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 (1) ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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. (la) ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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- ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 5a 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. ---------------------------------------- Page Break ---------------------------------------- 6a 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. ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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, ---------------------------------------- Page Break ---------------------------------------- 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. ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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. ---------------------------------------- Page Break ---------------------------------------- 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. ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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. ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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- ---------------------------------------- Page Break ---------------------------------------- 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- ---------------------------------------- Page Break ---------------------------------------- 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. ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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. ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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, ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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. ---------------------------------------- Page Break ---------------------------------------- 41a 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 ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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. ---------------------------------------- Page Break ---------------------------------------- 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): ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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 . . . . "). ---------------------------------------- Page Break ---------------------------------------- 49a 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. ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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 . . . . ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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. ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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- ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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- ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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). ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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. ---------------------------------------- Page Break ---------------------------------------- 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. ---------------------------------------- Page Break ---------------------------------------- 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- ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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). ---------------------------------------- Page Break ---------------------------------------- 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). ---------------------------------------- Page Break ---------------------------------------- 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. ---------------------------------------- Page Break ---------------------------------------- 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. ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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. ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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. ---------------------------------------- Page Break ---------------------------------------- 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- ---------------------------------------- Page Break ---------------------------------------- 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. ---------------------------------------- Page Break ---------------------------------------- 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. ---------------------------------------- Page Break ---------------------------------------- 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- ---------------------------------------- Page Break ---------------------------------------- 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- ---------------------------------------- Page Break ---------------------------------------- 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). ---------------------------------------- Page Break ---------------------------------------- 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- ---------------------------------------- Page Break ---------------------------------------- 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). ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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- ---------------------------------------- Page Break ---------------------------------------- 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. ---------------------------------------- Page Break ---------------------------------------- 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. ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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. ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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. ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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. ---------------------------------------- Page Break ---------------------------------------- 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. ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- 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 ______________ 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) ---------------------------------------- Page Break ---------------------------------------- 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) ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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) ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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). ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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. ---------------------------------------- Page Break ---------------------------------------- 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). ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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. ---------------------------------------- Page Break ---------------------------------------- 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, * * * ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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- ---------------------------------------- Page Break ---------------------------------------- 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- ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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" ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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. ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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). ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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. ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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- ---------------------------------------- Page Break ---------------------------------------- 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. ---------------------------------------- Page Break ---------------------------------------- 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. ---------------------------------------- Page Break ---------------------------------------- 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