Akins v. Federal Election Com'n

• Citation: 101 F.3d 731
• Decision Date: 03 January 1997
• Docket Number: No. 94-5088,94-5088
• Parties: , 65 USLW 2389 James E. AKINS, et al., Appellants v. FEDERAL ELECTION COMMISSION, Appellee
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 731

101 F.3d 731

322 U.S.App.D.C. 58, 65 USLW 2389

James E. AKINS, et al., Appellants v. FEDERAL ELECTION COMMISSION, Appellee

No. 94-5088.

United States Court of Appeals District of Columbia Circuit.

Argued May 8, 1996.

Decided Dec. 6, 1996.

As Amended Jan. 3, 1997.

[322 U.S.App.D.C. 60] Appeal from the United States District Court for the District of Columbia (92cv1864).

Daniel M. Schember, Washington, DC, argued the cause for appellants, with whom Abdeen Jabara was on the brief.

Richard B. Bader, Associate General Counsel, Federal Election Commission, Washington, DC, argued the cause for appellee, with whom Lawrence P. Noble, General Counsel, and David B. Kolker, Attorney, were on the brief. Vivien Clair, Attorney, Washington, DC, entered an appearance.

Before: EDWARDS, Chief Judge, WALD, SILBERMAN, WILLIAMS, GINSBURG, SENTELLE, HENDERSON, RANDOLPH, ROGERS, and TATEL, Circuit Judges, and BUCKLEY, ^* Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge SILBERMAN.

Dissenting opinion filed by Circuit Judge SENTELLE.

SILBERMAN, Circuit Judge:

Appellants challenge the district court's grant of summary judgment. The court affirmed the Federal Election Commission's dismissal of appellants' administrative complaint, which had alleged that the American Israel Public Affairs Committee (AIPAC) was a "political committee" subject to relevant reporting and disclosure requirements and contribution and expenditure limits of the Federal Election Campaign Act (FECA), 2 U.S.C. §§ 431-55 (1994 & Supp.1996). The court thought reasonable the Commission's definition of "political committee" as including only organizations that, in addition to meeting the statutory $1,000 expenditure threshold, have as their major purpose campaign related activity. We reverse.

I.

James E. Akins, Richard Curtiss, Paul Findley, Robert J. Hanks, Andrew Killgore, and Orin Parker (collectively appellants) are former ambassadors, congressmen, or government officials. They are registered voters and "politically active persons who ... oppose AIPAC views on U.S. foreign policy in the Middle East" and who "compete with AIPAC in seeking to influence the views and actions of members of Congress, executive policymakers, and the public." Paul Findley is a former congressman from Illinois "widely perceived to be friendly to the Arab cause"; AIPAC is alleged to have helped to defeat him in the 1982 congressional election. AIPAC is an incorporated, tax-exempt organization with approximately 50,000 supporters nationwide and a budget of about $10 million (as of 1989) that lobbies Congress and the executive branch for military and economic aid to Israel and generally encourages close relations with Israel.

Appellants filed a complaint with the FEC in 1989, alleging inter alia that AIPAC had made campaign contributions and expenditures in excess of $1,000 and was therefore a political committee. 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) (emphasis added). "Expenditure" is defined in turn as "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." 2 U.S.C. § 431(9)(A)(i). Expenditures have been classified by caselaw and FEC interpretation to include three categories: independent expenditures not connected to any candidate, coordinated expenditures made in cooperation or consultation with a candidate, and direct contributions to a candidate. Once designated a political committee, an organization must file periodic reports disclosing all receipts and disbursements and identifying each individual to whom it gives or from whom it receives more than $200. See 2 U.S.C. § 434(b)(2)-(5). And it is prohibited from contributing more than $1,000 to any candidate. See 2 U.S.C. § 441a(a). Appellants claimed that AIPAC met the statutory definition of political committee because, for example, it used full-time staff to meet with nearly every candidate for federal office, systematically disseminated campaign literature including candidates' position papers, and conducted regular meetings and phone calls with AIPAC supporters encouraging them to provide aid to particular candidates. Since these activities cost more than $1,000, AIPAC's failure to register as a political committee and comply with the requirements was a violation of the Act. See 2 U.S.C. §§ 433; 434(a)(1), (b); 441a(1), (2).

