No. 96-1590

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

 FEDERAL ELECTION COMMISSION, PETITIONER

v.

JAMES E. AKINS, RICHARD CURTISS, PAUL FINDLEY,
ROBERT J. HANKS, ANDREW KILLGORE, AND
ORIN PARKER
______________

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE  DISTRICT OF COLUMBIA CIRCUIT
______________

APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI
_______________

WALTER DELLINGER
Acting Solicitor General

SETH P. WAXMAN
Deputy Solicitor General

MALCOLM L. STEWART
Assistant to the Solicitor
General

Department of Justice 
Washington, D.C. 20530-0001
(202) 514-2217

LAWRENCE M. NOBLE
General Counsel

RICHARD B. BADER
Associate General Counsel

DAVID KOLKER
Attorney
Federal Election
Commission
Washington, D.C. 20463

WALTER DELLINGER
Acting Solicitor General

SETH P. WAXMAN
Deputy Solicitor General

MALCOLM L. STEWART
Assistant to the Solicitor
General

Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

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TABLE OF CONTENTS

Page

Appendix A (court of appeal's opinion dated
Dec. 6, 1996, as amended Jan. 3, 1997) . . . .   1a
Appendix B (court of appeals' opinion dated 
       Sept. 29, 1995, as amended Nov. 1, 1995) . . . . 41a
Appendix C (court of appeals' order dated 
     Jan. 25, 1996) . . . . 75a
Appendix D (district court's opinion dated
    Mar. 30, 1994) . . . . 77a
Appendix E (FEC certification and statement of 
reasons) . . . . 95a

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       APPENDIX A

  UNITED STATES COURT OF APPEALS
   DISTRICT OF COLUMBIA CIRCUIT

       No. 945088

   JAMES E. AKINS, ET AL., APPELLANTS

         v.

  FEDERAL ELECTION COMMISSION, APPELLEE

      [Argued May 8, 1996]
      [Decided Dec. 6, 1996]
     [As Amended Jan. 3,1997]

         OPINION

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.

___________________(footnotes)

* At the time of en bane argument, Judge Buckley was a
circuit judge in active service. He assumed senior status on
September 1, 1996.

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2a

SILBERMAN, Circuit Judge:

Appellants challenge the district court's grant of
summary judgment. The court affirmed the Federal
Election Commission's dismissal of appellants' admin-
istrative complaint, which had alleged that the .Ameri-
can 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. par par431-55 (1994 & Supp.1996).
The court thought reasonable the Commission's defi-
nition of "political committee" as including only or-
ganizations that, in addition to meeting the statutory
$1,000 expenditure threshold, have as their major pur-
pose 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, con-
gressmen, or government officials. .They are regis-
tered voters and "politically active persons who  . . . . 
oppose AIPAC views-on US. foreign policy in the
Middle East" and who "compete with AIPAC in seek-
ing 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 incorporat-
ed, 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

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3a

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 com-
mittee is defined as "any committee, club, association,
or other group of persons which receives contribu-
tions aggregating in excess of $1,000 during a
calendar year or which makes expenditures aggregat-
ing in excess of $1,000 during a calendar year," 2
U.S.C. par 431(4)(A) (emphasis added). "Expenditure" is
defined in turn as "any purchase, payment, distribu-
tion, loan, advance, deposit, or gift of money or any-
thing of value, made by any person for the purpose
of influencing any election." 2 U.S.C. par 431(9)(A)(i).
Expenditures have been classified by caselaw and
FEC interpretation to include three categories: inde-
pendent expenditures not connected to any candidate,
coordinated expenditures made in cooperation or
consultation with a candidate, and direct contribu-
tions to a candidate. Once designated a political
committee, an organization must file periodic reports
disclosing all receipts and disbursements and identi-
fying each individual to whom it gives or from
whom it receives more than $200. See 2 U. S. Cl.
par 434(b)(2)-(5). And it is prohibited from contributing
more than $1,000 to any candidate. See 2 U.S.C.
par 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 candi-
dates' position papers, and conducted regular meet-

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4a

ings and phone calls with AIPAC supporters en-
couraging them to provide aid to particular candi-
dates. Since these activities cost more than $1,000,
AIPAC'S failure to register as a political comittee
and comply with the requirements was a violation of
the Act. See 2 U.S.C. par par 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 commitee
because its campaign-related activities were only a
small portion of its overall activities and not its major
purpose. The campaign activities were only con-
ducted in support of its lobbying activities. No prece-
dent 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
par 441b, which generally prohibits campaign expendi-
tures 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 par 441b's prohibition. It therefore dis-
missed the complaint and closed the case.

Appellants sued in the district court pursuant to
par 437g(a)(8), an unusual statutory provision which
permits a complainant to bring to federal court an
agency's refusal to institute enforcement proceed-
ings, cf. Heckler v. Chancy, 470 U.S. 821, 831, 105

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S.Ct. 1649, 1655-56, 84 L,Ed.2d 714 (1985), challenging
the Commission's interpretation of the term "politi-
cal 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 inter-
preted the statute at least reasonably.

The district court agreed. Combining the Supreme
Court's opinions (and our decision in FEC v. Machin-
ists 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 "informa-
      
___________________(footnotes)

1 Appellants also contest some of the Commission's factual
conclusions. In particular, they question the Commission's
determination that there was a lack of credible evidence con-
cerning AIPAC's involvement in providing assistance to the
opponent of Paul Findley-a complainant here-in a 1982 con-
gressional election.

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tional 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 bane 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 appel-
lants' 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) 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

___________________(footnotes)
                           
2 The Commission does not explain why, if Findley does
have standing, the rest of its standing objections are nonethe-
less determinative, because we would still be obliged to reach
the merits.

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7a

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 Com-
mission's decision not to provide an Environmental
Impact Statement (EIS) on a reactor program estab-
lished 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 re-
stricting 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), vacated on other grounds,
494 U.S. 1001,110 S. Ct. 1329, 108 L.Ed.2d 469 (1990),
with Competitive Enter. Inst. v. National Highway
Traffic Safety Admin., 901 F.2d 107, 122-23 (D.C. Cir.
1990) (no informational injury where organization
failed to show how the NHTSA's decision not to issue
an EIS significant] y diminished its ability to educate
and inform the public about highway safety). Appel-
lants' alleged injury as voters does not seem to fit
within the limited contours of our informational
standing cases. They do assert that their injury is
based on the FEC'S failure to provide appellants, as
voters, with certain information, but their injury does
not depend on the character of their organizational
activity but rather on the proposition that the de-
privation of that information impedes their ability to

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8a

engage in a particular act guaranteed them in a
democracy.  They have been deprived of certain
specific information that Congress thought voters
needed to make an informed choice and therefore
required "political committees," inter alia, to dis-
close.
Although Congress may not "create" an Article III
injury that the federal judiciary would not recognize,
anymore than Congress could amend the Constitu-
tion, see United Tramp. Union v. ICC, 891 F.2d 908,
915-16 (D.C. Cir. 1989), cert. denied, 497 U.S. 1024,110
S. Ct. 3271, 111 L.Ed.2d 781 (1990); Safir v. Dole, 718
F.2d 475,479 (D.C. Cir. 1983), cert. denied, 467 U.S.
1206, 104 S. Ct. 2389, 81 L.Ed.2d 347 (1984), Congress
can create a legal right (and, typically, a cause of
action to protect that right) the interference with
which will create an Article 111 injury. See Lujan. v.
Defenders of Wildlife, 504 U.S. 555, 578, 112 S.Ct.
2130,2145-46, 119 L.Ed.2d 351 (1992) (quoting Warth v.
Seldin, 422 U.S. 490, 500, 95 S. Ct. 2197, 2205-06, 45
L. Ed.2d 343 (1975)); Havens Realty Corp. v. Coleman,
455 U.S. 363,373, 102 S. Ct. 1114, 1121,71 L.Ed.2d 214
(1982). Such a legal right can be given to all persons
in the country. In that event, any person whose
individual right has been frustrated or interfered
with has standing to sue, even though all other
persons have the same right, without the claim being
regarded as a generalized grievance. That is why
anyone denied information under the Freedom of
Information Act (FOIA), 5 U.S.C. par 552 et seq. (1994),
has standing to sue regardless of his or her reasons

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9a

fox suing. Public Citizen v. FTC, 869 F.2d 1541, 1548
& n. 13 (D.C. Cir. 1989).3

Appellants would analogize this case to a FOIA
case; any and all voters, in their view, suffer injury-
in-fact when the FEC fails to force a political com-
mittee to report its activities to the Commission,
which then has an obligation under the statute to
make such information available to the public. See 2
U.S.C. par 438(a)(4) (requiring Commission to make all
information filed promptly available to the public).
But Congress did not quite create a legal right in all
individual voters to obtain that information either
directly or indirectly. The mere denial of an attempt
to gain information does not create a cognizable
injury under the Act. An individual must file a
complaint with the Commission, which is provided
authority to enforce the requirement that political
committees report their activities.  Only parties
aggrieved by the dismissal of a complaint are entitled
to challenge in court the Commission's refusal to
enforce. (Although under par 437g(a)(8)(C), if a court
decision directing the Commission to act is ignored
by the FEC, the complainant can actually sue the
offending party directly.) This indicates that the
statutory entitlement to information is not as cate-
gorical or direct as that of FOIA.4    

___________________(footnotes)

3 The dissent's logic suggests that even such a claim is
only a generalized grievance; otherwise, to use the dissent's
phraseology, the dissent "ducks the consequences." of admitting
that all Americans could sue. Dissent at 2.
4  By contrast to FOIA, the National Environmental Policy
Act, 42 U.S.C. par 4332(2)(C) (1994), does not provide a private
right of action to enforce the EIS procedural requirements.
To show standing, the litigant therefore must allege that he
will be harmed by the underlying agency action contemplated,

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l0a

While a voter's rights under the Act are not exactly
analogous to FOIA, appellants do have a point, and it
is a point that distinguishes this case somewhat from
our informational standing cases. Cf. Public Citizen
v. Department of Justice, 491 U.S. 440, 449-50, 109
S. Ct. 2558,2564-65, 105 L.Ed.2d 377 (1989) (analogizing
requests for access to information under the Federal
Advisory Committee Act (FACA) to requests under
FOIA). Congress clearly intended voters to have
access to the information political committees were
obliged to report. The whole theory of the statute
is that voters are benefited insofar as they can
determine who is contributing what to whom. See
Buckley, 424 U.S. at 66-67, 96 S. Ct. at 657 (disclosure
"provides the electorate with information `as to where
political campaign money comes from and how it is
spent by the candidate' in order to aid the voters in
evaluating those who seek federal office," deters
actual corruption and the appearance of corruption,
and helps the public detect post-election quid pro
quos). Although Congress cannot determine when
someone has suffered Article III injury, we do not
think it can be denied that this sort of information
that Congress required disclosed aids voters, if and
when they vote. If a party is denied information that
will help it in making a transaction-and a vote can be

___________________(footnotes)

and that if forced to prepare (and consider) an EIS, the agency
might act differently. See Douglas County v. Babbitt, 48 F.3d
1495, 1501 n. 6 (9th Cir. 1995), cwt. denied, - U.S. -, 116
S. Ct. 698, 133 L. Ed.2d 655 (1996); Foundation on Economic
Trends v. Lyng, 943 F.2d 79, 83 (D.C. Cir. 1991). Thus, the lack
of the information itself is not an injury. Here, the injury is
closer to the FOIA model; the injury to the voter is the lack of
the information itself, and the only underlying agency action is
the failure to require disclosure.

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lla

thought of as a kind of transaction-that party is
obviously injured in fact. We recognized as much in
Public Citizen, 869 F.2d at 1546. & n. 7, where we
determined that a group representing consumers had
standing to challenge the FTC's regulations exempt-
ing from health warnings certain promotional
items sold by manufacturers of smokeless tobacco.
Those promotional items, a form of advertising, were
designed to encourage the purchase of smokeless
tobacco, and some of the plaintiffs' members and their
families alleged that they used or may use those
products without the statutorily required reminder of
the dangers that consumption entails. We reasoned
that such information would be of substantial value to
the plaintiffs' members, and therefore they were
injured because they were deprived of it at the time
they purchased or used the product. Id.

Although admittedly registered voters-even the
more limited subset of those who actually vote-is
a very large group of Americans, we do not think
it analytically sound to describe a lawsuit brought
by affected registered voters as presenting only
a generalized grievance. The term "generalized grie-
vance" does not just refer to the number of persons
who are allegedly injured; it refers to the diffuse and
abstract nature of the injury.  See, e.g., Schlesinger v.
Reservists Comm. to Stop the War, 418 U.S. 208, 94
S. Ct. 2925,41 L.Ed.2d 706 (1974) (citizen and taxpayer
challenge to membership of members of Congress in
Armed Forces Reserves during Vietnam War pre-
sents generalized grievance); see also Lujan v.
Defenders of Wildlife, 504 U.S. at 573-74, 112 S. Ct. at
2143-44. The number of potential plaintiffs matters
not so long as each can assert a distinct, individual

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12a

injury, See Sierra Club v. Morton, 405 U.S. 727, 734,
92 S.Ct. 1361,1365-66,31 L. Ed.2d 636 (1972); Michel v.
Anderson, 14 F.3d 6.23, 626 (D.C. Cir. 1994). A voter
deprived of useful information at the time he or she
votes suffers a particularized injury in some respects
unique to him or herself just as a government con-
tractor, allegedly wrongfully deprived of information
to be made available at the time bids are due, would
suffer a particularized injury even if all other bidders
also suffered an injury. As we understand our dis-
senting colleagues, they agree with the Commission
that appellants are presenting a generalized grie-
vance because it is information that they seek.
Apparently if Congress provided that public or private
employers were obliged to provide their employees
free transportation to the polls, enforceable through
an agency like the FEC, that would be a parti-
cularized right (except that according to Section B
of their opinion it would not be redressable). We
think the dissent is just incorrect in refusing to see
information as a commodity of value.5

To be sure, it would not be enough for standing in
this case for appellants to assert only that they were
voters, for appellants would not be injured as voters if
AIPAC's activities were unrelated to any election in
which they voted. But appellants can hardly be ex-
pected to allege that AIPAC made contributions in
the elections in which they voted, for whether AIPAC
made such contributions is precisely the information

___________________(footnotes)

5 Since the dissent concedes that all appellants would have
standing if the information had been supplied to the FEC and
then simply withheld, Dissent. at 746-47, 745 n.2, it would ap-
pear that the dissent's only real objection to standing is redress-
ability.

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13a

of which appellants claim they have been deprived. As
the FEC found that AIPAC likely did contribute in
excess of $1,000 in one year, and the FEC did not
identify the elections to which these contributions
were made, there is nothing to indicate that appel-
lants did not  vote in various federal elections in which
AIPAC allegedly made contributions that qualified it
as a political committee. Therefore we conclude that
appellants have standing as affected voters. We thus
need not resolve whether appellants also have stand-
ing as political competitors of AIPAC, or whether M-r.
Findley-who was last a candidate in 1982, see Golden
V. Zwickler, 394 U.S. 103, 109, 89 S. Ct. 956, 960, 22
L.Ed.2d 113 (1969) (no controversy where it was un-
likely that congressman would again be a candidate
for Congress)-has standing as a candidate.

The Commission also questions the causal con-
nection between its decision and appellants' injury, as
well as causation's corollary in standing analysis-
redressability. As best we understand the FE C's
rather confusing argument,6 its causation objection is
primarily directed to appellants' alleged lobbying
injury rather than their injury as voters. That the
Commission does not make the argument vis-a-vis
appellants' standing as voters is understandable be-
cause such a theory would stretch causation to its
breaking point; no one would have standing to chal-
lenge the Commission's determination, or for that
matter, many other administrative agency actions. It
is only necessary for a voter to allege that his vote
and others' votes may have been affected by the
 
___________________(footnotes)

6 Appellants did not, it should be noted, provide much
help on the difficult standing issue in this case.

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14a

disclosure of information that a contrary FEC deter-
mination would have made available.

The Commission's argument that appellants lack
standing because we cannot issue an order that re-
dresses their injury-with which the dissent
agrees-strikes us as a breathtaking attack on the
legitimacy of virtually all judicial review of agency
action. The Commission points out that it has en-
forcement discretion, so that even if we were to
determine that its statutory interpretation of
"political committee" is erroneous, it does not follow
that AIPAC would be required to disclose the
information a political committee must: the FEC
might settle with AIPAC on terms that did not
require disclosure. Yet all regulatory agencies enjoy
some measure of enforcement discretion.  If that
factor were to mean that an agency's legal deter-
mination was not reviewable, that would virtuaIly end
judicial review of agency action. We rarely know
when we entertain a case, say, challenging an
agency's interpretation of a statute, whether the
agency's ultimate action will be favorable to the
petitioner or appellant. See Public Citizen, 491 U.S.
at 450, 109 S. Ct. at 2564-65 (that FACA documents
may not be disclosed pursuant to statutory exceptions
no bar to redressability); Competitive Enter. Instit.,
901 F.2d at 118 ("[a] remand that would leave the
agency free to exercise its discretion in a proper man-
ner, then, could lead to agency action that
would redress petitioners' injury") (emphasis added);
Foundation on Economic Trends v. Lyng, 943 F.2d at
83 & n. 2 (plaintiff typically not required to show that
the agency was likely to take a particular substantive
action in response to EIS). Our job is limited to

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15a

correcting a legal error-if error is committed-in
the agency decision. See SEC v. Chenery Corp., 332
U.S. 194, 196-97,67 S. Ct. 1575, 1577-78,91 L.Ed. 1995
(1947). The error must, of course, be one upon which
the agency decision rests, an analytical precondition
to the agency action. If that is so, it has always been
an acceptable feature of judicial review of agency
action that a petitioner's "injury" is redressed by the
reviewing court notwithstanding that the agency
might well subsequently legitimately decide to reach
the same result through different reasoning. See id.

Nor can it be relevant, as the dissent supposes, that
AIPAC might not comply with the Commission's
order. That too is always true when an agency's
nonaction against a third party is challenged. In any
event, under this very unusual statute appellants are
not dependent on the Commission's compliance with
our decision correcting the Commission's interpreta-
tion of the phrase "political committee." As we noted
earlier, if the Commission fails to "conform" to our
"declaration," the appellants, as the original com-
plainant, may bring their own civil action to remedy
the violation of law. 2 U.S.C. par 437g(a)(8)(C). It would
appear under this provision that if the Commission
gave only lip service to compliance with our order and
settled with AIPAC without requiring disclosure, as
the dissent suggests could occur, appellants would
be able to seek disclosure directly. This unique
statutory provision then completely undermines
the Commission's and the dissent's redressability
argument-even on the argument's own terms.7

___________________(footnotes)

7 In an argument that seems to be based more on mootness
than redressability, the Commission also contends that appel-
lants' injury would not be redressed by a favorable decision of

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16a

Finally, the Commission challenges appellants'
prudential standing, claiming they are not parties
aggrieved within the meaning of the statute, which
provides that "any party aggrieved by an order of the
Commission dismissing a complaint filed by such
party . . . may file a petition with the United States
District Court for the District of Columbia." 2
U.S.C. par 437g(a)(8)(A). The Supreme Court, inter-
preting similar language in the Administrative Pro-
cedure Act permitting judicial review generally if
a party is "aggrieved," has held that term obliges
federal courts to determine whether, under the
substantive statute, the party seeking judicial review
is within the zone of interests. Thus

[i]n cases where the plaintiff is not itself the sub-
ject of the contested regulatory action, the test
denies a right of review if the plaintiff's interests
are so marginally related to or inconsistent with
the purposes implicit in the statute that it cannot
reasonably be assumed that Congress intended to
permit the suit. The test is not meant to be espe-
cially demanding, in particular, there need be no

___________________(footnotes)

this court because AIPAC is barred from making future contri-
butions to candidates by another section of the statute, par 441b,
which prohibits corporate contributions. This is a non sequitur;
appellants claim they are injured because AIPAC was permit-
ted to avoid registering as a political committee and disclosing
its past receipts and expenditures. That disclosure of past
activities would presumably affect voters in the future. If such
injury were not redressable, once an election ended virtually all
electoral conduct would be beyond review. In this case, for
example, it took well over two years for the Commission to
make a probable cause determination.

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17a

indication of congressional purpose to benefit the
would-be plaintiff.

Clarke, v. Securities Indus. Ass'n, 479 U.S. 388,
399-400, 107 S, Ct. 750, 757, 93 L.Ed,2d 757 (1987) (cita-
tions omitted) (emphasis added). Here, although the
governing judicial review provision is included within
the substantive statute, the same test logically
should apply to determine whether a party challeng-
ing a Commission decision qualifies. But why would
appellants not meet that test? The Commission's
argument again is rather convoluted. It concedes, as
it surely must, that the statute is designed primarily
to aid voters, Buckley, 424 U.S. at 66-67, 96 S. Ct. at
657-58; therefore, it seems strange to even suggest
that a voter would not have prudential standing. Yet
the Commission asserts that "a pure voter's interest
[is] too generalized to satisfy Article III or the zone
of interests test" (emphasis added). We have already
explained why we do not regard appellants' case as
presenting a "generalized grievance." See supra pp.
737-38. And although the numbers of persons who
might be eligible to sue might well bear on a deter-
mination as to whether Congress intended such a
broad class of potential litigants, in this case it
is apparent that Congress treated the broad class-
voters-as the core beneficiaries of the statute.
Therefore, we simply cannot glean any congressional
intent to preclude members of that class from suing-
so long as they filed a complaint with the FEC that
was dismissed.8      

___________________(footnotes)

8 It is not clear from the Commission's argument who
would have prudential standing. Although the fact that no one
would have standing to sue is not a reason to find Article III
standing, Schlesinger v. Reservists, 418 U.S. at 227, 94 S. Ct. at

---------------------------------------- Page Break ----------------------------------------

18a

The Commission contends that "aggrieved" must
be read to require a more direct connection to or a
greater stake in the conduct in question, call it "voter
plus" status. But appellants are not merely voters;
they are voters who have filed a complaint with the
Commission that has been dismissed. In sum, appel-
lants' interests as voters clearly are not "so
marginally related to or inconsistent with the pur-
poses implicit in the statute," Clarke, 479 U.S. at 399,
107 S. Ct. at 757, for it to be unreasonable to assume
Congress intended to permit them to sue.

        III.

Section 431(4)(A) defines "political committee"
solely in terms of "expenditures" and "contribu-
tions": a political committee is "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 aggre-
gating in excess of $1,000 during a calendar year."
The FEC concedes that this language sets unambigu-
ous requirements for classification as a political
committee. But it asserts that Supreme Court de-
cisions have narrowed the reach of the statutory
language in response to First Amendment concerns.
The FEC relies on language in Buckley, 424 U.S. 1,
96 S. Ct. 612,46 L.Ed.2d 659, and MCFL, 479 U.S. 238,
107 S. Ct. 616, 93 L.Ed.2d 539, in claiming that an
organization should only be classified as a political
committee if, in addition to exceeding the $1,000

___________________(footnotes)
                              
2935, the same cannot be said for prudential standing. Where
Congress has created a right to seek judicial review, see 2
U.S.C. par 437g(a)(8), it cannot be the case that Congress in-
tended that right to extend to no one.

---------------------------------------- Page Break ----------------------------------------

         19a

expenditure limit, the organization's major purpose is
the nomination or election of a candidate or the
organization is controlled by a political candidate.

At minimum, the Commission argues, these cases
created an ambiguity in the statutory definition
of "political committee" so that the Commission's
subsequent interpretation of the term is owed de-
ference-and passes muster-under Chevron Step II.
Chevron U.S.A. inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 104 S. Ct. 2778,81 L.Ed.2d
694 (1984). When Congress is silent or ambiguous,
the Commission reminds us, an agency's construction
is owed deference if it is permissible.  That the
ambiguity here arose from Supreme Court interpre-
tation does not, it is argued, affect this general rule of
deference; the agency still has discretion to fill the
interpretive "gap." According to the FEC, the gap to
be addressed here is not whether the Court esta-
blished a major purpose test as a generic definition of
political committee (which the Commission assumes),
but how such a test is to be implemented. Since the
Court did not decide the types of organizations that
are within its "definition" of political committee,
whether contributions and expenditures are treated
the same, and so on, the Commission has discretion to
flesh out the concept, consistent with Supreme Court
precedent.
We think the FEC'S plea for deference is doc-
trinally misconceived.  It is undisputed that the
statutory language is not in issue, but only the
limitation-or really the extent of the limitation-put
on this language by Supreme Court decisions. We are
not obliged to defer to an agency's interpretation of
Supreme Court precedent under Chevron or any

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20a

other principle. The Commission's assertion that
Congress and the Court are equivalent in this respect
is inconsistent with Chevron's basic premise. Chev-
ron recognized that Congress delegates policymaking
functions to agencies, so deference by the courts to
agencies' statutory interpretations of ambiguous
language is appropriate. But the Supreme Court does
not, of course, have a similar relationship to agencies,
and agencies have no special qualifications or legiti-
macy in interpreting Court opinions. There is there-
fore no reason for courts-the supposed experts in
analyzing judicial decisions-to defer to agency
interpretations of the Court's opinions. This is espe-
cially true where, as here, the Supreme Court pre-
cedent is based on constitutional concerns, which is
an area of presumed judicial competence. See Public
Citizen v. Burke, 843 F.2d 1473,1478 (D.C. Cir. 1988).

