James E. Akins v. Federal Election Commission

Opinion for the Court filed by Circuit Judge SILBERMAN.

Dissenting opinion filed by Circuit Judge SENTELLE.

SILBERMAN, Circuit Judge:

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

I.

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

Appellants filed a complaint with the FEC in 1989, alleging inter alia that AIPAC had made campaign contributions and expenditures in excess of $1,000 and was therefore a political committee. A political committee is defined as “any committee, club, association, or other group of persons which receives contributions aggregating in excess of $1,000 during a calendar year or which makes expenditures aggregating in excess of $1,000 during a calendar year.” 2 U.S.C. § 431(4)(A) (emphasis added). “Expenditure” is defined in turn as “any purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value, made by any person for the purpose of influencing any election.” 2 U.S.C. § 431(9)(A)(i). Expenditures have been classified by caselaw and FEC interpretation to include three categories: independent expenditures not connected to any candidate, coordinated expenditures made in cooperation or consultation with a candidate, and direct contributions to a candidate. Once designated a political committee, an organization must file periodic reports disclosing all receipts and disbursements and identifying each individual to whom it gives or from whom it receives more than $200. See 2 U.S.C. § 434(b)(2)-(5). And it is prohibited from contributing more than $1,000 to any candidate. See 2 U.S.C. § 441a(a). Appellants claimed that AIPAC met the statutory definition of political committee because, for example, it used full-time staff to meet with nearly every candidate for federal office, systematically disseminated campaign literature including candidates’ position papers, and conducted regular meetings and phone calls with AIPAC supporters encouraging them to provide aid to particular candidates. Since these activities cost more than $1,000, AIPAC’s failure to register as a political committee and comply with the requirements was a violation of the Act. See 2 U.S.C. §§ 433; 434(a)(1), (b); 441a(l), (2).

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

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

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

II.

The Commission, as it did before the panel (after it was asked to address standing), challenges the court’s jurisdiction. The Commission contends that neither the theories adopted by the panel judges nor appellants’ somewhat different contentions satisfy Article III standing requirements. Appellants— whether as voters or political competitors (except for Findley whose standing as a candidate the Commission does not challenge²) — not only lack injury-in-fact, their alleged injury was not caused by the Commission’s actions and it is not redressa-ble by this court’s order. It is further argued that even if appellants make out Article III. standing, they are not parties “aggrieved” under the statute and so lack prudential standing.

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

Although Congress may not “create” an Article III injury that the federal judiciary would not recognize, anymore than Congress could amend the Constitution, see United Transp. 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 á legal right (and, typically, a cause of action to protect that right) the interference with which will create an Article III 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. § 552 et seq. (1994), has standing to sue regardless of his or her reasons for 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 ail voters, in their view, suffer injury-in-fact when the FEC fails to force a political committee 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. § 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. (Athough under § 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 categorical or direct as that of FOIA.⁴

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 benefitted 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 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 exempting 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 grievance” 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 presents 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 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 623, 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 contractor, 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 dissenting colleagues, they agree with the Commission that appellants are presenting a generalized grievance 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 particularized 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 expected to allege that AIPAC made contributions in the elections in which they voted, for whether AIPAC made such contributions is precisely the information 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 appellants did not vote in various federal elections in which APAC 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 standing as political competitors of APAC, or whether Mr. 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 unlikely that congressman would again be a candidate for Congress) — has standing as a candidate.

The Commission also questions the causal connection between its decision and appellants’ injury, as well as causation’s corollary in standing analysis — redressability.. As best we understand' the FEC’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 because such a theory would stretch causation to its breaking point; no one would have standing to challenge 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 disclosure of information that a contrary FEC determination would have made available.

The Commission’s argument that appellants lack standing because we cannot issue an order that redresses 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 enforcement discretion, so that even if we were to determine that its statutory interpretation of “political committee” is erroneous, it does not follow that APAC would be required to disclose the information a political committee must: the FEC might settle with APAC 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 determination was not reviewable, that would virtually 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 manner, 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 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 APAC 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 compli-anee with our decision correcting the Commission’s interpretation of the phrase “political committee.” As we noted earlier, if the Commission fails to “conform” to our “declaration,” the appellants, as the original complainant, may bring their own civil action to remedy the violation of law. 2 U.S.C. § 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

Finally, the Commission challenges appellants’ prudential standing, claiming they are not parties aggrieved within the meaning of the statute, which provides thát “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. § 437g(a)(8)(A). The Supreme Court, interpreting similar language in the Administrative Procedure 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 subject of the contested regulatory action, the test denies a right of review if the plaintiffs 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 especially demanding; in particular, there need be no 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) (citations 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 challenging 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 determination 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

