Nov 14


Kennedy has long been spending like a candidate for Higgins seat

State senator isn't up for re-election, but he's been spending like he's running for some office. Like the congressional seat Brian Higgins is vacating.
News and analysis by Geoff Kelly, Investigative Post's political reporter

State Sen. Tim Kennedy’s name wasn’t on the ballot last week, but he’s been spending campaign money this year like a man running for something.

In the first six months of this year, Kennedy’s state Senate campaign committee doled out $426,000, mostly on consultants and political contributions. 

That’s $64,000 more than Kennedy spent in the same period in 2022, the last time he was up for reelection. 

It’s twice what he spent in the same time frame in 2020, when his name was on the ballot.

And it’s nearly 10 times the amount Kennedy’s Democratic colleague, state Sen. Sean Ryan, spent in the same time period.

The reason for his largesse is clear, now that the year’s worst-kept secret in Western New York politics is in the open: Kennedy has been angling to succeed his long-time ally and political mentor, U.S. Rep. Brian Higgins.

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Higgins, who is in the middle of his 10th term, announced over the weekend he would resign his seat in February. Kennedy made his candidacy for the seat official in an interview with The Buffalo News on Tuesday.

Kennedy’s gaudy campaign account is frequently cited as a reason the South Buffalo legislator is the odds-on favorite to win the soon-to-be-vacant 26th Congressional District seat. In July, the last time Kennedy’s campaign committee filed a disclosure with the state board of elections, he had $2.1 million on hand. 

That’s twice the amount Deputy Majority Leader Michael Gianaris — himself a fundraising whiz from a cash-rich downstate district — declared in July. It also eclipses the $1.2 million in the campaign account of Senate President and Majority Leader Andrea Stewart-Cousins.  

Kennedy cannot use the money in his Senate campaign committee to succeed Higgins, however — at least not directly.

 The Federal Elections Commission has more stringent rules governing fundraising than New York State. State law allows a candidate to raise money from corporations and labor unions, for example, but federal campaign law does not. Federal law also forbids raising campaign money from federal contractors.  

As a result, the FEC prohibits the use of money a candidate has raised under the state’s more forgiving election laws from being spent in pursuit of a federal office.

Where there’s a will, however, there is a way.

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The Kennedy for Senate campaign committee reported $425,812 in expenses to the state elections board for the first six months of the year, including:

  • $111,000 to campaign consultants.
  • $57,000 to the state Democratic Party Committee.
  • $57,000 to a Washington, D.C., firm in February for polling.

Those are not expenses an elected official typically incurs unless it’s an election year.

Once Higgins steps down, Gov. Kathy Hochul will have 10 days to announce for a special election to fill the vacancy, according to the state constitution. The special election must take place no less than 70 days and no more than 80 days after Hochul’s announcement. 

If Higgins sticks to his February departure date, the special election will have to occur in mid-April. If he leaves a little earlier — in January, say — it could take place the same day as the state’s presidential primaries, which are scheduled for April 2.

For a special election, Democratic and Republican party leaders choose — or “designate” — their candidates. There are no primaries. Party committees choose who will take the party line on the ballot. 

The winner of the special election will only hold the seat through the end of the year. Candidates for a full, two-year term can run in party primaries in June for a shot at appearing on the ballot in November’s general election. Independent candidates can get on the November ballot by gathering 1,250 signatures on nominating petitions.

The 26th Congressional District has about 238,000 registered Democrats, 107,000 registered Republicans, and 136,000 voters registered to minor parties or no party at all. It’s rated a “Solid Democrat” seat — the bluest district in the state outside of the New York City area — by the Cook Political Report.

Which is to say, the Democrats’ designee for the special election is likely to win. And that Democrat has an advantage in the party primary in June and the general election in November.

Among his donations to local candidates and committees this year, Kennedy gave $5,250 to the Erie County Democratic Committee and $1,000 to the committee of Jeremy Zellner, the chair of the county party. He gave another $1,000 to the Niagara County Democratic Committee.

Kennedy also gave $20,000 to local party committees and candidates for elected office, as well as $73,000 in charitable donations, with an emphasis on groups located in South Buffalo and the city’s East Side.

That’s through mid-July. Kennedy’s next campaign finance disclosure report is due in January.

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Kennedy’s announcement this week that he’s running to succeed Higgins requires him to register his candidacy and a campaign committee with the FEC. 

When he does, federal election law requires that he declare any money already spent in support of his congressional run, even on “testing the waters” through polls, as well as the source of the money. If his state campaign committee is the source of the money, he could be forced to pay it back from his federal committee and fined by the FEC.

That rarely happens. 

Just ask former Erie County Comptroller Stefan Mychajliw, who campaigned for Congress in 2019 using funds from his state campaign committee without repercussions.

Or consider U.S. Rep. Grace Meng of the Bronx, a former member of the state Assembly who was elected to Congress in 2012. Meng spent about $222,000 from her Assembly campaign committee that year, according to filings with the state elections board.

 She used the money to pay for consultants and contributions to the elected officials and party committees whose support would grease the rails for her congressional run, just as Kennedy is doing now. She even paid for campaign staff with her Assembly campaign money, even though she wasn’t running for reelection to the Assembly.

Meng’s Assembly campaign committee remained a going concern for the next five years — taking in a little money here, dispensing a little money there — until it finally zeroed out in 2017. 

Neither the FEC nor the state board of elections took issue with her expenditures.

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