election (between October 21
and November 3) would first be disclosed on the recipient-committees 27-day post-general
election disclosure statement.

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