New Jersey counties are pressing state election regulators for clearer rules governing what elected officials can say to constituents in the 90 days before an election, warning that the state’s campaign-finance regulations could turn routine government communications into reportable political contributions.
The New Jersey Association of Counties has asked the Election Law Enforcement Commission to clarify whether press releases, newsletters, social media posts, public meeting notices, emergency alerts, and other taxpayer-funded communications can trigger campaign-finance reporting requirements when they feature an incumbent on the ballot.
In a September 28 letter to ELEC Executive Director Amanda Haines, NJAC President James R. Kern III, a Warren County commissioner, and Executive Director John Donnadio said counties support campaign finance transparency and the separation of government and campaign activity, but need objective standards they can apply before communicating with the public.
“County government cannot suspend essential public communication during every election season,” Kern and Donnadio said.
The request comes less than two months after ELEC warned candidates that some communications distributed by their government offices rather than their campaigns could be subject to campaign finance disclosure requirements.
The association also asked for a meeting with ELEC and urged the commission to act quickly, with the 90 days already underway and the November election approaching.
Under ELEC regulations, avoiding explicit campaign language such as “vote,” “elect,” or “support” does not necessarily keep an official government communication outside the campaign finance system.
A communication without an explicit appeal for votes can become reportable if four conditions are met: it is distributed within 90 days of an election; its audience is substantially composed of people eligible to vote for the candidate; it refers to the candidate’s governmental or political objectives or achievements; and it is produced or distributed with the candidate’s cooperation, consent, consultation or involvement. That means a taxpayer-financed newsletter, advertisement, mailer or digital communication touting an incumbent’s record could potentially become regulated political activity.
The communication isn’t necessarily prohibited. But its cost could be required to be reported as political activity and, depending on who paid for it and the candidate’s involvement, treated as an in-kind contribution subject to campaign contribution limits. Now counties want ELEC to explain precisely where that line is.
NJAC noted that county governments routinely communicate with residents about budgets, programs, infrastructure projects, elections, public safety, emergencies and other official business. County commissioners provide updates about government decisions; county clerks disseminate election information; sheriffs issue public safety information.
“These communications are not campaign activities,” Kern and Donnadio told ELEC. “They are fundamental responsibilities of open, accessible, and accountable government.”
The association said the issue has become more important as local news coverage has declined, leaving government agencies in some communities as one of the few sources of timely information about public decisions and services.
Without clearer standards, NJAC argued, the regulation could unintentionally discourage legitimate public communications and “diminish transparency rather than strengthen it.”
Among the most basic questions is whether simply putting an elected official in a government communication can trigger the rule.
NJAC wants to know whether using an official’s name, title, photograph or quotation — or noting the official’s attendance at an event — could cause an otherwise routine communication to be considered a discussion of the incumbent’s objectives or achievements.
It also wants ELEC to distinguish between promoting an official and identifying one because that person took an action, cast a vote, participated in a public meeting, or is responsible for a particular government service or emergency response.
The association raised similar questions about what constitutes candidate involvement.
ELEC’s rule looks at whether a communication was produced or distributed with a candidate’s “cooperation, consent, consultation, or involvement.”
Counties want to know whether that includes an elected official checking a government communication for factual accuracy, participating in the event being described, receiving a routine draft, or merely supervising the communications office that produced it.
The growth of social media and digital government communications creates another complication.
The 90-day rule applies when an audience is substantially composed of people eligible to vote for the candidate. But a county website, Facebook page, livestream, press release, or social media post can be seen by residents inside and outside the official’s constituency.
NJAC is asking ELEC how counties are supposed to determine the composition of those audiences and whether there is a minimum distribution threshold below which the rule does not apply.
Unlike congressional rules governing some mass communications, New Jersey’s regulation does not establish a minimum number of recipients before the disclosure provision can be triggered.
There are financial questions as well.
If an official communication qualifies as an in-kind contribution, NJAC wants to know how counties should calculate their fair market value. The association specifically asked about salaried employee time, outside vendors, printing and postage, photography and video, existing equipment, overhead, website hosting, email platforms, and unpaid organic social media distribution.
It also raised a potentially thornier question: what happens when the government entity paying for the communication is itself restricted from making campaign contributions?
NJAC asked whether a communication can be reportable without constituting a prohibited contribution, how contribution limits would apply to an incumbent candidate, and what corrective action would be available if ELEC determines only after a communication has been distributed that it should have been reported.
The association also wants greater clarity on existing exceptions for individualized constituent responses, legitimate public emergencies, and notices about government deadlines requiring action before an election.
It is also asking ELEC to establish a prospective review process, model examples, or a safe harbor for counties and officials that rely in good faith on written ELEC guidance or advice from the commission’s compliance staff and government attorneys.
ELEC previously urged candidates and government offices with questions about planned communications to contact its compliance staff before distributing them. The commission can impose civil penalties of up to $11,600 for a first reporting violation and $24,000 for subsequent violations.
NJAC wants something broader than case-by-case advice: consolidated written guidance containing examples of permissible, reportable, and prohibited communications across print, email, websites, video, livestreams, and social media.
“A uniform statewide standard would promote transparency, reduce inconsistent advice among counties, and discourage complaints based on uncertainty rather than genuine campaign activity,” NJAC said.