In sum, since it is not, and cannot be, contended
that the statutory language itself is ambiguous, and
the asserted "ambiguity" only arises because of the
Supreme Court's narrowing opinions, we must decide
de novo the precise impact of those opinions. In that
regard, we think the Commission misstates the
interpretation issue. As we noted, it casts the ques-
tion as how the major purpose test applies, as if the
test were set forth categorically. But as we see the
key question, it is whether the Supreme Court's
major purpose limitation imposed in certain circum-
stances for constitutional reasons applies in another
circumstance-this case-in which the same consti-
tutional concerns may not be implicated.

Turning to the Supreme Court's decisions, the
Court did state in Buckley that the term political
committee "need only encompass organizations that

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21a

are under the control of a candidate or the major
purpose of which is the nomination or election of a
candidate." 424 U.S. at 79, 96 S.Ct. at 663 (emphasis
added). And this notion was repeated in MCFL: "an
entity subject to regulation as a `political committee'
under the Act is one that is either `under the control
of a candidate or the major purpose of which is the
nomination or election of a candidate.'" 479 U.S. at
252 n. 6, 107 S. Ct. at 625 n. "6 (quoting Buckley, 424
U.S. at 79, 96 S. Ct. at 663). Although MCFL ap-
parently was not charged with violating the political
committee provisions, the Court in dicta said that
"should MCFL's independent spending become so
extensive that the organization's major purpose may
be regarded as campaign activity, the corporation
would be classified as a political committee." Id. at
262, 107 S.Ct. at 630.

While the above language in Buckley and MCFL
can literally be read to support the FEC's position,
both cases focused on the constitutional concerns
raised by independent expenditures, which are not
coordinated with or made in consultation with any
candidate, as distinguished from coordinated expendi-
tures or direct contributions. See Colorado Republi-
can Fed. Campaign Comm. v. FEC, - U.S. -, -
- - -, 116 S. Ct. 2309, 2315-16, 135 L.Ed.2d 795
(1996). Independent expenditures are the most pro-
tected form of political speech because they are
closest to pure issue discussion and therefore
farthest removed from the valid goal of preventing
election corruption. Buckley, 424 U.S. at 19-23, 78-81,
96 S.Ct. at 634-37, 663-64; MCFL, 479 U.S. at 259-60,
107 S. Ct. at 628-29. They raise more serious First
Amendment concerns because it is difficult to deter-

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22a

mine when an expenditure is independent, and
regulation therefore risks chilling protected speech.
For that reason, in Buckley the Supreme Court
determined that expenditure limits are more likely to
violate the First Amendment because they place
substantial and direct restrictions on the ability to
engage in political speech. See 424 U.S. at 39-59,
96 S. Ct. at 644-54. Limitations on contributions or
coordinated expenditures, on the other hand, were
thought to raise fewer constitutional concerns
because they serve the basic governmental interest
of protecting the electoral process while only
marginally restricting political debate and dis-
cussion. See Colorado Republican Fed. Campaign
Comm., - U.S. at -, 116 S. Ct. at 2315; Buckley,
424 U.S. at 28, 96 S.Ct. at 639 (such limits "focus[ ]
precisely on the problem of large campaign contri-
butions-the narrow aspect of political association
where the actuality and potential for corruption have
been identified"); see also Buckley, 424 U.S. at 28,30,
36,96 S.Ct. at 639, 640, 643.

To support its interpretation, the FEC points to
Buckley's discussion of par 434(e), which imposes
disclosure requirements on "[e]very person (other
than a political committee or candidate)" making
contributions or expenditures exceeding $100? "Con-
tributions" -when defined as direct or indirect
contributions to a candidate, political party, or cam-
paign committee, or expenditures placed with the

___________________(footnotes)

9 Section 434(e) has subsequently been amended: "Every
person (other than a political committee) who makes independ-
ent expenditures in an aggregate amount or value in excess of
$250 during a caIendar year" shall be subject to certain report-
ing and disclosure requirements. 2 U.S.C. par 434(c)(l).

---------------------------------------- Page Break ----------------------------------------

23a

cooperation or consent of a candidate-were deter-
mined to "have a sufficiently close relationship to the
goals of the Act," and therefore limits on them are
constitutional. Id. at 78, 96 S. Ct. at 663. The Court
noted that the meaning of "expenditure," however,
posed line-drawing difficulties because it posed the
danger of "encompassing both issue discussion and
advocacy of a political result." Id. at 79, 96 S. Ct. at
663. Therefore, the reach of par 434(e) was limited
by "construing] `expenditure' for purposes of that
section . . . to reach only funds used for communica-
tions that expressly advocate the election or defeat of
a clearly identified candidate." Id. at 80, 96 S. Ct. at
663. In the midst of this analysis of the scope of
"expenditures" under par 434(e), the Court noted in
dicta that the meaning of political committee, because
it was defied solely in terms of contributions and
expenditures, posed the same line-drawing problem.
The Court's language that apparently refers to the
major purpose of an organization, given this context,
does not really support the Commission's interpreta-
tion:

To fulfill the purposes of [FECA, political com-
mittees] need only encompass organizations that
are under the control of a candidate or the major
purpose of which is the nomination or election
of a candidate. Expenditures of candidates and
of "political committees" so construed can be as-
sumed to fall within the core area sought to be
addressed by Congress. They are, by definition,
campaign related.

Id. at 79,96 S.Ct. at 663 (emphases added). We think
the better interpretation of this language, as appel-

---------------------------------------- Page Break ----------------------------------------

24a

lants suggest, is that when an organization controlled
by a candidate or the major purpose of which is
election-related makes disbursements, those dis-
bursements will presumptively be expenditures with-
in the statutory definition. The Court clearly distin-
guished independent expenditures and contributions
as to their constitutional significance, and its refer-
ences to a "major purpose" test seem to implicate
only the former.

   As we noted, certain language in MCFL can also be
   read to support the FEC's position, but the Court was
   again addressing First Amendment problems with the
   regulation of independent expenditures. The Court
   held that par 441b, which prohibits corporate contribu-
   tions or expenditures "in connection with any
   election," was unconstitutional as applied to MCFL
   because the Act's reporting and disclosure require-
   ments might discourage protected political speech
   of such advocacy groups. See 479 U.S. at .253-56,
   107 S. Ct. at 625-27.  Still, the Court's analysis
   clearly distinguished contributions and expenditures
   "should MCFL's independent spending become so
   extensive that the organization's major purpose may
   be regarded as campaign activity, the corporation
   would be classified as a political committee." Id. at
   262, 107 S. Ct. at 630 (citing  Buckley, 424 U.S. at '79, 96
           S.Ct. at 663) (emphasis added). As in Buckley, this
   language can be read as merely creating a presump-
   tion that certain organizations' expenditures are
   "made . . . for the purpose of influencing any election";
   an organization devoted almost entirely to campaign
   spending could not plead that the administrative
   burdens associated with such spending were uncon-
   stitutional as applied to it. As in Buckley, the under-

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         25a

lying concern is that congressional regulation, in its
effort to achieve full disclosure, may impermissible
discourage protected independent expenditures. In
short, the Court's rationale in MCFL and Buckley is
simply inapplicable to the present case. There is no
constitutional problem with applying par 431(4)(A) to
AIPAC or to other organizations making campaign
contributions (or coordinated expenditures) exceed-
ing the statutory limits.10

The FEC further contends, however, that we
endorsed its "major purpose" test in Machinists Non-
Partisan Political League, 655 F.2d at 392. In
Machinists, we held that "draft groups" that pro-
moted the acceptance of particular individuals prior to
their actual nomination did not fall within the
definition of "political committee" because the ex-
penditures and contributions were not made to a
"candidate." Id. at 396. Our decision was based in
large part on Congress' intent to exclude draft groups
from the definition of political committee. See id. at
394-96 (Congress failed to respond to the FEC's
repeated requests to amend the Act to apply contri-
bution limits to draft groups). And our analysis,
contrary to the FEC's suggestion, supports appel-
lants' interpretation of the major purpose test We
        
__________________(footnotes)
         
10 The Commission makes no claim that AIPAC actually
qualifies for the MCFL constitutional exemption, which re-
quires that the organization be engaged in issue advocacy, that
it not accept contributions from labor unions or corporations,
and that it have no shareholders or other persons with a claim
on its assets who would have a disincentive to withdraw if they
disagreed with its political positions. 479 U.S. at 264, 107 S. Ct.
at 631. Indeed, the General Counsel's brief advised that AIPAC
did not qualify because it apparently receives certain contri-
butions from corporations.

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26a

did quote Buckley's language-noted above to be
equivocal-on an organization's major purpose. Id. at
392. But we concluded that Buckley had endorsed the
"narrowing construction" of "political committee"
developed in United States v. National Comm. for
Impeachment, 469 F.2d 1135 (2d Cir.1972) (NCFI), and
American Civil Liberties Union, Inc. v. Jennings,
366 F. Supp. 1041 (D. D.C. 1973) (ACLU) (three-judge
court), vacated as moot sub nom. Staats v. ACLU, 422
U.S. 1030,95  S.Ct.. 2646,45 L.Ed.2d 686 (1975), and we
noted that "[a]ll three of these decisions recognized
the grave constitutional difficulties inherent in
construing the term `political committee' to include
groups whose activities are not under the control of
a `candidate,' or directly related to promoting or de-
feating a clearly identified `candidate' for federal
office." Id. at 393 (emphasis added). Our use of the
word "activities"- while admittedly not free from
ambiguity-indicates that, as appellants contend, it is
the purpose of the organization's disbursements, not
of the organization itself, that is relevant.11

___________________(footnotes)

11 Appellants argue that the major purpose test is properly
employed to determine whether an organization's independent
disbursements constitute "expenditures" within the meaning of
par 431(9)(A)(i), such that they count toward the $1,000 limit
defining political committee status. See NCFI, 469 F.2d 1135;
ACLU, 366 F.Supp. 1041. We do not for purposes of this ap-
peal have to determine finally whether appellants' version of
the test is the only possible one. But we reject the FEC's
contention that appellants' interpretation of the major purpose
test is redundant because the statute already requires that an
expenditure be "made for the purpose of influencing an
election." A "major purpose" test was developed at least part-
ly in order to construe this definition narrowly so as to avoid
constitutional concerns. See NCFI, 469 F.2d 1135;  ACLU, 366
F.Supp. 1041; cf Buckley, 424 U.S. at 76-78, 96 S.Ct. at 662-63.

---------------------------------------- Page Break ----------------------------------------

27a

The FEC'S interpretation of "political committee"
would, as appellants point out, allow a large organi-
zation to contribute substantial sums to campaign
activity, as long as the contributions are a small
portion of the organization's overall budget, without
being subject to the limitations and requirements
imposed on political committees. Thus, an organiza-
tion spending its entire $1 million budget on campaign
activity would be a political committee, while another
organization spending $1 million of its $100 million
budget on campaign activity would not. This would
wholly eviscerate the $1,000 limit in par 431(4 )(A)'s
definition of "political committee." That such an
organization, as the Commission emphasizes, may be
limited by other statutory provisions as well-e.g.,
par 441b's prohibition on corporate expenditures and par
434(c)'s restrictions on persons (defined in par 431(11) to
include corporations) making independent election
expenditures-is irrelevant. There is no indication
that Congress intended to limit one section in light of
others or to make their application mutually exclu-
sive. As the Commission concedes, various statutory
provisions impose different, if overlapping, limits and
requirements on organizations; these differences re-
present the sound exercise of congressional judgment
as to the various degrees of risk to the election
process posed by certain activities.

___________________(footnotes)

The FEC assumes that this statutory language already had a
precise meaning-under the control of a candidate or made
with the consent or authorization of a candidate-which in fact
NCFI, 469 F.2d at 1141, and Buckley, 424 U.S. at 40-42, 79, 80,
sought to impose. Appellants' major purpose test thus can be
seen not as a tautology but as a necessary judicial gloss on the
statutory definition of expenditure.

---------------------------------------- Page Break ----------------------------------------

28a

The Commission seeks to minimize the implicat-
ions of its interpretation by arguing that it has not
yet resolved when an organization's spending be-
comes "a" major purpose that counts toward the
"political committee" threshold.12 But we think little
of this suggested safety valve; the inevitable logic of
the Commission's test is that the two organizations
described above, spending precisely the same amount
to influence federal elections and therefore
presenting precisely the same threat of election
corruption, will be treated differently. And if the
Commission is truly considering a variable major
purpose standard as applied to contributions-now it
applies and now it does not-such discretion in itself
raises First Amendment concerns.  Cf.Forsyth
County v. Nationalist Movement, 505 U.S. 123,
130-33,112 S.Ct. 2395,2401-03, 120 L.Ed.2d 101 (1992)
                                            
___________________(footnotes)

12  The Commission nevertheless claims that it has con-        
sistently implemented its interpretation of the statute post-
Buckley. The FEC points to two of its recent decisions,
post-dating this litigation, to show its adherence to the major
purpose test. See AO 1995-11, 2 Fed. Elec. Camp. Fin. Guide
(CCH) 6148-49 (1995); AO 1994-25, 2 Fed.) Elec.. Camp. Fin.
Guide (CCH)  6125. But as appellants note, earlier FEC
advisory opinions-in the nearly 20 years after Buckley and 10
after MCFL-did not articulate a major purpose test; they
instead appear to examine whether particular expenditures
exceeded the $1,000 limit, without regard to the percentage of
spending that was campaign related or to the organization's
major purpose. See, e.g., AO 197941, 1 Fed- Elec. Camp. Fin.
Guide (CCH)  5426; AO 1988-22, 2 Fed. Elec. Camp. Fin.
Guide (CCH)  5932. We by no means think the FEC's ap-
parent change of position dispositive, but it does undermine the
Commission's insistence that the Supreme Court clearly im-
posed this test, particularly given its failure to explain that
view in its Order in this case.

---------------------------------------- Page Break ----------------------------------------

29a

(First Amendment prohibits investing official in li-
censing scheme with discretion).  Moreover, if it
relied on such a standard, the Commission should
have determined more precisely the level of AIPAC's
campaign spending and should have explained why
that funding was not "a" major purpose.13
          
There is no contention that AIPAC's disburse-
ments were independent expenditures, so there is no
constitutional barrier to application of par 431(4) (A)'s
plain terms. The FEC found that AIPAC likely made
campaign contributions in excess of $1,000. Its de-
cision that no probable cause existed to believe
AIPAC was a political committee, and its consequent
dismissal of appellants' complaint, were therefore
based on its mistaken interpretation of  par 431(4)(A).
This error requires that we reverse the dismissal of
the complaint and remand to the FEC for further
action not inconsistent with this opinion.

___________________(footnotes)

13 The FEC's decisions on how and to what extent to in-
vestigate a complaint, while reviewable, command substantial
deference. See FEC  v. Rose, 806 F.2d 1081, 1091 (D. C.Cir.
1986). However, the investigation here likely would have been
insufficient to support a finding that AIPAC's contributions
were not "a" major purpose. The Commission asserts in its
brief, without citation to the record, that "the evidence indi-
cated that AIPAC's campaign spending never even reached
one percent of its annual budget," but that already approaches
$100,000 (emphasis added). In any event, given our resolution
of the case, the factual findings already made by the FEC
indicate that AIPAC should be classified as a political commit-
tee.

---------------------------------------- Page Break ----------------------------------------

30a

           ****

The judgment of the district court is

Reversed.

SENTELLE, Circuit Judge, dissenting, with whom
Circuit Judge HENDERSON joins:

The standing doctrine "requires that anyone who
would invoke the aid of the courts in resolving a
complaint must allege, at a minimum, an actual or
imminent injury personal to the plaintiff that is fairly
traceable to the defendant's conduct and that is likely
to be redressed by requested relief." Louisiana Env.
Action Network v. Browner, 87 F.3d 1379,1382 (D.C.
Cir. 1996). For the reasons that follow, I would hold
that appellants have not established these minimum
requirements.

A. Informational Standing

When this matter was before the panel, I wrote for
the majority finding standing based on "informational
injuries." I concluded at the time, and believe now,
that the panel was compelled by circuit precedent to
reach that result. See, e.g., Save Our Cumberland
Mountains, Inc. v. Hodel, 826 F.2d 43, 54 (D.C. Cir.
1987) (R.B. Ginsburg, J., concurring) (law of the
circuit " `whether or not [it] is correct' . . . binds us
unless and until overturned by the court en bane or by
Higher Authority."). Because circuit precedent dic-
tated that an organization can establish standing by
alleging that a governmental action restricted the
flow of information disseminated by the organization
in its regular activities, Action Alliance of Senior
Citizens v. Heckler, 789 F.2d 931,939 (D.C. Cir. 1986),
I thought the panel had no choice on the issue. Be-
cause the en bane court is not so restricted but is

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31a

empowered to depart from circuit precedent, if I were
writing for the majority today, I would take this
occasion to modify circuit law on informational stand-
ing and would not find informational standing on the
present record.

The majority, rightly, rejects informational stand-
ing for plaintiffs in this case. I applaud the majority's
decision to treat the concept as a narrow one. I agree
with the majority that a party cannot successful] y
claim informational standing -where he cannot esta-
blish that "the government's failure to provide or
cause others to provide" information "impinge[s] on
the plaintiff's daily operations or make[s] normal
operations infeasible . . . . " Maj. Op. at 735 (citing
Scientists' Inst. for Public Info., Inc. v. Atomic
Energy Comm'n, 481 F.2d 1079, 1086 n. 29 (D.C. Cir.
1973)). While the majority is not clear on why
appellants' complaint differs from that of, for example,
the organization for the elderly in Action Alliance, it
at least seems to be attempting to narrow the concept
of informational standing by holding that the
"[appellants' alleged injury as voters does not seem
to fit within the limited contours of" informational
standing precedent. Maj. Op. at 736. But the majority
retains the fundamental error which has infected our
informational standing jurisprudence when it affords
standing to the plaintiffs/appellants as voters, on
a rationale indistinguishable from informational
standing. Indeed, it recites in informational terms
that "[a] voter deprived of useful information at the
time he or she votes suffers a particularized injury in
some respects unique to him or herself just as a
government contractor, allegedly wrongfully deprived
of information to be made available at the time bids

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32a

are due, would suffer a particularized injury even if
all other bidders also suffered an injury." Maj. Op. at
737 (emphasis added). In setting forth this analysis,
the majority admits that the class of "registered
voters-even the more limited subset of those
who actually vote-is a very large group of Ameri-
cans . . . . "l Id. at 737. But the majority ducks the
consequences of this admission.

The Supreme Court expressly held in Warth v.
Seldin, 422 U.S. 490, 95 S. Ct. 2197, 45 L.Ed.2d 343
(1975), that "when the asserted harm is a `generalized
grievance' shared in substantially equal measure
by all or a large class of citizens, that harm alone
normally does not warrant exercise of jurisdiction."
Id. at 499, 95 S.Ct. at 2205 (citing, e.g., Schlesinger V.
Reservists Committee to Stop the War, 418 U.S. 208,
94 S. Ct. 2925,41 L.Ed.2d 706 (1974)). The majority has
not explained why the claimed lack of information for
the entire class of voters (or potential voters) does
not fall squarely within this precept. The attempted
distinction that " `generalized grievance' does not just
refer to the number of persons who are allegedly
injured [but] refers to the diffuse and abstract nature
of the injury," Maj. Op. at 737, gets nowhere without
an explanation as to why this is not a diffuse and
abstract injury.2 The comparison to the bidder de-

___________________(footnotes)

1  It is not at all clear why the injury is limited to the class
of registered voters as opposed to all potential voters as the
information, if useful, could be as likely to warrant registration
and voting as voting in a particular direction.
2  Contrary to the majority's assertion, Maj. Op. at 736 n.3,
our logic does not suggest that a claim for information under
FOIA is only a generalized grievance. FOIA gives everyone a
right to information. A FOIA injury, therefore, is not a
" `generalized grievance' shared in substantially equal measure

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 33a

prived of information accomplishes even less. Chief
Justice Burger in Schlesinger v. Reservists made
that comparison for us. "It is one thing for a court to
hear an individual's complaint that certain specific
government action will cause that person private
competitive injury . . . but it is another matter to
allow a citizen to call on the courts to resolve ab-
stract questions." Schlesinger, 418 U.S. at 223, 94
S. Ct. at 2933 (footnote omitted). Cases in this second
category, Chief Justice Burger noted, raise "only a
matter of speculation whether the claimed violation
has caused concrete injury to the particular com-
plainant." Id. This is the flaw of the new form of
standing-voter standing-that the majority creates
today, It, like the broad definition of informational
standing, relies on a diffuse rather than a particular-
ized injury.

I would not only reject informational standing as a
basis for this claim, but, because I see no basis for
distinction between this case and, for example, Action
Alliance, I would reexamine the entire concept of
informational standing as it now exists in this cir-
cuit, and I would reject it. I do not find within the
majority opinion any justification for our precedent
on that subject. The majority's creation violates the
principle that a plaintiff generally may not rely for
a claimed injury on a mere ideological interest,
Competitive Enter. Inst. v. NHTSA, 901 F.2d 107, 112
              
___________________(footnotes)

by all or a large class of citizens."  Warth, 422 U.S. at 499, 95
S.Ct. at 2205. It is a particularized injury personal to the
disappointed requester, and Warth's holding is therefore not
implicated. Similarly, if the FEC had the information appel-
lants want and refused to provide it, they might have a cogniz-
able injury affording them standing.

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34a

(D.C. Cir. 1990), by perpetuating the notion that an
organization has standing where the alleged injury is
that the government's failure to provide information
to the organization "impinge[s] on the plaintiff's daily
operations or make[s] normal operations infeasible."
Maj. Op. at 735 (citing Scientists' Inst. for Public
Info., Inc. v. Atomic Energy Comm'n, 481 F.2d 1079,
1086 n. 29 (D.C. Cir. 1973)). While the Supreme
Court's standing jurisprudence may not always be
pellucid, the Court has left no doubt that "a mere
`interest in a problem,' no matter how longstanding
the interest and no matter how qualified the organi-
zation is in evaluating the problem, is not sufficient
by itself to render the organization `adversely
affected' or `aggrieved' within the meaning of the
APA." Sierra Club v. Morton, 405 U.S. 727, 739, 92
S. Ct. 1361,1368,31 L.Ed.2d 636 (1972).

As the Court noted, if a special interest in a subject
were enough to provide the floor for standing to
a long-interested organization, there would be no
objective basis for barring the same theory of
standing to any other organization no matter how
small or new, or to an individual with an interest in
the subject matter. That the organization has made
the collection and dissemination of information on a
particular subject its goal in life no more gives it
an injury in fact each time it cannot obtain the
information it wants than would be true of any one of
its members. The organization's standing can, like
water, rise no higher than its members' source. That
the organization cannot carry on its ordinary affairs
because it cannot get the information it desires from
the government no more creates injury in fact than if
it were seeking government funds to which it was not

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35a

otherwise entitled because it could not operate its
ordinary affairs without that funding. That could
hardly be said to provide it with an injury in fact for
standing purposes unless the government were under
some duty to provide the funding. I see no reason why
the same is not true with respect to information.

Informational standing, of course, has a legitimate
origin in those areas of the law where Congress has
created a right to information and an obligation on the
government to furnish it, and a plaintiff, attempting
to exercise that right, has been denied the same. As
the majority rightly notes, "Congress may not
`create' an Article III injury that the federal judiciary
would not recognize, [but] . . . Congress can create a
legal right ., . the interference with which will create
an Article III injury."  Maj. Op. at 736 (citations
omitted). Thus, under statutes such as FOIA, where
Congress has expressly entitled citizens to certain
information, the withholding of that information by
the government violates that statutory right and
causes the injury in fact which underlies standing.
This is so despite the fact that all citizens hold the
right equally and that generalized grievances do not
provide the injury in fact necessary for Article III
standing. See Public Citizen v. United States Dep`t
of Justice, 491 U.S. 440,449-50, 109 S. Ct. 2558, 2564-65,
105 L.Ed.2d 377 (1989).

The logic of allowing that deprivation to constitute
injury in fact despite the generalized nature of the
right violated is, upon examination, inescapable. The
right is generalized, but the injury is not. The injury
has occurred specifically, individually, and palpably to
the person who tried to exercise the right and was
thwarted. If the generalized nature of a right were

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36a

sufficient to make the injury suffered in the depriva-
tion of that right nonjusticiable, then there would be
no way to vindicate, for example, First Amendment
rights. Thus, standing under FOIA, under FACA, see
Public Citizen, supra, and perhaps under the FECA
is not "informational" standing at all. It is standing
in its most traditional form. A plaintiff brings suit to
vindicate an injury to a statutorily created right.
That right happens to be access to information. But
that type of action is not before us here. Plaintiffs
in the instant case are not seeking to vindicate a
statutorily created right.
The FEC is, as the majority makes clear, obligated
under the Act to provide certain information to vot-
ers, indeed, to the population at large. If the plaintiffs
had gone to the FEC seeking information that the
Commission possessed and been denied it, and then
jumped through the proper procedural hoops, the FEC
could not credibly have argued that the plaintiffs did
not have the injury in fact to make out standing. But
that is not what happened. The plaintiffs did not seek
access to information in the Commission's possess-
ion, but rather sought to have the Commission per-
form its alleged legal duty to regulate a third party-
the American Israel Public Affairs Committee
("AIPAC'')-in such a fashion as to cause the third
party to give it the information to which the plaintiffs
would then be entitled.

