DEBATING DEBATES: A DISCUSSION OF THE NEW YORK CITY CAMPAIGN FINANCE BOARD'S DEBATE ELIGIBILITY REQUIREMENTS FOR CITYWIDE ELECTIONS.

• Author: Gallagher, Joseph

Introduction 695 I. The Campaign Finance Board 697 A. Origins of the CFB 697 B. Growth of the Program and Small Donor Democracy 699 C. CFB Debate Program 702 1. Origins of the. Mandatory Debates and the General Debate Requirements 703 2. Eligibility Requirements 705 3. 2017 and 2021 Debate Requirements 705 a. 2017 Mayoral Debate Requirements 706 b. 2021 Mayoral Debate Requirements 708 i. Democratic Primary Debate 709 ii. General Election Requirements 710 II. Debate Eligibility Legal Landscape 711 A. First Amendment Analysis 712 B. Challenges to the CFB's Debate Requirement 716 III. Looking Ahead 718 Conclusion 721 INTRODUCTION

The Campaign Finance Board (the "CFB" or the "Board") is a non-partisan, independent agency in New York City (or the "City") that administers the Campaign Finance Program (the "Program"). The Program uses public funds to match and multiply contributions to candidates running for office in the City. The Program currently matches eligible donations from New York City residents at a rate of $8 to $1, up to certain caps, meaning a $10 contribution could be matched with $80 of public funds for a total of $90 to the candidate's campaign. A primary goal of the Program is to promote small donor democracy by amplifying the voice of New Yorkers, while also limiting the influence of wealthy benefactors and special interest groups. (1)

The Program grew drastically in the 2021 election cycle due to, inter alia, an increase in the matching public funds ratio and a high number of open seats. (2) These factors led to a record number of participants running for office and a record number of public funds dispensed to candidates. (3) While the Program has many benefits, its growth also poses fresh challenges to another key responsibility of the CFB--supervising the debates for the offices of Mayor, Public Advocate, and Comptroller. The CFB, in conjunction with debate sponsors, administers multiple debates in each election cycle and determines debate eligibility criteria for each citywide office. (4)

Selecting appropriate debate eligibility criteria is a difficult process that involves several competing interests. On one hand, the CFB seeks to foster a robust debate that includes all viable candidates, including those that heavily rely on small donations. On the other hand, if a debate is too inclusive, it may become unwieldy and uninformative. In the past, the CFB and its sponsors have adopted debate eligibility criteria that consider a candidate's aggregate raising and spending, as well as their polling thresholds. (5) However, relying on these metrics alone may lead to outcomes contrary to the CFB's mission of promoting small donor democracy.

This Article explores these tensions in light of the rapid growth of the Program and reflects on how the CFB and its debate sponsors have addressed--and may be able to address--these various goals. Part I of this Article provides background on the CFB and the debate requirements of the Campaign Finance Act. (6) It also summarizes the CFB's debate eligibility requirements in recent election cycles. Part II of this Article then provides a summary of First Amendment jurisprudence with a specific focus on a government entity's ability to regulate debates. It then highlights and discusses past challenges to the CFB's debate requirements. (7) Part III of this Article further reflects on how the issue of debate inclusivity could be approached in light of the CFB's missions. (8) It does so with an eye towards determining how debate structures can be adapted. By way of example, in the 2021 election cycle, the CFB and its sponsors included a debate access pathway that measured a campaign's small donors. Although this pathway more closely connects the debate requirements with the agency's overarching goals, it may not solve the issue of an overcrowded debate stage. Ultimately, these issues present no easy solutions and the CFB will need to continue to analyze debate pathways that both support its mission and foster informative debates.

