New Jersey elected officials seeking re-election could be required to report newsletters, advertisements, social media posts and other communications issued by their government offices as campaign spending — and potentially as in-kind contributions subject to contribution limits –under a 90-day rule that took effect Wednesday.
The New Jersey Election Law Enforcement Commission issued the warning as the state entered the final 90 days before the November 3 general election, a period when otherwise routine communications highlighting an incumbent’s governmental record can cross the line into regulated political activity.
The rule means that avoiding words like “vote,” “elect” or “support” does not necessarily shield an official communication from campaign finance reporting requirements.
The rule could open the door to a barrage of complaints from challengers, who are likely to argue that officeholders are using taxpayer-funded communications and the advantages of incumbency to promote themselves in an election year. Those disputes could leave ELEC to decide where legitimate government outreach ends and campaign activity begins.
“As candidates gear up for fall elections, they must remember that certain communications, including those distributed by their elected offices instead of their campaigns, may have to be disclosed in ELEC reports,” the commission said.
State campaign finance regulations define two categories of political communications.
The first includes advertisements, written statements, internet communications and other printed or broadcast material that explicitly calls for the election or defeat of a candidate and is distributed to an audience substantially composed of people eligible to vote in that candidate’s race.
The regulation does not limit its reach to traditional social media posts. Its platform-neutral language covers statements, communications and advertisements delivered or accessed electronically, including paid advertisements, videos, livestreams, online newsletters, official websites, mass emails and other internet content. Whether a particular item is reportable depends on its content, timing, audience and the candidate’s involvement—not the platform used to distribute it.
Communications containing phrases such as “vote for,” “vote against,” “elect,” “support,” “defeat” or “reject” are reportable political communications regardless of when they are distributed.
The second category, commonly known as the 90-day rule, captures communications that do not explicitly ask voters to support or oppose anyone.
To be reportable under that provision, a communication must meet four conditions: it must be distributed within 90 days of an election; reach an audience substantially composed of people eligible to vote for the candidate; refer to the candidate’s governmental or political objectives or achievements; and be produced or distributed with the candidate’s cooperation, consent, consultation or involvement.
That could include a taxpayer-financed newsletter, mailer, advertisement or digital communication from an incumbent’s government office if it promotes the official’s accomplishments and is circulated among voters in the jurisdiction where the incumbent is seeking re-election.
The rule does not automatically prohibit those communications. Instead, it can require their cost to be disclosed as political activity and counted toward contribution limits.
New Jersey’s regulation is more sweeping in some respects than the election-period restrictions governing members of Congress. ELEC’s rule can capture printed, broadcast and digital communications without establishing a minimum number of recipients, while the House prohibition generally applies to unsolicited communications with substantially identical content sent to 500 or more people.
The state’s 90-day window also begins 30 days earlier than the Senate’s 60-day moratorium, which covers mass mailings, unsolicited mass emails and certain uses of official social media, internet resources and Senate recording facilities.
But the federal rules are tougher in what they prohibit. House members generally may not use official funds for unsolicited mass communications during their 90-day blackout period, and senators are barred from specified mass communications during their 60-day moratorium. ELEC does not impose an automatic ban. It requires qualifying communications to be disclosed and, depending on who paid for them and whether they were coordinated with the candidate, may count their value as an in-kind campaign contribution.
The House and Senate also maintain year-round prohibitions against using official resources for overt campaign activity. As a result, ELEC’s rule is broader as a disclosure trigger in some areas, but it would be inaccurate to describe New Jersey’s overall restrictions as uniformly stronger than those governing Congress.
Under ELEC’s regulations, a candidate committee that pays for a political communication must report it as an expenditure. If another person or entity pays for a communication produced or circulated with the candidate’s consent or cooperation, the candidate must disclose it as a contribution of goods or services.
An in-kind contribution is generally valued at the fair market value of the goods provided. Paid services are valued according to the salary, compensation, or other consideration paid for the work.
ELEC’s coordinated-communications rules go one step further, stating that a coordinated expenditure qualifying as a political communication is a contribution to the benefiting candidate or committee and is subject to the state’s contribution limits.
The rules give ELEC a basis to examine not merely the words used in an official communication, but its timing, intended audience, content, financing and the candidate’s role in producing it.
Several exceptions apply.
An incumbent seeking re-election does not have to report a written response sent directly to a constituent who first contacted the office. The rule also exempts communications whose sole and limited purpose is to notify residents about governmental deadlines requiring them to apply or act before the election, or to provide facts about a legitimate public emergency.
An unopposed candidate in a primary election is also exempt from the 90-day provision. That exception does not extend to the November general election warning issued Wednesday.
ELEC’s authority comes from the state Campaign Contributions and Expenditures Reporting Act, which directs the commission to enforce New Jersey’s campaign finance laws, adopt regulations and reporting forms, identify candidates and committees that failed to file reports or submitted defective reports, and determine whether spending limits were exceeded.
The commission may investigate alleged violations, hold public hearings and subpoena documents and witnesses. It may also bring a civil action to compel compliance, stop a violation or recover a penalty, and it can refer potentially criminal matters to the attorney general or a county prosecutor.
ELEC regulations allow penalties of up to $11,600 for a first reporting violation and up to $24,000 for a second or subsequent offense. The commission can also require candidates to correct incomplete or inaccurate reports.
The 90-day rule does not mean every appearance by an officeholder or every mention of an incumbent’s record becomes campaign activity. All four elements must be present when a communication lacks an explicit electoral appeal.
But beginning Wednesday, candidates cannot avoid disclosure merely by placing an official seal on a communication, distributing it through a government office or omitting traditional campaign language.
Political communications covered by the rule must appear on the candidate’s election-cycle reports. ELEC urged candidates and government offices uncertain about a planned communication to contact its compliance staff before distributing it.
Elected officials on the ballot this year should also consult with their municipal attorneys and clerks for guidance.