Rep. Ilhan Omar, D-Minn., who is accused of improperly using political campaign funds to reimburse her alleged lover for travel expenses, doesn’t need to worry for now about a complaint filed against her with the Federal Election Commission. Vacancies on the FEC make it impossible for the commission to take any action.
The FEC, where I served as a commissioner over a decade ago, is supposed to act as a government watchdog against election law violations. But unless it has four members, the watchdog is effectively muzzled and chained, helpless to act. Right now there are three members and three vacancies on the commission.
That’s good news for Omar, who refused Wednesday to answer questions about the allegations filed against her this week by a nonprofit group called the National Legal and Policy Center, which describes itself as “a charitable and educational organization” that seeks to “foster and promote ethics in government and public life.”
Asked by a reporter in Minneapolis why she is refusing to answer questions, Omar said: “Because they’re stupid questions.” Later in the day the married congresswoman told reporters: “I will just say I have no interest in commenting on anything that you are about to ask about my personal life, so you can chase me all you want.”
The FEC will send Omar a copy of the complaint filed against her and she will have 15 days to send a response. But the question of whether to open an investigation of the congresswoman – who has been accused by President Trump and others of anti-Semitism and hatred of the Jewish state of Israel – will have to wait until there are four confirmed FEC commissioners. No one knows when that will happen.
With at least four members, the FEC could levy a fine against Omar if it finds she committed a civil violation of campaign finance law. The commission has the power to determine the amount of such a fine, based on whatever commissioners believe is appropriate.
The complaint filed with the FEC against Omar alleges that her election campaign paid a consultant – Tim Mynett and his E. Street Group, LLC – $230,000 for fundraising consulting, digital communications, Internet advertising and travel expenses.
However, in a divorce case filed by Tim Mynett’s wife, Beth Mynett, she alleges that her husband told her “he was romantically involved with” Omar – a claim Omar denies.
Beth Mynett’s divorce complaint alleges that her husband’s “recent travel and long work hours now appear to be more related to his affair with Rep. Omar than with his actual work commitments.”
The complaint filed with the FEC points out that the payment of Tim Mynett’s travel expenses started the same month that Mynett reportedly told his wife he was having an extramarital affair with Omar.
Thus, according to the complaint filed with the FEC, the travel expenses for Tim Mynett made with funds collected as political campaign contributions “may have been unrelated, or only partially related, to Omar’s campaign” and instead may have been “so that Rep. Omar would have the benefit of Mynett’s romantic companionship.”
If that is the case, then payments by Omar to Tim Mynett were “personal in nature” and not related to the campaign, according to the complaint.
If these allegations are true, Omar may have run afoul of a federal law – specifically, 52 U.S.C. §30114. This law bars the use of campaign funds “to fulfill any commitment, obligation, or expense of a person that would exist irrespective of the candidate’s election campaign.”
Examples of what is prohibited for funding with campaign donations include such items as a personal mortgage, clothing purchases, non-campaign-related car expenses, and vacations and other non-campaign-related trips.
In other words, if Mynett’s travel expense were unrelated to his actual work for the campaign but in furtherance of an affair with Omar, those would be personal expenses. Campaign funds couldn’t be used to pay them.
Omar’s attorneys have dismissed the complaint filed with the FEC as a “political ploy.” But until the FEC gets another commissioner, neither this complaint nor any others will be investigated by the commission to see if there is actually any substance – and any credibility – to the allegations being made.
So while the complaint against Omar is making headlines – both because of the nature of the allegations and her prominence as one of four far-left Democratic freshman congresswomen known as the “Squad” – all political candidates are getting a free pass on any complaints filed against them with the FEC as long as the commission has three vacancies.
The resignation of Commissioner Matt Petersen (who replaced me) from the FEC earlier this month left the commission in its current state of paralysis, with three vacancies.
The six FEC commissioners are nominated by the president and confirmed by the Senate. There is a long tradition that whenever a seat held by the political party not in control of the White House opens up, the president asks the leader of that political party in the Senate for his choice to fill the seat.
There are currently two empty Republicans seats and one empty Democratic seat on the commission.
The names of FEC nominees are sent to the Senate in pairs – one Republican and one Democrat.
President Trump nominated a Texas lawyer, Trey Trainor, in 2017 to fill an open Republican seat. But there has been no public report that Senate Minority Leader Chuck Schumer, D-N.Y., has given Trump a nominee for the Democratic seat that has been empty since 2017.
Without a quorum – four commissioners on the six-member FEC – the commission can’t hold meetings, initiate audits, vote on enforcement matters, issue advisory opinions, or engage in rulemaking.
As a result, as the 2020 presidential election cycle heats up, the FEC remains unable to carry out the most important duties it was created to perform.
The FEC regulates all of the contributions and expenditures of federal candidates for the presidency and Congress. When it has at least four members, the commission is empowered to go after candidates, political parties, political action committees and others who violate the law, imposing civil penalties consisting of fines.
The vast majority of campaign finance violations are civil matters because they are usually inadvertent violations of the law. The Federal Election Campaign Act is byzantine in its complexity and often ambiguous. Even the commissioners sometime disagree on the proper interpretation and application of the law.
The U.S. Justice Department retains jurisdiction over criminal campaign finance violations, which are “knowing and willful” violations of the law. However, criminal prosecutions are very rare.
As an example, missing the deadline for filing a required campaign finance report on contributions received by a candidate is a civil violation, while knowingly spending campaign funds on personal expenses unrelated to a campaign would be a criminal violation.
That’s why former Rep. Jesse L. Jackson Jr., D-Ill., went to jail in 2013. He pleaded guilty to spending $750,000 in campaign funds on everything from personal travel and restaurant expenses to a Rolex watch, fur coats for his wife, and memorabilia from Bruce Lee, Eddie Van Halen and Jimi Hendrix, along with mounted elk heads for his office.
Right now the ball is in Sen. Schumer’s court to nominate a Democratic FEC commissioner, and for the Senate to then confirm a Democrat and a Republican to the commission. Until that happens, Ilhan Omar has nothing to worry about from the FEC.
This piece originally appeared in Fox News