Supreme Court ruling leaves First Amendment issue in hands of FEC

Wednesday, June 3, 1998

In its decision handed down Monday, the U.S. Supreme Court skirted First Amendment issues raised in the case of Federal Election Commission v. Akins.

But the American Israel Public Affairs Committee, the organization that had the most at stake in the case, declared the decision “a victory for AIPAC and for those who support First Amendment rights” anyway. The organization claimed the decision will advance the rights of groups like AIPAC to communicate freely with their members. Whether or not that is the case depends on what the FEC does in response to the court’s ruling.

The case arose from a complaint filed with the FEC nine years ago by a group of individuals, led by James Akins, former ambassador to Saudi Arabia. The group claimed that AIPAC, a 55,000-member lobbying organization that promotes ties between the United States and Israel, fell under the category of a “political committee” and as a result should be required to comply with extensive reporting requirements and reveal the names of its donors and masses of information about its activities.

The FEC, acting in part to protect the First Amendment rights of association of the organization, declined to categorize AIPAC as a political committee because its “major purpose” was not to nominate or elect candidates for office. The Akins group sued, and after two lower court victories for the FEC, an en banc appeals court decision reversed and sided with Akins.

At issue before the high court were two questions: whether the Akins group had standing to challenge the FEC’s actions, and whether in fact AIPAC should be classified as a political committee.

The major First Amendment concerns were tied up in the second issue. A range of similar organizations feared that if the FEC lost, their First Amendment lobbying and informational activities would be chilled by the rigorous reporting requirements for political committees. Submitting to the requirements would “severely limit contributions,” a brief filed by the National Right to Life Committee argued.

But the court in its opinion this week decided not to decide that issue because of a related question that has cropped up. Part of the FEC’s reasoning in protecting AIPAC from its reporting requirements depended on whether or not AIPAC can truly be called a membership organization and whether its seemingly political expenditures amounted to the costs related to communicating with its members. But the high court noted that because of an unrelated case, the FEC has developed a new broader definition of “member” that could affect its evaluation of AIPAC. So the justices sent the case back to the FEC to sort out the membership question.

AIPAC considered that a victory, because it is counting on the FEC to apply its new definition in a way that will protect AIPAC from the disclosure requirements. “We have no doubt that the FEC will make it clear that AIPAC is a membership organization, with complete freedom to communicate with its members on politics and elections.”

On the first issue, however, the court handed a victory to AIPAC’s adversaries, the Akins group. The FEC had argued that the Akins group did not have standing because it could not cite any “injury in fact” from the FEC’s action on AIPAC. The Supreme Court, never eager to open the courthouse door to new categories of plaintiffs, is usually sympathetic to arguments against standing.

But this time, in the majority decision written by Justice Stephen Breyer, the court adopted an expansive view of standing. It noted that the law creating the FEC allows “any person who believes a violation of this act has occurred” is entitled to bring a complaint.

Significantly, the court also said the plaintiffs in the case before them had cited injuries that were “concrete and particular.” The injury, the court said, was “their inability to obtain information” from the FEC about AIPAC’s donors and expenditures. The court’s language on this point parallels the view it has taken in Freedom of Information Act cases that the non-release of government documents is an injury that can form the basis of a lawsuit against a government agency.

“We have a right to this information,” said Daniel Schember, a lawyer for the Akins group after the ruling. The decision, he said, “upholds the right of voters to challenge FEC legal rulings which result in non-disclosure.”

Like his adversaries, Schember and his clients also expressed confidence that once the case returns to the FEC, his side will prevail on the political committee question. “We fully expect that that the FEC will find that AIPAC had been making campaign-related expenditures within the meaning of the [law] for which it would be required to make public disclosure,” said Andrew Killgore, a former ambassador to Qatar who was part of the Akins group. “In the clear light of day, AIPAC’s activities will cease to be those of an 800-pound gorilla on Capitol Hill when it comes to U.S. policies in the Middle East.”