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FEC Record: Advisory Opinions

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AO 2011-15 Naturalized Citizen as Presidential Candidate

A naturalized citizen is not prohibited by the Federal Election Campaign Act (the Act) from becoming a “candidate” as defined under the Act. However, a naturalized citizen is not eligible to receive Federal matching funds under the Presidential Primary Matching Payment Account Act (the Matching Payment Act). The individual will not violate the Act’s prohibition against “fraudulent misrepresentation” if he solicits and receives contributions for his presidential campaign. However, he must comply with the Act’s provisions regarding expenditures, contributions, recordkeeping and reporting.

Background
Abdul Karim Hassan is a naturalized U.S. citizen who announced his Presidential candidacy in March 2008 on his website. He has used his website to communicate to voters and purchased web advertisements regarding his candidacy. Mr. Hassan indicated that he satisfies all of the constitutional requirements for serving as President, except the natural born citizen requirement in Article II, Section 1, Clause 5 of the U.S. Constitution.

Mr. Hassan sought the Commission’s opinion on several questions revolving around the impact of his status as a naturalized citizen and the Act’s definition of candidate.

Analysis
Mr. Hassan asked first if he would be considered a “candidate” or “person” under the Act’s definitions of those terms. The Act defines “candidate” as “an individual who seeks nomination for election, or election, to Federal office.” An individual becomes a candidate for purposes of the Act when he or she receives contributions or makes expenditures aggregating in excess of $5,000. 2 U.S.C. §431(2); 11 CFR 100.3.

The Act and FEC regulations do not address a candidate’s citizenship or any other qualifications for office. As a result, the above definition of candidate does not turn on whether the individual in question is a natural born citizen or a naturalized citizen, as long as the person meets the other criteria for the Act’s definition of candidate.

In regard to the definition of “person,” the Act defines that term as including “an individual, partnership, committee, association, corporation, labor organization, or any other organization or group of persons,” excluding the Federal Government. There is no reference to natural born or naturalized citizens. 2 U.S.C. §431(11); 11 CFR 100.10. As an individual, Mr. Hassan is a “person” under the Act.

Mr. Hassan also inquired about his eligibility to receive presidential matching funds. Although the Matching Payment Act does not specifically address citizenship requirements for serving as President, it sets forth the eligibility requirements to receive primary matching funds. 26 U.S.C. §9033; 11 CFR 9033.2. As the agency charged under the Matching Payment Act with administering the matching funds program, the Commission has some discretion when certifying eligibility for matching funds. A clear and self-avowed constitutional ineligibility for office is an instance where the Commission may choose to withhold matching funds even if the Act’s formal eligibility criteria are satisfied. Thus, because Mr. Hassan has clearly stated that he is a naturalized citizen and not a natural born citizen under the Constitutional requirement for holding the office of President, the Commission concluded that Mr. Hassan is not eligible to receive matching funds.

In regard to the Act’s prohibition at 2 U.S.C. §441h(b) against fraudulent misrepresentation, the Commission concluded that Mr. Hassan would not violate this provision if he solicits and receives contributions for his presidential campaign. Although Mr. Hassan is a naturalized citizen, nothing in the Act requires a candidate to be eligible for the office he or she seeks. Moreover, Mr. Hassan does not intend to falsely represent or solicit funds for a campaign that is not his own.

Finally, Mr. Hassan must comply with the Act’s provisions regarding expenditures, contributions, recordkeeping, and reporting. Once Mr. Hassan has received more than $5,000 in contributions, or made more than $5,000 in expenditures, he will become a “candidate” under the Act and therefore subject to the statutes and regulations applicable to all candidates. 2 U.S.C. §431(2); 11 CFR 100.3.

Date: September 2, 2011; Length: 6 pages

(Posted 9/13/11; By Dorothy Yeager)

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The FEC Record is produced by the Information Division, Office of Communications. Toll free 800-424-9530; Local 202-694-1100; E-mail info@fec.gov. Greg Scott, Director; Amy Kort, Asst. Director; Dorothy Yeager, Editor