Congressional candidate’s gamble: risk breaking laws — or the bank

Introduction

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Nabilah Islam is 30 years old, saddled with student loan debt and, for the moment, a professional congressional candidate.

A Democratic political operative until last year running to represent Georgia’s competitive 7th District, Islam no longer enjoys employer-provided health insurance or, because of competing living costs, any health insurance at all. 

So Islam on Monday asked the bipartisan Federal Election Commission to provide an official answer to her novel question: May she use congressional campaign funds to purchase health insurance for herself — without violating prohibitions on using campaign cash for personal expenses?

Islam won’t soon know: the FEC doesn’t have the minimum number of commissioners — four — to decide. It hasn’t since Sept. 1. President Donald Trump, who alone is empowered to nominate new FEC commissioners, has neither offered the U.S. Senate nominees to fill three vacancies on the six-seat commission nor replaced the three remaining commissioners who’ve overstayed their terms by a collective 30 years. 

In the meantime, the FEC shambles into Election 2020 incapable of taking high-level action, whether that’s penalizing campaign finance crooks of any political stripe or, in Islam’s case, providing legal guidance to a political actor attempting to comply with federal law. 

An affirmative FEC ruling on Islam’s health insurance question would likely apply to other candidates of modest means, including “Medicare for All”-backing liberals such as herself — and Trump-loving conservatives, too.  

“It’s ridiculous that we’re in this position in the first place,” Islam said of the FEC’s situation after hand delivering her request at the commission’s headquarters in Washington, D.C. “President Trump needs to do the right thing and have a quorum at the FEC at all times.”

The White House declined to answer Center for Public Integrity questions about FEC nominees. (Trump’s own campaign faces FEC complaints.)

Absent the FEC advisory opinion she seeks, Islam’s choices are limited and imperfect. She could: 

• Simply pay for health insurance from her campaign account — and risk a federal fine if a reconstituted FEC months from now deems her actions illegal. Existing federal rules and rulings could provide Islam some cover. In 2018, the FEC ruled that Democratic congressional candidate Liuba Grechen Shirley could use campaign funds to pay childcare expenses. In 2011, the commission told the campaign of then-Rep. Gabrielle Giffords, who was nearly killed in a mass shooting, that Giffords could use campaign funds for a home security enhancements. But the FEC hasn’t yet ruled specifically on whether campaign committees may cover candidates’ health insurance costs, and it expressly prohibits candidates from using campaign money to pay their home mortgages, rent or utility bills. Former FEC Chairwoman Ann Ravel, a Democrat, cautioned that some FEC commissioners might view personal health coverage as not “directly related to a campaign,” whereas childcare and personal security are “uniquely related to how to run a campaign in this day and age.”
  
• Ask a federal court to rule on her health care request. “But if she’s worried about money, that’s not cheap, either,” said former FEC chairman Bradley Smith, a Republican, adding that Islam could conceivably use campaign contributions to pay legal costs associated with petitioning a court. FEC records indicate Islam’s campaign had raised about $313,000 through September, and she said Monday she’ll later this week report raising about $90,000 more from Oct. 1 through Dec. 31.
  
• Have her campaign committee pay her a regular salary — something few candidates accept, but that federal rules allow with certain limitations — and fund her health insurance that way, even if it isn’t clear doing so is permissible.
  
• Avoid potential legal cost and peril by continuing to live without health insurance.

Islam, the daughter of working-class immigrants from Bangladesh, isn’t bullish on any of these options. 

“I’m really between a rock and a hard place here,” she said, adding that the FEC’s inability to act makes it that much more difficult for candidates who aren’t wealthy to seek public office. “Health care is a human right, and if it was easier to run and not so cost prohibitive, more people like me could run.”

Might the FEC’s three remaining commissioners offer her some informal, wink-and-nod advice ahead of the Georgia 7th District primary on May 19, when Islam faces several competitors for the Democratic nomination?

No.

Republican Chairwoman Caroline Hunter, independent Vice Chairman Steven Walther and Democratic Commissioner Ellen Weintraub each declined a request for comment.