Campaign Law — FEC

FEC: No U.S. Birth Certificate; No Presidential Matching Funds

Commissioners cite Constitution in case of naturalized citizen

Matt Loeb
Sept. 3, 2011, 2:45 p.m.

Un­der the Con­sti­tu­tion, Ab­dul Has­san isn’t qual­i­fied to be pres­id­ent, but that hasn’t stopped the New York law­yer from launch­ing a long-shot cam­paign for the White House — and ap­ply­ing for tax­pay­er-un­der­writ­ten pres­id­en­tial cam­paign match­ing funds.

Mem­bers of the Fed­er­al Elec­tion Com­mis­sion agreed un­an­im­ously Thursday that Has­san would be in­eligible to re­ceive the money but post­poned mak­ing their de­cision of­fi­cial with a vote.

Has­san, a nat­ur­al­ized cit­izen, was born in Guyana. That means he’s barred from serving as the na­tion’s top elec­ted lead­er. The Con­sti­tu­tion says that “[n]o 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.”

That also means Has­san can’t re­ceive pub­lic match­ing funds for his cam­paign, FEC Chair Cyn­thia Bauerly con­cluded. “Clear and self-avowed con­sti­tu­tion­al in­eligib­il­ity for of­fice is one of the few in­stances where the Com­mis­sion’s ex­er­cise of its dis­cre­tion to with­hold funds is ap­pro­pri­ate,” she wrote in an ad­vis­ory opin­ion be­fore the meet­ing.

Com­mis­sion­ers Don McGhan and Steven Walth­er reasoned that provid­ing Has­san with match­ing funds would le­git­im­ize an im­per­miss­ible pres­id­en­tial cam­paign. They wor­ried that Has­san could point to a fa­vor­able FEC rul­ing to fun­draise for a non-vi­able pres­id­en­tial cam­paign. 

Fur­ther­more, McGhan noted that in­flu­en­tial early vot­ing states, namely Iowa, New Hamp­shire and Nevada, re­quire pres­id­en­tial can­did­ates to sat­is­fy all con­sti­tu­tion­al re­quire­ments for bal­lot eli­gib­il­ity. Has­san would be un­able to meet this pre-con­di­tion.  

The com­mis­sion­ers post­poned a fi­nal vote, however, be­cause Has­san has filed suit to over­turn the con­sti­tu­tion­al ban on for­eign-born cit­izens serving as pres­id­ent. 

He con­tends the 14th Amend­ment, which pro­hib­its any law abridging the priv­ileges or im­munit­ies of U.S. cit­izens, trumps Art­icle II, Sec­tion 1, the ban on non-U.S.-born cit­izens oc­cupy­ing the pres­id­ency.

A New York fed­er­al court dis­missed his case, but he has ap­pealed. On this con­sti­tu­tion­al ques­tion, the Su­preme Court could be the ul­ti­mate ar­bit­er.

Even if his White House pro­spects are fore­closed, Has­san has oth­er av­en­ues for his polit­ic­al am­bi­tions. Non-U.S.-born cit­izens have served in many oth­er high of­fices. Among them, former Cali­for­nia Gov. Arnold Schwar­zeneg­ger, a nat­ive of Aus­tria, and former Michigan Gov. Jen­nifer Gran­holm, who was born in Canada.

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