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Will FEC decide presidential eligibility?

FECLogoA Guyana-born naturalized US Citizen  has asked the Federal Election Commission for permission to start raising funds in a run for US President. While we know that the FEC does not vet candidates’ qualifications for running, in this case an advisory opinion is being asked about fundraising, something within the purview of the FEC, and the FEC is taking the question seriously, according to the Capitol Hill newspaper, The Roll Call. The FEC could release their opinion within 60 days.

This is an interesting turn of affairs because in the case of Berg v. Obama et al, the FEC argued that “[the FEC] has no oversight over the Constitution’s Presidential Qualifications Clause.”

The Roll Call explains the basis of Abdul Hassan’s claim:

He also has a novel legal argument for his issue before the FEC. “The Fif[teen]th Amendment prohibits national origin discrimination, which is the very thing that the natural-born requirement does,” he said. He also said he has other 14th Amendment arguments that could be persuasive.

While I would not expect any decision from the FEC to have a direct bearing on the claims that Barack Obama is not eligible, such a decision could provide a precedent for a future  lawsuit against the FEC challenging Obama’s fundraising (provided someone with standing could be found willing to bring it – how about Michele Bachmann). Hassan previously tried a lawsuit, but was found by the appeals court to lack standing.

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17 Responses to Will FEC decide presidential eligibility?

  1. avatar
    J. Potter July 16, 2011 at 10:16 am #

    The Roll Call story doesn’t explicitly say Hr. Hassan is a naturalized citizen. I’ll assume that he is, otherwise there wouldn’t be a story. The point of his request is either to challenge the NBC requirement itself (the FEC can’t amend the Constitution … ), and failing that, to gain approval to raise funds as in ineligible candidate?

  2. avatar
    Dr. Conspiracy July 16, 2011 at 11:01 am #

    I will add that I don’t see a 5th amendment application. It guarantees every person due process, but there are many instances where law discriminates between persons, for example persons below a certain age cannot vote. I cannot imagine the FEC giving an advisory opinion that he’s eligible to be president; however, their saying that he is not establishes some kind of a precedent.

  3. avatar
    misha July 16, 2011 at 11:09 am #

    George Romney was born in Mexico to a polygamist family, all of whom were American citizens. He ran for president in 1968, and was defeated in the primaries.

    He had his revenge: chairman and CEO of American Motors Corporation.

    A recent poll by Hagerty Insurance asked enthusiasts to name the worst car design of all time: the AMC Pacer.

    http://www.time.com/time/specials/2007/article/0,28804,1658545_1658533_1658042,00.html

  4. avatar
    Tes July 16, 2011 at 5:17 pm #

    J. Potter:
    The Roll Call story doesn’t explicitly say Hr. Hassan is a naturalized citizen. …”

    His letter to FEC expressly states that: http://saos.nictusa.com/aodocs/1177546.pdf It also expressly states the questions he’s seeking opinions on.
    I don’t really think his request raises any “constitutional questions” — He’s merely seeking an opinion on interpretation of the FECA as it applies to naturalized citizens.

    I do expect that he’ll take the letter he gets from the FEC (which I expect to say that he does not qualify for matching funds, etc.) straight to court and make his constitutional arguments there. That’s where the constitutional issues will be addressed, if anywhere (imho).

  5. avatar
    Expelliarmus July 16, 2011 at 5:41 pm #

    It seems to me that the FEC has jurisdiction only over fundraising. The constitution sets eligibility requirements for someone take office after being elected President, but it does not put any limitations on who may run for the office.

    It is a well-established tradition in the US that many individuals who have no prospects whatsoever of winning an election will run, because of the platform that it gives them or their parties. In every election we have candidates from minor third parties (example, Green Party), fringe or token candidates in major parties (example, Dennis Kucinich), and comedians (example, Stephen Colbert) who run and even participate in debates, but have no prospects of winning the nomination of a major party or carrying the vote of their state. But the existence of such candidates can have major impact on the parties and even on the outcome of an election, and certainly on the framing of issues for debate. For example, Ross Perot did not carry a single state in 1992, but his 19% share of the popular vote was enough to allow a plurality candidate to win the election with 43% of the vote.

    So I think the FEC concerns would fall under the 1st amendment, and clearly “eligibilty” should not be a factor.

    I’d also point out that if there is any legal basis under the 14th amendment to challenge the “natural born citizen” requirement (and I think that there is a decent argument to be made), the challenger would first need standing. The obvious way to get standing would be to win the election, at least in one state, so that there would be a legitimate case or controversy over the allocation of electoral votes. So the very fact that the person is apparently ineligible under the Constitution is a good reason for the FEC to approve the fundraising activities of their committee.

  6. avatar
    Dr. Conspiracy July 16, 2011 at 6:36 pm #

    When it comes to matching funds, the statute uses the phrase “eligible candidate; ” however the phrase “eligible” does not seem to mean “eligible to serve.” If the birthers get hold of this, they may make the mistake of what “eligible” means.

