FEC draft opinion saying non U.S.-born naturalized citizens can file and raise funds to run for...

8/4/2019 FEC draft opinion saying non U.S.-born naturalized citizens can file and raise funds to run for President

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FEIIERAL ELECTIO:i

Abdul K. Hassan, Esq. 201 lJUL -7 PHAttorney andCounselor at Law OFFICE OF L-ENERAL

215-28 Hillside Avenue, Queens Village, New York 11427 COUMSELPhone: 718-740-1000Fax: 718-468-3894 Email: [email protected] ExpressJulys, 2011Federal Election CommissionOffice of General Counsel999 E Street, N.W. ,Washington, D.C. 20463.

Re: Advisory Opinion Request

Dear General Counsel:M y name is A bdul Karim Hassan and I am making this request for an advisory opinionon my own behalf. In March2008,1 publicly declared my candidacy for the Presidency of theUnitedStates in 2012 through my presidential website at www.abdulhassanforpresident.com andhave made statements and held myself out as a candidate since then. Like most presidentialwebsites, mine isbeing used to communicate my message and platform to the public, to

advertise andpromote my candidacy, and to urge the public to vote for me in iie2012presidential elections. Currently, through apaidcontract with Google, I am running a nationaladvertising campaign in support of my presidential candidacy - the advertisement links to mypresidential website.I satisfy all the constitutional requirements for holding the office of President except thenaturalbom citizen requirement contained in Article II, 1, Clause 5, of the U.S. Constitution -I am a naturalized American citizen. Up to this point, I have refrainedfromsoliciting presidentialcampaign contributions because of the obstacles created by the natural bom provision. Becausethe Federal Elections Campaign A ct ("FECA") imposes numerous obligations on candidates orpersons running for President and even on persons in the 'testing the waters" phase, I am seeking

this advisory opinionnow. I would like the opinion of the Federal Election Commission ("FEC")on the following questions:1. Whether, as a naturalized American citizen, I am included in the meaning of"candidate" or "person" or "individual" running for President as used in the Federal ElectionCampaign A ct ("FECA")?

( Copy courtesy of www.ObamaReleaseYourRecords.com - www.BirtherReport.com )


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2. Whether, as a naturalized American citizen, I am prohibitedfromreceiving matchingfunds under the FECA?3. Whether, asa naturalized American citizen, I would be in violation of2 USC 441h(b) ifi solicit and/or receive presidential campaign contributions?4. Whether, in light ofthe steps I have taken in my presidential runas outlined above, Iam subject to the expenditure, contribution and record-keeping requirements ofFECA and theregulations thereunder? (Note: I have not yet crossed the $5,000threshold that triggers theregistration and reporting requirements - it is therefore important that I receive an answer beforethese requirements are triggered.).Time is ofthe essence. I thank the Commission in advance for its time and consideration.

Respectfully submitted.

Abdul Karim Hassan



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PUBLIC COMMENTS O N DRAFT ADVISORY OPINIONSMembers of the public may submit written comments on draft advisory opinions.DRAF TS A and B of ADVISORY OPINION 2011-15 are now available for

comment. It was requestedby Abdul Karim Hassan and is scheduled to be considered bythe Commission at its public meeting on September 1,2011..If you wish to conmient on DRAFT A or DRAFT B of ADVISORY OPINION

2011-15, please note the following requirements:1) Comments must be in writing, and they must be both legible andcomplete.2) Conmients must be submitted to the Office of the Commission Secretary byhand delivery or fax ((202) 208-3333), with a duplicate copy submitted to the

Office of General Counsel by hand delivery or fax ((202) 219-3923).3) Comments must be received by noon (Eastem Time) on August 31,2011.4) The Commission will generally not accept comments received after thedeadline. Requests to extend the comment period are discouragedandunwelcome. A n extension request will be considered only if receivedbeforethe comment deadline and then only on a case-by-case basis in specialcircumstances.5) . A ll timely received comments will be made available to the public at theCommission's Public Records Office and will be postedon the Commission's

website at http://saos.mctusa.com/saos/searchao.