Although the Act contemplates citizen complaints
initiating Commission investigation of violation of
the Acts, 2 U.S.C. par 437g (1994), this is not to say that
Congress has created a right to enforcement of the
law, the violation of which constitutes an injury in
fact for standing purposes. In Heckler v. Chaney,

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37a

470 U.S. 821, 831, 105 S. Ct. 1649, 1655, 84 L.Ed.2d
714 (1985), the Supreme Court reaffirmed "that an
agency's decision not to prosecute or enforce,
whether through civil or criminal process, is a de-
cision generally committed to an agency's absolute
discretion,"  That being the case, the Court re-
cognized "the general unsuitability for judicial
review of agency decisions to refuse enforcement."
Id. For an injury to afford standing, it must be reme-
diable in the action brought. As we cannot, under
Heckler, afford a remedy for an injury consisting of
no more than the generalized grievance that the
Commission has failed to enforce the law, the Com-
mission's failure to take the regulatory action of
declaring AIPAC a political committee which would
allegedly cause AIPAC to turn over the information
to which appellants would then have access is not an
injury which this court can remedy under Heckler.

Neither does the congressional provision affording
a right to sue overcome the lack of standing. Granted,
section 437g(a)(8)(A) permits any party aggrieved by
the Commission's dismissal of a complaint or failure
to act on such complaint to file a petition with the
United States District Court for the District of
Columbia. Such a statute creating a right to sue does
not, however, create standing. At most, it invests a
right to sue in those who otherwise have standing but
would not necessarily have a clear claim to relief
cognizable by a district court. The Supreme Court
has clearly enunciated this concept in the analogous
context of environmental litigation.  In Lujan v.
Defenders of Wildlife, 504 U.S. 555, 112 S. Ct. 2130,
119 L.Ed.2d 351 (1992), the Court of Appeals had held,
inter alia, that the citizens [sic] suit provision in 16

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38a

U.S.C. par 1540(g) provided standing. Lujan, 504 U.S.
at 572, 112 S. Ct. at 214243 (citing 901 F.2d at 121-22).
In reversing that holding, the Supreme Court
expressly rejected the view that "the injury-in-fact
requirement had been satisfied by congressional
conferral  upon all persona of an abstract,
self-contained, noninstrumental `right' to have the
Executive observe the procedures required by law."
504 U.S. at 573, 112 S.Ct. at 2143.  The Court
recognized without difficulty that such a view
rejected the consistent holding of the Supreme Court
"that a plaintiff raising only a generally available
grievance about government . . . does not state an
Article III case `or controversy." Id. at 573-74, 112
S.Ct. at 2143. The logic of Lujan is no less applicable
here. These plaintiffs have no statutory right,
through section 437g or any other provision, to force
the FEC to collect and turn over this information. In
the absence of such a right, no injury-informational
or otherwise-is possible. I would discard the entire
notion of informational standing to the extent that it
is something separate from traditional standing
doctrine. Under traditional standing doctrine it is
clear that these plaintiffs have stated no claim.

B. Redressability

Although I have alluded above to the absence of re-
dressability as defeating standing, I wish to make it
quite express that even if the grievance of voters is
not held to be too generalized to afford standing, that
grievance lacks the redressability essential to an
Article III injury. Both we and the Supreme Court
have repeatedly made it plain that where an injury
to putative plaintiffs is "highly indirect" as to a
governmental actor defendant, and " `results from the

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39a

independent   action of some third party not before the
court, `" it is " `substantially more difficult to meet
the minimum requirement of Art. III'" standing than
in the case of a direct injury. Allen v. Wright, 468
U.S. 737, 757-58, 104 S. Ct. 3315, 3328, 82 L.Ed.2d 556
(1984) (quoting Simon v. Eastern Kentucky Welfare
Rights Org., 426 U.S. 26, 42, 96 S. Ct. 1917, 1926, 48
L.Ed.2d 450 (1976), and Warth v. Seldin, 422 U.S. at
505,95 S.Ct. at 2208).

The Allen Court pronounced that analysis in a
discussion that began with the causation element of
standing, finding the line of causation between a
grant of tax exemption and the third party's offending
conduct "attenuated at best." Id. at 757, 104 S. Ct.
at 3327-28.  The Court then reasoned from that
attenuated causation to a conclusion that "it is
entirely speculative . . . whether withdrawal of a tax
exemption from any particular school would lead the
school to change its policies." Id. at 758, 104 S. Ct. at
3328. The Simon decision makes it even more clear
that multi-level relief is not only problematic as to
causation-that is to say that the independent act of
a third party is rarely fairly traceable to the
government's failure to regulate-but also as to re-
dressability. In that case, the Court held that "Art.
III still requires that a federal court act only to
redress injury that fairly can be traced to the chal-
lenged action of the defendant, and not injury that
results from the. independent action of some third
party not before the Court." Simon, 426 U.S. at
41-42,96 S. Ct. at 1926. In Simon, in Allen v. Wright,
in Fulani, the high court and this one have re-
peatedly held that it is too speculative to meet the
redressability requirement of Article III standing to

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40a

assume that an independent third-party actor would
so amend its conduct to redress the wrong allegedly
being done to the plaintiffs because of a court decree
against the government. In those cases, admittedly,
the regulatory act involved taxation. But the ration-
ale is no different here.

In this case, no more than those, to find a lack of
standing where redressability would depend on
the Commission's regulation of a third party and that
third party's response to the regulation is no "breath-
taking attack on the legitimacy of virtually all
judicial review of agency action," as the majority
suggests. Maj. Op. at 738. Rather, it is only a specific
application of general principles of standing juris-
prudence.

Appellants' claim of redressability depends on the
linked chain that the Commission will enter an order
against AIPAC requiring the information plaintiffs
seek, that AIPAC will comply with that order, and
that appellants will still be sufficiently interested in
the information thus produced that they will renew
their claim on FEC to present them with that in-
formation after they jump through the procedural
hoops. This, I submit, is too attenuated to provide the
sort of redressability necessary to meet Article III
standing.

        CONCLUSION

Because the injury plaintiffs allege is neither per-
sonal to the plaintiffs nor redressable in this action,
they lack standing to bring the claim to an Article III
court. I would therefore affirm the grant of summary
judgment entered by the district court.

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APPENDIX B

UNITED STATES COURT OF APPEALS
DISTRICT OF COLUMBIA CIRCUIT

    No. 94-5088

JAMES E. AKINS, ET AL., APPELLANTS

v.

FEDERAL ELECTION COMMISSION, APPELLEE

[Argued May 10, 1995]
[Decided Sept. 29, 1995]
[As Amended Nov. 1, 1995]

OPINION

Before: EDWARDS, Chief Judge, SILBERMAN and
SENTELLE, Circuit Judges.

Opinion concurring in part and dissenting in part
filed by Circuit Judge SILBERMAN.

SENTELLE, Circuit Judge:

Appellants sought review in district court of the
Federal Election Commission's dismissal of their
administrative complaint alleging various violations
of the Federal Election Campaign Act, 2 U.S.C.
$$431-55 (1994). The district court granted summary

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42a

judgment for the Federal Election Commission. Be-
cause we agree that the Commission acted in a
reasonable manner in its interpretation and applica-
tion of the Federal Election Campaign Act as to the
administrative complaint, we affirm.

      I. BACKGROUND

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 po-
litically active people who seek to influence policy-
makers and the public and who oppose the views
of the American Israel Public Affairs Committee
("AIPAC") regarding United States foreign policy in
the Middle East.

AIPAC is an incorporated, tax-exempt organization
with approximately 50,000 supporters nationwide that
lobbies Congress and the Executive Branch for mili-
tary and economic aid to Israel. AIPAC has an annual
budget of close to $10 million. AIPAC's stated pur-
pose is to encourage close relations between the
United States and Israel.

On January 9, 1989, appellants filed a complaint
with the Federal Election Commission ("FEC" or
"Commission"), the independent government agency
responsible for enforcement of the Federal Election
Campaign Act ("FECA" or "Act"), claiming that
AIPAC was a political committee under 2 U.S.C.
par par 431(4) and 431(9)(A)(i) because it made expendi-
tures, including contributions, aggregating in excess
of $1,000 in a year for the purpose of influencing any
election for federal office. As a political committee,
AIPAC would be subject to registration and reporting

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43a

requirements involving disclosure of its donors and
the amounts it had contributed to candidates, as well
as the $1,000 limit for contributions to individual
candidates. 2 U.S.C. par par 433, 434(a)(1) and (b), 441a(1)
and (2) (1994).

The FEC investigated the allegations and after a
substantial investigation, the General Counsel issued
a report regarding AIPAC's corporate- expenditures,
campaign-related activities and political activities.
While the FEC found that AIPAC has made contribu-
tions that likely crossed the $1,000 threshold, it
concluded that AIPAC is not a political committee
under the statute because its campaign-related activi-
ties constitute only a small portion of its overall
activities and are not AIPAC's major purpose. The
FEC stated that AIPAC is primarily a lobbying
organization interested in promoting U.S Israel re-
lations and its campaign-related activities are under-
taken as an adjunct to its lobbying efforts.

Adopting the General Counsel's recommendations,
the Commission found that there was no probable
cause to believe that AIPAC was a political com-
mittee in violation of the disclosure and reporting
requirements of sections 433 and 434 of the Act. The
Commission did find probable cause to believe that
AIPAC violated section 441b, which restricts ex-
penditures and contributions by corporations, but
unanimously voted to take no action.

Appellants filed suit in district court claiming that
the FEC's final agency action-its determination of
no probable cause to believe that AIPAC was a politi-
cal committee under the Act-was arbitrary, capri-
cious and contrary to law. Appellants allege that the
FEC's major purpose standard is contrary to law and

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44a

that the Commission's findings, reasons, and investi-
gation were insufficient to support its conclusion that
there is no probable cause to believe that AIPAC's
campaign-related activities were at such a level as to
make them a major purpose of the organization. The
district court granted summary judgment on the
basis that the FEC's construction and application of
the major purpose standard was proper under the
Supreme Court's and" this Circuit's interpretations of
the Act. The court found no evidence that the Com-
mission failed to investigate adequately appellants'
administrative complaint.

       II. DISCUSSION

A. Standing

Before addressing appellants' claim on the merits,
we must first resolve a jurisdictional issue: whether
appellants have standing, both constitutional and
prudential, to pursue their claims in federal court at
all. In order to establish constitutional standing,
appellants "must show injury in fact that is fairly
traceable to the defendant's action and redressable
by the relief requested." Animal Legal Defense
Fund, Inc. v. Espy, 23 F.3d 496, 498 (D.C. Cir. 1994)
("ALDF") (citing Allen v. Wright, 468 U.S. 737, 104
S.Ct. 3315, 82 L.Ed.2d 556 (1984); Valley Forge
Christian College v. Americans United for Separa-
tion of Church  and State, Inc., 454 U.S. 464, 47475,
102 S. Ct. 752,759-60,70 L.Ed.2d 700 (1982)).

Section 437g(a)(1) of FECA allows any person who
believes that there has been a violation of the Act to
file a complaint with the FEC. In turn, section
437g(a)(8)(A) states that any party aggrieved by an
order of the FEC dismissing its complaint may file a

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45a

petition with the U.S. District Court for the District
of Columbia.

Appellants allege that the FEC's action has denied
them their right as citizens, registered voters, and
members of the public to obtain information that
AIPAC as a political committee would be required to
disclose. They contend that their ability to influence
and inform policymakers and the public is impaired by
the lack of information about AIPAC's contributors
and expenditures.1 While arguably an injury of this
type would not appear to meet the requirements of
Article III standing, a line of circuit precedent, begin-
ning with a footnote in Scientists' Inst. for Public
Info., Inc. v. Atomic Energy Comm'n, 481 F.2d 1079
(D.C. Cir. 1973), has recognized certain "informa-
tional injuries" resulting from agency action. Id. at
1087 n. 29 (finding appellants have standing to chal-
lenge AEC decision not to issue environmental im-
pact statement because agency action limited
appellants' ability to inform public about social issues
and questions of public policy); see also Action
Alliance of Senior Citizens v. Heckler, 789 F.2d 931,
937-38 (D.C. Cir. 1986) (finding organization ade-
quately alleged informational injury in regulations
restricting flow of information regarding services
available to the elderly); Foundation on Economic
Trends v. Lyng, 943 F.2d 79, 83-85 (D.C. Cir. 1991)
(assuming that Agriculture Department's failure to
prepare impact statement with respect to germplasm
program injured Foundation because its mission is to

___________________(footnotes)
    
1 Appellants have also alleged that their ability to compete
in the political arena with AIPAC is weakened without the
information. We do not recognize standing on that basis in this
case.

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46a

provide information to its members and general public
about such matters, but holding that appellants lacked
standing on grounds that they failed to show parti-
cular agency action that triggered violation and
caused injury). This court recently found informa-
tional injuries that satisfied the minimum require-
ments of Article III standing in Animal Legal De-
fense Fund, Inc. v. Espu, 29 F.3d 720 (D.C. Cir. 1994)
(finding constitutional standing, but dismissing case
for lack of prudential standing); ALDF, 23 F.3d 496
(same). Although we acknowledge that this broad
approach raises "complex and difficult considera-
tions," Lyng, 943 F.2d at 84 (quoting Natural Re-
sources Defense Council, Inc. v. SEC, 606 F.2d 1031,
1042 n. 6 (D.C. Cir. 1979)), circuit precedent compels
that we find that appellants in this case meet the
requirements of Article III standing with the infor-
mational injury they have alleged.

Appellants must also satisfy the prudential pre-
requisites of standing, they must show that they fall
within the statute's "zone of interests" by demon-
strating "either a congressional intent to protect or
regulate the interest asserted, or some other indi-
cation that the litigant is a suitable party to pursue
that interest in court."  ALDF, 23 F.3d at 502
(citations omitted).

Given the broad purposes of FECA, appellants
appear to meet think test. Two of the three purposes of
the Act's disclosure requirements were intended to
serve the information interests of the public, the
electorate, and individual voters. These purposes
were noted in Buckley v. Valeo, 424 U.S. 1, 96 S. Ct.
612,46 L.Ed.2d 659 (1976):

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47a

First, disclosure provides the electorate with in-
formation "as to where political campaign money
comes from and how it is spent by the candidate"
in order to aid the voters in evaluating those who
seek federal office. . . . Second, disclosure require-
ments deter actual corruption and avoid the
appearance of corruption by exposing large contri-
butions and expenditures to the light of publicity
. . . . A public armed with information about a
candidate's most generous supporters is better
able to detect any post-election special favors that
may be given in return.

Id. at 66-67, 96 S. Ct. at 657 (footnotes omitted). Be-
cause appellants allege that they are voters and
persons who seek to communicate to policymakers
and the public about AIPAC's campaign contribu-
tions, their interest in information about campaign
contributions falls within the "zone of interests"
intended to be served by the statute. While arguably
this interest is so generalized as to encroach upon the
separation of powers concerns underlying Article III
standing requirements, see Lujan v. Defenders of
Wildlife, 504 U.S. 555,571-78, 112 S. Ct. 2130,2142-46,
119  L. Ed.2d 351 (1992), to reject standing on that basis
would put us at odds with circuit precedent on infor-
mational injury as discussed above.

B. Standard of Review

The district court's grant of summary judgment is
subject to de novo review. Petersen v. Dole, 956 F.2d
1219, 1221 (D.C. Cir. 1992). In conducting that review,
we must determine anew whether the Commission's
dismissal of the portion of appellants' administrative
complaint alleging that AIPAC violated the Act by

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48a

failing to register and report as a political committee
is "contrary to law." 2 U.S.C. par 437g(a)(8)(C). It is
well settled that judicial review under this provision
is limited. Common Cause v. FEC, 842 F.2d 436, 448
(D.C. Cir, 1988). The Commission's dismissal of an
administrative complaint cannot be disturbed unless
it was based on "an impermissible interpretation of
the Act" or was "arbitrary or capricious, or an abuse
of discretion." Orloski v. FEC, 795 F.2d 156,161 (D.C.
Cir. 1986). See also FEC v. Democratic Senatorial
Campaign Comm., 454 U.S. 27,37,102 S.Ct. 38,4445,
70L.Ed.2d23(1981)("DSCC").

Appellants bear the difficult burden of demonstra-
ting that the Commission's interpretation was
impermissible and contrary to law. The Commission
must show only that its disposition of the administra-
tive complaint w-as "sufficiently reasonable." DSCC,
454 U.S. at 39, 102 S.Ct. at 46 (citations omitted).
Thus, the Commission's construction of its own stat-
ute cannot be disturbed if it is a permissible one.
Chevron U. S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 842-45, 104 S. Ct. 2778,
2781-83,81 L. Ed.2d 694 (1984). Under this standard of
review, the court will presume that the Commission's
action was valid, even if the court would have inter-
preted the Act in a different manner. See American
Horse Protection Ass'n v. Yeutter, 917 F.2d 594, 596
(D.C. Cir. 1990). Indeed, the Supreme Court has held
that the Commission "is precisely the type of agency
to which deference should presumptively be afforded."
DSCC, 454 U.S. at 37, 102 S. Ct. at 45. Accord Com-
mon Cause, 842 F.2d at 448 ("Deference is parti-
cularly appropriate in the context of the FE CA . . . . ").

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C. Analysis

  FECA defines a "political committee" as "any com-
mittee, 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. par 431(4) (A).2 The Act limits
contributions to political committees, 2 U.S. C.
par 441a(a)(l)(C), and requires any organization that
qualifies as a political committee to register with the
Commission and file periodic reports of all its re-
ceipts and disbursements for disclosure to the public.
2 U.S.C. par par 433 and 434.

The Act defines "contribution" to include "any gift,
subscription, loan, advance, or deposit of money or
anything of value made by any person for the purpose
of influencing any election for Federal office . . . . "
2 U.S.C. par 431(8)(A)(i). The definition of "expendi-
ture" includes "any purchase, payment, distribution,
loan, advance, deposit, or gift of money or anything of
                                            
___________________(footnotes)

2 Section 431(4) also includes two other definitions of the
term "political committee" not pertinent to this case:

  (B) any separate segregated fund established under the
provisions of section 441b(b) of the title; or

(C) any local committee of a political party which re-
ceives contributions aggregating in excess of $5,000 during
a calendar year, or makes payments exempted from the
definition of contribution or expenditure as defined in
paragraphs (8) and (9) aggregating in excess of $5,000 dur-
ing a calendar year, or makes contribution aggregating in
excess of $1,000 during a calendar year or makes expendi-
tures aggregating in excess of $1,000 during a calendar
year.

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50a

value made by any person for the purpose of influenc-
ing any election for Federal office . . . . " 2 U.S.C.
par 431(9)(A)(i). An expenditure "for a communication
expressly advocating the election or defeat of a clear-
ly identified candidate" is a "contribution in kind"
unless it is "not made with the cooperation or with
the prior consent of, or in consultation with, or at the
request or suggestion of, a candidate . . . . " 11 C.F.R.
par 109.l(a), (c) (1995).

The debate in this case centers around the defini-
tion of "political committee" and the FEC's applica-
tion of the major purpose standard. Appellants argue
that the Act's language governing whether an
organization making contributions is a political com-
mittee depends on a single quantitative standard: if
its aggregate contributions are in excess of $1,000
in a calendar year. 2 U.S.C. par 431(4). They assert
that because the statutory language is clear, the
Commission's interpretation is not entitled to de-
ference under Chevron. Appellants also argue that
the major purpose test conflicts with the fundamental
purposes of the Act, which are to prevent corruption
and the appearance of corruption that arise when
large contributions are given to secure a political
quid pro quo from current and potential officeholders.
Buckley, 424 U.S. at 2%,96 S. Ct. at 638.

We recognize that the Act has a broad definition of
political committee; Congress intended to "address[ ]
broadly the problem of political campaign financing,"
and wanted to "promote full disclosure of campaign-
oriented spending" with FECA. Id. at 78, 96 S, Ct. at
663. The Commission, however, has construed the
words "political committee" narrowly and applied
a major purpose standard in determining whether

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51a

AIPAC was a political committee. Under this narrow
interpretation, gleaned from case law, an organization
is not a political committee unless, in addition to
crossing the $1,000 threshold, it is under the control
of a candidate or its major purpose is the nomination
or election of a candidate. Buckley, 424 U.S. at 79, 96
S.Ct. at 663; FEC v. Massachusetts Citizens for Life,
479 U.S. 238, 252 n. 6, 107 S. Ct. 616, 624-25 n. 6, 93
L.Ed.2d 539 (198(5). Accord FEC v. Machinists
Non-Partisan Political League, 655 F.2d 380, 391-92
(D.C. Cir.), cert. denied, 454 U.S. 897,102 S. Ct. 397,70
L.Ed.2d 213 (1981). A more expansive definition would
be constitutionally dangerous due to interference
with "fundamental First Amendment interests."
Buckley, 424 U.S. at 23, 96 S. Ct. at 636; Machinists,
655 F.2d at 392.

We agree with appellants that the statutory lan-
guage is clear in that it broadly defines political
committee in economic terms. But our inquiry does
not end there. Rather, we must determine whether
the Commission acted contrary to law by going
beyond the text of the statute to narrow the definition
of the term "political committee." To answer this
question, we must look to case law interpreting the
Act.

In Buckley, one of `the plaintiffs' claims was that
the reporting and disclosure provisions applicable to
political committees were overbroad in their applica-
tion to minor-party and independent candidates and in
their extension to small contributions. 424 U.S. at 26,
96 S. Ct. at 638. The Court cautioned that the phrase
"for the purpose of . . . influencing" an election or
nomination in section 431's definition of "expendi-
ture" could raise vagueness problems and "could be

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        52a

interpreted to reach groups engaged purely in issue
discussion." Id. at 79, 96 S. Ct. at 663. Noting that the
lower courts had construed the term "political com-
mittee" more narrowly, the Court went on to state
that to fulfill the purposes of the Act the term "need
only encompass organizations that are under the
control of a candidate or the major purpose of which is
the nomination or election of a candidate." Id. It
further noted that expenditures by political com-
mittees can be assumed to fall within the core area
Congress sought to address because "[t]hey are, by
definition, campaign related." Id.

Prior to Buckley, at least two lower courts were
concerned with the Act's broad-based definition of
political committee because it would likely include
groups that were not meant to be subject to
the restrictions of the Act. See United States v.
National Comm. for Impeachment, 469 F.2d 1135,
1141-42 (2d Cir. 1972) ("NCFI"); American Civil
Liberties Union v.. Jennings, 366 F. Supp. 1041
(D.D.C. 1973), vacated on other grounds, 422 U.S.
1030,95 S.Ct. 2646,45 L.Ed.2d 686 (1975).

In NCFI the Second Circuit considered whether a
newspaper advertisement was an "expenditure," and
whether the National Committee must be deemed a
political committee. 469 F.2d at 1138. The court
articulated a test that construed "the Act to apply
only to committees soliciting contributions or mak-
ing expenditures the major purpose of which is the
nomination or election of candidates." Id. at 1141. It
concluded that the advertisement was not an "ex-
penditure," but noted that its interpretation of
the phrase "for the purpose of influencing . . . [an]
election" might make "enforcement of the Act  . . . . 

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53a

somewhat more burdensome, as the supervisory
officials will be forced to glean the principal or major
purpose of the organizations they seek to have comply
with the Act." Id. at 1142. This test was later
adopted by the United States District Court for the
District of Columbia in ACLU v. Jennings, supra.

Appellants argue that the major purpose test set
forth in NCFI and Jennings is the correct one be-
cause it centers on the major purpose of the expendi-
ture as opposed to the purpose of the organization
itself. We reject this argument for three reasons.
First, it is inconsistent with the language in NCFI
noting that "supervisory officials will be forced to
glean the principal or major purpose of the organi-
zations they seek to have comply with the Act." 469
F.2d at 1142. Second, the statutory definition of "ex-
penditure" includes the requirement that it be made
"for the purpose of influencing any election for
Federal office." 2 U.S.C. par 431(9)(A)(i), making the
test that every expenditure have the major purpose of
nomination or election of a candidate and rendering
appellants' test a tautology. Third, Supreme Court
precedent supports a conclusion that the focus is on
the major purpose of the organization, rather than
the major purpose of individual expenditures by an
organization.

For example, in Massachusetts Citizens, the
Supreme Court again mentioned the major purpose
test while discussing whether a small-issue advocacy
group could be considered  a  political committee, 479
U.S. at 262, 107 S. Ct. at 630. The Court found that
although the group had made $10,000 in independent
expenditures to influence federal elections, it had not
violated the restriction on independent spending by

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54a

corporations contained in section 441b. The Court
based its holding on three features of the citizens
group, one of which was that its purpose was promot-
ing political activities, not amassing capital.3 Id. at
263-64, 107 S.Ct. at 630-31. The Court further noted
that if the group's independent spending became "so
extensive that the organization's major purpose may
be regarded as campaign activity," then it would be
classified as a political committee. Id. at 262, 107
S. Ct. at 630 (citing Buckle, 424 U.S. at 79,96 S.Ct. at
663).
This Circuit also adopted a narrow construction to
determine whether a "draft group," that is, an or-
ganization that seeks to encourage a specific candi-
date to run for office, is a political committee under
FECA. See Machinists, 655 F.2d at 394-96. In
Machinists, we expressed concern about finding a fair
reading of the statute that "comports with first
amendment safeguards," and recognized the "grave
constitutional difficulties inherent in construing the
term `political committee' to include groups whose
activities are not under the control of a `candidate' or
directly related to promoting or defeating a clearly
identified `candidate' for federal office." Id. at 393. We
declined to extend the term "political committee" to
cover draft groups and noted that in doing so we would
"avoid the constitutional problems which Buckley and
its lower court predecessors were able to avoid by

___________________(footnotes)

3 The Court also based its holding on the fact that the
citizens group had no shareholders or other persons having a
claim on its assets or earnings and that the group was not
formed by a labor union or business corporation, and its pOliCY
was not to accept contributions from these entities. Massachu-
setts Citizens, 479 U.S. at 264, 107 S.Ct. at 631.

