The United States Federal Election Commission is showing signs that it might allow a Guyana-born American citizen to file papers and raise money to run for president of the United States.
The agency released two draft advisory opinions Friday that could permit New York lawyer Abdul Hassan to go through the initial steps to run for president. But the FEC’s pending decision won’t be the last word on the constitutional issue of whether someone born outside the United States can be president.
Hassan was born in the South American country in 1974, and he asked the FEC in July whether he could raise funds as a candidate for president.
The request put the FEC in the rare role of deciding a large constitutional issue that has only a few intersections with campaign finance law. The two commonly held constitutional requirements to run for president are that the candidate be 35 years or older and be a “natural born citizen.”
The agency quickly signaled that it would decide the technicalities of filing requirements while leaving the broader issue of who can run for president to the judicial branch. In an email to Hassan on July 18, the FEC stated that he understood “that although the Commission can respond to the questions asked in [his] advisory opinion, the Commission cannot make any determination as to whether [Hassan] can, as a naturalized citizen, serve as President.”
Both advisory opinions answer three of Hassan’s four questions in a similar way. They state that Hassan could be a candidate, may solicit funds and would be required to file disclosure reports. But the two opinions differ on whether he may receive federal matching funds.
The first draft states that Hassan would not be allowed to receive matching funds because “the United States Constitution provides that ‘no Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President.’”
The second draft ducks the issue, stating that the “Commission expresses no opinion regarding this question” because it is a “hypothetical.”
The FEC is slated to discuss and possibly vote on the draft opinions at an open meeting Thursday. Four of the six commissioners must support an opinion for it to be approved.
Hassan told Roll Call that he has almost no political background but is a “political junkie” with various legislative ideas.
“I follow politics closely, but I have never held elected office,” he said. “I would admit that I am not well-known, and I would admit that my chances of winning are not as good as other candidates. That’s obvious.”
Although Hassan said he sees the far-reaching implications of his FEC request for future candidates, he said he did not make his request as a response to long-refuted claims that President Barack Obama was not born in America.
“I wasn’t even thinking about the birthers, though I am ideologically opposed to people on the birther side of the argument,” he said.
Hassan had posed four questions to the commission.
1) As a naturalized American citizen, will Mr. Hassan be considered a “candidate ” or “person ” running for President under the Act?
2) As a naturalized American citizen, is Mr. Hassan eligible to receive presidential matching funds under the Presidential Primary Matching Payment Account Act?
3) As a naturalized American citizen, will Mr. Hassan violate 2 U.S.C. 44Ih(b) if he solicits and receives contributions for his presidential campaign?
4) Is Mr. Hassan required to comply with the Act’s provisions regarding expenditures, contributions, record keeping, and reporting?
Why Hassan is pressing this issue, with full knowledge that he will not win the election and even if he did, could not be president is not immediately clear. It could be the slippery-slope approach that liberals take when attempting to erode the power of the Constitution. Before long, the FEC may be questioning the definition of “natural-born” or “citizen”. It would only take a single challenge to his candidacy to open a legal case that would ultimately end up in the Supreme Court.
This is not the first attempt to circumvent the natural-born citizen requirement to be president. More than 20 amendments to the Constitution have been proposed to change the requirement. Perhaps the most famous being one that was intended to allow Henry Kissinger to serve as President.