Akins v. Fed. Election Com'n
| Decision Date | 06 September 2010 |
| Docket Number | Civil Case Nos. 00-1478,Civil Case Nos. 92-1864,Civil Case Nos. 03-2431 (RJL) |
| Citation | 736 F.Supp.2d 9 |
| Court | U.S. District Court — District of Columbia |
| Parties | James E. AKINS, et al., Plaintiffs, v. FEDERAL ELECTION COMMISSION, Defendant. |
Abdeen M. Jabara, New York, NY, Daniel McCrea Schember, Gaffney & Schember, P.C., Washington, D.C., for Plaintiffs.
Thomasenia P. Duncan, David Kolker, Kevin Deeley, Greg J. Mueller, Federal Election Commission, Washington, DC, for Defendant.
This consolidated matter is before the Court on the parties' cross-motions for summary judgment, seeking review of the Federal Election Commission's dismissal of multiple administrative complaints. The Court has carefully considered the parties' filings, relevant law, and the entire record herein. For the reasons set forth below, the plaintiffs' Motion for Summary Judgment is DENIED and the defendant's Cross-Motion for Summary Judgment is GRANTED.
Richard Curtiss, Paul Findley, Andrew Killgore, and Orin Parker (collectively, "plaintiffs") are former ambassadors, congressmen, or government officials.1 They are politically active people who seek to influence policymakers and the public on U.S. policy in the Middle East. The plaintiffs hold many views contrary to those of the American Israel Public Affairs Committee ("AIPAC"). See 1st Am. Compl. ¶ 10, Akins v. FEC, No. 92-1864 (" Akins I "); 2d Am., 1st Supp. Compl. ¶ 10, Akins v. FEC, No. 00-1478 (" Akins II "); Compl. ¶ 8, Akins v. FEC, No. 03-2431 (" Akins III ").
AIPAC is an incorporated, tax-exempt organization with over 50,000 supporters and a budget of about $10 million (as of 1989). It lobbies Congress and the Executive Branch for military and economic aid to Israel with the stated purpose to encourage close relations between the United States and Israel. AIPAC was the respondent in the underlying administrative matters before the Federal Election Commission, but it is not a party in the district court cases. 2See 1st Am. Compl. ¶ 12, Akins I; 2d Am., 1st Supp. Compl. ¶ 12,Akins II; Compl. ¶ 10, Akins III; Pl.'s S. Mat'l Facts ¶¶ 1-2.
The defendant is the Federal Election Commission (the "FEC" or the "Commission"), an independent agency of the U.S. Government. The FEC has sole jurisdiction to civilly enforce the Federal Election Campaign Act of 1971, as amended, 2 U.S.C. § 431 et seq. (the "FECA" or the "Act"). 2 U.S.C. § 437c(b)(1).
The FECA's purposes are "to limit spending in federal election campaigns and to eliminate the actual or perceived pernicious influence over candidates for elective office that wealthy individuals or corporations could achieve by financing the 'political warchests' of those candidates." Orloski v. FEC, 795 F.2d 156, 163 (D.C.Cir.1986) (citing Buckley v. Valeo, 424 U.S. 1, 25-26, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976)). To accomplish its goals, "[t]he Act imposes limits upon the amounts that individuals, corporations, 'political committees' (including political action committees), and political parties can contribute to a candidate for federal political office." FEC v. Akins, 524 U.S. 11, 14, 118 S.Ct. 1777, 141 L.Ed.2d 10 (1998) (" Akins Supreme Court Opinion ") (citing 2 U.S.C. §§ 441a(a)-(b), 441b).
Under the Act, all "political committees" are required to register with the Commission and make periodic reports of receipts and disbursements. 2 U.S.C. §§ 433, 434. A "political committee" is defined as "any committee, club, association, or other group of persons which receives contributions aggregating in excess of $1,000 during a calendar year or which makes expenditures aggregating in excess of $1,000 during a calendar year." 2 U.S.C. § 431(4)(A). Generally speaking, an "expenditure" is "any purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value, made by any person for the purpose of influencing any election for Federal office." 2 U.S.C. § 431(9)(A).
The Act exempts from the definition of the term "expenditure" "any communications by any membership organization ... to its members ... if such membership organization ... is not organized primarily for the purpose of influencing the nomination for election, or election, of any individual to Federal office." 2 U.S.C. § 431(9)(B)(iii). Simply put, membership communications by a membership organization that is not organized primarily for the purpose of influencing federal elections are not "expenditures" that count toward the $1,000 limit beyond which the organization can be classified as a "political committee." However, "the costs incurred by a membership organization ... directly attributable to a communication expressly advocating the election or defeat of a clearly identified candidate (other than a communication primarily devoted to subjects other than the express advocacy of the election or defeat of a clearly identified candidate) [ ] shall, if such costs exceed $2,000 for any election, be reported to the Commission." Id. Membership organizations that trigger the reporting requirement must file disclosure reports in accordance with 2 U.S.C. § 434(a)(4)(A)(i) and (ii).