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55a

narrowly construing the term . . . . "  Id. at 394.
Because we found the Machinists Non-Partisan
Political League's activities did not support an
existing candidate, it was not a political committee
under the Act. Id. at 396.

Appellants ask that we disregard both Buckley and
Massachusetts Citizens as mere dicta. However, the
scope of our inquiry is limited to the issue of whether
the Commission's interpretation of the Act was con-
trary to law. Thus, even if the Court's discussion of
the major purpose test in these decisions was dicta-
and we do not necessarily agree-that would not make
it an abuse of discretion for the Commission to follow
this construction of the Act by the Supreme Court,
particularly in light of our decision in Machinists.
The Supreme Court's dicta may not bind federal
courts and agencies, but an agency's reliance on dicta
may nonetheless be reasonable. See generally McCoy
v. Massachusetts Inst. of Technology, 950 F.2d 13 (lst
Cir. 1991), cert. denied, 504 U.S. 910, 112 S. Ct. 1939,
118 L.Ed.2d 545 (1992).

Although Buckley and Massachusetts Citizens
concern expenditures under the Act, the Court's
rationale concerning the constitutional implications
of a broad application of' the Act to expenditures
applies equally to the Act's reach over contributions.
A broader construction of "political committee" would
likely require advocacy groups to disclose their
contributors even though the group is not principally
involved in advancing the election or defeat of a
candidate. This could raise a First Amendment issue
of the sort seen in cases like NAACP v. "Alabama,
357 U.S. 449,460,78 S.Ct. 1163,1170-71, 2 L.Ed.2d 1488
(1958). It is our duty in the interpretation of a federal

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56a

statute to avoid serious constitutional doubt. United
States v. Rumely, 345 U.S. 41,47,73 S. Ct. 543,546,97
L.Ed. 770 (1953).

We find that it was reasonable for the Commission
to follow the Court's and this Circuit's narrow inter-
pretation of "political committee." Because a judicial
gloss on the statute has limited the application of
FECA's restrictions for political committees to
groups whose major purpose is the nomination or
election of a candidate, the FEC's interpretation of
the major purpose test was not contrary to law.

Having established the validity of the Commission's
major purpose test, we must next determine whether
its application of that test and its determination that
AIPAC is not a political committee under the ,Act was
contrary to law. 2 U.S.C. par 437g(a)(8)(C). The Com-
mission determined that AIPAC's campaign-related
expenditures, while likely to have exceeded $1.000 in
some years, were not its major purpose but were made
as an adjunct to, and in support of, the lobbying efforts
that were the organization's primary focus. The
Commission correctly applied the major purpose test,
the concern of which is the core purpose of the
organization itself, not the individual expenditure or
contribution. We are convinced that the Commiss-
ion's determination was not so arbitrary or capricious
to render it contrary to law.

Appellants' final and related argument is that the
Commission's findings, reasons, and investigation
were inadequate to support its conclusion that "only a
small portion" of AIPAC's activities are campaign
related. They assert that the inadequacy of the
FEC's findings, reasons, and investigation preclude
affirmance of the Commission's decision. In challeng-

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          57a

ing the extent and techniques of the Commission's
investigation, appellants are asking that we review
the Commission's exercise of prosecutorial discre-
tion, a sensitive matter within the Commission's
expertise. See Heckler v. Chaney, 470 U.S. 821,831,
105 S. Ct. 1649, 1655-56, 84 L.Ed.2d 714 (1985). We are
mindful that "[i]t is not for the judiciary to ride
roughshod over agency procedures or sit as a board of
superintendence directing where limited agency
resources will be devoted. We are not here to run the
agencies." FEC v. Rose, 806 F.2d 1081, 1091 (D.C.
Cir. 1986).
Under FECA, the Commission enjoys a "broad
grant of discretionary power in determining whether
to investigate a claim or to bring a civil action . . . . "
Common Cause v. FEC, 655 F.Supp. 619, 623 (D.D.C.
1986), rev'd on other grounds, 842 F.2d 436 (D.C. Cir.
1988). A review of the General Counsel's report
reveals that the Commission conducted a fairly ex-
tensive inquiry into appellants' claims, even if it was
not as in-depth an investigation as appellants would
have liked. The Act does not require the Commission
to invoke any particular investigatory techniques,
nor does it require the Commission to exhaust every
last inquiry.  Moreover, appellants suggest no
specific  areas that the FEC failed to investigate that
would have undermined its determination.  The
Commission has broad discretion to decide whether
further investment of resources is worthwhile,
Heckler, 470 U.S. at 831, 105 S. Ct. at 1655-56, and
we defer to its expertise regarding the direction
and extent of the investigation. Based on all of the
evidence, it was reasonable for the Commission to

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58a

conclude that campaign-related activities were not a
major purpose of AIPAC. There is no evidence that
the Commission failed to investigate adequately the
administrative complaint.

      III. CONCLUSION

The Commission's interpretation of the statute was
permissible, its application of the interpretation was
reasonable, and its underlying investigation was ade-
quate. Thus, we are unable to find that the Commiss-
ion's actions were "contrary to law" or arbitrary,
capricious, or an abuse of discretion. The decision of
the district court is therefore

Affirmed.

SILBERMAN, Circuit Judge, concurring in part and
dissenting in part:

Although the FEC did not challenge appellants'
standing, we were sufficiently troubled over our
jurisdiction to ask the parties to submit supplemental
briefs on the issue. I have come to the conclusion that
my colleagues are correct that appellants have stand-
ing, but my analysis differs from the majority. I dis-
agree with my colleagues on the merits.

          I.

The dispute over standing turns entirely on
whether appellants have established injury in fact.
Appellants assert that they compete with AIPAC
in lobbying Congress and seeking to persuade the
American people on their views of American interests
regarding Arab-Israeli disputes. Although appellants
do not allege that they make political contributions, it
is asserted that AIPAC's secret contributions to con-
gressmen have disadvantaged appellants in this politi-

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59a

cal competition. Of course, many cases in both our
court and the Supreme Court have recognized Article
III injury when economic marketplace actors assert
that a competitor has received a regulatory advan-
tage. See, e.g., Clarke v. Securities Indus. Ass `n, 479
U.S. 388,403,107 S.Ct. 750, 759,93 L.Ed.2d 757 (1987);
Arnold Tours, Inc. v. Camp, 400 U.S. 45, 46, 91
S. Ct. 158, 159, 27 L.Ed.2d 179 (1970) (per curiam);
International Ladies' Garment Worker's Union v.
Donovan, 722 F.2d 795, 805-12 (D.C. Cir. 1983), cert.
denied sub nom. Breen  v. International Ladies' Gar-
ment Workers' Union, 469 U.S. 820, 105 S. Ct. 93, 83
L.Ed.2d 39 (1984). We have not before now en-
countered a case in which the competition takes place
in the political arena. I am mindful that a plaintiff
may not rely for a claimed injury on a mere ideologi-
cal interest, see Competitive Enter. Inst. v. National
Highway Traffic & Safety Admin., 901 F.2d 107, 112
(D.C. Cir. 1990), but I think appellants' case must be
thought of as akin to one brought by an economic
competitor, not to one brought by a litigant who can
muster only an ideological interest.

The statute, by requiring any organization that
makes or receives campaign contributions or expendi-
tures aggregating over $1,000 per year to register as
a political committee and meet certain reporting and
disclosure requirements, has the clear purpose of
leveling the playing field by reducing the value of
campaign contributions and expenditures to both
spender and recipient. Any campaign contribution or
expenditure is worth less to give and receive if it
must be disclosed. It is of less value to the spender
because interests adverse to the spender will take
notice, and the recipient may be politically pressured

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60a

to avoid any appearance of quid pro quo in policy
positions.  It is, at the same time, worth less to
the recipient because undesirable publicity can be
brought to bear on the transaction. And, in any event,
the recipient's competitor will notice, and if the
competitor should win the spender will not be among
his favorite constituents. Essentially, then, a failure
of the FE C to require an organization to disclose its
contributions is equivalent to adding to the value of
those contributions. Thus, a candidate running for
office is certainly injured if his or her opponent,
through the failure of the FEC to require disclosure,
is enabled to receive secret contributions. It follows
that individuals or organizations that can show that
they are competing with the donor or spender on the
other side of this political market are similarly
injured if the FEC does not require disclosure.
Appellants therefore have standing as competitors of
AIPAC.

The FEC's primary argument against the applica-
tion of this reasoning, which, to be sure, is only
sketchily presented in appellants' complaint and
supplementary  brief, is that appellants only compete
in the lobbying market with AIPAC, not in actual
election campaigns. (AIPAC claims that it does
not normally make campaign contributions, and it
presumably will no longer do so given the FEC's
finding of probable cause to believe that AIPAC
violated par 441(b)). But, the lobbying "market" is
intertwined with election competition.  Many cam-
paign contributors expect that if the candidate should
win, he or she will be more inclined to listen to
a contributor's views on proposed legislation than
would be so if no contribution were made. In this very

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61a

case, the Commission found that AIPAC's "campaign-
related activities and communications [were] under-
taken as an adjunct to, and in support of, its lobbying
efforts." AIPAC presumably will be a less effective
lobbyist, and the congressmen to whom it contributed
will be less likely to present AIPAC's position
effectively (if the y are so inclined), if AIPAC is
required to disclose its contributions.

The Commission relies on In re United States
Catholic Conference, 885 F.2d 1020 (2d Cir. 1989), cert.
denied sub nom. Abortion Rights Mobilization, Inc.
v. U.S. Catholic. Conference, 495 U.S. 918,.110 S. Ct.
1946, 109 L.Ed.2d 309 (1990), to support its argument
that only direct competitors in the campaign election
market would have standing to challenge its refusal
to require AIPAC to register and disclose. In that
case-a rather confusing one-the Second Circuit
rejected a challenge brought by pro-choice advocacy
groups to the Catholic Church's par 501(c)(3) status
under the I.R.S. Code based on the church's illegal
campaign expenditures. The court did note that the
plaintiffs did not engage in election activity, but it
seems clear to me that the case would not have come
out differently even if the plaintiffs had been direct
electioneering competitors of the church. The federal
judiciary has rarely allowed one private party to
challenge the tax status of another. See, e.g., Simon
v. Eastern Kentucky Welfare Rights Org., 426 U.S.
26,40-41,96 S. Ct. 1917, 1925-26,48 L.Ed.2d 450 (1976).
Furthermore, the general advocacy market in which
both the church and the plaintiffs were competing is

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62a

so broad and amorphous as to defy measurement of
plaintiffs' injury.1

The majority rests appellants' standing on what is
sometimes referred to as informational standing-
that appellants are injured by failing to receive in-
formation that the government should compel AIPAC
to disclose.  That approach is problematic here
because recognition of informational standing in this
case allows a generalized, undifferentiated interest in
information to satisfy Article III requirements.
"Informational injury" confers standing only in nar-
rowly defined circumstances. It was first mentioned
in a footnote in Scientists' Inst. for Public Info., inc.
v. Atomic Energy Comm'n, 481 F.2d 1079, 1086 n. 29
(D.C. Cir. 1973) (SIPI).2 We recognized that the
AEC's decision not to provide an impact statement on
a reactor program established Article 111 injury
because the Institute's main function was to distri-
bute such information to the public. Similarly, we
determined informational injury satisfied Article III

___________________(footnotes)

1 Of course, as the Commission indicates, the appellants
are in one sense seeking a more severe sanction for AIPAC's
illegal expenditures than the FEC determined was appropri-
ate, but that does not undermine their standing. Under most
statutes, this sort of action could not be brought because of
Heckler v. Chancy's bar on judicial review of an agency's non-
enforcement decision. 470 U.S. 821, 831, 105 S.Ct. 1649, 1655-56
(1985). But this statute squarely directs review of the Com-
mission's determination. See par 437(g)(8)(c) ("In any proceeding
under this paragraph the court may declare that the [FEC's]
dismissal of the complaint or the failure to act is contrary to
law.").
2  The footnote was subsequently declared "unnecessary to
the decision." Foundation on Economic Trends v. Lyng, 943
F.2d 79, 83 (D.C. Cir. 1991).

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63a

in Action Alliance of Senior Citizens v. Heckler, 789
F.2d 931, 937 (D.C. Cir. 1986), vacated on other
grounds, 494 U.S. 1001,110 S. Ct. 1329,108 L.Ed.2d 469
(1990), where new government regulations re-
stricting the availability of information on services
for the elderly impaired AASC's ability to provide
information, counseling and referral services for its
members. By contrast, in Competitive Enter. Inst.,
901 F.2d at 122-23, the plaintiff organization lacked
informational standing because it failed to show how
the NHTSA's decision not to issue an EIS signifi-
cantly diminished its ability to disseminate informa-
tion or to continue its activities.

Two cases relied on by the majority to find
informational standing are not determinative. In
Foundation on Economic Trends v. Lyng, 943 F.2d
79, 84 (D.C. Cir. 1991), we only assumed that the
organization's alleged injury-the Foundation's di-
minished ability to provide information to its mem-
ers and the public due to the Agriculture Depart-
ment's failure to prepare an EIS-was sufficient to
confer informational standing without resolving the
issue, because there was no prudential standing. We
suggested, however, that informational injury alone
is insufficient to establish Article III standing. We
worried that a broad definition of informational
standing would controvert the separation of powers
principles enunciated in Sierra Club v. Morton, 405
U.S. 727, 92 S. Ct. 1361, 31 L.Ed.2d 636 (1972), and
would allow plaintiffs to manufacture standing every
time an agency was not creating information a
member of the public would like to have. Lyng, 943
F.2d at 84-85. And in Animal Legal Defense Fund,
Inc. v. Espy, 23 F.3d 496, 501 (D.C. Cir. 1994), the

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64a

decision merely asserted without discussion that
Article III requirements were met by informational
injury-the Fund's impaired ability to gather and
disseminate information on laboratory conditions
under the Agriculture Department's definition of
before going onto find no prudential stand-
"animal"-before going on to find no prudential stand-
ing.

Thus, under our precedent, "informational injury"
satisfies Article III requirements only when the
plaintiff is able to demonstrate an actual, concrete
injury, that impinges on the plaintiff's daily operat-
ions or makes normal activities infeasible, and that is
caused by the lack of access to particular information.
To call appellants' injury an informational one is to
accept their alternative claim that they are entitled
to AIPAC's disclosures merely because they are
members of the voting public. This sort of general
interest cannot suffice to show Article III injury.
See Lujan v. Defenders of Wildlife, 504 U.S. 555,572,
112 S. Ct. 2130, 2142, 119 L.Ed.2d 351 (1992); Sierra
Club, 405 U.S. at 739, 92 S. Ct. at 1369; Allen v.
Wright, 468 U.S. 737,760-61,763,104  S.Ct. 3315,3329,
3331, 82 L.Ed.2d 556 (1984). If, instead, appellants'
interest is thought more "particular" because of their
political positions and their lobbying interests, then
the claim of informational injury really reduces to
the competitive injury claim. Thus, as I analyze
appellants' injury, it is the Commission's failure
to require AIPAC to disclose to the world its
past campaign expenditures that disadvantages
appellants-not appellants' inability to themselves
gain that information. 3  

___________________(footnotes)

3 Plaintiffs in this case clearly meet prudential standing
requirements in that they are within the statutory "zone of

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65a

II.

Section 431(4)(A) defines "political committee"
solely in terms of "expenditures" and "contribu-
tions": a political committee is "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 aggre-
gating in excess of 1,000 during a calendar year."
"Contribution" is defined in turn by 431(8)(A)(i) as
"any gift, subscription, loan, advance, or deposit
of money or anything of value, made by any person
for the purpose of influencing any election."
"Expenditure" is defined in similar terms by 
431(9)(A)(i) as "any purchase, payment, distribution,
loan, advance, deposit, or gift of money or anything of
                 
___________________(footnotes)

interest." See Clarke v. Securities Indus. Ass`n, 479 U.S. at
394-99, 107 S. Ct. at 754-57 Animal Legal Defense Fund, 23 F.3d
at 503. As the majority notes, FECA's purposes are broadly
stated. But FECA's "zone of interest" cannot, se the FE C
asserts, include only individuals' interests as voters and not
individuals' interests as both competitors and voters.  The
logical implication of the FEC's argument is that prudential
standing exists (as a "pure" voter) only where Article III
standing is precluded (as a general interest under Lujan), so
that no one would have standing. This result is absurd. Clearly
a direct competitor of a political candidate, as the party most
directly injured by improper campaign activities, is within the
zone of interests intended to be protected by the statute. Thus,
the statutory zone of interest is not limited to voters, but
includes other political interests as well.

Moreover, FECA's broad language may in fact make a
prudential standing inquiry irrelevant.  If all voters are
beneficiaries of the statute and are thus "aggrieved" within the
meaning of  437(g)(8), Article III always would impose a more
restrictive standard, such that meeting Article III require-
ments alone would establish standing.

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66a

value, made by any person for the purpose of
influencing any election."

The FEC tacitly concedes that the language of
431(4)(A) is unambiguous and sets clear require-
ments for classification as a political committee, but
asserts that the Supreme Court has narrowed the
reach of the statutory language in response to First
Amendment concerns. The FEC relies on language
in Buckley v. Valeo, 424 U.S. 1, 96 S. Ct. 612, 46
L.Ed.2d 659 (1976), and Federal Election Comm'n v.
Massachusetts Citizens for Life, Inc., 479 U.S. 238,
107 S. Ct. 616, 93 L.Ed.2d 539 (1986) (MCFL), in
claiming that an organization should only be
classified as a political committee if-in addition to
exceeding the 1,000 contribution or expenditure
limits-the organization's major purpose is the nomi-
nation or election of a candidate or the organization is
controlled by a political candidate, i.e., the so-called
major purpose test. 4.  This interpretation of "political
committee" is owed deference under Chevron U.S.A.
Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837,104 S.Ct. 2778,81 L.Ed.2d 694 (1984).

Appellants respond by asserting that the statutory
language is clear, and that it has not been narrowed
by the Supreme Court. Tracing the development of
the term "major purpose," appellants argue that the
test is properly employed to determine whether an

___________________(footnotes)

4  This is apparently the first time the FEC has formulated
this test; it has pointed to no Advisory Opinion that articulates
either explicitly or implicitly a major purpose test, even 10
years after the Supreme Court cases on which it primarily
relies-Buckley, 424 U.S.  1, 96 S.Ct. 612, and MCFL, 479 U.S.
238, 107 S.Ct. 616-supposedly imposed this test on the de-
finition of political committee.

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67a

organization's independent disbursements constitute
"expenditures" within the meaning of 431(9) (A)(i)              
i.e., whether they are "made . . . for the purpose of
influencing any election," such that they count
toward the 1,000 limit defining political committee
status. Buckley and MCFL endorse this test; any
references to the major purpose of an organization,
rather than an expenditure, merely establish the
presumption that the expenditures of an organization
the major purpose of which is election activity will   
fall within the statutory definition. Further, MCFL
noted that independent expenditures raise more
serious First Amendment concerns and therefore
require more compelling justification for government
restrictions, than do contributions like those made by
AIPAC here. Appellants point out that the FEC's
major purpose test has the anomalous result of
allowing large organizations that spend only a small
portion of their budgets on direct campaign contribu-
tions to avoid the requirements placed on political
committees, undermining FECA's emphasis on dis-
closure as a means of curbing the threat or appear-
ance of election abuse.          .

The FEC's assertion that its interpretation of
"political committee" is entitled to deference is
simply wrong. It is undisputed that the statutory
language is not in issue, but only the gloss put on
this language by Supreme Court decisions. We are
not obliged to defer to an agency's interpretation of
Supreme Court precedent under Chevron or any
other ease. Appellants thus do not bear "the difficult
burden of demonstrating that the Commission's inter-
pretation was impermissible and contrary to law,"
Maj. Op. at 352; they need only show that their inter-

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68a

pretation better reflects the statutory language and
purpose, as interpreted by the Supreme Court, than
does the FEC's.

While there is language in Buckley and MCFL that
can literally be read to support the FEC's position,
both cases focused on the constitutional concerns
raised by independent expenditures. Independent
expenditures are the most protected form of political
speech because they are closest to pure issue dis-
cussion and therefore farthest removed from the goal
of preventing election corruption.  Buckley, 424 U.S.
at 19-23, 78-81, 96 S. Ct. at 635-37, 663-64; MCFL, 479
U.S. at 259-60, 107 S.Ct. at 628-29. They raise graver
First Amendment concerns because it is difficult to
determine when an expenditure is independent-
rather than coordinated with or by a particular
candidate-and regulation therefore risks chilling
protected speech.

Thus, in Buckley the Supreme Court determined
that expenditure limits are more likely to violate the
First Amendment because they place substantial and
direct restrictions on the ability to engage in political
speech. See Buckley, 424 U.S. at 39-59, 96 S.Ct. at
654. Contribution Imitations, on the other hand, raise
fewer constitutional concerns, it was thought, be-
cause they serve the basic governmental interest of
protecting the electoral process without restricting
political debate and discussion.  See  id. at 28, 96 S. Ct.
at 639 (such limits "focus[ ] precisely on the problem
of large campaign contributions-the narrow aspect
of political association where the actuality and
potential for corruption have been identified"); see
also id. at 23-38, 96 S.Ct. at 636-44. To support its
major purpose test, the FEC relies on the Court's

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69a

discussion of 434(e), which imposes disclosure re-
quirements on "[e]very person" making contribu-
tions or expenditures exceeding 100. 5.  The Court
rejected the claim that  434(e) imposed burdens that
would deter individuals "from making expenditures
for their independent political speech." See id. at 74-
75, 96 S. Ct. at 661. It was determined that "con-
tributions''-when defined as direct or indirect con-
tributions to a candidate, political party, or campaign
committee, or expenditures placed with the coopera-
tion or consent of a candidate-''have a sufficiently
close relationship to the goals of the Act," and
therefore limits on them are constitutional.  Id. at 76,
96 S.Ct. at 662. The Court noted that the meaning of
"expenditure," however, posed line-drawing difficul-
ties because it created the danger of "encompassing
both issue discussion and advocacy of a political
result." Id. at 77, 96 S.Ct. at 662. Therefore, the
reach of  434(e) was limited by "constru[ing] `ex-
penditure' for purposes of that section . . . to reach
only funds used for communications that expressly
advocate the election or defeat of a clearly identified
candidate." Id. at 80, 96 S. Ct. at 664. Coming in the
midst of its analysis of the scope of "expenditures,"
the Court's language that apparently refers to
the major purpose of an organization is at best
ambiguous:
                             
___________________(footnotes)

5 Section 434(e) has subsequently been amended and is now
 434(c): "Every person (other than a political committee)
makes independent expenditures in an aggregate amount or
value in excess of  250 during a calendar year" shall be subject
to certain reporting and disclosure requirements. 2 U.S.C.
 434(c) (West 1985 & Supp. 1995).

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70a

To fulfill the purposes of FECA [political com-
mittees] need only encompass organizations that
are under the control of a candidate or the major
purpose of which is the nomination or election of
a candidate. Expenditures of candidates and of
"political committees" so construed can be as-
sumed to fall within the core area sought to be
addressed by Congress. They are, by definition,
campaign related.

Id. at 79, 96 S.Ct. at 663 (emphasis added). 6. When
parsed carefully, this wording does not support the
FEC's major purpose test for "political committee"
status as applied to contributions. Perhaps the best
interpretation of this language is that an organiza-
tion controlled by a candidate or the major purpose of
which is election-related will presumptively have
expenditures failing within the statutory definition.
In any event, the Court clearly distinguished ex-
penditures and contributions and referred to a
"major purpose" test only with regard to the former.

While certain language in MCFL can also be read
to support the FEC's position, the Court was again
addressing First Amendment problems with the regu-
lation of independent expenditures. The Court held
                
___________________(footnotes)
       
6 Buckley cited both United States v. National Carom. for
Impeachment, 469 F.2d 1135 (2d Cir. 1972) and American
Civil Liberties Union, Inc. v. Jennings, 366 F. Supp. 1041
(D-D-C. 1973) (three-judge court), vacated as moot sub nom.
Staats  v. American Civil Liberties Union, Inc., 422 U.S. 1030,
95 S.Ct. 2646, 45 L.Ed.2d 686 (1975), as developing this "major
purpose" test. These two cases applied a "major purpose"
test to determine whether a particular disbursement was
"made . . . for the purpose of influencing any election" under
431(9)(A)(i).