1. THE CAMPAIGN FINANCE BOARD

   1. Origins of the CFB

      In 1986, a series of political scandals erupted in New York City that eroded the voters's confidence in public officials. (9) Most notably, the public learned that several of the City's officials, including Queens Borough President Donald Manes, had been paid and/or promised millions of dollars in bribes from parties seeking contracts with the City government. (10) Although the City had rebounded from municipal scandals in the past, the size of this scheme, and the fact it led to Manes taking his own life, shocked the City at large. (11) While many of the perpetrators were sent to prison, the stench of rotten politics continued to pervade the air. It became evidently clear that landmark legislation would be required to combat the tide of mistrust. (12)

      In February 1988, after years of research primarily stemming from state-city commissions created in response to the scandals, the city enacted the Campaign Finance Act (the "Act"). (13) The Act expanded campaign finance disclosure requirements, limited contributions, and created the country's largest public matching funds program (the "Program"). (14) Then-Mayor Ed Koch described the Act as "the most fundamental reform of the political process ever enacted by the city" and further noted that "[the] legislation... will achieve a more equitable and open system of financing candidates who seek elective office in New York City." (15) Months later, City voters overwhelmingly ratified amendments to the City Charter, which established the Campaign Finance Board as an independent, non-partisan agency tasked with implementing and overseeing the Act. (16)

      The Act's primary purpose was to restrict the influence of private money in politics and to bring greater accountability to the political system. (17) In its initial form, the Program provided, inter alia, that private contributions from City residents could be matched at a rate of $1 to $1, up to the first $1,000 per contributor. (18)

   2. Growth of the Program and Small Donor Democracy

      Over the past 30 years, amendments to the Act have increased the powers of the Board and further expanded the impact of small donors. (19) As a result of amendments proposed by a Charter Revision Commission and adopted by voters in the 2018 election, the Program currently matches eligible donations $8 to $1 up to monetary caps that vary based on public office. (20) To qualify for public funds, candidates must become participants in the Program and demonstrate a degree of local public support by reaching a two-part funding threshold. (21) Program participants must abide by expenditure limits and strict contribution limits, file detailed disclosure statements, and respond to the Board's requests for documentation to demonstrate the campaign's compliance with the Program. (22) Candidates who do not participate in the Program ("nonparticipants") are not subject to the full restrictions contained in the Act. (23)

      The Program has been lauded as a model for promoting transparent, small donor democracy--a system whereby small donations have a material impact on elections and thereby incentivize candidates to be closely engaged with and accountable to constituents--in an era where unregulated big money dominates campaign finance. (24) For example, the Program encourages City residents to donate to candidates in their district by multiplying the effect of that donation through public funds. (25) Further, by providing matching funds, the Program reduces the need for a candidate to raise large sums of money from wealthy benefactors, thereby incentivizing candidates to directly engage with their constituents. (26) Research also shows that women and people of color rely on small donors more often than their male or white counterparts. (27) Thus, by amplifying the power of small donations, the Program assists historically underrepresented candidates in running competitive campaigns. (28) All of these factors are intended to support a democratic system that is more closely connected to, and representative of, all New Yorkers.

      Small donor democracy has become prominent in New York City elections, a substantial accomplishment of the Program. In the 2021 primary elections, 94% of candidates participated in the Program, and 84.6% of those candidates's primary election contributions were "small contributions." (29) In the general election, 81% of candidates participated in the Program and 79% of their general election contributions constituted "small contributions." (30) Furthermore, New York City residents represented 71.6% of primary election individual contributions and 70.1% of general election individual contributions. (31)

      The Program has also grown dramatically in recent years. (32) In the 2021 primary election cycle, the Program dispensed a record $109.9 million in public funds to 280 candidates (compared to $32.2 million in 2013 and $9.4 million in 2017), 62.8% of whom were first-time public funds recipients. (33) In the 2021 general election, the Program dispensed approximately $17 million to 77 candidates (compared to $6.1 million in 2013 and $8.2 million in 2017), 49.1% of which were first time public funds recipients. (34) Much of this growth can be attributed to an increase in the matching public funds ratio from $6 to $1 to $8 to $1 and the fact that many elected officials were term limited. (35)

      The results of the 2021 elections were historic. New Yorkers elected the most diverse City Council in the City's history. (36) In particular, "women, who are 52 percent of residents,... increase[d] their representation on the city council from 27 percent now to 61 percent.... People of color, who are 68 percent of residents,... increase[d] their representation on the council from 51 percent to 67 percent." (37) These momentous results have been attributed, in part, to the reach of the Program during these elections. (38) In...