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, appellants’ interests as voters clearly are not “so marginally related to or inconsistent with the purposes 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 “contributions”: 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 aggregating in excess of $1,000 during a calendar year.” The FEC concedes that this language sets unambiguous requirements for classification as a political committee. But it asserts that Supreme Court decisions 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 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 deference — 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 interpretation 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 established 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 doctrinally 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 other principle. The Commission’s assertion that Congress and the Court are equivalent in this respect is inconsistent with Chevron’s basic premise. Chevron 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 of legitimacy in interpreting Court opinions. There is therefore no reason for courts — the supposed experts in analyzing judicial decisions — to defer to agency interpretations of the Court’s opinions. This is especially true where, as here, the Supreme Court precedent 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 easts the question 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 circumstances for constitutional reasons applies in another circumstance — this case — in which the same constitutional 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 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 262 n. 6, 107 S.Ct. at 625 n. 6 (quoting Buckley, 424 U.S. at 79, 96 S.Ct. at 668). Although MCFL apparently 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 expenditures or direct contributions. See Colorado Republican Fed. Campaign Comm. v. FEC, — U.S. -, -, 116 S.Ct. 2309, 2315-16, 135 L.Ed.2d 795 (1996). Independent expenditures are the most protected 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 determine 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 discussion. 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 “foeus[] 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 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 § 434(e), which imposes disclosure requirements on “[ejvery person (other than a political committee or candidate)” making contributions or expenditures exceeding $100.⁹ “Contributions” — when defined as direct or indirect contributions to a candidate, political party, or campaign committee, or expenditures placed with the cooperation or consent of a candidate — were determined 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 § 434(e) was limited by “eonstru[ing] ‘expenditure’ 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 663. In the midst of this analysis of the scope of “expenditures” under § 434(e), the Court noted in dicta that the meaning of political committee, because it was defined 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 interpretation:

To fulfill the purposes of [FECA, political committees] 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, 96 S.Ct. at 663 (emphases added). We think the better interpretation of this language, as appellants suggest, is that when an organization controlled by a candidate or the major purpose of which is election-related makes disbursements, those disbursements will presumptively be expenditures within the statutory definition. The Court clearly distinguished independent expenditures and contributions as to their constitutional significance, and its references 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 § 441b, which prohibits corporate contributions or expenditures “in connection with any election,” was unconstitutional as applied to MCFL because the Act’s reporting and disclosure requirements 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 presumption 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 unconstitutional as applied to it. As in Buckley, the underlying concern is that congressional regulation, in its effort to achieve full disclosure, may impermissibly 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 § 431(4)(A) to AIPAC or to other organizations making campaign contributions (or coordinated expenditures) exceeding 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 promoted the acceptance of particular individuals prior to their actual nomination did not fall within the definition of “political committee” because the expenditures 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.394r-96 (Congress failed to respond to the FEC’s repeated requests to amend the Act tp apply contribution limits to draft groups). And our analysis, contrary to the FEC’s suggestion, supports appellants’ interpretation of the major purpose test. We 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 1136 (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. Stoats 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'sre not under the control of a ‘candidate,’ or directly related to promoting or defeating 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

The FEC’s interpretation of “political committee” would, as appellants point out, allow a large organization to contribute substantial sums to campaign activity, as long as the contributions are a small portion of the organizatioris 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 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 § 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., § 441b’s prohibition on corporate expenditures and § 434(c)’s restrictions on persons (defined in § 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 exclusive. As the Commission concedes, various statutory provisions impose different, if overlapping, limits and requirements on organizations; these differences represent the sound exercise of congressional judgment as to the various degrees of risk to the election process posed by certain activities.

The Commission seeks to minimize the implications of its interpretation by arguing that it has not yet resolved when an organization’s spending becomes “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) (First Amendment prohibits investing official in licensing 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 disbursements 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 campaign 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 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 action not inconsistent with this opinion.

* * * *

The judgment of the district court is

Reversed.

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 concerning AIPAC’s involvement in providing assistance to the opponent of Paul Findley — a complainant here — in a 1982 congressional election.

2 . The Commission does not explain why, if Find-ley does have standing, the rest of its standing objections are nonetheless determinative, because we would still be obliged to reach the merits.

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. § 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, 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), cert. 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.

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 appear that the dissent’s only real objection to standing is redressability.

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

7 . In an argument that seems to be based more on mootness than redressability, the Commission also contends that appellants' injury would not be redressed by a favorable decision of this court because AIPAC is barred from making future contributions to candidates by another section of the statute, § 441b, which prohibits corporate contributions. This is a non sequitur; appellants claim they are injured because AIPAC was permitted 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.

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

9 . Section 434(e) has subsequently been amended: "Every person (other than a political committee) who 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)(1).

10 . The Commission makes no claim that AIPAC actually qualifies for the MCFL constitutional exemption, which requires 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 contributions from corporations.

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 § 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 appeal 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 partly 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. 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.

12 . The Commission nevertheless claims that it has consistently 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 1979-41, 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 apparent change of position dispositive, but it does undermine the Commission's insistence that the Supreme Court clearly imposed this test, particularly given its failure to explain that view in its Order in this case.

13 . The pEC's decisions on how and to what extent to investigate a complaint, while renewable, 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 AI-PAC's contributions were not "a” major purpose. The Commission asserts in its brief, without citation to the record, that “the evidence indicated 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 committee.