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71a

that 441(b), which prohibits corporate contributions
or expenditures "in connection with any election,"
was unconstitutional as applied to MCFL, a non-profit
advocacy group that had made independent expendi-
tures violating 441(b). The Court's concern was
that the reporting and disclosure requirements of
FECA might discourage protected political speech of
advocacy groups. See id., 479 U.S. at 253-56, 107
S. Ct. at 625-27. While MCFL's references to the
major purpose of an organization may thus have
relevance for the issue of when independent ex-
penditures suffice to establish political committee
status, MCFL does not control cases involving
contributions or coordinated spending. The Court's
analysis clearly distinguishes contributions and
expenditures: "should MCFL's independent spend-
ing become so extensive that the organization's major
purpose may be regarded as campaign activity, the
corporation would be classified as a political com-
mittee." Id. at 262, 107 S.Ct. at 630 (quoting Buckley,
424 U.S. at 79,96 S.Ct. at 663) (emphasis added)? As
in Buckley, this language can plausibly be read as
merely creating a presumption that certain organiza-
tion's expenditures are "made . . . for the purpose of
influencing any election." Also as in Buckley, the
underlying concern is that congressional regulation,
in its effort to achieve full disclosure, may impermis-
sibly discourage protected independent expenditures.

___________________(footnotes)

7 Of the Court's two references to a major purpose test,
the first was joined by only a plurality of Justices. The second,
quoted here, was joined by Justice O'Connor, whose con-
currence emphasized that Buckley still applied and that
disclosure requirements for independent expenditures were
generally valid. Id., 479 U.S. at 265-66, 107 S. Ct. at 631-32.

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72a

In short, the Court's rationale in MCFL and Buckley
is simply inapplicable to the present case. There is no
longer a constitutional problem with applying
431(4)(A) to AIPAC or to other organizations mak-
ing campaign contributions exceeding the statutory
limits.

The FEC's conception of the major purpose test
does not make this distinction between expenditures
and contributions, and it therefore imposes an unduly
narrow definition of "political committee." 8.  It allows
a large organization to contribute substantial sums to
campaign activity, as long as the contributions are
a small portion of the organization's overall budget,
without being subject to the limitations and re-
quirements imposed on political committees. This
ignores the 1,000 limit in 431(4)(A)'s definition of

___________________(footnotes)

8 Contrary to the FEC's assertion, we did not endorse its
"major purpose" test in Federal Election Comm'n v. Machin -
ists 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).
In Machinists, we held that "draft groups" that promoted the
acceptance of particular individuals prior to their actual
nomination did not fall within 441 (a)'s definition of political
committee because the expenditures and contributions were not
made to a "candidate." Id. at 296. While our language sug-
gested that it is not the "purpose" of the organization itself
but of its disbursement (its "activities") that is relevant to
determining whether a group is a political committee, our
decision was based on Congress' expressed intent to exclude
draft groups from the definition of political committee. See id.
at 394-96.

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73a

"political committee," even in the absence of signifi-
cant First Amendment concerns with regulating
contributions. Moreover, that such an organization
may be limited b y other provisions of FECA as well is
irrelevant.  There is no indication that Congress
intended to limit one section in light of others or to
make their application mutually exclusive. Various
provisions impose different, if overlapping, limits and
requirements on organizations; these differences
represent the sound exercise of congressional judg-
ment as to the various degrees of risk to the election
process posed by certain activities. While the FEC's
"major purpose" test may therefore be valid in
determining whether an organization making inde-
pendent expenditures is subject to the requirements
imposed on "political committees," it cannot legiti-
mately be used to place contributions exceeding
1,000 outside the scope of 431(4)(A)'s definition of
"political committee,"

There is no contention that AIPAC's disburse-
ments were independent expenditures, so there is no
constitutional barrier to application of  431(4)(A)'s
plain terms. The FEC found that AIPAC likely made
direct campaign contributions in excess of 1,000.
The FEC's decision that no probable cause existed to
believe AIPAC was a political committee, and its
consequent dismissal of appellants' complaint, were
therefore based on its mistaken interpretation of
431(4)(A). This error requires that we reverse the
dismissal of the complaint and remand to the FEC
for further consideration-and if necessary further

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        74a

investigation 9 of AIPAC's status. I respectfully dis-
sent.

___________________(footnotes)

9 Appellants alternatively claimed that the FEC's investi-
gation was inadequate. The FEC's decisions on how and to
what extent to investigate, while reviewable, command sub-
stantial deference. Cf. Heckler v. Chancy, 470 U.S. 821, 105
S. Ct. 1649, 84 L.Ed.2d 714 (1985) (judicial review  particularly
circumscribed in area of prosecutorial discretion); Federal
Election Comm'n v. Rose, 806 F2.d 1081, 1091 (D.C. Cir.19861
(courts have limited role in supervising agency use of limited
resources). And the statute imposes no particular investiga-
tory techniques or obligations. Here, even though appellants
note several leads that the FEC could have pursued more
vigorously, the investigation probably passes the minimal level
of sufficiency. To require a fall-blown court examination
of each investigatory decision would intrude too deeply into
the FEC's proper area of authority. Moreover, under the
circumstances of this case, the factual findings already made by
the FEC indicate that AIPAC should be classified as a political
committee.

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75a

APPENDIX  C

UNITED STATES COURT OF APPEALS
DISTRICT OF COLUMBIA CIRCUIT

No. 94-5088

JAMES E. AKINS, ET AL., APPELLANTS

      v.

FEDERAL ELECTION COMMISSION

[Jan. 25, 1996]

ORDER

Prior report: 66 F.3d 348

Before: EDWARDS, Chief Judge; WALD, SILBERMAN
BUCKLEY, WILLIAMS, GINSBURG, SENTELLE, HENDER-
SON, RANDOLPH, ROGERS and TATEL, Circuit Judges.

PER CURIAM.

Upon consideration of appellants' suggestion for
rehearing in bane and of the response thereto, it is

ORDERED, by the Court in banc, that the sugges-
tion is granted. This case will be considered and
decided by the court sitting in bane on both the stand-
ing and statutory construction issues. It is

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76a

FURTHER ORDERED, by the Court in banc, that
the judgment filed herein on September 29, 1995 is
hereby vacated.

A future order will govern further proceedings.  

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      77a

     APPENDIX D

UNITED STATES COURT OF APPEALS
DISTRICT OF COLUMBIA CIRCUIT

No. 92-1864 (JLG)

JAMES E. AKINS, ET AL., PLAINTIFFS

v.

FEDERAL ELECTION COMMISSION, DEFENDANT
                       
Filed: [Mar. 30, 1994]
                               

OPINION

This matter is before the Court on cross-motions
for summary judgment, pursuant to Federal Rule of
Civil Procedure 56(a). The Court has considered the
filings, the arguments presented by counsel at the
hearing on the motion, the record and the relevant
ease law. For the reasons set forth below the Court
grants defendant's Motion for Summary Judgment
and denies plaintiffs' Motion for Summary Judgment.

I. Background  

  a. Parties

The plaintiffs in this case are six individuals who
were former ambassadors, congressmen or govern-
ment officials. They are politically active people who
oppose the views of the American Israel Public
Affairs Committee ("AIPAC"), regarding U.S. for-

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78a

eign policy in the Middle East. The plaintiffs compete
with AIPAC in an effort to influence the opinions and
actions of members of Congress, the executive branch
and the public.
The defendant, Federal Election Commission
("FEC" or "Commission"), is the independent govern-
ment agency responsible for enforcement of the Fed-
eral Election Campaign Act, ("FECA" or "Act"), 2
U.S.C.  431-455  (1981).
The American Israel Public Affairs Committee
("AIPAC") is not a party in the case, although the
Court granted it leave to file as amicus curiae. 1
AIPAC is an incorporated, tax-exempt lobbying or-
ganization with approximately 50,000 supporters.
AIPAC's function is to encourage close United
States-Israel relations and to provide services to its
supporters.  Administrative Record at 1469 (hereinaf-
ter "A.R. at ." ), "AIPAC's stated purpose has been
to `conduct public action with a view to maintaining
and improving the friendship and goodwill between
the United States and Israel.'" Id.

  b. The Administrative Complaint

On January 9, 1989, plaintiffs fried an administra-
tive complaint with the FEC, designated as Matter
Under Review ("MUR") No. 2804, against AIPAC and
twenty-seven political action committees.  See, 2
U.S.C. 437g(a)(l). The complaint advanced four ar-
guments:

1) AIPAC is a political committee as defined by the
Federal Election Campaign Act, because it is a

___________________(footnotes)

1 AIPAC filed a brief that addressed issues unrelated to
plaintiffs' complaint; therefore, the Court struck the pleading
by Memorandum and Order dated December 8, 1993.

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79a

"club, association, or other group of persons
which makes expenditures aggregating in excess
of 1000 during the calendar year..." 2  U.S.C.
431(4)A. As a political committee, AIPAC is re-
quired to register with the Commission. 2 U.S.C.
433. And, AIPAC must adhere to the reporting
requirements established by the FECA. 2 U.S.C.
434.

2)  AIPAC and the twenty-seven political committees
are affiliated and therefore, are required to file a
statement of affiliation with the FEC. 2 U.S.C. 
441a(a)(5). Under the Act, all contributions made
by affiliated committees are treated as though
they were made by a single committee, therefore
affiliated committees are subject to expenditure
limitations of 2 U.S.C. 441a(a) (2) (A).

3)  AIPAC improperly failed to disclose its election-
related activity to the FEC.

4)  AIPAC made illegal campaign expenditures.

Based upon two reports generated by the General
Counsel, the FEC issued two certificates of agency
action which closed the case.

On November 29, 1989, the General Counsel recoin-"
mended that the FEC find "no reason to believe" that
AIPAC and the twenty-seven political committees
were in violation of 2 U.S.C. 441a(a)(5) by reason of
affiliation. See, A.R. at 2515-2516, General Counsel's
Report, November 29, 1989. Because the Commission
determined that AIPAC and the twenty-seven politi-
cal committees were not affiliated, they were not in
violation of spending limitations imposed by 2 U.S.C.

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80a

 441a(a)(2)(A). See, A.R. at 2675-2678, FEC's Certi-
fication, December 20, 1989.
After an extensive investigation, the General Coun-
sel issued a report regarding AIPAC's corporate
expenditures, campaign-related activities and politi-
cal activities. See, A.R. at 3671-3778, General Coun-
sel's Report, January 30, 1992. The General Counsel
recommended that the Commission find no probable
cause to believe AIPAC violated 2 U.S.C.  433 and
434; and find probable cause to believe AIPAC violated
2 U.S.C. 441b.
By a certification signed on June 16, 1992, and
issued on June 17, 1992, the Commission adpted the
General Counsel's recommendations. A.R. at 3871-
3872, FEC Certification, June 16, 1992. First, the
FEC found no probable cause to believe that AIPAC
was a political committee in violation of 2 U.S.C. 
433 and 434. Second, the Commission found probable
cause to believe that AIPAC violated 2 U.S.C.  441b
"by making contributions to or expenditures an behalf
of federal candidates in the form of communications to
a group of persons that AIPAC considered members."
A.R. at 3924, "Statement of Reasons," July 27, 1992.
Although the FEC found AIPAC to be in violation of 2
U.S.C.  441b, the Commission exercised its prosecu-
torial discretion pursuant to Heckler v. Chaney, 470
U.S. 821 (1985), and took no action with respect to the
violation. By unanimous vote, the Commission closed
the file on June 16, 1992. A.R. at 3872.

  c. District Court Complaint

Pursuant to 2 U.S.C. 437g(8) (A), plaintiffs filed a
Complaint before this Court on August 12, 1992. In
the Original Complaint, plaintiffs sought judicial
review of the FEC's final adjudication which dismis-

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81a

sed their administrative complaint. Plaintiffs urged
the Court to impose declaratory and injunctive relief
against the FEC for failure to enforce the Federal
Election Campaign Act in the disposition of their
administrative complaint against AIPAC and the
twenty-seven political committees. Plaintiffs filed a
Motion for Leave to File First Amended Complaint on
December 21, 1992. The Court granted plaintiffs'
Motion for Leave to File First Amended Complaint
and the case was narrowed to one cause of action.
See, Memorandum & Order filed August 11, 1993.
The remaining issue before the Court is whether or
not the FEC's final agency action-which determined
that AIPAC is not a "political committee" as defined
by 2 U.S.C. 431(4)A of the Federal Election Cam-
paign Act and therefore, is not subject to the reg-
istration and reporting requirements of 2 U.S.C. 
433 and 434-was arbitrary, capricious and contrary
to law. Plaintiffs ask the Court to declare contrary to
law the FEC's June 16, 1992 decision finding "no
probable cause to believe" that AIPAC is a "political
committee" as defined by 2 U.S.C.  431(4)A. They
urge the Court to remand this matter to the FEC and
order the agency to revisit the question.  See,
Amended Complaint, at 14, filed December 21,1992.
Plaintiffs argue four alternative grounds whereby
the Court should enter summary judgment in their
favor. Plaintiffs first three arguments attack the
Commission's conclusion "that AIPAC has not be-
come a political committee under the Act because
AIPAC's campaign-related activities . . . constitute
only a small portion of its overall activities and does
not appear to be its major purpose." A.R. at 3772,
General Counsel's Report, January 30, 1992. Plain-

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82a

tiffs argue that the Commission's "major purpose"
standard:

  1. is contrary to law

  2. departs without explanation from the
      agency's precedents;

  3. is unclear; and the FEC's decision under
      the major purpose standard is not supported
      by sufficient findings and reasons.

In addition, plaintiffs contend that the Commission
failed to conduct an adequate investigation of
AIPAC's political activities.
The FEC challenges the plaintiffs' arguments by
showing that the Commission's interpretations of the
meaning. of "political committee" under the Act and
the "major purpose" standard as defined  by Buckley  v.
Valeo, 424 U.S. 1 (1972), are proper. Furthermore,
the FEC urges the Court to recognize the Commis-
sion's broad discretion in interpreting the Federal
Election Campaign Act and find that the application of
the "major purpose" standard to AIPAC and the facts
of this case was precise. The FEC also argued that
its investigation into AIPAC's expenditures and ac-
tivities was wholly adequate. Defendant contends
that the depth of the agency's investigation is within
the exclusive arena of the FEC's prosecutorial dis-
cretion and deference to the agency "should be
presumptively afforded." Orloski v. FEC, 795 F.2d
156, 164 (D.C.Cir. 1986) (citation omitted).

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83a

II.  Legal Standard

a. "Political Committee" as defined by the Federal
Election Campaign Act

A "political committee" is "any group of persons
which makes expenditures aggregating in excess of
1,000 during a calendar year." 2 U.S.C. 431(4). An
"expenditure" is "any purchase, payment, distribu-
tion, loan, advance, deposit, or gift of money or any-
thing of value, made by any person for the purpose of
influencing any election for Federal office." 2 U.S.C.
 431(9) (A) (i). An expenditure is a "contribution" if
it is made "with the cooperation or with the prior
consent of, or in consultation with or at the request of
suggestion of, a candidate." 11 C.F.R. 3109.1.
`When an organization qualifies as a political com-
mittee, pursuant to 2 U.S.C.  431(4), the organization
must register and file periodic reports of its receipts
and disbursements with the Commission." A.R. at
2745; See 2 U.S.C. 433 and 434. The reports must
identify each individual who gives or receives from
the political committee more than  200. See 2 U.S.C.
434(b)(3)(A). Political committees are prohibited
from contributing more than 1000 to any candidate,
except that multicandidate political committees may
contribute up to 5000. See, 2 U.S.C.  441a(a). And,
corporations are prohibited from making any con-
tributions or expenditures "in connection with any
election to any political office." 2 U.S.C.  441b(a).

b. The "major purpose standard"

The classification of a group as a "political com-
mittee" is triggered by the amount of money it ex-
pends "for the purpose of influencing any election for
Federal office." 2 U.S.C.  431(9)(A)(i). An expendi-

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84a

ture in excess of 1000 activates the registration and
reporting requirements of this Act. See 2 U.S.C. 
431(d). In Buckley W. Valeo, 424 U.S. 1 (1976), the
Supreme Court acknowledged the problem of applying
this broad, vague definition to different kinds of
groups involved in the political process. The Court
cautioned that the definition of political committee
"could be interpreted to reach groups engaged purely
in issue discus sion." Id. at 79. Subjecting issue
groups to the restrictions of the Act, would fly in the
face of its primary purpose, which is to "limit
spending in federal election campaigns and to limit
pernicious influence over candidates . . . that wealthy
individuals or corporations could achieve by financing
the political war chests of those candidates."  Orloski,
795 F.2d at 163 (citation omitted).
In Buckley, the Supreme Court acknowledged the
efforts of the lower courts to "construe[] the words
`political committee' more narrowly." 424 U.S. at 79;
See, United States v. National Committee for Im-
peachment, 409  F.2d 1135, 1141 (2nd Cir. 1972); Ameri-
can Civil Liberties Union v. Jennings, 366 F. Supp.
1041, 1057 (D.D.C. 1973). The Buckley Court fash-
ioned its own definition-" To fulfill the purposes of
the Act they [political committees] need only encom-
pass organizations that are under the control of a
candidate or the major purpose of which is the nomi-
nation or election of a candidate." 424 U.S. at 79
(emphasis added). "The narrowing construction  given
to the words `political committee' by the lower courts
which was endorsed in Buckley,"  has been used to
determine whether or not organizations are "political
committees" under the FECA. FEC v. Machinists
Non-Partisan Political League, 655 F.2d 380, 392
(D.C. Cir. 1981).

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85a

c. Standard of Review

A provision of the FECA allows parties to seek
judicial review if the Commission dismisses a com-
plaint or fails to act on a complaint filed within 120
days. See 2 U.S.C.  437g(8)(A). The Court's task is
to determine if the Commission's  action was contrary
to law. See 2 U.S.C. 437g(8)(C). In FEC v. Demo-
cratic Senatorial Campaign Committee, 454 U.S. 27
(1981), the Supreme Court disagreed with the lower
court's conclusion "that the Commission's construc-
tion of the Act was entitled to no deference
whatsoever." 454 U.S. at 36-37. The Court acknowl-
edged that "deference should presumptively be af-
forded" to the Commission. Id. at 37. In support of
this conclusion, the Court highlighted Congress's
intent to give the FEC administrative and enforce-
ment responsibility, rulemaking and adjudicative
powers, and power to make general policy decisions
regarding the administration of the Act. Id.
In order for plaintiffs to prevail, they must show
that the Commission acted in contravention of the
Act. Plaintiffs carry the difficult burden of convinc-
ing the court that the Commission's interpretation of
the Act was impermissible and contrary to law.
Conversely, the defendant must show that the
disposition of the administrative complaint by the
agency was "sufficiently reasonable."  Id. at 39.
Because the standard of review is "highly deferen-
tial," the Court will presume that the agency action
is valid, even if the Court would have interpreted the
Act in a different manner. See American Horse
Protection Association, Inc. v. Yeutter, 917 F.2d 594
(D.C. Cir. 1990). Therefore, the Court will examine
the FEC's disposition of plaintiffs' administrative

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86a   

complaint to determine if the Commission acted
contrary to law when it found no probable cause to
believe that AIPAC was a political committee within
the meaning of the Act. See Chevron, U. S. A., Inc. v.
Natural Resources Defense Council, 467 U.S. 837
(1984).

III. Discussion

First, plaintiffs urge the Court to find that the
defendant acted contrary to law in the disposition of
the administrative complaint. Plaintiffs direct the
Court to the "unambiguous language of the statute"
and they argue that only the textual definition of
political committee applies to the facts of this case.
Plaintiffs' argument is based upon a single quantita-
tive standard: if a group makes a contribution of [1000]
100 or more, that group is a political committee. See
2 U.S.C. 431(4). Plaintiffs implore the Court to find
the Commission's interpretation invalid, because the
record shows that AIPAC's contributions were in
excess of  $1000.
As the Supreme Court made clear in Buckley and
its progeny, the definition of "political committee"
had to be narrowed to protect the constitutionality of
the Act. Without the narrowing construction, the
exercise of First Amendment rights, particularly the
right of associational privacy, NAACP v. Alabama,
357 U.S. 449 (1958), was threatened. See Buckley 424
U.S. at 66. Therefore, this Court must consider the
narrowing construction upon evaluating the statute
and the Commission's interpretation of the statute.
Plaintiffs' argument that the Court should only
look to the unambiguous text of the Act is inappropri-
ate here. The Court must look beyond the statute to
the case law in order to determine whether or not

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87a

AIPAC is a political committee under the FECA.
Accordingly, the Court finds that plaintiffs' first
argument fails to show that the Commission acted
contrary to law because it went beyond the statute to
narrow the textual definition of "political committee."
Second, plaintiffs argue that the Commission's
application of the major purpose test is improper.
Specifically, plaintiffs assert that not only is the
Commission's application of the major purpose test
unclear and insupportable, but it also departed from
prior agency precedent without explanation.  The
plaintiffs, argue that the major purpose of an organiza-
tion's independent expenditures must be examined, as
opposed to the major purpose of the organization
itself.
The major dispute between the parties relates to
the definition of political committee and the applica-
tion of the major purpose standard. Congress in-
tended to "address broadly the problem of political
campaign financing," and wanted to "promote full dis-
closure of campaign-oriented spending" with the
FECA. Buckley, 424 U.S. at 78. While the judiciary
was in accord with this goal, the Buckley Court made
clear that the Act was not contemplated "to reach
groups engaged purely in issue discussion." Id. at 79.
The courts had been concerned with the Act's broad,
economic-based definition of political committee,
because it is likely to include groups that were not
meant to be subject to the restrictions of the Act.
Several early election law cases, including Buck-
ley, were troubled by the Act's impact upon First
Amendment issues.  For example, same issue-ori-
ented groups might be silenced by the burdensome
requirements of the FECA at the same time that
campaign-related groups were being regulated prop-

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88a

erly under the FECA. See, e.g., United States v. Na-
tional Committee for Impeachment, 409 F.2d 1135
(2nd Cir. 1972) ("NCIF"); American Civil Liberties
Union v. Jennings, 366 F. Supp. 1041 (D.D.C. 1973).
In an effort to protect the First Amendment rights
of many groups that would come under the restric-
tions of the Act, the courts narrowed the definition of
political committee, with the "major purpose" stan-
dard. This test was first articulated by the Second
Circuit in NCIF and was later adopted by the United
States District Court for the District of Columbia in
ACLU v. Jennings. It reads as follows: "We also
construe the Act to apply only to committees solicit-
ing contributions or making expenditures the major
purpose of which is the nomination or election of
candidates." NCIF, 469 F.2d at 1141. The Court ac-
knowledged that "under this interpretation, enforce-
ment of the Act may be made somewhat more burden-
some, as the supervisory officials will be forced to
glean the principal or major purpose of the organiza-
tions they seek to have comply with the Act." Id. at
1142 (emphasis added).
In their pleadings and at oral argument, plaintiffs
argued that the major purpose test set forth in NCIF
and Jennings focused on the major purpose of the
expenditure, instead of the major purpose of the
organization. They go on to assert that Buckley did
not overrule those cases, and therefore, the analysis
is still good law today. Plaintiffs accuse defendant of
improperly applying this "major purpose" standard to
AIPAC, the organization, as opposed to the expendi-
tures made by AIPAC. Plaintiffs argue that this
application of the major purpose standard is contrary
to law.

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89a

Defendants argue that the major purpose standard
as set forth in Buckley is clear: that the Supreme
Court contemplated an analysis of the organization's
major purpose, not the expenditure's major purpose.
The Commission supports its assertions with recent
and persuasive case law. See FEC v. Massachusetts
Citizens for Life, Inc., 479 U.S. 238 (1986) (''MCFL");
FEC v. Machinists Non-Partisan Political League,
655 F.2d 380 (D.C. Cir. 1981). In MCFL, the Supreme
Court determined that a corporation's independent
spending could not be subject to the restrictions of 2
U.S.C. 441b if the corporation was formed for the
express purpose of promoting political ideas, did not
have shareholders, and was not established by a cor-
poration or labor union. 479 U.S. at 264. The Su-
preme Court also made clear that if an organization's
independent spending became so extensive that the
organization's major purpose may be regarded as
campaign activity, then it would be classified as politi-
cal committee. MCFL, 479 U.S. at 262. (emphasis
added). Defendant urges the Court to find that the
Commission's consideration of AIPAC's major pur-
pose-as an organization-was proper, according to
Supreme Court precedent as set forth in Buckley and
MCFL.
This Circuit applied the major purpose test to de-
termine whether a "draft group", that is, an organiza-
tion that seeks to encourage a specific candidate to
run for office, is a political committee under the
FECA. See FEC v. Machinists Non-Partisan Politi-
cal League, 655 F.2d 380 (D.C. Cir 1981). The court  at-
tempted, like those in NCIF, Jennings and Buckley,
"to find a fair reading of the statute with comports
with first amendment safeguards." FEC v. Machin-
ists Non-Partisan Political League, 655 F.2d at 393.

