Groups that are planning to run independent expenditures in the New Jersey gubernatorial election this year should be aware of a new advisory opinion issued by the State’s Election Law Enforcement Commission late last week.  Under this latest guidance, groups that support or oppose New Jersey candidates may have to register as political committees and abide by contribution limits, even if their electoral activity is limited to making independent expenditures.  It all depends on whether the group’s “major purpose” is to make New Jersey-related independent expenditures.

This is the third in a series of New Jersey advisory opinions affecting entities whose electoral activity is restricted to making independent expenditures in one or more states, commonly known as “state Super PACs.”  In the first two, the Commission concluded that groups did not have to register and abide by contribution limits if they did not have a “major purpose” of influencing New Jersey elections.  In Better Education for New Jersey Kids, Inc., issued in April of 2011, there was no such “major purpose” because the group planned to engage in public education, issue advocacy, and independent expenditure activities.  In National Association of Realtors, issued in June of 2012, the group’s focus was on influencing elections by making independent expenditures, but because it intended to do this in several states the Commission did not find the Association to have a “major purpose” of influencing New Jersey elections, specifically.

The Commission’s reliance on the “major purpose” test in both of these advisory opinions allowed it to skirt a looming constitutional question: whether a state Super PAC focused primarily on influencing New Jersey elections would need to register as a political committee and abide by contribution limits.  As we’ve previously discussed, many state agencies have allowed Super PACs to raise unlimited funds in the wake of Citizens United and  But in the latest advisory opinion, the New Jersey Commission bucked this trend.

The advisory opinion request was submitted by the Fund for Jobs and Growth, an independent-expenditure-only group that planned to use the majority of its resources to support New Jersey candidates in 2013.  The Commission determined that this activity satisfied the “major purpose” test and triggered the registration and contribution limit laws.  In a substantial concluding section, the Commission went on to explain that this result might be unconstitutional under and the myriad of other court decisions that have allowed independent-expenditure-only entities to raise unlimited funds.  But it ultimately concluded that it was bound to enforce these laws until a court strikes them down or the state legislature passes new laws.

Several pending legislative proposals would amend the law to allow New Jersey Super PACs to raise unlimited funds, while still requiring registration and reporting.  But for now, the lynchpin of the legal analysis appears to be whether a group has a “major purpose” of supporting or opposing New Jersey candidates.  Independent-expenditure-only groups that meet this test and otherwise qualify as a political committee must file with the Commission and observe the state’s contribution limits.