REOUESTOR APPEARANCES BEFORE TH E COMMISSIONThe Commission has implemented a pilot program to allow advisoiy opinionrequestors, or their counsel, to appear before the Commission to answer questions at theopen meeting at which the Commission considers the draft advisory opinion. Thisprogram took effect on July 7, 2009.



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Under the program:1) A requestor has an automatic right to appearbefore the Commission ifanypublic draft ofthe advisoryopinion is made available to the requestor orrequestor's counsel less than one weekbefore the publicmeeting at whichthe

advisory opinion requestwill be considered. Under these circumstances, noadvance written notice ofintent to appear is required. This one-weekperiod isshortened to three days for advisoryopinions under the expedited twenty-dayprocedure in 2U.S.C. 437f{a)(2).2) A requestor mustprovidewritten notice ofintent to appearbefore theCommission ifall public drafts ofthe advisoryopinion are made available torequestor orrequestor's counsel at least one weekbefore the publicmeeting atwhichthe Commission willconsider the advisoryopinion request. This one-weekperiod is shortened to three days for advisoryopinions under theexpedited twenty-dayprocedure in 2U.S.C.437f(a)(2). The notice ofintent to

appearmustbe received by the Office ofthe Commission Secretaryby handdelivery, email ([email protected]). or fax ((202)208-3333), no later than48hours before the scheduledpublicmeeting. Requestors are responsible forensuring that the Office ofthe Commission Secretaryreceives timelynotice.3) Requestors or their counsel unable to appearphysically at a publicmeetingmay participate by telephone, subject to the Commission's technicalcapabilities.4) Requestors or their counsel who appearbefore the Commissionmaydo soonly for the limitedpurpose ofaddressing questions raised by the Commission

at the publicmeeting. Their appearance does not guarantee that anyquestionswill be asked.



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FOR FURTHER INFORMA TIONPress inquiries: Judith IngramPress Officer(202) 694-1220Commission Secretary: Shawn Woodhead Werth(202) 694-1040Comment Submission Procedure: Rosemary C . Smith

Associate General Counsel(202) 694-1650Other inquiries:

Toobtain copies of documents related to Advisory Opinion 2011-15, contact thePublic Records Office at (202) 694-1120 or (800) 424-9530, or visit the Commission'swebsite at http://saos.nictusa.com/saos/searchao.

ADDRESSESOffice of the Commission SecretaryFederal Election Commission999 EStreet, NWWashington, D C 20463Office of General CounselAT T N : Rosemary C . Smith, Esq.Federal Election Commission999 E Street, NWWashington, D C 20463



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D O C U M E N T N O , 11- ^

F E D E R A L E L E C T I O N COMMISSIONWashington, DC 204632011 AUG 2b P 2- US

MEMORANDUMTO :

F R O M :

Subject:

August 26,2011AGENDA ITEM

The Commission

Christopher HugheyActing General Counsel IRosemary C. Smith/^C^Associate General Counsel

For Meeting of ^-j-iiSUBMITTED LATE

Robert M . KnopAssistant General CounselJoanna S. Waldstreicher ^ ^ V \ /AttomeyDraft AO 2011-15 (Hassan) - Drafts A and B

Attached are two proposed drafts of the subject advisory opinion (Drafts Aand B). We have been asked to place these drafts on the Open Meeting agenda forSeptember 1,2011.Attachment



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1 ADVISORY OPINION 2011-1523 AbdulKarimHassan, Esq. DRAFT A4 215-28 Hillside Avenue5 Queens Village, New York 1142767 Dear M r. Hassan:8 We are responding to your advisory opinion request conceming the application of9 the Federal Election Campaign Ac t of 1971, as amended (the "Act"), the Presidential

10 Primary Matching Payment Account Act, as amended, and Commission regulations to11 your campaign for President ofthe UnitedStates, given your status as a naturalized12 citizen.13 The Commission concludes that M r. Hassan may qualify as a "candidate" under14 the Act. However, M r. Hassan will not be eligible to receive Federal matching funds15 under the Presidential Primary Matching Payment Account Act. The Commission also16 concludes that M r. Hassan will not be in violation of 2 U.S.C. 441h(b) if he solicits and17 receives contributions. Finally, M r. Hassan will be required to comply with the Act's18 provisions regarding expenditures, contributions, recordkeeping, and reporting.19 Background20 The facts presented in this advisory opinion are based on M r. Hassan's letter21 received on July 7,2011, as supplemented by emails received on July 19 and 20, 2011.22 M r. Hassan is a naturalized U.S. citizen who announced his candidacy for23 President in March 2008 on his website. Subsequently, he made statements related to his24 candidacy and used his website to communicate to voters. In order to further25 communicate his message and platform to the public, M r. Hassan also purchased26 campaign advertisements through a contract with Google.