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90a

In Machinists,the court recognized the "grave con-
stitutional difficulties inherent in construing the
term `political committee' to include groups whose
activities are not under the control of a `candidate' or
directly related to promoting or defeating a clearly
identified `candidate' for Federal office." Id.
The court acknowledged that if the activities of an
organization were "under the control of a candidate"
or were "directly related to promoting or defeating" a
candidate, then that organization would be a political
committee under the FECA. The court held that the
Machinists Non-Partisan Political League was not a
political committee under the Act, because the group
activities "did not support an existing `candidate'."
Id. at 396. The major purpose of the organization was
to draft candidates, not to advance the election or
defeat of a particular candidate for Federal office.
The plaintiffs' assertion that the case law requires
this Court to examine the major purpose of an organi-
zation's expenditures to determine if that organiza-
tion is a political committee appears to be supported
by the NCIF case. In NCIF the court "construe[d]
the Act to apply only to committees soliciting contri-
butions or making expenditures the major purpose of
which is the nomination or election of candidates."
469 F.2d at 1141. (emphasis added). But, the court
went on to reflect upon the ramifications of the major
purpose test, and acknowledged that the major
purpose test will be burdensome on the administra-
tors of the Act, because they "will be forced to glean
the principal or major purpose of the organizations
they seek to have comply with the Act." Id. at 1142.
(emphasis added). It is clear from the language of
NCIF, and the case law that interpreted the "major
purpose" test thereafter, that the test applies to the

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91a

organizations which may be subject to the reporting
and disclosure requirements of the FECA, and not to
the expenditures made by them.
The Court finds that the "major purpose" test as
first articulated by the Second Circuit, and endorsed
by the Supreme Court in Buckley was interpreted
properly by the defendant FEC. The plaintiffs' asser-
tion that the case law requires the Court to examine
the major purpose of an organization's expenditure to
determine if that organization is a political committee
is erroneous. Under these circumstances, the Court
must defer to the agency action and uphold the com-
mission's analysis and application of the Act.
The Court's next step is to determine whether or
not the Comission's application of the major purpose
test, and its determination that AIPAC is not a
political committee under the FECA was contrary to
law. The FEC implemented an extensive investiga-
tion, and developed a substantial administrative
record which documents AIPAC's political interests,
finances and campaign-related activities. AIPAC was
incorporated in 1963, as a non-profit organization.
A.R. at 1469. Its sole function, as a registered domes-
tic lobby, is to encourage close U.S Israel relations
and to provide service to its own members. Id.
The Commission made the determination that
"AIPAC's campaign-related expenditures, while
likely to have exceeded $1,000 in some years, were not
its major purpose but were made as an adjunct to, and
in support of, the lobbying efforts that were the
organization's primary focus." A.R. at 3772. Accord-
ingly, the Commission found no probable cause to
believe that AIPAC was in violation of sections 433
and 434 of the FECA.  A.R. at 3871-3872.

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92a

The Court has reviewed the administrative record,
and the legal arguments presented by the parties.
The Court finds that the commission interpreted
properly the statutory definition of "political com-
mittee" and the "major purpose" test. The Court is
convinced that the Commission's application of the
major purpose test to the facts presented in the
administrative complaint, regarding AIPAC's cam-
paign-related activities was reasonable. The Court is
mindful of the deference which should presumptively
be afforded to this agency. See Orloski at 164.
In their last argument, plaintiffs attempt to show
that the Commission failed to conduct an adequate
inquiry or investigation into the facts which support
their administrative complaint.  Defendant claims
that the investigation was wholly adequate and that
the extent of their investigations should be left to
agency discretion.  The Court has reviewed the
administrative record in this case. Its pages number
almost four thousand. The two General Counsel Re-
ports are thoughtful and well-reasoned. There is no
evidence that the Commission failed to investigate
adequately the plaintiffs' administrative complaint.

IV. Conclusion

The Court finds that the plaintiffs failed to show
that the Commission's disposition of their adminis-
trative complaint was arbitrary, capricious and
contrary to law. Therefore, the plaintiffs' motion for
summary judgment and declaratory relief is denied.
Because the Court finds that the Commission acted in
a reasonable manner in its interpretation and applica-
tion of the Federal Election Campaign Act as to the
administrative complaint filed by the plaintiffs, the
defendant's Motion for Summary Judgment is

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93a

   granted, pursuant to Federal Rule of Civil Procedure
   56(a).

	/s/ JUNE L. GREEN
	      JUNE L. GREEN
               	     U.S. District Judge
   
 Dated: March 30.1994

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      94a

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

  Civil Action No. 92-1864 (JLG)

JAMES E. AKINS, ET AL., PLAINTIFFS

        v.

FEDERAL ELECTION COMMISSION, DEFENDANT

      [Filed: Mar. 30, 1994]

        ORDER

Upon consideration of the cross-motions for sum-
mary judgment filed by the parties in the above-
captioned case, the oral arguments presented to the
Court and the entire record herein, it is by the Court
this 30th day of March 1994 hereby

ORDERED that plaintiffs' Motion for Summary
Judgment is denied; it is further

ORDERED that defendant's Motion for Summary
Judgment is granted; and, it is further

ORDERED that the above-captioned case is dismis-
sed with prejudice.

           /s/JUNE  L. GREEN                 
            JUNE L. GREEN
            U.S. District Judge

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95a

       APPENDIX E

BEFORE `THE FEDERAL ELECTION COMMISSION

MUR 2804

IN THE MATTER OF AMERICAN ISRAEL
  PUBLIC AFFAIRS COMMITTEE

CERTIFICATION

I, Marjorie W. Emmons, recording secretary for the
Federal Election Commission executive session on
June 16, 1992, do hereby certify that the Commission
took the following actions with respect to MUR 2804:

1. Decided by a vote. of 6-0 to find no probable cause
to believe that the American Israel Public
Affairs Committee violated 2 U.S.C. 433 and
434.

Commissioners Aikens, Elliott, McDonald,
McGarry, Potter, and Thomas voted affirma-
tively for the decision.

2. Decided by a vote of 4-2 to find probable cause
to believe that the American Israel Public
Affairs Committee violated 2 U.S.C.  441b,
but take no further action.

Commissioners McDonald, McGarry, Potter,
and Thomas voted affirmatively for the decision;
Commissioners Aikens and Elliott dissented.

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96a

3. Decided by a vote of 6-0 to

a) Close the file in this matter.

b) Direct the Office of General Counsel to
send appropriate letters pursuant to the
actions noted above.

Commissioners Aikens, Elliott, McDonald,
McGarry, Potter, and Thomas voted
affirmatively for the decision.

	     Attest:

6-17-92     /s/ MARJORIE W. EMMONS  
Date                MARJORIE W. EMMONS
                        Secretary of the
                        Commission

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97a

BEFORE THE FEDERAL ELECTION COMMISSION
                 

        MUR 2804

  IN THE MATTER OF AMERICAN ISRAEL
    PUBLIC AFFAIRS COMMITTEE
       
     STATEMENT OF REASONS

On June 9 and 16, 1992, the Federal Election Com-
mission ("Commission") considered the General
Counsel's recommendations in MUR 2804 to find
probable cause to believe that the American Israel
Public Affairs Committee ("AIPAC") violated 2
U.S.C.  441b and to approve a proposed conciliation
agreement.
The General Counsel's May 29, 1992 Report main-
tained that AIPAC had violated Section 441b by
making contributions to or expenditures on behalf of
federal candidates in the form of communications to a
group of persons that AIPAC considered its members.
The General Counsel concluded that this group of
persons did not meet the Commission's membership
requirements for purposes of the Federal Election
Campaign Act of 1971, as amended ("the Act"). In
interpreting and applying the decision in FEC v.
National Right to Work Committee, 459 U.S. 197
(1982) ("NRWC"), and subsequent Commission advi-
sory opinions, the General Counsel concluded that the
group of persons AIPAC claimed as its members
lacked a sufficient right to participate in the govern-
ance of the organization to meet the Commission's
membership criteria. The General Counsel princi-
pally cited the fact that group members at issue here

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98a

had no right to vote for the governing body (the
Executive Committee) of AIPAC. The General Coun-
sel acknowledged that those members of AIPAC who
attended the annual Policy Conference, only a small
percentage of the total "members", could vote on the
Policy Statement. He concluded however, that this
right without more did not meet the Commission's
criteria for voting rights or organizational attach-
ment, though he recognized this situation presented a
close question. In "opposition to the General Coun-
sel's position, AIPAC strenuously argued that it
constitutes the quintessential membership organiza-
tion established to support a particular idea or pur-
pose and that the General Counsel was being unnec-
essarily rigid in applying the NRWC decision and
Commission advisory opinions.
We agreed with the General Counsel's conclusion
that AIPAC did not meet the Commission's member-
ship criteria as provided in a series of advisory
opinions following the NRWC decision.  Thus, we
found probable cause to believe AIPAC violated 2
U.S.C.  441b. We also agreed with the General Coun-
sel that the AIPAC situation presented a close
question, and that the Commission should clarify its
membership definition before imposing penalties in
close cases such as this, where the organization came
close to meeting the "spirit" of the Commission's
membership criteria, but failed on a specific point.
Accordingly, given the facts of this case, we decided
to exercise our prosecutorial discretion, see, Heckler
v. Chaney, 470 U.S. 821 (1985), and to take no further
action with respect to the finding on Section 441b. 2

___________________(footnotes)

2  To the extent that any of the violations of Section 441b
outlined by the General Counsel in his brief and report are not

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99a

We emphasize that the circumstances of this decision
not to proceed against an organization failing to meet
the Commission's definition of membership are nar-
row. Further we anticipate the Commission soon will
conduct a regulatory proceeding to review its mem-
bership criteria in an effort to eliminate confusion
about these requirements.

27 July 1992
Date

27 July 1992
Date

27 July 1992
Date

27 July 1992
Date

/s/ SCOTT E. THOMAS
SCOTT E. THOMAS
Vice Chairman

/s/ JOHN WARREN MCGARRY
JOHN WARREN MCGARRY
Commissioner

/s/ DANNY LEE MCDONALD
DANNY LEE McDONALD
Commissioner

/s/ TREVOR POTTER
TREVOR POTTER
Commissioner

___________________(footnotes)

dependent on the membership issue, we concluded that such
instances, i.e., distributing candidate position papers or sug-
gesting to candidate fundraisers who to contact, did not war-
rant further pursuit since the record did not reflect that these
were significant violations.

---------------------------------------- Page Break ----------------------------------------

No. 96-1590

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

 FEDERAL ELECTION COMMISSION, PETITIONER

v.

JAMES E. AKINS, RICHARD CURTISS, PAUL FINDLEY,
ROBERT J. HANKS, ANDREW KILLGORE, 
AND ORIN PARKER
______________

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE  DISTRICT OF COLUMBIA CIRCUIT
______________

REPLY BRIEF FOR THE PETITION 
_______________

WALTER DELLINGER
Acting Solicitor General

Department of Justice 
Washington, D.C. 20530-0001
(202) 514-2217

LAWRENCE M. NOBLE
General Counsel
Federal Election Commission
Washington, D.C. 20463

WALTER DELLINGER
Acting Solicitor General
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

LAWRENCE M. NOBLE
General Counsel
Federal Election Commission
Washington, D.C. 20463

---------------------------------------- Page Break ----------------------------------------

Cases:

TABLE OF AUTHORITIES

Page

American Civil Liberties Union, Inc. v. Jennings,
366 F. Supp. 1041 (D.D.C. 1973), vacated as moot
sub nom. Staats v. American Civil Liberties
Union, Inc., 422 U.S. 1030 (1975) . . . . 5
Bennett v. Spear, 117 S. Ct. 1154 (1997) . . . . 8
Buckley v. Valeo, 424 U.S. 1 (1976)  . . . . 1, 2, 3, 5, 6
Clarke v. Securities Indus. Ass'n, 479 U.S. 388
(1987) . . . . 7
FEC v. Massachusetts Citizens for Life, Inc.,
479 U.S. 238 (1986) . . . . 3
Heckler  v. Chaney, 470 U.S. 821 (1985) . . . . 8
Linda R.S. v. Richard D., 410 U.S. 614 (1973) . . . . 8
Liquid Carbonic Indus. Corp. v. FERC, 29 F.3d
697 (D.C. Cir. 1994) . . . . 8
Lujan v. Defenders of Wildlife, 504 U.S. 555
(1992)  . . . . 7
United States v. National Comm. for Impeachment,
469 F.2d 1135 (2d Cir. 1972) . . . . 5, 6

Statutes:

Administrative Procedure Act, 5 U.S.C. 702 . . . .7
Federal Election Campaign Act of 1971, 2 U.S.C.
431 et  seq. . . . 1
  2 U.S.C. 434(b)(3)  . . . . 4
  2 U.S.C. 434(b)(3)(G)  . . . . 4
  2 U.S.C. 434(b)(6)(B)(v)  . . . . 4
  2 U.S.C. 437g(a)(8)(A) . . . . 8
Federal Power Act, 16 U.S.C. 791a et seq. . . . 8
Freedom of Information Act, 5 U.S.C. 552 . . . .7

---------------------------------------- Page Break ----------------------------------------

In the Supreme Court of the United States

OCTOBER TERM, 1996
   
No. 96-1590

FEDERAL ELECTION COMMISSION, PETITIONER

v.

JAMES E. AKINS, RICHARD CURTISS, PAUL FINDLEY,
  ROBERT J. HANKS, ANDREW KILLGORE,
      AND ORIN PARKER

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

REPLY BRIEF FOR THE PETITIONER

A. In our petition for a writ of certiorari, we
explain that the "major purpose" test announced
by this Court in Buckley v. Valeo, 424 U.S. 1, 79
(1976) (per curiam), serves to ensure that occasional
election-related disbursements do not subject an or-
ganization to the comprehensive disclosure require-
ments, covering all receipts and disbursements, that
are applicable to political committees under the
Federal Election Campaign Act of 1971 (FECA),
2 U.S.C. 431 et seq. Pet. 15-17. We further explain
(Pet. 17-20) that the justifications for the "major
purpose" test apply with equal force whether the dis-
bursements that trigger the reporting requirements

(1)

---------------------------------------- Page Break ----------------------------------------

2

are independent expenditures or direct contributions.
The court of appeals in this case therefore erred in
holding that the "major purpose" test is inapplicable
to any organization that makes more than $1,000 in
campaign contributions in a calendar year.
Respondents defend the court of appeals' judgment,
but on a quite different theory. In respondents' view,
the "major purpose" test serves to identify those dis-
bursements that are "expenditures" within the mean-
ing of the FECA. They contend (Br. in Opp. 4 n.3)
that any disbursement whose "major purpose" is the
election or defeat of a candidate is an "expenditure,"
and that "[a]ll organizations that make independent
expenditures exceeding 1,000 in a year are political
committees, except to the extent a [distinct] consti-
tutional exemption * * * applies." Respondents
argue that the relevant inquiry should focus on the
"major purpose" of a particular disbursement, not on
the "major purpose" of the organization as a whole.
That view cannot be reconciled with this Court's
precedents. In Buckley, this Court stated that "[t]o
fulfill the purposes of the Act [the words `political
comittee'] need only encompass organizations that
are under the control of a candidate or the major pur-
pose of which is the nomination or election of a can-
didate." 424 U.S. at 79 (emphasis added). Grammati-
cally, the word "organizations" is the only possible
antecedent for the phrase "of which." Respondents'
view of the "major purpose" test is further under-
mined by the ensuing pages of the Buckley opinion,
which addressed the term "expenditure" as it ap-
plies to independent expenditures made by individ-
uals and by groups other than "political committees."
See id. at 79-82. The Court construed the. term as
"reach[ing] only funds used for communications that

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3

expressly advocate the election or defeat of a clearly
identified candidate." Id. at 80 (footnote omitted).
The Court did not suggest that it was articulating
two different tests for an independent expenditure-
i.e., one employing the "express advocacy" require-
ment when applied to individuals and to groups other
than political committees, and another employing the
"major purpose" test to identify those disbursements
counting towards the $1,000 threshold for political
committee status.
This Court's subsequent decision in FEC v. Massa-
chusetts Citizens for Life, Inc., 479 U.S. 238 (1986)
(MCFL), makes it particularly clear that the relevant
inquiry focuses on the organization's major purpose,
not on the major purpose of an individual disburse-
ment. As our petition explains (see Pet. 16-17), the
MCFL plurality deemed it "undisputed" that MCFL
was not a "political committee" because "[i]ts cen-
tral organizational purpose [wa]s issue advocacy,"
479 U.S. at 252 n.6, notwithstanding the fact that
the organization had made FECA "expenditures" of
nearly 10,000 during the calendar year in question,
id. at 244, 248-251.  The majority observed that,
"should MCFL's independent spending become so ex-
tensive that the organization's major purpose may be
regarded as campaign activity, the corporation would
be classified as a political committee." Id. at 262.
MCFL makes clear that it is "the organization's ma-
jor purpose,"  ibid not the major purpose of any par-
ticular disbursement-that is dispositive of the "po-
litical committee" inquiry.
Moreover, a test focusing on the "major purpose"
of a particular disbursement would not satisfacto-
rily address the practical and constitutional problems
potentially created by the Act's political committee

---------------------------------------- Page Break ----------------------------------------

4

provisions.  A political committee is required to
make comprehensive disclosures of all of its receipts
and disbursements, even those that bear no direct
relation to electoral campaigns. See, e.g., 2 U.S.C.
434(b)(3)(G), 434(b)(6)(B)(v). There is consequently a
significant danger that small amounts of campaign-
related expenditures by an organization may trigger
a far-reaching obligation to disclose non-campaign-
related receipts and disbursements, including re-
ceipts and disbursements used for issue advocacy.
A narrowing construction of the term "expenditure"
alone would not alleviate that risk. 1 

___________________(footnotes)

1 Respondents also suggest (Br. in Opp. 13) that, "[t]o the
extent forced disclosure of non-campaign activities is a consti-
tutional concern, the appropriate remedy would be to exempt
these activities from disclosure, not the campaign contri-
butions." That argument is flawed in several respects. First,
it is inconsistent with Buckley and MCFL. Those decisions
responded to constitutional concerns by announcing a limiting
construction of the term "political committee," not by exempt-
ing (or authorizing the Commission to exempt) such com-
mittees from the requirement that they disclose all of their
receipts and disbursements. Second, although it might be
possible to segregate an organization's campaign-related dis-
bursements, political committees are also required, inter alia,
to disclose all of their receipts, which are not normally ear-
marked for campaign or other activity. The approach pro-
posed by respondents therefore would not fully address the
practical and constitutional difficulties that the "major pur-
pose" test was intended to resolve.

Finally, the determination that an organization is not a
political committee does not serve to "exempt" its campaign
contributions from the FECA's disclosure requirements. As
our petition explains (Pet. 4, 22), contributions aggregating
more than 200 from any person to a candidate or political
committee must be reported by the recipient. See 2 U.S.C.
434(b)(3). Although certain coordinated expenditures could be

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5

Respondents make little effort to reconcile their
position with this Court's own articulation, in Buck-
ley and MCFL, of the criteria for political committee
status. They rely instead (Br. in Opp. 3) on two lower
court decisions- United States v. National Commit-
tee for Impeachment, 469 F.2d 1135 (2d Cir. 1972)
(NCFI), and American Civil Liberties Union, Inc. v.
Jennings, 366 F. Supp. 1041 (D.D.C. 1973) (ACLU),
vacated as moot sub nom. Staats v. American Civil
Liberties Union, Inc., 422 U.S. 1030 (1975)-that were
cited by this Court in Buckley. See 424 U.S. at 79
n.106 ("At least two lower courts, seeking to avoid
questions of unconstitutionality, have construed the
disclosure requirements imposed on `political com-
mittees' * * * to be nonapplicable to nonpartisan
organizations."). Respondents' approach is flawed in
two respects.
First, the lower court decisions on which respon-
dents rely are hardly as unequivocal as respondents
suggest.  The Second Circuit's opinion in NCFI
contains language supporting both approaches to the
identification of "political committees." On the one
hand, the NCFI court stated that it would "construe
the Act to apply only to committees soliciting con-
tributions or making expenditures the major purpose
of which is the nomination or election of candidates;
469 F.2d at 1141-language suggesting that the
inquiry should focus on the purpose of particular
receipts and disbursements. On the other hand, the
                 
___________________(footnotes)

made in a manner that would make it difficult for the recip-
ient candidates to learn of such contributions and to be able to
report them (see Br. in Opp. 13-14 n.11), that potential barrier
to a candidate's complete reporting of coordinated expendi-
tures made on his behalf exists even where the contributors are
individuals.

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6

court observed that, under its construction of the
FECA, federal officials enforcing the Act "will be
forced to glean the principal or major purpose of the
organizations they seek to have comply with the Act."
Id. at 1142. The court noted as well that "the words
of the Act seem to indicate that Congress' concern
was primarily with groups organized or at least
authorized by a particular candidate and whose prin-
cipal focus is a specific campaign." Id. at 1140. Those
passages suggest that the overall character of the
organization should be dispositive of the "political
committee" question.
In any event, close analysis of the lower court deci-
sions cited by the Buckley Court would be appropriate
only if such analysis were helpful in resolving an
ambiguity in Buckley itself. As we explain above, no
such ambiguity exists. Rather, the Buckley Court
stated unequivocally that an organization will be
considered a political committee only if the organiza -
tion's major purpose is campaign activity. 2  The Court
reaffirmed that conclusion in MCFL. Respondents'
apparent view that this Court misconstrued the lower
court decisions in NCFI and ACLU provides no jus-
tification for the court of appeals' refusal to accept
at face value the Court's interpretation of the Act's
"political committee" provision.

___________________(footnotes)
                                                
2  The Buckley Court stated that the decisions in NCFI and
ACLU had "construed the disclosure requirements imposed on
`political committees' * * * to be nonapplicable to nonpartisan
organizations." 424 U.S. at 79 n.106. This Court evidently
interpreted those decisions as focusing on the character of
the organization rather than on the character of a particular
disbursement.

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7

B.  Respondents lack standing to bring their
suit. Contrary to respondents' contention (see Br. in
Opp. 15), their suit is not properly analogized to
one brought" under the Freedom of Information Act
(FOIA), 5 U.S.C. 552. The gravamen of a FOIA action
is that a government agency has breached its legal
duty to disclose to the plaintiff information actually
in the possession of the government. Respondents,
by contrast, challenge the Commission's failure to
acquire, through means of an enforcement action,
information in the possession of a private party.
This Court has recognized that, "when the plaintiff
is not himself the object of the government action
or inaction he challenges, standing is not precluded,
but it is ordinarily substantially more difficult to
establish." Lujan v. Defenders of Wildlife, 504 U.S.
555, 562 (1992) (internal quotation marks omitted).
Respondents also contend (Br. in Opp. 16) that they
"meet the non-constitutional, zone-of-interests test
for standing." The zone-of-interests test was `devised
as "a gloss on the meaning of [5 U. S. C.]  702."
Clarke v. Securities Indus. Ass'n, 479 U.S. 388, 395
(1987). Section 702-the judicial review provision of
the Administrative Procedure Act (APA)-author-
izes suits by persons "adversely affected or aggrieved
by agency action within the meaning of a relevant
statute." 5 U.S.C. 702. While this Court has applied
the zone-of-interests test outside the context of APA
review, it has "made clear * * * that the breadth of
the zone of interests varies according to the provi-
sions of law at issue, so that what comes within the
zone of interests of a statute for purposes of obtaining
judicial review of administrative action under the
generous review provisions of the APA may not do so

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8

for other purposes." Bennett v. Spear, 117 S. Ct.
1154, 1161 (1997) (internal quotation marks omitted).
The statutory review provision under which re-
spondents' action was brought is narrower than that
in the APA: it does not authorize suits by per-
sons "adversely affected," but only by persons "ag-
grieved" by the Commission's dismissal of a com-
plaint. 2 U.S.C. 437g(a)(8)(A); cf. Liquid Carbonic
Indus. Corp. v. FERC, 29 F.3d 697, 702 (D.C. Cir.
1994) (Federal Power Act provision authorizing ju-
dicial review for "[a]ny party * * * aggrieved" is
narrower than APA's judicial review provision).
Moreover, Section 437g(a)(8)(A) applies in an area-
the decision by a government agency not to undertake
an enforcement action against a private party-that
is typically not subject to judicial review at all, See
Heckler v. Chaney, 470 US. 821, 831-832 (1985);
Linda R.S. v. Richard D., 410 U.S. 614,616-619 (1973).
Those aspects of the Act weigh strongly against
respondents' apparent conclusion (see Br. in Opp. 15)
that any voter would have standing to challenge the
Commission's enforcement decision in this case.

       *****

For the reasons stated above, and in our petition for
a writ of certiorari, the petition should be granted.

Respectfully submitted.

WALTER DELLINGER
Acting Solicitor General

LAWRENCE M. NOBLE
General Counsel
Federal Election Commission

MAY 1997

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No. 96-1590

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996
___________

 FEDERAL ELECTION COMMISSION, PETITIONER

v.

JAMES E. AKINS, RICHARD CURTISS, PAUL FINDLEY,
ROBERT J. HANKS, ANDREW KILLGORE, AND
ORIN PARKER
______________

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE  DISTRICT OF COLUMBIA CIRCUIT
______________

PETITION FOR A WRIT OF CERTIORARI
_______________

WALTER DELLINGER
Acting Solicitor General

SETH P. WAXMAN
Deputy Solicitor General

MALCOLM L. STEWART
Assistant to the Solicitor
General

Department of Justice 
Washington, D.C. 20530-0001
(202) 514-2217

LAWRENCE M. NOBLE
General Counsel

RICHARD B. BADER
Associate General
Counsel

DAVID KOLKER
Attorney
Federal Election
Commission
Washington, D.C. 20463

---------------------------------------- Page Break ----------------------------------------

QUESTIONS PRESENTED

1. Whether an organization that spends more than
1,000 on contributions or coordinated expenditures in a
calendar year, but is neither controlled by a candidate nor
has as its major purpose the nomination or election of
candidates, is a "political committee" within the meaning
of the Federal Election Campaign Act of 1971, 2 U.S.C. 431
et seq.

