OPINION
Mayor Steve Fulop’s bold and unconventional moves to declare his 2025 candidacy for Governor of New Jersey so early, and to announce that he will not seek an unprecedented fourth term as Mayor of Jersey City, has given him an unexpected advantage that is upsetting some would-be, undeclared candidates.
On April 18, 2023, the New Jersey Election Law Enforcement Commission (ELEC) published an advisory opinion that limits spending from candidates who are running for governor and another public office at the same time.
Under ELEC’s opinion, coordinated expenditures from a 2024 federal campaign with reach beyond the election district will apply to expenditure limits on a 2025 gubernatorial campaign, which could pose problems for Representatives Josh Gottheimer and Mikie Sherrill, both of whom presumably will be running for re-election in 2024.
Should Gottheimer and/or Sherrill contemplate a gubernatorial campaign before the 2024 election cycle ends, the spending for their Congressional campaigns could be subject to the expenditure limits for the NJ Governor’s race. Since there are spending limits for gubernatorial candidates who accept matching funds, the Congressional candidates may be forced to choose between re-election to the office they have in 2024 or the chance to defeat Fulop as Governor of NJ in 2025.
Some vocal critics of the ELEC opinion have presented weak and muddled arguments that do more to support the ELEC opinion than to identify its loopholes. They argue that, by the ELEC logic, Fulop’s Jersey City mayoral account should count against matching funds.
Surely, if Fulop took his mayoral account and advertised well outside of his Jersey City voting electorate (such as self-promotion in Monmouth County) then he is clearly looking to circumvent the law, and the money he spends would count against his gubernatorial matching funds. That’s the point! This is exactly the case for a congressional candidate using their congressional fund outside their district.
It does not matter whether a candidate for one office, such as Congress in 2024, does not announce their candidacy for Governor in 2025. As ELEC opined in 1983, “the expenditure limit provision set forth in N.J.S.A. 19:44A-7, which applies only to gubernatorial candidates participating in partial public funding of their candidacies would incorporate ‘testing the waters’ expenditures. Such expenditures would be subject to the limitations of N.J.S.A. 19:44A-7 as if made after the establishment of a candidacy.”
ELEC’s position is also memorialized in its Compliance Manual, which states: “Individuals who engage in ‘pre-candidacy’ activity, commonly known as ‘testing the waters,’ are defined by law as candidates.” The Manual further states: “Funds or other benefits received to determine whether or not an individual should become a candidate (‘testing the waters’) are contributions.” The Federal Election Commission (FEC) similarly advises that funds raised to test the waters are subject to the Federal Election Campaign Act’s (the Act) contribution limits and source prohibitions.
As sure evidence that the 2025 gubernatorial election is already at center stage in the NJ political community, some Fulop opponents have already taken aim at an issue advocacy superPAC that supports ideas shared by Fulop. Those critics certainly have reason to fear a Federal superPAC that already has a rumored $5 million cash on hand. However, a superPAC that is not run by Fulop and has no direct oversight from Fulop versus a congressional account or other candidate account controlled by a direct candidate is totally “apples and oranges.”
Issues involving campaign finance deserve everyone’s attention and debate. Given that reasonable minds can differ, everyone should read the opinion and reach their own conclusion. Of course, Josh Gottheimer, Mikie Sherrill and any other prospective gubernatorial candidate in 2025 should seek legal counsel and not rely on this or any other column written by lawyers.
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