    Expelliarmus: So the very fact that the person is apparently ineligible under the Constitution is a good reason for the FEC to approve the fundraising activities of their committee.

  7. avatar
    US Citizen July 16, 2011 at 10:05 pm #

    Wouldn’t this also suggest that a candidate could be less than 35, a dog or anything else not explicitly stated?

    It doesn’t make good financial sense for a government to spend funds on candidates that have no chance in winning even if it is a government by and for the people.
    The end goal is to place a leader in power.

    So in my opinion, I think it should be passed that any candidate can obtain matching funds, but that all advertising for that candidate must include a disclaimer stating they have no legal chance to serve.

  8. avatar
    Scientist July 16, 2011 at 10:38 pm #

    I don’t think it is the place of the FEC to rule on eligibiity. Nor will the Supreme Court issue Mr Hassan an advisory opinion any more than they will tell any of us whether a proposed action on our part is legal or illegal. You have to commit the act, then someone has to prosecute or sue you or deny you and then you can raise a defense and appeal all the way to the Supreme Court if you wish. So, the only way a ruling would ever come is if a naturalized citizen ran and won. Even then, I would place the odds that the Supreme Court would hear a case at <50%. More likely they would consider it a matter for Congress.

    For what it's worth I see some merit in Mr Hassan's argument that natural born and naturalized citizens are entitled to equal protection under the 14th Amendment and that should include the right to run for President. It may not have been the intent of the 14th to change Presidential eligibility, but the words count for more than the intent,

  9. avatar
    The Magic M July 17, 2011 at 5:26 am #

    > It may not have been the intent of the 14th to change Presidential eligibility, but the words count for more than the intent,

    Hasn’t the argument always been that the 14th was only declaratory of what was already considered existing law?
    I think it would be opening Pandora’s box to claim the 14th “implicitly” supercedes parts of the Constitution it does not explicitly change.
    If it had been the intention to remove the “natural born” requirement, why didn’t the 14th do so explicitly?
    Lawmakers usually hate ambiguities and uncertainties. Contradictory laws might even be void. So why would the writers of the 14th have wanted to leave it to the courts to decide whether it is “above” or “below” the natural born requirement? (And all other presidential qualifications as well.)

    Besides, I don’t really see any 5th or 14th argument that is really convincing.
    The 5th does not talk about equal protection. The 14th, in its relevant part, talks about the *States* not being allowed to abridge certain rights, not about the Constitution or Congress.

  10. avatar
    G July 17, 2011 at 6:15 pm #

    I concur with your analysis and opinions on these issues.

    The Magic M: > It may not have been the intent of the 14th to change Presidential eligibility, but the words count for more than the intent,Hasn’t the argument always been that the 14th was only declaratory of what was already considered existing law?I think it would be opening Pandora’s box to claim the 14th “implicitly” supercedes parts of the Constitution it does not explicitly change.If it had been the intention to remove the “natural born” requirement, why didn’t the 14th do so explicitly?Lawmakers usually hate ambiguities and uncertainties. Contradictory laws might even be void. So why would the writers of the 14th have wanted to leave it to the courts to decide whether it is “above” or “below” the natural born requirement? (And all other presidential qualifications as well.)Besides, I don’t really see any 5th or 14th argument that is really convincing.The 5th does not talk about equal protection. The 14th, in its relevant part, talks about the *States* not being allowed to abridge certain rights, not about the Constitution or Congress.

  11. avatar
    Scientist July 18, 2011 at 7:00 am #

    The Magic M: Hasn’t the argument always been that the 14th was only declaratory of what was already considered existing law?

    Mostly it is, but in this regard it may go beyond the pre-existiing law, which amendments are entitled to do. The opinions of the authors are interesting, but do not trump the actual words.

    The Magic M: I think it would be opening Pandora’s box to claim the 14th “implicitly” supercedes parts of the Constitution it does not explicitly change

    If you look at the amendments, they generally do not specifically cite the text that they change, other than the 21st which speciifically repeals the 18th (Prohibition). In most cases, amendments simply say from this point forward, here is what is the law.

    The Magic M: If it had been the intention to remove the “natural born” requirement, why didn’t the 14th do so explicitly?

    I don’t know for certain what the intent was, but i do know what the words say.. It is the words that were voted on and approved and they are what matters. A better question is why didn’t they specifically exclude presidential eligibility from the granting of equal protection to born and naturalized citizens?

    The Magic M: Lawmakers usually hate ambiguities and uncertainties. Contradictory laws might even be void. So why would the writers of the 14th have wanted to leave it to the courts to decide whether it is “above” or “below” the natural born requirement? (And all other presidential qualifications as well.)

    Clauses in the Constitution sometimes contradict other clauses (for example Congress’ power over interstate commerce vs state’s autonomy). Where an amendment conflicts with something that pre-dates it, the amendment controls. If this were not the case, one could never really amend the origiinal document.