2. Whether respondents had standing to bring this
suit.

(1)

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TABLE OF CONTENTS

                    Page

Opinions below  . . . . 1
Jurisdiction . . . . 1
Constitutional and statutory provisions involved . . . . 2
Statement . . . . 2
Reason for granting the petition . . . . 14
Conclusion  . . . . 30

     TABLE OF AUTHORITIES

Cases:

Allen v. Wright, 468 U.S. 737 (1984)  . . . . 24, 26
Bennett v. Spear, No.95-813 (Mar. 19,1997)  . . . . 24, 26
Buckley v. Valeo, 424 U. S. 1 (1976)  . . . . 3, 4, 5,
                15, 16, 17, 18, 19
Chamber of Commerce v. FEC, 69 F.3d 600(D.C.
Cir. 1995)  . . . . 29
Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984) . . . . 12
FEC v. Democratic Senatorial Campaign Comm.,
454 U.S. 27 (1981)  . . . . 20
FEC v. Massachusetts Citizens for Life, Inc.,
479 U.S. 238 (1986) . . . .4, 16, 17, 28
FEC v. National Conservative Political Action
Comm., 470 U.S. 480 (1985)  . . . . 19
Linda R.S. v. Richard D., 410 U.S. 614 (1973) . . . . 26
Liquid Carbonic Indus. Corp. v. FERC, 29 F.3d
697 (D.C. Cir. 1994) . . . . 25-26
Lujan v. Defenders of Wildlife, 504 U.S. 555
(1992)  . . . . 24, 25
NAACP v. Alabama, 357 U.S. 449 (1958) . . . . 17
Public Citizen v. United States Dep't of Justice,
491 U.S. 440 (1989) . . . . 24
Simon v. Eastern Kentucky Welfare Rights Org.,
426 U.S. 26 (1976) . . . .24, 27

(III)

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Iv

Cases-Continued:              Page

Valley Forge Christian College v. Americans United
for Separation of Church & State, Inc., 454 U.S.
U.S. 464 (1982) . . . . 24
Warth v. Seldin, 422 U.S. 490 (1975) . . . . 25
Whitmore  v. Arkansas, 495 U.S. 149 (1990) . . . . 23
Constitution, statutes and regulations:
U.S. Const.:
Art. III  . . . . 9, 10, 14, 23, 24, 25, 26
Amend. I  . . . . 2, 18
Administrative Procedure Act, 5 U.S.C. 702 . . . . 26
Federal Election Campaign Act of 1971, 2 U.S.C.  431
et seq.:
2 U.S.C. 431(4)(A) (301(4)(A))  . . . . 2, 3, 10, 23, 29
2 U.S.C. 431(8)(A) (301(8)(A)) . . . .3
2 U.S.C. 431(9)(A) (301(9)(A)) . . . .3
2 U.S.C.  431(9)(B)(iii)  . . . . 8
2 U.S.C. 431(11)  . . . . 4
2 U.S.C. 431(17)  . . . . 3
2 U.S.C. 432 . . . .  3
2 U.S.C. 433  . . . .3, 7, 8, 23, 26, 27, 29
2  U.S.C.  434  . . . . 3, 7, 8, 23, 26, 27, 29
2 U.S.C. 434(b)(3)       . . . . 4
 2 U.S.C.  434(c) . . . .  4
2 U.S.C. 437 c(b)(1) . . . . 5
2 U.S.C. 437d (a) . . . .5
2 U.S.C. 437d (e) . . . .5
2 U.S.C. 437f  . . . .  5
2 U.S.C.  437g  . . . . 5
2 U.S.C. 437g(a)(1)  . . . . 5, 6
2 U.S.C. 437g(a)(2) . . . . 5
2 U.S.C. 437g(a)(4)(A)(i)  . . . . 28
2 U.S.C. 437g(a)(5)  . . . . 28
2 U.S.C. 437g(a)(6)(A) . . . . 23
2 U.S.C. 437g(a)(8)  . . . . 25, 26, 27
2 U.S.C. 437g(a)(8)(A)  . . . . .6, 23, 28
2 U.S.C. 437g(a)(8)(C) . . . . 6, 11
2 U.S.C. 437 h  . . . .  5

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v

Statutes and regulations-Continued:        Page

  2 U.S.C. 441a(a)(l)(A) . . . . 22
  2 U.S.C. 441a(a)(1)(C) . . . . 4
  2 U.S.C. 441a(a)(7)(B)(i) . . . . 3
  2 U.S.C. 441b  . . . . 7, 8, 27, 28, 29
Federal Election Campaign Act Amendments of
1979, Pub. L. No. 96-187, 101,93 Stat. 1339 . . . . 20
11 C.F.R.:
Section 100.8(b)(4) . . . . 8
Section 114.1(e)(2) . . . . 29
Section 114.3(a)(2) . . . . 8
Miscellaneous:
58 Fed. Reg. 45,775 (1993) . . . . 29

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In the Supreme Court of the United States

            OCTOBER TERM, 1996

No.

       FEDERAL ELECTION COMMISSION, PETITIONER

v.

JAMES E. AKINS, RICHARD CURTISS, PAUL FINDLEY,
  ROBERT J. HANKS, ANDREW KILLGORE,
      AND ORIN PARKER

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

PETITION FOR A WRIT OF CERTIORARI
 
The Acting Solicitor General, on behalf of the Federal
Election Commission, petitions for a writ of certiorari to
review the judgment of the United States Court of Appeals
for the District of Columbia Circuit in this case.

      OPINIONS BELOW

     The opinion of the en bane court of appeals (App. la-40a)
    is reported at 101 F.3d 731. The opinion of the court of
    appeals panel (App. 41a-74a) is reported at 66 F.3d 348. The
    opinion of the district court (App. 77a-93a) is unreported.

            JURISDICTION

The judgment of the en bane court of appeals was
entered on December 6, 1996. On February 21, 1997, the

(1)

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2

Chief Justice extended the time for filing a petition for a
writ of certiorari to and including April 7, 1997. The
jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

  CONSTITUTIONAL AND STATUTORY
     PROVISIONS INVOLVED

The First Amendment to the United States Consti-
tution provides

Congress shall make no law respecting an estab-
lishment of religion, or prohibiting the free exer-
cise thereof; or abridging the freedom of speech, or
of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress
of grievances.

Section 301(4)(A) of the Federal Election Campaign Act
of 1971 (FECA or Act) defines the term "political com-
mittee" to include

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).

        STATEMENT

1. This case involves provisions of the Federal
Election Campaign Act of 1971 (FECA or Act) governing
the activities of a "political committee,"' defined by the Act
to include "any committee, club, association, or other
group of persons which receives contributions aggre-
gating in excess of 1,000 during a calendar year or
which makes expenditures aggregating in excess of $1,000

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3

during a calendar year." 2 U.S.C. 431(4)(A). 1.  The FECA
requires political committees to satisfy certain organiza-
tional requirements. 2 U.S.C. 432. The Act also requires
a political committee to register with the Federal Election
Commission (FEC or Commission) and to file periodic
reports of all of its receipts and disbursements for
disclosure to the public. 2 U.S.C. 433, 434. The FECA
provides in addition that no person may make contribu-
tions to a political committee which, in the aggregate,

___________________(footnotes)

1 Section 301(8)(A) of the FECA defines "contribution" to include

(i) any gift, subscription, loan, advance, or deposit of money
or anything of value made by any person for the purpose of
influencing any election for Federal office; or

(ii) the payment by any person of compensation for the
personal services of another person which are rendered to a
political committee without charge for any purpose.

2 U.S.C. 431(8)(A).
Section 301(9)(A) of the Act defines the term "expenditure" to include

(i) 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; and

(ii) a written contract, promise, or agreement to make an
expenditure.

2 U.S.C. 431(9)(A).

The Act provides that "expenditures made by any person in
cooperation, consultation, or concert, with" a candidate or the
candidate's agents-commonly known as "coordinated" expenditures,
see Buckley v. Valeo, 424 U.S. 1, 46 (1976) (per curiam)-"shall be
considered to be a contribution to such candidate."  2 U.S.C.
441a(a)(7)(B)(i). "[I]ndependent expenditure[s],"  by contrast, are de-
fined as "expenditure[s] by a person expressly advocating the election
or defeat of a clearly identified candidate which [are] made without
cooperation or consultation with any candidate, or any authorized
committee or agent of such candidate, and which [are] not made in
concert with, or at the request or suggestion of, any candidate, or any
authorized committee or agent of such candidate." 2 U.S.C. 431(17).

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4

exceed 5,000 in a calendar year.  2 U.S.C. 441a(a)(1)(C);
see FEC v. Massachusetts Citizens for Life, Inc. (MCFL),
479 U.S. 238, 253-254 (1986) (plurality opinion) (describing
requirements applicable to political committees).
Election-related expenditures made by individuals, and
by groups that are not "political committees," are subject
to extensive disclosure requirements. All "persons" (a
term that includes any "organization or group of persons,"
2 U.S.C. 431(11)) that make independent election expendi-
tures aggregating more than 250 and are not political
committees are required to file disclosure reports with
the Commission. 2 U.S.C. 434(c); MCFL, 479 U.S. at 252-
253 (plurality opinion). In addition, the Act requires that
any contributions (including coordinated expenditures)
aggregating more than 200 from such persons to
candidates or political committees must be reported by
the recipient political committees.  2 U.S.C. 434(b)(3).
With respect to reporting requirements, the distinctive
consequence of "political committee" status is that such
an organization is required to make comprehensive
disclosures of all of its receipts and disbursements,
whether or not they bear any direct relation to electoral
campaigns.
In Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), this
Court addressed a broad array of issues concerning the
construction and constitutionality of the Act. The Court
observed:

The general requirement that "political committees"
and candidates disclose their expenditures could raise
* * * vagueness problems, for "political committee" is
defined only in terms of amount of annual "con-
tributions" and "expenditures," and could be inter-
preted to reach groups engaged purely in issue
discussion.  The lower courts have construed the
words "political committee" more narrowly. To fulfill

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         5

the purposes of the Act they need only encompass
organizations that are under the control of a candidate
or the major purpose of which is the nomination or
election of a candidate. Expenditures of candidates and
of "political committees" so construed can be assumed
to fall within the core area sought to be addressed by
"Congress. They are, by definition, campaign related.

Id. at 79 (footnotes omitted).
The Court reaffirmed the "major purpose" test for
status as a "political committee" in MCFL. A plurality
noted that "this Court said [in Buckley] that an entity
subject to regulation as a `political committee' under the
Act is one that is either `under the control of a candidate
or the major purpose of which is the nomination or elec-
tion of a candidate.'" 479 U.S. at 252 n.6. And the Court
observed that, "should MCFL's independent spending
become so extensive that the organization's major purpose
may be regarded as campaign activity, the corporation
would be classified as a political committee."  Id. at 262.
2. The FEC is an independent agency charged with the
administration, interpretation, and civil enforcement of
the FECA. See 2 U.S.C. 437c(b)(l), 437d(a) and (e), 437f,
437g. Congress has authorized the Commission to "for-
mulate policy" under the Act, 2 U.S.C. 437c(b)(1); to insti-
tute investigations of possible violations of the Act, 2
U.S.C. 437g(a)(l) and (2); to initiate civil actions in the
United States district courts to obtain judicial enforce-
ment of the Act, 2 U.S.C. 437c(b)(l), 437d(e); and to initiate
actions in the federal courts to determine the consti-
tutionality of any provision of the Act, 2 U.S.C. 437h.
Congress has thus "vest[ed] in [the FEC] primary and
substantial responsibility for administering and enforcing
the Act." Buckley, 424 U.S. at 109.
The FECA states that "[a]ny person who believes a
violation of this Act * * * has occurred, may file a

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6

complaint with the Commission." 2 U.S.C. 437g(a)(l). The
Act further provides that

[a]ny party aggrieved by an order of the Commission
dismissing a complaint filed by such party under
paragraph (l), or by a failure of the Commission to act
on such complaint during the 120-day period beginning
on the date the complaint is filed, may file a petition
with the United States District Court for the District
of Columbia.

2 U.S.C. 437g(a)(8)(A). In such a proceeding, the reviewing
court

may declare that the dismissal of the complaint or the
failure to act is contrary to law, and may direct the
Commission to conform with such declaration within
30 days, failing which the complainant may bring, in
the name of such , complainant, a civil action to remedy
the violation involved in the original complaint.

2 U.S.C. 437g(a)(8)(C).

3. The American Israel Public Affairs Committee
(AIPAC) is an incorporated, tax exempt organization with
approximately 50,000 supporters and an annual budget of
approximately 10 million. Its stated purpose is to main-
tain and improve friendship and goodwill between the
United States and Israel. The organization's activities
include lobbying Congress and the Executive Branch for
military and economic aid to Israel.  App. 2a-3a.
Respondents are former ambassadors, Members of Con-
gress, or other government officials. In 1989 they filed an
 administrative complaint with the Commission, alleging
that AIPAC had violated the FECA. Specifically, respon-
dents alleged that AIPAC's activities brought it within
the statutory definition of "political committee: and that

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7

it had failed to comply with the statutory requirements to
which political committees are subject. App. 3a-4a. 2
The FEC's General Counsel investigated the allega-
tions. The General Counsel

concluded] that AIPAC has not become a political
committee under the Act because AIPAC's campaign-
related activities, while likely to have crossed the
1,000 threshold, constitute only a small portion of its
overall activities and do[] not appear to be its major
purpose. The evidence shows that AIPAC is primarily
and fundamentally a lobbying organization interested
in U.S Israel relations and in legislation affecting
Israel. Its campaign-related activities and communica-
tions are undertaken as an adjunct to, and in support
of, its lobbying efforts.

C.A. App. 189; see App. 43a. The General Counsel there-
fore recommended that the Commission find no probable
cause to believe that AIPAC had violated 2 U.S.C. 433 and
434, the organizational and reporting requirements ap-
plicable to political committees.  C.A. App. 194, 222.
The General Counsel recommended, however, that the
Commission find probable cause to believe that AIPAC
had violated 2 U.S.C. 441b, which generally prohibits
corporations from making campaign contributions and
expenditures. C.A. App. 195,222.

___________________(footnotes)

2  Respondents

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.

App. 3a-4a.

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8

Consistent with the recommendation of the General
Counsel, the Commission unanimously found no probable
cause to believe that  AIPAC had violated Sections 433 and
434. App. 95a. The Commission found probable cause to
believe that AIPAC had violated Section 441b. Ibid. The
FEC voted, however, to take no action regarding that
determination, ibid., explaining that "the Commission
should clarify its membership definition before imposing
penalties in close cases such as this," App. 98a.  3
4. Respondents filed suit in federal district court.
They challenged the FEC's determination that there was
no probable cause to believe that AIPAC was a "political
committee" within the meaning of the Act. The district
court granted summary judgment for the Commission.
The court concluded that "the Commission interpreted
properly the statutory definition of `political committee'
and the `major purpose' test." App. 92a. The court also
determined that "the Commission's application of the

___________________(footnotes)
                   
3 AIPAC contended that the alleged contributions in this case
involved communications to AIPAC's own members and were there-
fore exempt from Section 441b's prohibition on corporate campaign con-
tributions and expenditures. The FECA's  definition  of "expenditure"
generally excludes "any communication by any membership organi-
zation or corporation to its members, stockholders, or executive or
administrative personnel."  2 U.S.C. 431(9)(B)(iii);  see also 11 C.F.R.
100.8(b)(4), 114.3(a)(2). Consistent with the General Counsel's recom-
mendation, a majority of the Commission concluded that "AIPAC did
not meet the Commission's membership criteria," and therefore found
probable cause to believe that AIPAC had violated Section 441h. App.
98a. The Commission also concluded, however, that the case "pre-
sented a close questionl and that the Commission should clarify its
membership definition before imposing penalties in close cases such as
this, where the organization came close to meeting the `spirit' of the
Commission's membership criteria, but failed on a specific point." Ibid.
The Commission therefore "decided to exercise [its] prosecutorial
discretion, and to take no further action with respect to the finding on
Section 441b." Ibid. (citation omitted).

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9

major purpose test to the facts presented * * * regarding
AIPAC's campaign-related activities was reasonable."
Ibid.

5. A divided panel of the court of appeals affirmed. App.
41a-74a.  The panel first held that respondents had
standing to bring their suit. Relying on circuit precedent,
the panel held that respondents' asserted "informational
injury" -i.e., respondents' contention that "their ability
to influence and inform policymakers and the public is
impaired by the lack of information about AIPAC's
contributors and expenditures,"  App. 45a-was sufficient
to meet the requirements of Article III. App. 45a-46a.
The court also concluded that, "[b]ecause [respondents]
allege that they are voters and persons who seek to
communicate to policymakers and the public about
AIPAC's campaign contributions, their interest in in-
formation about campaign contributions falls within the
`zone of interests' intended to be served by the statute."
App. 47a.
On the merits, the panel concluded that this Court's
decisions in Buckley and MCFL furnished a reasonable
basis for the Commission's application of the "major
purpose" test. The panel explained:

Although Buckley and [MCFL] concern expen-
ditures under the Act, the Court's rationale con-
cerning the constitutional implications of a broad
application of the Act to expenditures applies equally
to the Act's reach over contributions.  A broader
construction of "political committee" would likely
require advocacy groups to disclose their contributors
even though the group is not principal y involved in
advancing the election or defeat of a candidate. This
could raise a First Amendment issue of the sort seen
in cases like NAACP v. Alabama, 357 U.S. 449, 460
(1958). It is our duty in the interpretation of a federal

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         10

statute to avoid serious constitutional doubt. United
States v. Rumely, 345 U.S. 41,47 (1953).

App. 55a-56a (parallel citations omitted). The panel con-
cluded that, "[b]ecause a judicial gloss on the statute has
limited the application of FECA's restrictions for political
committees to groups whose major purpose is the nomina-
tion or election of a candidate, the FEC's interpretation of
the major purpose test was not contrary to law." App.
56a. 4
Judge Silberman filed an opinion concurring in part and
dissenting in part. App. 58a-74a. Relying on respondents'
"assert[ion] that they compete with AIPAC in lobbying
Congress and seeking to persuade the American people on
their views of American interests regarding Arab-Israeli
disputes,"  Judge Silberman viewed the suit as "akin to one
brought by an economic competitor" and concluded that
respondents satisfied the requirements of Article III.
App. 58a-59a. On the merits, Judge Silberman acknowl-
edged that "there is language in Buckley and MCFL that
can literally be read to support the FEC's position." App.
68a. He concluded, however, that the "major purpose" test
could not properly be applied to an organization that had
made contributions (as opposed to independent expendi-
tures) in excess of Section 431(4)(A)'s 1,000 limit. App.
73a. In Judge Silberman's view, any such organization is
subject to the statutory requirements applicable to "politi-
cal committees," whether or not campaign-related activi -
ties constitute a major purpose of the organization.  Ibid.
6. The court of appeals vacated the panel decision and
granted rehearing en bane, App. 75a-76a. The en bane
court of appeals subsequently reversed the judgment of
the district court. App. la-40a.

___________________(footnotes)

4 The panel also upheld, as reasonable, the Commission's de-
termination that campaign-related activities were not a major purpose
of AIPAC. App. 57a-58a.

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11

a. The en banc court of appeals first concluded that
respondents had standing as  voters because "[t]hey have
been deprived of certain specific information that Con-
gress thought voters need to make an informed choice
and therefore required `political committees,' inter alia,
to disclose." App. 8a. The court explained that "[a] voter
deprived of useful information at the time he or she votes
suffers a particularized injury in some respects unique to
him or herself just as a government contractor, allegedly
wrongfully deprived of information to be made available at
the time the bids are due, would suffer a particularized
injury even if all other bidders also suffered an injury."
App. 12a. Because it concluded that respondents "have
standing as affected voters," it declined to "resolve
whether [respondents] also have standing as political
competitors of AIPAC, or whether [respondent] Findley-
who was last a candidate in 1982-has standing as a
candidate." App. 13a (citation omitted).
The court also rejected the FEC's argument that
respondents' claim was not redressable because the Com-
mission possesses enforcement discretion and might de-
cline to compel disclosure by AIPAC. The court explained
that "it has always been an acceptable feature of judicial
review of agency action that a petitioner's `injury' is
redressed by the reviewing court notwithstanding that
the agency might well subsequently legitimately decide
to reach the same result through different reasoning."
App. 15a. The court of appeals also noted that respon-
dents would be authorized by the FECA to bring suit
against AIPAC if the Commission failed to "conform"
to the court's "declaration."  Ibid. (quoting 2 U.S.C.
437g(a)(8)(C)). The court stated that "[i]t would appear
under [Section 437g(a)(8)(C)] that if the Commission gave
only lip service to compliance with [the court's] order and
settled with AIPAC without requiring disclosure, * * *

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12

[respondents] would be able to seek disclosure directly."
Ibid.
 b. On the merits, the en banc court of appeals con-
cluded that AIPAC was a "political committee" within the
meaning of the FECA. The court rejected the Com-
mission's argument that the FEC's contrary conclusion
was entitled to deference under the principles announced
in Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984). The court reasoned
that the controversy involved the proper construction of
this Court's opinions in Buckley and MCFL, and that
deference to the agency therefore was inappropriate. App.
19a-20a.
Addressing the interpretive issue "de novo,"  the court
of appeals framed the "key question" as "whether the
Supreme Court's major purpose limitation imposed in
certain circumstances for constitutional reasons applies
in another circumstance-this case-in which the same
constitutional concerns may not be implicated." App. 20a.
The court acknowledged that "language in Buckley and
MCFL can literally be read to support the FEC's
position." App. 21a. The court reasoned, however, that
"both cases focused on the constitutional concerns raised
by independent expenditures * * * as distinguished from
coordinated expenditures or direct contributions." Ibid.
The court noted that "[i]ndependent expenditures are the
most protected form of political speech because they
are closest to pure issue discussion and therefore far-
thest removed from the valid goal of preventing election
corruption." Ibid.
The court of  appeals  construed the disputed language in
Buckley to mean only that, "when an organization con-
trolled by a candidate or the major purpose of which is
election-related makes disbursements, those disburse-
ments will presumptively be expenditures within the
statutory definition."  App. 24a. It concluded that the

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         13

Buckley Court "clearly distinguished independent ex-
penditures and contributions as to their constitutional
significance, and its references to a `major purpose' test
seem to implicate only the former." Ibid. The court of
appeals read the MCFL opinion in a similar fashion. App.
24a-25a.
The court of appeals also believed that the Commission's
approach would have untoward practical consequences.
Thus, the court stated:

  The FEC's interpretation of "political committee"
would * * * allow a large organization to contribute
substantial sums to campaign activity, as long as the
contributions are a small portion of the organization's
overall budget, without being subject to the limitations
and requirements imposed on political committees.
Thus, an organization spending its entire 1 million
budget on campaign activity would be a political com-
mittee, while another organization spending 1 million
of its 100 million budget on campaign activity would
not.

App. 27a. In the court's view, that approach "would wholly
eviscerate the 1,000 limit in 431(4)(A)'s definition of
`political committee.' " Ibid.
The court concluded:

  There is no contention that AIPAC's disbursements
were independent expenditures, so there is no consti-
tutional barrier to application of  431(4)(A)'s plain
terms. The FEC found that AIPAC likely made cam-
paign contributions in excess of 1,000. Its decision
that no probable cause existed to believe AIPAC was
a political committee, and its consequent dismissal of
[respondents'] complaint, were therefore based on its
mistaken interpretation of 431(4)(A). This error
requires that we reverse the dismissal of the com-

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14

plaint and remand to the FEC for further action not
inconsistent with this opinion.

App. 29a.
c. Judge Sentelle, joined by Judge Henderson, dis-
sented. App. 30a-40a. The dissenting judges concluded
that respondents asserted only a "generalized griev-
ance''-"a diffuse rather than a particularized injury"-
and therefore lacked standing under Article III. App. 32a-
33a. They explained that respondents "have no statutory
right, through section 437g or any other provision, to
force the FEC to collect and turn over this information.
In the absence of such a right, no injury-informational or
otherwise-is possible." App. 38a. The dissenting judges
also concluded that any injury respondents might have
suffered was not redressable by a judicial order. They
explained that respondents' "claim of redressability
depends on the linked chain that the Commission will
enter an order against AIPAC requiring the information
[respondents] seek, that AIPAC will comply with that
order, and that [respondents] will still be sufficiently
interested in the information thus produced that they will
renew their claim on FEC to present them with that
information."  App. 40a. In the view of the dissenting
judges, that chain of inferences was "too attenuated to
provide the sort of redressability necessary to meet
Article III standing." "Ibid.

REASONS FOR GRANTING THE PETITION

The court of appeals' decision in this case conflicts with
this Court's decisions construing the FECA's definition of
"political committee and it places substantial burdens on
organizations engaged primarily in issue advocacy by
requiring that they disclose all of their receipts and
disbursements. Because the Commission's dismissal of a
complaint is reviewable only in the D.C.  Circuit, the FEC
will be effectively precluded from advancing its construc-

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15

tion of the Act in any other court of appeals. The court of
appeals has also adopted an unduly broad view of stand-
ing under the special judicial review provision invoked
by respondents.  Review by this Court is therefore
warranted.
1. a. In Buckley  v. Valeo, 424 U.S. 1 (1976) (per  curiam),
this Court addressed a wide range of issues concerning
the interpretation and constitutionality of the FECA. In
discussing the financial disclosure requirements imposed
by the FECA, the Court observed

To fulfill the purposes of the Act [the term "political
committee"] need only encompass organizations that
are under the control of a candidate or the major
purpose of which is the nomination or election of a
candidate. Expenditures of candidates and of "political
committees" so construed can be assumed to fall
within the core area sought to be addressed by
Congress. They are, by definition, campaign related.