This case has had a long and complicated history. On January 12, 1989, plaintiffs filed their first administrative complaint with the FEC, designated Matter Under Review ("MUR") 2804, alleging, inter alia, that AIPAC was a political committee as defined by the Act and was thus required to make certain disclosures regarding its financial activities. First Certified AdministrativeRecord ("F.A.R.") 4, 12-19 (refiled Oct. 14, 2005); Second Certified Administrative Record ("S.A.R.") 341 (filed June 6, 2004) (describing procedural history). Plaintiffs also claimed that AIPAC had made illegal corporate campaign expenditures in violation of 2 U.S.C. § 441b. F.A.R. 4, 12-19; S.A.R. 341. AIPAC claimed that its communications to its members fell within the membership organization exception and, therefore, that it did not have to register as a political committee or disclose its financial activities to the FEC. F.A.R. 1460-1549; S.A.R. 341.
On June 16, 1992, the Commission voted 6-0 to find no probable cause to believe AIPAC was a political committee-and thus AIPAC was not subject to the registration and disclosure rules applicable to political committees-because AIPAC's "major purpose" was not to influence federal elections. F.A.R. 3771-72, 3871-72; S.A.R. 341-42. However, the Commission voted 4-2 to find probable cause that AIPAC had violated 2 U.S.C. § 441b by making corporate contributions, which consisted largely of election-related coordinated expenditures for communications to individuals who were not, under the Commission's view at the time, "members" of AIPAC.3 F.A.R. 3771-72, 3871-72; S.A.R. 341. The FEC thought that the question of whether the individuals receiving this material were "members" was a "close question" and noted that it expected to undertake a regulatory proceeding in the near future to clarify the membership criteria. F.A.R. 3860-68, 3925-26. Ultimately, the Commission voted 6-0 to exercise its prosecutorial discretion to take no further action and dismiss the complaint. F.A.R. 3925-26; S.A.R. 341-42.
Plaintiffs filed suit in our Court in 1992, challenging the FEC's determination that AIPAC was not a "political committee." S.A.R. 342 (describing Akins I ). They did not, however, seek review of the membership organization issue. Id. A former member of our Court granted summary judgment for the FEC in 1994, agreeing with the "major purpose" test employed by the FEC to determine whether AIPAC qualified as a political committee. Akins I, No. 92-1864, slip op. at 15-16 (D.D.C. Mar. 30, 1994). Plaintiffs appealed, and a divided panel of our Court of Appeals affirmed. See Akins v. FEC, 66 F.3d 348 (D.C.Cir.1995) (" Akins Panel Opinion "). Upon rehearing en banc, our Circuit Court reversed, finding that the "major purpose" test was inapplicable in cases such as this one that did not involve independent expenditures. See Akins v. FEC, 101 F.3d 731 (D.C.Cir.1996) (en banc) (" Akins En Banc Opinion "). Unfortunately, this appellate odyssey had only just begun!
The Supreme Court granted certiorari on the question whether an organization that otherwise satisfies the Act's definition of a political committee nonetheless falls outside of that definition because "its major purpose is not the nomination or election of candidates." Akins Supreme Court Opinion, 524 U.S. at 26, 118 S.Ct. 1777 (internal quotation marks omitted).4 Rather than addressing this issue, however, the Supreme Court noted that the Commission had proposed new rules defining"membership organization" and vacated our Circuit's en banc decision and remanded the case to the FEC to determine whether, under the new membership rules promulgated by the FEC, the communications at issue constituted membership communications and, therefore, fell outside the scope of expenditures that could qualify AIPAC as a "political committee." Id. at 28-29, 118 S.Ct. 1777. The Court stated that "[i]f ... the FEC decides that AIPAC's activities fall within the 'membership communications' exception, the matter will become moot." Id. at 29, 118 S.Ct. 1777.
On March 21, 2000, under its newly revised membership regulations, the FEC first found that members of AIPAC met the definition of "members" in the new regulations, a finding that is undisputed. F.A.R. Supp. 3980 (filed Oct. 2, 2000) 5; S.A.R. 343; see 11 C.F.R. § 114.1(e)(2)(2000). The FEC then voted 6-0 to find that AIPAC was a "membership organization" under the new regulations. F.A.R. Supp. 3979-82, 3986; S.A.R. 343. Among other requirements, the regulation specifies that a membership organization "[i]s not organized primarily for the purpose of influencing the nomination for election, or election, of any individual to Federal office." 11 C.F.R. §...
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