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AO 2011-15Draft APage 21 Mr. Hassan indicates that he satisfies all of the constitutional requirements for2 serving as President, except the national bom citizen requirement in Article II, Section 1,3 Clause 5 of the Constitution.4 Questions Presented5 1. As a naturalized American citizen, will Mr. Hassan be considered a6 "candidate " or "person " running or President under the Act?7 2. Asa naturalized American citizen, is Mr. Hassan ineligible to receive8 presidential matching funds under the Presidential Primary Matching Payment Account9 Act?

10 3. As a naturalized American citizen, will Mr. Hassan violate 2 U.S.C.11 441h(b) if he solicits and receives contributions for his presidential campaign?12 4. Is Mr. Hassan required to comply with the Act's provisions regarding13 expenditures, contributions, recordkeeping, and reporting?1 4 Legal Analysis and Conclusions15 1. As a naturalized American citizen, will Mr. Hassan be considered a16 "candidate " or "person " runningfo r President under the Act?17 Yes, as a naturalized American citizen, Mr. Hassan may be a "candidate" and18 "person" as those terms are defined in the Act.19 The Act defines "candidate" as "an individual who seeks nomination for election,20 or election, to Federal office." 2 U.S.C. 431(2); see also 11 CFR 100.3. An individual21 becomes a candidate when he or she "has received contributions aggregating in excess of



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AO 2011-15Draft APage 31 $5000 or has made expenditures aggregating in excess of $5000." 2 U.S.C. 431(2); see2 a/jo 11 CFR 100.3.3 The Actand the Commission's regulations do not address a candidate's status as4 either a natural bom citizen or naturalized citizen. Thus, the Act's definition of5 "candidate" applies broadly to all individuals, regardless ofwhether an individual is a6 natural bom citizen or a naturalized citizen.'7 Mr. Hassan has not yet either received more than $5000 in contributionsor made8 more than $5000 in expenditures, and therefore is not yet a candidate and has not filed9 withthe Commission asa candidate. Once he either raises more than $5000 in

10 contributions or makes more than $5000 in expenditures, he willbecome a candidate11 under the Act.

' Although Mr. Hassan may notbe ehgible under Article II, Section 1 ofthe U.S. Constitution to assumethe office ofthe presidency because he is not a natural bom citizen, it is not for the Conunission to decideon this basis that Mr. Hassan maynotbe a candidate for thatoffice. As one federal courthas statedregarding the issue ofeligibility for the presidency:

Arguments conceming qualifications or lackthereofcan be laid before the voting publicbefore the election and, once the election is over, can be raisedasobjectionsastheelectoral votes are counted in Congress. The members ofthe Senate and the House ofRepresentatives are well qualified to adjudicate anyobjections to ballots for allegedlyunqualified candidates...Judicialreview- ifany - should occur only after the electoral and congressionalprocesses have run their course.Robinson v. Bowen, 567 F. Supp. 2d 1144,1147 (N.D. Cal. 2008) (citing Texas v. UnitedStates, 523U.S. 296, 300-02 (1998).

Thus, if it is inappropriate for a federal court to adjudicate in the fu-st instance a candidate's eligibility foroffice, it is similarly inappropriate for an administrative agency to determine in the first instance anindividual's ability to even be considered a candidate for that office.^ The Commission's conclusion that Mr. Hassan is a "candidate" for purposes ofthe Act does notnecessarily mean thathe is a viable candidate for purposesof qualifying to receive matching funds underthe Presidential PrimaryMatching PaymentAccountAct, which is addressed in the answer to Question 2,below.