Id.  at 79. Buckley involved this Court's resolution of a
broad array of certified constitutional questions, see, e.g.,
id. at 84 n.113; and the Court's analysis of the "political
committee" provisions did not focus on the application of
those provisions to any particular organization or pattern
of spending. The Court's formulation of the "major pur-
pose" test does not, by its terms, attach any significance
to the distinction the court of appeals drew between
contributions and independent expenditures.
Nor is there any basis for the court of appeals' sugges-
tion that the language quoted above means  only that,
"when an organization controlled by a candidate or the ma-
jor purpose of which is election-related makes disburse-
ments, those disbursements will presumptively be expen-
ditures within the statutory definition." App. 24a. The
Buckley Court's formulation of the "major purpose" test
makes clear that the inquiry should focus on the purpose

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   16

of the organization, not on the purpose of a particu-
lar disbursement.  See 424 U.S. at 79 (referring to
"organizations * * * the major purpose of which is the
nomination or election of a candidate"). The "major pur-
pose" test, as described by the Court in Buckley, simply
was not designed to determine whether a particular dis-
bursement constitutes an "expenditure" within the mean-
ing of the Act.
That point is made particularly clear by this Court's
subsequent decision in FEC v. Massachusetts Citizens for
Life, Inc., 479 U.S. 238 (1986) (MCFL), in which the Court
reaffirmed the "major purpose" test for status as a
"political committee." A plurality of the MCF'L Court
stated that "[i]n [Buckley] this Court said that an entity
subject to regulation as a `political committee' under the
Act is one that is either `under the control of a candidate
or the major purpose of which is the nomination or
election of a candidate.'" Id. at 252 n.6 (quoting Buckley,
424 U.S. at 79). MCFL had spent nearly 10,000 in pub-
lishing a "Special Edition" of its newsletter.  See Id. at
244. The Court squarely held that the "Special Edition"
contained "express advocacy" of the election or defeat of
identified candidates, and that the payments made to
publish it were therefore "expenditures" within the mean-
ing of the Act. Id. at 248-251.
The Court nevertheless concluded that MCFL was not a
"political committee." Thus, the plurality stated that it
was "undisputed on this record" that MCFL did not fall
within the Buckley Court's definition of "political com-
mittee"  because  MCFL's  "central  organizational  purpose
is issue advocacy, although it occasionally engages in ac-
tivities on behalf of political candidates." 479 U.S. at 252
n.6. And the majority observed that, "should MCFL's
independent spending become so extensive that the organi-
zation's major purpose may be regarded as campaign
activity, the corporation would be classified as a political

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         17

committee." Id. at 262. Thus, while squarely holding that
MCFL had made expenditures well in excess of 1,000
during the year in question, the Court determined that
MCFL was not a "political committee: based on its
finding that campaign-related activities were not the
organization's "major purpose."  The MCFL Court's
analysis is flatly inconsistent with the court of appeals'
view of the "major purpose" test as merely a means to
determine whether particular disbursements constitute
"expenditures ."
The en banc court of appeals acknowledged that "lan-
guage in Buckley and MCFL can literally be read to
support the FEC's position."  App. 21a.  The court
nevertheless concluded that an organization making more
than 1,000 per year in FECA "contributions" must be
treated as a "political committee" whether or not its major
purpose is campaign-related activity. The court of appeals
erred in departing from this Court's construction of the
statutory term "political committee" based on its own
assessment of the competing pragmatic and constitutional
concerns.
b. In any event, the premise of the court of appeals'
decision-that the concerns underlying the Buckley
Court's narrow construction of "political committee" are
inapplicable to organizations that make more than $1,000
per year in contributions-is incorrect. The Court in
Buckley recognized that "compelled disclosure, in itself,
can seriously infringe on privacy of association and belief
guaranteed by the First Amendment/' and that "signifi-
cant encroachments on First Amendment rights of the
sort that compelled disclosure imposes cannot be justified
by a mere showing of some legitimate governmental in-
terest." 424 U.S. at 64; see also, e.g., NAACP v. Alabama,
357 U.S. 449, 462 (1958). The Buckley Court concluded
that, as a general matter, the Act's disclosure require-
ments "appear to be the least restrictive means of curbing

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18

the evils of campaign ignorance and corruption that Con-
gress found to exist." 424 U.S. at 68. The Court remained
concerned, however, about the potential impact of the
disclosure provisions upon groups and individuals "en-
gaged purely in issue discussion." Id. at 79.
The Court addressed that concern in two distinct ways.
With respect to individuals and groups other than political
committees, the Court construed the term "expenditure"
as "reach[ing] only funds used for communications that
expressly advocate the election or defeat of a clearly
identified candidate." 424 U.S. at 80 (footnote omitted).
The Court observed that "[t]his reading is directed pre-
cisely to that spending that is unambiguously related to
the campaign of a particular federal candidate." Ibid. So
construed, the Court held, "the disclosure requirement is
narrowly limited to those situations where the informa-
tion sought has a substantial connection with the govern-
mental interests  sought  to be  advanced." Id. at 81.
The disclosure requirements applicable to political
committees, however, raise distinct concerns. Political
committees are required to file regular reports of all of
their receipts and disbursements, including those relating
to issue advocacy rather than campaign-related activity.
As applied to an organization whose campaign-related
spending constitutes a small percentage of the overall
operation, the Act's disclosure requirements could place
substantial burdens on core First Amendment activities
while contributing only slightly to the achievement of the
statutory purposes. The Buckley Court addressed that
danger by construing the term "political committee" as
limited to "organizations that are under the control of a
candidate or the major purpose of which is the nomination
or election of a candidate." 424 U.S. at 79. Because the
receipts and disbursements of such organizations  "are, by
definition, campaign related," ibid., application of the Act's
broad disclosure requirements to "political committees"

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19

so defined can be expected to have little impact on non-
campaign-related speech. The Court concluded that the
purposes of both the Act and the First Amendment are
properly served by construing the Act to require a group
whose major purpose is campaign-related activity to
report all of its receipts and disbursements, but not to
impose such a broad reporting requirement (and attendant
burdening of associational interests) on issue-advocacy
groups that only occasionally make election expenditures.
  Thus, the limiting construction given to the statutory
term "political committee" in Buckley serves to address
the danger that small amounts of campaign-related expen-
ditures by an organization may trigger a far-reaching
obligation to disclose non-campaign-related receipts and
disbursements, including receipts and disbursements used
for issue advocacy. As the panel in this case correctly
recognized (see App. 55a), that danger is equally present
whether the triggering disbursements are independent
expenditures or direct contributions. 5.  The en banc court

___________________(footnotes)

5 The en banc court of appeals correctly observed (see App. 21a-22a)
that governmental regulation of independent expenditures raises more
pressing constitutional concerns than does regulation of direct contri-
butions. This Court has recognized a "fundamental Constitutional dif-
ference between money spent to advertise one's views independently of
the candidate's  campaign and money contributed to the candidate to
be spent on his campaign." FEC v. National Conservative Political
Action Comm., 470 U.S. 480, 497 (1985). That constitutional difference,
however, is irrelevant to the basis for and proper application of the
"major purpose" teat. As applied to organisations that make inde-
pendent expenditures, the point of the "major purpose" test is not
to prevent application of the FECA's disclosure provisions to the
independent expenditures themselves. To the contrary, the Buckley
Court made clear that reporting of independent expenditures may
constitutionally be required, even where the expenditure is made by a
person  other  than a political committee. 424 U.S. at 80-82. Rather, the
"major purpose" test is designed to shield organizations that only
occasionally make campaign-related expenditures from compelled

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         20

was therefore wrong in concluding (see App. 24a) that the
concerns underlying the Buckley Court's holding are not
implicated in cases involving direct contributions or coor-
dinated expenditures. 6
c. The en banc court of appeals also criticized the
Commission's approach on the ground that

[t]he FEC's interpretation of "political committee"
would * * * allow a large organization to contribute
substantial sums to campaign activity, as long as the
contributions are a small portion of the organization's

___________________(footnotes)

disclosure of the other associational and communicative activities,
unrelated to electoral campaigns, that are their primary enterprise.
Application of the FECA's  disclosure requirements to those organiza-
tions is equally problematic-and equally unrelated to the FECA's
purposes-whatever the nature of the campaign activities that
triggered the reporting  requirements  in the first instance.
6  This Court has  recognized that "the Commission is  precisely the
type of agency to which deference should presumptively be afforded."
FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 37
(1981). The court of appeals nevertheless declined to give deference to
the Commission's position here, stating that it was "not obliged to defer
to an agency's interpretation of Supreme Court precedent." App. 19a.
That reasoning was flawed.
Although the court of appeals characterized its task as the
"interpretation of Supreme Court precedent," the court did not suggest
that either Buckley or MCFL had declared the "major purpose" test to
be inapplicable to groups making direct contributions. Rather, the
court concluded that application of the Act's "political committee"
provisions to such groups would not raise the concerns identified by the
Buckley Court as the justification for the "major purpose" test. To the
extent that the Court's construction of a statutory term leaves open
additional questions about the application of the provision, the policies
supporting deference to an agency's expert resolution of those questions
remain applicable. That is especially so since the definition of "politi-
cal committee" was reenacted in 1980 (see Federal Election Campaign
Act Amendments of 1979, Pub. L. No. 96-187, 101, 93 Stat. 1339) after
this Court's decision in Buckley, and the question for the Commission
therefore is how to interpret the Act as  it now exists.

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         21

overall budget, without being subject to the limitations
and requirements imposed on political committees,
Thus, an organization spending its entire 1 million
budget on campaign activity would be a political com-
mittee, while another organization spending 1 million
of its 100 million budget on campaign activity would
not."

App. 27a. That distinction, however, is inherent in the
"major purpose" test adopted by this Court in Buckley.
Even under the court of appeals' approach, "an organiza-
tion spending its entire 1 million budget on [indepen-
dent expenditures] would be a political committee, while
another organization spending 1 million of its 100 mil-
lion budget on [independent expenditures] would not." The
court of appeals did not explain why that disparity is
acceptable in the context of groups making independent
expenditures, but an intolerable flaw that "would wholly
eviscerate the 1,000 limit in 431(4)(A)'s definition of
`political committee'" (ibid.) when applied to groups mak-
ing contributions or coordinated expenditures.
Any apparent anomaly disappears, moreover, once the
justification for the Buckley Court's narrowing con-
struction is understood. As we have explained, that
construction addresses the danger that an organization
might be subject to extensive disclosure requirements
with respect to non-campaign-related receipts and dis-
bursements based on its modest involvement in campaign
activity.  The hypothetical "organization spending its
entire 1 million budget on campaign activity" (App. 27a)
has no non-campaign-related receipts or disbursements.
To treat such an organization differently from an
organization that spends only 1% of its funds ("1 million
of its 100 million budget") on campaign activity is in no
way anomalous. That disparity simply reflects the fact
that the Buckley Court's concern-that the FECA's

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         22

disclosure requirements might have the effect of un-
necessarily burdening the non-campaign-related speech of
an organization that only occasionally makes election
expenditures-is implicated in one situation but not in the
other.
Application of the "political committee" provisions is
unnecessary to ensure that, significant contributions and
independent expenditures are exposed to public view.
Campaign-related activity by persons other than political
committees is subject to extensive reporting require-
ments. See page 4, supra. Groups other than political
committees are subject to other FECA provisions as well,
Such groups are subject, for example, to the statutory
limitation of $1,000 in contributions to any candidate for
federal office.  See 2 U.S.C. 441a(a)(l)(A). To require
groups that are minimally involved in campaign-related
activity to report all of their receipts and disbursements
is thus unnecessary to effectuate the purposes of the Act.
The court of appeals' decision has broad ramifications
for the regulated community and for issue-oriented and
lobbying groups that are only tangentially related to
election campaigns. The en bane court has held that any
organization that spends more than $1,000 on coordinated
campaign expenditures, or on direct or in-kind contribu-
tions, must abide by all of the requirements applicable to
political committees. : The court of appeals acknowledged
that, "[o]nce designated a political committee, an organi-
zation 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." App. 3a.
The court made no effort, however, to address the practical
and constitutional problems that arise from applying those
requirements to every group that has made a single coor-
dinated expenditure of more than $1,000.
d.  In light of the unusual statutory provisions
governing challenges to the Commission's enforcement

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23

decisions, review by this Court is warranted even in the
absence of a conflict in the circuits. The Commission's
decision to dismiss a complaint filed by a private party is
reviewable only in the United States District Court for
the District of Columbia. 2 U.S.C. 437g(a)(8)(A). When"
the Commission finds probable cause to believe that a vio-
lation of the FECA has occurred, however, any enforce-
ment action must be brought by the Commission "in the
district court of the United States for the district
in which the person against whom such action is brought
is found, resides, or transacts business."  2 U.S.C.
437g(a)(6)(A).
The court of appeals' decision in this case, if not
reviewed by this Court, will place the Commission in an
untenable position. If the FEC  adheres to its current
definition of "political committee: and declines to bring an
enforcement action under 2 U.S.C. 433 and 434 unless the
"major purpose" test is satisfied, its dismissal of private
parties' complaints will always be subject to challenge in
the D.C. Circuit. The question presented in this case will
come before another court of appeals only if the
Commission brings an enforcement action premised on
the D.C. Circuit's interpretation of the statute. The
Commission believes, however, that the D.C. Circuit's
decision raises unnecessary practical and constitutional
questions, rests on an erroneous construction of the Act,
and is directly contrary to this Court's decisions in
Buckley and MCFL.
2. The court of appeals also erred in holding that
respondents had standing to bring their suit. Article III-of
the Constitution confines the jurisdiction of the federal
courts to actual "Cases" and "Controversies," and "the
doctrine of standing serves to identify those disputes
which are appropriately resolved through the judicial
process." Whitmore v. Arkansas, 495 U.S. 149,155 (1990).

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24

To satisfy the "case" or "controversy" requirement of
Article III, which is the "irreducible constitutional
minimum" of standing, a plaintiff must, generally
speaking, demonstrate that he has suffered "injury in
fact," that the injury is "fairly traceable" to the
actions of the defendant, and that the injury will likely
be redressed by a favorable decision.

Bennett v. Spear, No. 95-813 (Mar. 19, 1997), slip op. 6. See
also, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 556,
560-561 (1992); Allen v. Wright, 468 U.S. 737, 751 (1984);
Valley Forge Christian. College v. Americans United for
Separation of Church & State, Inc., 454 U.S. 464, 472
(1982); Simon v. Eastern Kentucky Welfare Rights Org.,
426 U.S. 26,41-42 (1976).
The complaint filed in this case does not challenge any
exercise of regulatory authority over respondents them-
selves. Nor do  respondents  assert a right  to obtain infor-
mation that is actually in the government's possession.
Cf. Public Citizen v. United States Dep't of Justice, 491
U.S. 440, 449 (1989) (Court's "decisions  interpreting  the
Freedom of Information Act have never suggested that
those requesting information under it need show more
than that they sought and were denied specific agency
records"). Rather, respondents challenge the Commis-
sion's failure to take enforcement action against another
private party concerning information in that party's
possession. "[W]hen the plaintiff is not himself the object
of the government action or inaction he challenges,
standing is not precluded, but it is ordinarily substantially
more difficult to establish.') Defenders of Wildlife, 504
U.S. at 562 (internal quotation marks omitted). In the
present case, respondents fail to satisfy the requirements
of Article III.  7

___________________(footnotes)

7 The court  of  appeals suggested that the Commission had conceded
respondent Findley's  standing as  a  candidate. See App. 6a & n.2. That

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                25

      a. The court of appeals concluded that respondents had
     established standing as "affected voters,"  reasoning that
     "[a] voter deprived of useful information at the time he or
     she votes suffers a particularized injury in some respects
     unique to him or herself." App. 12a. The court of appeals'
     only basis for describing respondents as "affected" voters
     distinct from the electorate as a whole is its statement
     that "there is nothing to indicate that [respondents] did
     not vote in various federal elections in which AIPAC
     allegedly made contributions that qualified it as a politi-
     cal committee." App. 13a. That statement provides no
     justification for the court's finding of a "particularized
     injury." Any injury respondents may suffer is shared by
     all voters in elections in which AIPAC engaged in cam-
     paign activity, and the agency action they seek to compel
     "no more directly and tangibly benefits [them] than it does
     the public at large." Defenders of Wildlife, 504 U.S. at
     574. Respondents' alleged injury is thus insufficiently
     concrete  and personal  to establish an injury in fact under
     Article III.  Rather, the "asserted harm is a `generalized
     grievance' shared in substantially equal measure by all  or
     a large class of citizens." Warth v. Seldin, 422 U.S. 490,
I     499 (1975). "[T]hat harm alone normally does not warrant
     exercise of jurisdiction."  Ibid.
      In any event, the statutory provision under which
     respondents  have  sued, 2 U.S.C. 437g(a)(8), provides for
     a party who filed a complaint that was subsequently
     dismissed by the Commission to file a petition for re-
     view in the district court only if that party has been
     "aggrieved" by the dismissal.  Cf.  Liquid Carbonic Indus.
                    
      ___________________(footnotes)
                  
     is incorrect. Respondents did not allege that Findley had standing as
      a candidate or intended to run for office in  the future, although they did
      allege that Findley was a former member of the House of Representa-
      tives. The FEC's brief to the en banc court noted the absence of any
      allegation that respondents were candidates. FEC  C.A. In Banc Br. 22.

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26

Corp. v. FERC, 29 F.3d 697, 702 (D.C. Cir. 1994) (Federal
Power Act provision authorizing judicial review for "[a]ny
party * * * aggrieved" is narrower than Administrative
Procedure Act's judicial review provision, 5 U.S.C. 702).
In light of the generalized nature of the grievance
respondents raise-and the background rule that private
persons do not have a judicially cognizable interest in the
decision by the government not to take an enforcement
action against a third party (see, e.g., Linda R.S. v.
Richard D., 410 U.S. 614 (1973))-Section 437g(a)(8)
should not be construed so broadly as to encompass
respondents' claim. The courts should not lightly con-
clude that Congress intended to include persons such as
respondents as parties "aggrieved" by the Commission's
dismissal of a complaint seeking to require it to bring
an enforcement action against a private organization with
respect to disclosure of all the organization's receipts
and disbursements. Compare Bennett v. Spear, slip op.
8 ("Congress legislates against the background of our
prudential standing doctrine, which applies unless it is
expressly negated.").
b. Nor can respondents establish standing as "com-
petitors" of AIPAC. Insofar as respondents assert a
diminution of their ability to lobby U.S. policymakers, the
traceability and redressability analysis must focus on the
presence or absence of a causal link between the Com-
mission's dismissal of the administrative complaint and
respondents' ability to influence U.S. policy towards the
Middle East. That purported causal connection is too
speculative to satisfy Article III. Respondents have of-
fered no basis for concluding that AIPAC's compliance
with the requirements of Sections 433 and 434 would make
an "appreciable difference," Allen v. Wright, 468 U.S. at
758, in their ability to effect changes in U.S. foreign
policy. Any such impact would depend entirely upon the
subjective reactions of Members of Congress and of the

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27

public to the information disclosed. Because "a federal
court [can] act only to redress injury that fairly can be
traced to the challenged action of the defendant, and not
injury that results from the independent action of some
third party not before the court," Eastern Kentucky
Welfare Rights Org., 426 U.S. at 4142, respondents' claim
of competitive injury is not sufficient to invoke the federal
judicial power. 8.
c. Even if the FEC were to find probable cause to
believe that  AIPAC had violated Sections 433 and 434, the
Commission is not required to institute a civil enforce-
ment action in every instance in which it concludes that a
violation has occurred. 9  Moreover, there is no guarantee

___________________(footnotes)

8  In any event, respondents' alleged competitive injury is not a suf-
ficient basis for concluding that they are "aggrieved," within the
meaning of Section 437g(a)(8), by the Commission's  dismissal of their
complaint. Respondents' desire to engage in more effective lobbying is
only fortuitously related to the purposes of the FECA's disclosure
requirements, which are directed to election campaigns.
9 AIPAC has contended that the alleged contributions in this case
involved communications to AIPAC's own members, which are specifi-
cally exempted from the statutory definition of "expenditure," See note
3, supra. The Commission rejected that argument and found probable
cause to believe that AIPAC had violated the ban on corporate
Campaign expenditures and contributions set forth in 2 U.S.C. 441b.
The FEC declined to take further action with respect to that finding,
however, because it believed that the case "presented a close question,
and that the Commission should clarify its membership definition
before imposing penalties in close cases such as this." App. 98a; see
note 3, supra. Respondents have not challenged the Commission's
authority to exercise its prosecutorial discretion in that manner.

Even under the court of appeals' view of the statute, any  finding that
AIPAC is in violation of the FECA provisions governing "political
committees" would depend upon the antecedent determination that the
communications at issue are properly characterized as contributions-
i.e.,  that they were sent to persons other than AIPAC's own members.
That is the same determination that the Commission regarded as suf-

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28

that any remedy imposed by a court, or negotiated by the
Commission as part of a conciliation agreement, see 2
U.S.C. 437g(a)(4)(A)(i), would result in the disclosures
that respondents seek, The parties have little or no idea
whether AIPAC has retained the information sought by
respondents; a monetary penalty might be deemed a
sufficient remedy to forgo enforcement litigation; and the
Act does not provide for judicial review of conciliation
agreements. Compare 2 U.S.C. 437g(a)(5) with 2 U.S.C.
437g(a)(8)(A).
d Finally, respondents' claim of competitive standing
is especially weak in the instant case, since the court of
appeals' resolution of the "political committee" issue has
no effect on the legality vel non of AIPAC's political
spending. As a corporation, AIPAC is entirely forbidden
to make any contributions or expenditures in federal
election campaigns. 2 U.S.C. 441b. 10. Because Section 441b
prohibits AIPAC from making campaign contributions at

___________________(footnotes)

ficiently  close so as to warrant a decision to take no further action with
respect to Section 441b.
10 In MCFL, this Court recognized a narrow, constitutionally based
exception to Section 441b's ban on corporate campaign expenditures.
The Court  noted that MCFL (1)  "was formed for the express purpose of
promoting political ideas, and cannot engage in business activities"; (2)
"has no shareholders or other persons affiliated so as to have a claim on
its assets or earnings"; and (3) "was not established by a business
corporation or a labor union, and it is its policy not to accept con-
tributions from such entities." 479 U.S. at 264. The Court concluded on
that basis "that  441b's  restriction of independent spending is  uncon-
stitutional as applied to MCFL." Id. at  263.

In the instant case, the FEC's General Counsel concluded that
AIPAC does not fall within the MCFL exception to Section 441b
because AIPAC has accepted contributions from business corporations.
C.A. App. 192-194. In any event, the MCFL exception applies only to
independent expenditures. See 479 U.S. at 259-260, 263. AIPAC would
therefore be prohibited from making direct or in-kind contributions
even if it satisfied the criteria set forth in MCFL.

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29

all, the manner in which Section 431(4)(A) is applied to
groups that contribute more than 1,000 to political
campaigns can have little practical effect on AIPAC's
activities.
As noted above (see notes 3 and 9, supra), AIPAC has
consistently argued that the payments at issue in this
case involved communications to AIPAC's own members.
If (as the Commission has concluded, see App. 98a) AIPAC
failed to satisfy the FEC's membership criteria, Section
441b would prohibit the organization from making those
payments. If AIPAC's position ultimately prevails, there
would be no basis for concluding that the organization had
made contributions in excess of 1,000, and consequently
no basis for concluding that AIPAC was a "political com-
mittee" within the meaning of Section 431(4)(A), whether
or not a "major purpose" test applies. 11. There is no rea-
son to suppose that AIPAC's political spending would be
altered, or respondents' interests advanced, by a deter-
mination that AIPAC was in violation of Sections 433 and
434 as well as of Section 441b.

___________________(footnotes)

11 The  Commission's statement of reasons in this case, issued on July
27, 1992, noted that the FEC "anticipate[d] the Commission soon will
conduct a regulatory proceeding to review its membership criteria in
an effort to eliminate  confusion about these  requirement ." App. 99a.
In 1993 the Commission promulgated a new regulatory definition of
the term "member." See 58 Fed. Reg. 45,775 (codified at 11 C.F.R.
l14.1(e)(2)). During the pendency of the appeal in this case, the D.C.
Circuit invalidated that regulation, concluding that it defined the term
"member" in an unduly restrictive fashion. See Chamber. of Commerce
v. FEC, 69 F.3d 600, 604606 (1995). That decision casts further doubt
on respondents' prospects of ultimately obtaining an order compelling
disclosure of AIPAC's receipts and disbursements.

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        30

      CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

          			WALTER DELLINGER
           			Acting Solicitor General

LAWRENCE M. NOBLE   SETH P. WAXMAN
General Counsel     	Deputy Solicitor General

RICHARD B. BADER
Associate General   	MALCOLM L. STEWART
Counsel          		Assistant to the Solicitor
	       		General
DAVID KOLKER
Attorney
Federal Election
Commission

APRIL 1997