    The Magic M: Besides, I don’t really see any 5th or 14th argument that is really convincing.
    The 5th does not talk about equal protection. The 14th, in its relevant part, talks about the *States* not being allowed to abridge certain rights, not about the Constitution or Congress.

    I think Hassan is wrong regarding the 5th. However, he may be right regarding the 14th.. Remember that Presidential elections are controlled by the states-that may not make sense, but it is the case. So, Hassan may be correct that states cannot keep him off the ballot due to his birth place, provided he gets the required signatures. If he won the election (obviously, extremely unlikely) then it would be up to Congress. They could accept or reject his 14th amendment arguments. If it were up to me, I would give him the benefit of the doubt.

    The bottom line is why shouldn’t Hassan be President if his fellow citizens choose him? His proposalls on the debt are no duumber thhan others, like, say, the Tea Party. He actually quotes court cases and does so correctly, which places him several notches above the birthers.

    Hassan 2012 !!!

  12. avatar
    Tes July 18, 2011 at 11:38 am #

    Tes: …I do expect that he’ll take the letter he gets from the FEC (which I expect to say that he does not qualify for matching funds, etc.) straight to court and make his constitutional arguments there. That’s where the constitutional issues will be addressed, if anywhere (imho).

    SELF-CORRECTION 🙂
    Having actually now read the FECA (and related laws and regulations), I’m correcting myself. I think the FEC, if it responds,* will state something like the following:

    QUESTION 1 (Does he qualify as a “candidate” under the FECA). No – not yet. But IF he were to meet the threshold contribution/expenditure requirements, he’d be subject to the various expenditure, contribution and record-keeping requirements of FECA. Whether he is eligible to serve as President has no bearing on the matter. It’s simply irrelevant.

    QUESTION 2 (Is he prohibited from receiving matching funds under the FECA). First, The FECA does not provide for matching funds. Primary matching funds are provided pursuant to Presidential Primary Matching Payment Account Act. (26 U.S.C.A. § 9031, et seq). Under that Act, to be eligible for matching funds, “candidate” means: “an individual who seeks nomination for election to be President of the United States. For purposes of this paragraph, an individual shall be considered to seek nomination for election if he (A) takes the action necessary under the law of a State to qualify himself for nomination for election, (B) receives contributions or incurs qualified campaign expenses, or (C) gives his consent for any other person to receive contributions or to incur qualified campaign expenses on his behalf. The term “candidate” shall not include any individual who is not actively conducting campaigns in more than one State in connection with seeking nomination for election to be President of the United States.” See 26 U.S.C.A. § 9032 (1); see also 11 C.F.R. § 9032.2.

    Therefore, if Hassan were to meet that definition (and also comply with other terms of the Act), he could, conceivably, qualify for matching funds. However, I believe that most/all states require a person (or his/her party) to submit an affidavit declaring that s/he meets the eligibility requirements of the Presidency.

    QUESTION 3 (would he violate 2 USC § 441h (b) if he solicited/received contributions?). No. 2 USC § 441h (b) provides that no person shall “(1) fraudulently misrepresent the person as speaking, writing, or otherwise acting for or on behalf of any candidate or political party or employee or agent thereof for the purpose of soliciting contributions or donations; or (2) willfully and knowingly participate in or conspire to participate in any plan, scheme, or design to violate paragraph (1).” I fail to see how this prohibition applies to his situation at all.

    QUESTION 4 seems to be a repeat of Q1 – same answer applies.

  13. avatar
    Tes July 18, 2011 at 11:46 am #

    PS … and Hassan already took his constitutional arguments to court — and lost. The District Court actually reached the merits – and rejected each of his constitutional arguments. See Hassan v. U.S., Case No. 1:08-cv-00938-NG -LB (E.D. NY, June 15, 2010. On appeal, the Second Circuit affirmed dismissal — but found that the District Court erred in that the case should have been dismissed due to lack of standing. See Hassan v. U.S., Case No. 10-2622 (2nd Cir. June 21, 2011).

  14. avatar
    Scientist July 18, 2011 at 12:05 pm #

    Tes: Would you have a link to the District Court decision? I can only find the appellate decision, which speaks to standing but not the other issues. Thanks

  15. avatar
    Tes July 18, 2011 at 12:40 pm #

    Scientist:
    Tes:Would you have a link to the District Court decision?I can only find the appellate decision, which speaks to standing but not the other issues.Thanks

    Try this: http://www.scribd.com/doc/60259192/HASSAN-v-UNITED-STATES-OF-AMERICA-EDNY-Memorandum-and-Order-Gov-uscourts-nyed-278345-28-0

  16. avatar
    G July 18, 2011 at 1:30 pm #

    Thank you Tes for all the updates & explanations!

    Tes: Try this: http://www.scribd.com/doc/60259192/HASSAN-v-UNITED-STATES-OF-AMERICA-EDNY-Memorandum-and-Order-Gov-uscourts-nyed-278345-28-0

  17. avatar
    Scientist July 18, 2011 at 2:32 pm #

    Yes, thank you