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AO 2011-15Draft APage 51 take to become eligible for matching fimds). Implicit in allofthese requirements,2 conditions, and limitations is the legitimacy ofthe individual'scandidacy; that is to say,3 that the candidate notbe clearlyconstitutionally ineligible for the office which is sought.4 Further, unlike in Question 1, in whichthe Commission lacks the authorityto5 adjudicate on whether individualshave therightto hold themselves outas candidates and6 to campaign for office notwithstanding questions about their constitutional eligibility to7 hold suchoffice (see footnote 1, above), the Commission is charged under the Matching8 PaymentActwith administering the Federeil matching funds program. Additionally, the9 Commission has some discretion when certifying eligibility for matching fimds. While10 the Commission maynot "appraise candidates' good faith, honesty, probity or general11 reliabilitywhen reviewing the agreements and other forward-looking commitments12 required" by the Matching PaymentAct, seeLaRouche v. FEC, 996 F.2d 1263,126913 (D.C. Cir. 1993), situations may exist inwhich, "withoutassessment ofsubjective14 candidate intent, the Commission might conceivablywithhold funds despite formal15 compliance withthe statutorily expressed criteria."Id. Clear and self-avowed16 constitutional ineligibility for office is one ofthe few instances where suchdiscretion is17 appropriate.18 As Mr. Hassan has clearly stated thathe is a naturalized citizen ofthe United19 States, and not a natural bom citizen under the constitutional requirement in Article II,20 Section 1,Clause 5, the Commission concludes that Mr. Hassan is noteligible to receive21 matching fimds.



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AO 2011-15Draft APage 61 3. Asa naturalized American citizen, will Mr. Hassan violate 2 U.S.C.2 441h(b) ifhe solicits and receives contributions for his presidential campaign?3 No, Mr. Hassan will not violate 2 U.S.C.441h(b) if he solicits and receives4 contributions for his presidential campaign.5 Section 441h(b) states that "no person shall... fraudulentlymisrepresent the6 person as speaking, writing, or otherwise acting for or on behalf of any candidate or7 political party or employee or agent thereof for the purpose of soliciting contributions or8 donations." 2 U.S.C.441h(b)(l); see also 11 CFR 110.16(b). Additionally, "no person9 shall... willfiilly and knowingly participate in or conspire to participate in any plan,

10 scheme, or design" to partake in such fraudulent misrepresentation. 2 U.S.C. 441h(b)(2);11 jeea/jo 11 CFR 110.16(b).12 Senator Bill Nelson of Florida introduced the amendment that led to this provision13 in the debate over the Bipartisan Campaign Reform Act of 2002. Senator Nelson stated14 that the need for such aprovision arose from the Commission"receiving a number of15 complaints thatpeople havefiraudulentlyraised donations by posing as political16 committees or candidates." 147 Cong. Rec. S3122 (daily ed. Mar. 29,2001) (statement17 of Sen. BillNelson). He described the types of situations the amendment aimed to18 prevent, including "phony fundraising letters" sentfi-omsupposed lawyers for19 presidential candidates that "urged $1,000 contributions to seemingly prestigious20 Pennsylvania Avenue addresses." Id .21 Although Mr. Hassan is a naturalized citizen miming for President, he would not22 be engaging in fraudulentmisrepresentation as described in section 441h(b) by soliciting



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AO 2011-15Draft APage 71 or receiving contributions for his presidential campaigncommittee. Mr. Hassan does not2 intend to falsely represent or solicit funds for a campaign that is not his own, as was3 contemplated by Congresswhen it enacted this provision. Thus, Mr. Hassan would not4 be in violation of section441h(b) when soliciting and receiving contributions for his5 presidential campaigncommittee.6 4. Is Mr. Hassan required to comply with the Act's provisions regarding7 expenditures, contributions, recordkeeping, and reporting?8 Yes, Mr. Hassan must comply with the Act'sprovisions regarding expenditures,9 contributions, recordkeeping, and reporting.