The General Counsel investigated the allegations and issued a report in 1992, making recommendations that were subsequently adopted by the Commission. The Commission determined that AIPAC likely had made campaign contributions exceeding the $1,000 threshold, but concluded that there was not probable cause to believe AIPAC was a political committee because its campaign-related activities were only a small portion of its overall activities and not its major purpose. The campaign activities were only conducted in support of its lobbying activities. No precedent was cited or rationale given, in the General Counsel's brief, his report, or the Commission's order, to support this interpretation of the statutory definition of "political committee." The Commission did find probable cause to believe that AIPAC violated § 441b, which generally prohibits campaign expenditures and contributions by corporations, but voted to take no action because it thought it was a close question whether AIPAC's expenditures were made in the course of communicating with its members, an exception to § 441b's prohibition. It therefore dismissed the complaint and closed the case.

Appellants sued in the district court pursuant to § 437g(a)(8), an unusual statutory provision which permits a complainant to bring to federal court an agency's refusal to institute enforcement proceedings, cf. Heckler v. Chaney, 470 U.S. 821, 831, 105 S.Ct. 1649, 1655-56, 84 L.Ed.2d 714 (1985), challenging the Commission's interpretation of the term "political committee." ¹ The Commission responded that the Supreme Court, concerned with the Act's burdens on political speech, had narrowed the term's statutory definition in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), and FEC v. Massachusetts Citizens for Life, 479 U.S. 238, 107 S.Ct. 616, 93 L.Ed.2d 539 (1986) (MCFL). The Commission read these opinions--at least it so asserted in district court--as holding that an organization is a political committee only if its major purpose is the influencing of federal elections. Therefore, notwithstanding the plain language, the Commission claimed it interpreted the statute at least reasonably.

The district court agreed. Combining the Supreme Court's opinions (and our decision in FEC v. Machinists Non-Partisan Political League, 655 F.2d 380 (D.C.Cir.), cert. denied, 454 U.S. 897, 102 S.Ct. 397, 70 L.Ed.2d 213 (1981)), with Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) deference, the court concluded that the Commission's construction was "reasonable." A divided panel of this court affirmed. The FEC had not originally challenged appellants' standing, but the panel sua sponte asked the parties to brief the issue. The panel majority concluded that appellants had suffered an "informational injury" as voters and members of the public; the lack of information on AIPAC's contributions and expenditures, caused by the FEC's action, limited the information available to them as voters and impaired their ability to influence and inform the public and policymakers. The dissent thought appellants' injury was based instead on their competitive lobbying position vis-a-vis AIPAC. We determined to rehear the case en banc and directed the parties to focus on standing as well as the merits.

II.

The Commission, as it did before the panel (after it was asked to address standing), challenges the court's jurisdiction. The Commission contends that neither the theories adopted by the panel judges nor appellants' somewhat different contentions satisfy Article III standing requirements. Appellants--whether as voters or political competitors (except for Findley whose standing as a candidate the Commission does not challenge ²)--not only lack injury-in-fact, their alleged injury was not caused by the Commission's actions and it is not redressable by this court's order. It is further argued that even if appellants make out Article III standing, they are not parties "aggrieved" under the statute and so lack prudential standing.

We take up first appellants' standing as voters. We have recognized in our "informational standing" cases that a party may be entitled to sue in federal court to force the government to provide information to the public (and thereby to it) if the government's failure to provide or cause others to provide that particular information specially affects that party. But this type of injury is narrowly defined; the failure must impinge on the plaintiff's daily operations or make normal operations infeasible in order to create injury-in-fact. Compare Scientists' Inst. for Public Info., Inc. v. Atomic Energy Comm'n, 481 F.2d 1079, 1086 n. 29 (D.C.Cir.1973) (the Atomic Energy Commission's decision not to provide an Environmental Impact Statement (EIS) on a reactor program established Article III injury because the Institute's main function was to distribute such information to the public), and Action Alliance of Senior Citizens v. Heckler, 789 F.2d 931, 937-38 (D.C.Cir.1986) (Article III injury where new government regulations restricting the availability of information on services for the elderly impaired AASC's ability to provide information, counseling, and referral services for its senior citizen members)...