Opinion: Campaign finance restrictions could hamper mayor’s bid for N.J. governor

I have enormous respect for my friend and professional colleague, Donald Scarinci. I know that Mr. Scarinci supports the Mayor of Jersey City—and announced gubernatorial candidate—Steve Fulop. I, too, admire Mayor Fulop. Hence, Mr. Scarinci’s piece on this site last week (6/12/23) got my attention.

After an analysis of his claims, however, Mr. Scarinci’s ultimate conclusion is wrong. The New Jersey campaign finance restrictions he discusses apply to declared candidates, not would-be candidates, for governor.

First, Mr. Scarinci quotes the law: “Under the New Jersey Campaign Contributions and Expenditures Reporting Act, gubernatorial candidates are subject to contribution limits. For instance, under N.J.S.A. 19:44A-29, a gubernatorial candidate is currently prohibited from receiving a contribution in excess of $4,900 in the aggregate from any contributor. To participate in New Jersey’s matching funds program, gubernatorial candidates can only spend $7.3 million before the primary and $15.6 for the general election.”

Consequently, when a candidate has announced and filed the paperwork with ELEC for governor, he or she is subject to contribution and spending campaign limits. For instance, as soon as Mayor Fulop formally declared and filed his candidacy for governor on April 11, 2023 — becoming the only declared candidate in the 2025 race — he was then subject to campaign contribution limits and spending limits against the state’s matching funds program. See N.J.A.C. 19:25-15.29. 

Additionally, as Mr. Scarinci summarizes, according to ELEC (and New Jersey election law statutes, including N.J.A.C. 19:25-10.4(a), 19:25-10.10(a), and 19:25-10.11(b)), all formally declared gubernatorial candidates, including Mayor Fulop, are precluded from coordinating strategy with or directing any outside entity — take, for instance, Coalition for Progress, which, according to the NewJerseyGlobe, is a “super PAC allied with Fulop.” (4/11/23). Any communication made in coordination with a declared candidate such as Mayor Fulop would count as a contribution subject to campaign limits and to the expenditure cap under the state’s matching-funds program for gubernatorial candidates.

Now, however, for where Mr. Scarinci jumps to the wrong conclusion: He attributes to ELEC the position that limits apply to someone considering a run for governor — not just those who formally declare. There is neither a legal nor practical basis for this position. Mr. Scarinci writes, “If [candidates] spend money and THEN declare, it will still count against matching funds.” Based on this logic, when Mayor Fulop launched his allied Super PAC in 2015—or, at least more recently when he started eying the 2025 governor’s race—every penny Mayor Fulop raised and spent after that point would count toward the 2025 ELEC gubernatorial contribution and spending cap limits. In particular, that would include every penny Mayor Fulop raised or spent running for reelection in Jersey City last year. After all, Mayor Fulop was considering a gubernatorial run at that point and declared shortly after, making the mayoral reelection expenditures part of his gubernatorial bid, under Mr. Scarinci’s view of the law. We know a gubernatorial bid has been on the mayor’s mind, too, because it was New Jersey resident David Maradie who solicited an advisory opinion from ELEC on these questions, the advisory opinion that Mr. Scarinci relies upon to assert that Members of Congress will be significantly impacted by spending limits and will lose out on matching funds. Mr. Maradie solicited the advisory opinion by stating that he (Mr. Maradie) intends to run for U.S. Senate in 2024 and Governor in 2025. This is as implausible as it sounds; instead, Mr. Maradie appears to be a friend and stalking horse for Mayor Fulop, according to the NewJerseyGlobe (4/18/23).

Based on the law, however, Mayor Fulop only became a candidate for Governor in 2023 — and his 2025 spending, contribution, and caps only kicked in — when he formally registered his candidacy with ELEC on April 11, 2023. Under New Jersey law, just considering a run for an office down the road does not count against the limits. Put another way, without a declared gubernatorial campaign, it is impossible for coordinated activity to occur. There is simply no gubernatorial campaign entity with which to coordinate.

In fact, Mr. Scarinci implicitly backed the better argument when he cited the recent ELEC Advisory Opinion solicited by Mr. Maradie, saying “[T]he Advisory Opinion states that candidates for Congress or other offices can’t also be declared and run for governor or it will count against their matching funds.” Coordination necessary to constitute a contribution requires more than just thought. If the communication is not coordinated with a declared candidate for governor, it has no bearing on any contribution or expenditure limits that apply under New Jersey law. “Declared” is the operative word in that sentence. It requires an announced candidacy.

Finally, the point: Right now, Mayor Fulop is the only registered and declared candidate in the Governor’s race that is two-and-a-half years away and thus he is the only one subject to the campaign finance restrictions.

Henry Klingeman is a trial attorney and former federal prosecutor.