10 Once an individual seeking election to Federal office has either mademore than11 $5000 in expenditures or received more than $5000 in contributions, that individual12 becomes a candidate for the purposes ofthe Act. 2 U.S.C.431(2); 11 CFR 100.3.13 Candidatesmustcomply withseveral requirements under the Act.14 No later than 15 days after becoming a candidate, an individual mustfilea15 Statement of Candidacy with the Commission in whichhe or she designates a principal16 campaign committee witha treasurer who willacceptcontributions and make17 expenditures. See 2 U.S.C.432(e); 11 CFR 101.1. Within 10 days of being designated as18 a candidate's principal campaign committee, the campaign committee mustfilea19 Statement of Organization. The committee mustalsofilea report detailing the20 contributions received and the expenditures made before the individual became a21 candidate. Specifically, these reporting requirements mandate that the treasurer "shall22 keep records of the name of eachcontributor, the date of receipt and amount of all



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AO 2011-15DraftAPage 81 contributions received, and all expenditures made inconnection with ... the individual's2 campaignprior to becoming a candidate." 11 CFR101.3; see also 2 U.S.C. 432(e)(2).3 Following this initial report, the committee must continue tofilequarterlyreports of4 contributions andexpenditures. 2 U.S.C. 434(a)(2); 11CFR 104.5. These reports must5 detail the total amounts ofreceipts anddisbursements for the reporting period and for the6 calendar year. See 2 U.S.C. 434; 11 CFR 104.3. The principal campaign committee7 must also comply with recordkeeping requirements related to contributions itreceives8 andexpenditures itmakes. 11CFR 102.9. All records required to be kept pursuant to9 these provisions must be retained for three years. Id.

10 Candidates must also comply withthe Act's contribution limits {see 2 U.S.C.11 441a(a); see also 11 CFR 110.1,110.2, and 110.5) and source prohibitions {see 2 U.S.C12 441b, 441c, 441e, 441f, and 441k; see also11CFR 110.4,110.20,114.2, and 115.2).13 Once Mr. Hassan has received more than $5000 incontributionsor made more14 than $5000 inexpenditures for his cainpaign, he will become a candidate under the Act.15 Asa candidate, Mr. Hassan will be subject to the statutes andregulations applicable to all16 candidates. Upon obtaining candidate status, he therefore will need to take the steps17 outlined above to register his principal campaign committee with the Commission and18 comply withthe provisions of the Actregarding expenditures, contributions,19 recordkeeping, and reporting. Inorder to comply withthese requirements, prior to20 becoming a candidate, in the testing-the-waters phase, Mr. Hassan will need to maintain21 records of all fimds received andpayments made inconnection withhis campaign, and he22 willneed to comply withall contribution limitations and source prohibitions set forth in



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AO 2011-15DraftAPage 91 the Actand Commission regulations.2 This response constitutes an advisory opinion conceming the application ofthe3 Actand Commission regulations to the specific transaction or activityset forth in your4 request. See 2U.S.C.437f The Commission emphasizes that, ifthere is a change in any5 ofthe facts or assumptions presented, and such facts or assumptions are material to a6 conclusion presented in this advisory opinion, then the requestor maynot rely on that7 conclusionas support for its proposed activity. Anyperson involved in any specific8 transaction or activity which is indistinguishable in all its material aspectsfiomthe9 transaction or activity withrespectto whichthis advisory opinion is rendered may rely on

10 this advisory opinion. See 2U.S.C.437f(c)(l)(B). Please note the analysis or11 conclusions in this advisory opinion may be affected by subsequent developments in the12 law including, butnot limited to, statutes, regulations, advisory opinions, and case law.13 The cited advisory opinion is available on the Commission'swebsite, www.fec.gov, or14 directlyfiromthe Commission's AdvisoryOpinion searchable database at15 http://www.fec.gov/searchao.1617 On behalfofthe Commission,18192021 Cynthia L. Bauerly22 Chair23



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I ADVISORY OPINION 2011-1523 Abdul KarimHassan, Esq. DRAFT B4 215-28 Hillside Avenue5 Queens Village, New York 1142767 Dear M r. Hassan:8 We are responding to your advisory opinion request conceming the application of9 the Federal Election Campaign Act of 1971, as amended (the "Act"), the Presidential

