Akins v. Federal Election Com

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JAMES E. AKINS, et aI., )
)
Plaintiffs, )
)
v. ) Civil Case Nos. 92-1864, 00-1478,
) 03-2431 (RJL)
FEDERAL ELECTION COMMISSION, )
)
Defendant. )
MEMORANDU~NION
(September £, 2010)
This consolidated matter is before the Court on the parties' cross-motions for
summary judgment, seeking review of the Federal Election Commission's dismissal of
multiple administrative complaints. The Court has carefully considered the parties'
filings, relevant law, and the entire record herein. For the reasons set forth below, the
plaintiffs' Motion for Summary Judgment is DENIED and the defendant's Cross-Motion
for Summary Judgment is GRANTED.
BACKGROUND
A. The Parties
Richard Curtiss, Paul Findley, Andrew Killgore, and Orin Parker (collectively,
"plaintiffs") are former ambassadors, congressmen, or government officials. I They are
politically active people who seek to influence policymakers and the public on U.S. policy
Three plaintiffs, James E. Akins, Robert 1. Hanks, and George Ball, have died since this
litigation was first commenced. Their deaths, however, do not affect the legal issues pending in
this case.
in the Middle East. The plaintiffs hold many views contrary to those of the American
Israel Public Affairs Committee ("AIPAC"). See 1st Am. CompI. ~ 10, Akins v. FEe, No.
92-1864 ("Akins F'); 2d Am., 1st Supp. Compl. ~ 10, Akins v. FEe, No. 00-1478 ("Akins
IF'); CompI. ~ 8, Akins v. FEe, No. 03-2431 ("Akins IIF').
AIPAC is an incorporated, tax-exempt organization with over 50,000 supporters
and a budget of about $10 million (as of 1989). It lobbies Congress and the Executive
Branch for military and economic aid to Israel with the stated purpose to encourage close
relations between the United States and Israel. AIPAC was the respondent in the
underlying administrative matters before the Federal Election Commission, but it is not a
party in the district court cases. 2 See 1st Am. CompI. ~ 12, Akins I; 2d Am., 1st Supp.
CompI. ~ 12, Akins 11; CompI. ~ 10, Akins III; Pl.'s S. Mat'l Facts `` 1-2.
The defendant is the Federal Election Commission (the "FEC" or the
"Commission"), an independent agency of the U.S. Government. The FEC has sole
jurisdiction to civilly enforce the Federal Election Campaign Act of 1971, as amended, 2
U.S.C. § 431 et seq. (the "FECA" or the "Act"). 2 U.S.C. § 437c(b )(1).
B. The Federal Election Campaign Act
The FECA's purposes are "to limit spending in federal election campaigns and to
eliminate the actual or perceived pernicious influence over candidates for elective office
2 AlPAC was granted leave to file briefs as amicus curiae in Akins I and Akins II for prior
motions. AlP AC did not seek leave to file for the currently pending cross-motions for summary
judgment.
2
that wealthy individuals or corporations could achieve by financing the 'political
warchests' of those candidates." Orloski v. FEC, 795 F.2d 156, 163 (D.C. Cir. 1986)
(citing Buckley v. Valeo, 424 U.S. 1, 25-26 (1976)). To accomplish its goals, "[t]he Act
imposes limits upon the amounts that individuals, corporations, 'political committees'
(including political action committees), and political parties can contribute to a candidate
for federal political office." FEC v. Akins, 524 U.S. 11, 14 (1998) ("Akins Supreme
Court Opinion") (citing 2 U.S.C. §§ 441a(a)-(b), 441b).
Under the Act, all "political committees" are required to register with the
Commission and make periodic reports of receipts and disbursements. 2 U.S.C. §§ 433,
434. A "political committee" is defined as "any committee, club, association, or other
group of persons which receives contributions aggregating in excess of $1 ,000 during a
calendar year or which makes expenditures aggregating in excess of $1 ,000 during a
calendar year." 2 U.S.C. § 431(4)(A). Generally speaking, an "expenditure" is "any
purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of
value, made by any person for the purpose of influencing any election for Federal office."
2 U.S.c. § 431(9)(A).
The Act exempts from the definition of the term "expenditure" "any
communications by any membership organization ... to its members ... if such
membership organization ... is not organized primarily for the purpose of influencing the
nomination for election, or election, of any individual to Federal office." 2 U.S.C.
3
§ 431(9)(B)(iii). Simply put, membership communications by a membership organization
that is not organized primarily for the purpose of influencing federal elections are not
"expenditures" that count toward the $1,000 limit beyond which the organization can be
classified as a "political committee." However, "the costs incurred by a membership
organization ... directly attributable to a communication expressly advocating the
election or defeat of a clearly identified candidate (other than a communication primarily
devoted to subjects other than the express advocacy of the election or defeat ofa clearly
identified candidate)[] shall, if such costs exceed $2,000 for any election, be reported to
the Commission." Id. Membership organizations that trigger the reporting requirement
must file disclosure reports in accordance with 2 U.S.C. § 434(a)(4)(A)(i) and (ii).