10 Primary Matching Payment Account Act, as amended, and Commission regulations toII your campaign for President of the United States, given your status as a naturalized12 citizen.13 The Commission concludes that M r. Hassan may qualify as a"candidate" under14 the Act. Whether M r. Hassan will be eligible to receive Federal matching fimds under15 the Presidential Primary Matching Payment Account Act is not yet appropriate for the16 Commission to determine. The Commission also concludes that M r. Hassan will not be17 in violation of 2 U.S.C. 441h(b) if he solicits and receives contributions. Finally, M r.18 Hassan will be required to comply with the Act's provisions regardingexpenditures,19 contributions, recordkeeping, and reporting.20 Background21 The facts presented in this advisory opinion are based on M r. Hassan's letter22 received on July 7,2011, as supplemented by emails received on July 19 and 20,2011.23 M r. Hassan is a naturalized U.S. citizen who announced his candidacy for24 President in March 2008 on his website. Subsequently, he made statements related to his25 candidacy andused his website to communicate to voters. In order to further



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AO 2011-15Draft BPage 21 communicate his message and platform to the public, Mr. Hassan also purchased2 campaign advertisements througha contract withGoogle.3 Mr. Hassan indicates that he satisfies all of the constitutional requirements for4 serving as President, except the national bom citizen requirement in Article II, Section 1,5 Clause 5 of the Constitution.6 Questions Presented7 I. Asa naturalized American citizen, will Mr. Hassan be considered a8 "candidate " or "person " running or President under the Act?9 2. As a naturalized American citizen, is Mr. Hassan eligible to receive

10 presidential matching funds under the Presidential Primary Matching Payment Account11 Act?12 3. Asa naturalized American citizen, will Mr. Hassan violate 2 U.S.C.13 44Ih(b) if he solicits and receives contributionsfor his presidential campaign?14 4. Is Mr. Hassan required to comply with the Act's provisions regarding15 expenditures, contributions, recordkeeping, and reporting?1 6 Legal Analysis and Conclusions17 I. As a naturalized American citizen, will Mr. Hassan be considered a18 "candidate " or "person " runningfor President under the Act?19 As a naturalized American citizen, Mr. Hassan may be a "candidate" and is a20 "person" as those terms are defined in the Act, and he states that he is running for21 President.



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AO 2011-15Draft BPage 31 The Actdefines "candidate"as"an mdividual who seeks nomination for election,2 or election, to Federal office."2U.S.C.431(2); seealso11 CFR 100.3. An individual3 becomes a candidate when he or she "has received contributions aggregating inexcessof4 $5000 or has made expenditures aggregating in excess of $5000." 2 U.S.C. 431(2); see5 fl/jo 11 CFR 100.3.6 The Act and the Commission's regulations do not address a candidate's7 citizenship or any other qualifications for office. Indeed, the Act's definition of8 "candidate" applies to those who seeknomination for election or election to Federal9 office rather than those eligible to be nominated or elected to, or to serve in Federal

10 office. Thus, the Act's definition of"candidate" is equally applicable to an individual11 who is a natural bom citizen and to one who is a naturalized citizen, so longas that12 person meets the other criteria that define a "candidate."'13 Mr. Hassan states thathe seeks election to Federal office. Mr. Hassan has not yet14 fulfilled the statutorydefinition ofcandidate, by either receiving more than $5000 in15 contributionsor making more than $5000 in expenditures, and therefore he is not a16 candidate at this time. Ifhe either raises more than $5000 in contributionsor makes more17 than $5000 in expenditures,he will satisfy the definition and will become a candidate18 under the Act. Although Mr. Hassan stateshe is not eligible to be seated for the office19 because he is a naturalized citizen, the Actdoes not preclude himfiomholding himself20 outasa candidate ashe meets the statutorydefinition.21 The Actdefines "person" to include "an individual,partnership, committee.

' The Actdoes notcontain separate definitions for candidates for differentFederal offices. TheConstitution's "natural bom Citizen"provision only pertains to "the Office ofPresident." U.S.Const., art.II, sec.1, cl. 5.



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AO 2011-15Draft BPage 41 association, corporation, labor organization, or any other organization or group of2 persons, but suchtermdoes not include the Federal Govemment or any authorityofthe3 Federal Govemment."2 U.S.C.431(11); 5ee a/jo 11 CFR 100.10. Like the definition of4 "candidate," the definition of "person"makes no reference to natural bom or naturalized5 citizens. Thus, as an individual, Mr. Hassan qualifies as a "person"under the Act. ^6 2. As a naturalized American citizen, is Mr. Hassan eligible to receive7 presidential matchingfiendsunder the Presidential Primary Matching Payment Account8 Act?9 The Commission concludes that this question is speculative, because it depends

10 on a number of contingencies that may or may not occur. The Matching PaymentAct11 and its implementingregulations set fortha series of qualifications and procedural1 2 requirements that a candidate must satisfy in order to receive public matching funds. See13 2 U.S.C.9033; 11 CFR 9033.1 and 9033.2. The Commission'sprocedures for certifying14 candidates to receive matching fimds contemplate a process whereby the Commission15 willevaluate a candidate's eligibilitywhen the candidate submits the required documents.16 Therefore this question is, at this time, hypothetical. Commissionregulations17 explain thatrequests posing hypothetical situations, presenting a general question of18 interpretation, or regarding the activities of third parties, do not qualify as advisory19 opinion requests. 11 CFR 112.1(b). On this basis, the Commissionexpresses no opinion20 regarding this question. If Mr. Hassan satisfies the other criteria to qualify to receive

^ Mr. Hassan also asks whether he qualifies as an "individual" under the Act. Neither the Act nor theCommission's regulations define "individual." The term "individual" is used throughout the text of theAct, without any reference to eithernatural bom or naturalized citizens. Mr. Hassan is an individual underthe common usage of the term.



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AO 2011-15Draft BPage 51 matching funds, he may at that time submit the appropriate materials to seekcertification2 for matching funds.3 3. Asa naturalized American citizen, will Mr. Hassan violate 2 U.S.C.4 44Ih(b) ifhe solicits and receives contributions for his presidential campaign?5 No, Mr. Hassan will not violate 2 U.S.C.441h(b) if he solicits and receives6 contributions for his presidential campaign.7 Section 441h(b) states that "no person shall...fraudulentlymisrepresent the8 person as speaking, writing, or otherwise acting for or on behalfof any candidate or9 political party or employee or agent thereoffor the purpose of soliciting contributions or

10 donations." 2 U.S.C.441h(b)(l); see also 11 CFR 110.16(b). Additionally, "no person11 shall... willfiilly and knowingly participate in or conspire to participate in any plan,12 scheme, or design" to partake in suchfraudulentmisrepresentation. 2 U.S.C. 441h(b)(2);13 see also 11 CFR 110.16(b).14 Senator BillNelson of Florida introduced the amendment that led to this provision15 in the debate over the Bipartisan Campaign Reform Act of 2002. Senator Nelson stated16 that the need for such a provision arosefromthe Commission "receiving a number of17 complaints thatpeople havefraudulentlyraised donations by posing as political18 committees or candidates." 147 Cong. Rec. S3122 (daily ed. Mar. 29,2001) (statement19 of Sen. BillNelson). He described the types of situations the amendment aimed to20 prevent, including "phony fimdraising letters" sentfromsupposed lawyers for21 presidential candidates that "urged $ 1,000 contributions to seemingly prestigious22 Pennsylvania Avenue addresses." Id .



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AO 2011-15DraftBPage 61 Although Mr. Hassan is a naturalized citizen running forPresident, he would not2 be engaging infraudulentmisrepresentation asdescribed insection 441h(b)by soliciting3 or receiving contributions for his presidential campaigncommittee. Mr. Hassan does not4 intend to falsely representorsolicit funds fora campaign that is not his own, as was5 contemplatedbyCongresswhen itenacted this provision. Thus, Mr. Hassan would not6 be inviolation of section441h(b)when soliciting andreceiving contributions for his7 presidential campaigncommittee.8 4. Is Mr. Hassan required to comply with the Act's provisions regarding9 expenditures, contributions, recordkeeping, and reporting?

10 Yes, Mr. Hassan mustcomply withthe Act'sprovisions regarding expenditures,11 contributions, recordkeeping, and reporting.12 Once an individual seeking election to Federal office has either made more than13 $5000 inexpenditures or received more than $5000 incontributions, that individual14 becomes a candidate for the purposes ofthe Act. 2U.S.C.431(2); 11 CFR 100.3.15 Candidatesmust comply withseveral requirements under the Act.16 No later than 15days after becoming a candidate, an individual mustfilea17 Statement of Candidacy withthe Commission in whichhe or she designates a principal18 campaign committee with a treasurer who willacceptcontributionsand make19 expenditures. See 2U.S.C.432(e); 11 CFR 101.1. Within10days ofbeing designated as20 a candidate's principal campaigncommittee, the campaign committee mustfilea21 Statement of Organization. The committee mustalsofilea report detailing the22 contributions received and the expenditures made before the individual became a



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AO 2011-15Draft BPage 71 candidate. Specifically, these reporting requirements mandate that the treasurer "shall2 keep records of the name ofeachcontributor, the date ofreceiptandamountof all3 contributions received, and all expenditures made inconnectionwith ... the individual's4 campaign prior to becoming a candidate." 11CFR 101.3; see also 2 U.S.C. 432(e)(2).5 Following this initial report, the committee must continue tofilequarterlyreports of6 contributions andexpenditures. 2 U.S.C.434(a)(2); 11CFR 104.5. These reports must7 detail the total amounts ofreceipts anddisbursements for the reporting period and for the8 calendar year. See 2 U.S.C. 434; 11CFR 104.3. The principal campaign committee9 mustalso comply withrecordkeeping requirements related to contributions itreceives

10 andexpenditures itmakes. 11CFR 102.9. All records required to be keptpursuantto11 these provisions must be retained for three years. Id.12 Candidatesmust also comply withthe Act's contribution limits {see 2 U.S.C.13 441a(a); see also11CFR 110.1,110.2, and 110.5) and source prohibitions {see 2U.S.C14 441b, 441c, 441e, 441f, and 441k; see also 11CFR 110.4,110.20,114.2, and 115.2).15 Once Mr. Hassan has received more than $5000 incontributions or made more16 than $5000 inexpenditures for his campaign, he will become a candidate under the Act.17 Asa candidate, Mr. Hassan will be subjectto the statutes andregulations applicable to all18 candidates. Upon obtaining candidate status, he therefore will need to take the steps19 outlinedabove to register his principal campaign committee withthe Commission and20 comply withthe provisions of the Actregarding expenditures, contributions,21 recordkeeping, andreporting. Inorder to comply withthese requirements, prior to22 becoming a candidate, in the testing-the-waters phase, Mr. Hassan willneed to maintain



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AO 2011-15Draft BPage 81 records ofall funds received andpayments made in connectionwithhis campaign, and he2 willneed to comply withall contribution limitations and source prohibitions set forth in3 the Act and Commission regulations.4 This response constitutes an advisory opinion conceming the application ofthe5 Actand Commission regulations to the specific transaction or activity set forth inyour6 request. See 2 U.S.C.437f. The Commission emphasizes that, ifthere is a change in any7 ofthe facts or assumptions presented, and suchfacts or assumptions are material to a8 conclusion presented in this advisory opinion, then the requestor may not rely on that9 conclusion as support for its proposed activity. Any person involved in any specific

10 transactionor activity whichis indistinguishable in all its material aspectsfromthe11 transaction or activity withrespectto whichthis advisory opinion is rendered may rely on12 this advisory opinion. See 2U.S.C.437f(c)(l)(B). Please note the analysis or13 conclusions in this advisory opinion maybe affected by subsequent developments in the14 lawincluding, butnot limited to, statutes, regulations, advisory opinions, and case law.1516 Onbehalfofthe Commission,17181920 Cynthia L. Bauerly21 Chair22


FEC draft opinion saying non U.S.-born naturalized citizens can file and raise funds to run for...

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Transcript of FEC draft opinion saying non U.S.-born naturalized citizens can file and raise funds to run for...