C. Procedural History
1. MUR2804
This case has had a long and complicated history. On January 12, 1989, plaintiffs
filed their first administrative complaint with the FEC, designated Matter Under Review
("MUR") 2804, alleging, inter alia, that AlP AC was a political committee as defined by
the Act and was thus required to make certain disclosures regarding its financial
activities. First Certified Administrative Record ("F.A.R.") 4, 12-19 (refiled Oct. 14,
2005); Second Certified Administrative Record ("S.A.R.") 341 (filed June 6, 2004)
(describing procedural history). Plaintiffs also claimed that AIPAC had made illegal
corporate campaign expenditures in violation of2 U.S.C. § 441b. F.A.R.4, 12-19;
4
S.A.R. 341. AIPAC claimed that its communications to its members fell within the
membership organization exception and, therefore, that it did not have to register as a
political committee or disclose its financial activities to the FEC. F .A.R. 1460-1549;
S.A.R. 341.
On June 16, 1992, the Commission voted 6-0 to find no probable cause to believe
AlP AC was a political committee-and thus AlP AC was not subject to the registration
and disclosure rules applicable to political committees-because AIPAC's "major
purpose" was not to influence federal elections. F .A.R. 3771-72, 3871-72; S.A.R. 341-
42. However, the Commission voted 4-2 to find probable cause that AlP AC had violated
2 U.S.C. § 441 b by making corporate contributions, which consisted largely of election-
related coordinated expenditures for communications to individuals who were not, under
the Commission's view at the time, "members" of AIPAC. 3 F.A.R. 3771-72, 3871-72;
S.A.R.341. The FEC thought that the question of whether the individuals receiving this
material were "members" was a "close question" and noted that it expected to undertake a
regulatory proceeding in the near future to clarify the membership criteria. F .A.R. 3860-
68, 3925-26. Ultimately, the Commission voted 6-0 to exercise its prosecutorial
discretion to take no further action and dismiss the complaint. F.A.R. 3925-26; S.A.R.
341-42.
The FEC found that, under the regulations then in force, the Executive Committee of
AlP AC qualified as "members" of the organization and that communications to them were
"membership communications." F.A.R. 3862,3867.
5
2. Akins I, No. 92-1864
Plaintiffs filed suit in our Court in 1992, challenging the FEC's detennination that
AIPAC was not a "political committee." S.A.R. 342 (describing Akins I). They did not,
however, seek review of the membership organization issue. Id. A former member of
our Court granted summary judgment for the FEC in 1994, agreeing with the "major
purpose" test employed by the FEC to detennine whether AlP AC qualified as a political
committee. Akins I, No. 92-1864, slip op. at 15-16 (D.D.C. Mar. 30,1994). Plaintiffs
appealed, and a divided panel of our Court of Appeals affirmed. See Akins v. FEC, 66
F.3d 348 (D.C. Cir. 1995) ("Akins Panel Opinion"). Upon rehearing en bane, our Circuit
Court reversed, finding that the "major purpose" test was inapplicable in cases such as
this one that did not involve independent expenditures. See Akins v. FEC, 101 F.3d 731(D.C. Cir. 1996) (en bane) ("Akins En Bane Opinion"). Unfortunately, this appellate
odyssey had only just begun!
The Supreme Court granted certiorari on the question whether an organization that
otherwise satisfies the Act's definition of a political committee nonetheless falls outside
of that definition because "its major purpose is not the nomination or election of
candidates." Akins Supreme Court Opinion, 524 U.S. at 26 (internal quotation marks
omitted).4 Rather than addressing this issue, however, the Supreme Court noted that the
Commission had proposed new rules defining "membership organization" and vacated
4 The Supreme Court also granted certiorari on the question of standing and found that the
plaintiffs did have standing to bring suit in this case. Akins Supreme Court Opinion, 524 U.S. at
26.
6
our Circuit's en banc decision and remanded the case to the FEC to determine whether,
under the new membership rules promulgated by the FEC, the communications at issue
constituted membership communications and, therefore, fell outside the scope of
expenditures that could qualify AIPAC as a "political committee." Id. at 28-29. The
Court stated that "[i]f ... the FEC decides that AIPAC's activities fall within the
'membership communications' exception, the matter will become moot." Id. at 29.
3. MUR2804R
On March 21, 2000, under its newly revised membership regulations, the FEC first
found that members of AlP AC met the definition of "members" in the new regulations, a
finding that is undisputed. F.A.R. Supp. 3980 (filed Oct. 2, 2000)5; S.A.R. 343; see 11
C.F.R. § 114.1(e)(2) (2000). The FEC then voted 6-0 to find that AIPAC was a
"membership organization" under the new regulations. F .A.R. Supp. 3979-82, 3986;
S.A.R.343. Among other requirements, the regulation specifies that a membership
organization "[i]s not organized primarily for the purpose of influencing the nomination
for election, or election, of any individual to Federal office." 11 C.F.R. § 114.1(e)(1)(vi)
(2000).6 The Commission concluded that the facts that had originally led it to conclude
This Supplement to the First Certified Administrative Record constitutes the
administrative record for MUR 2804R.
6
The new regulations defined a "membership organization" as an organization that:
(i) Is composed of members, some or all of whom are vested with the power and
authority to operate or administer the organization, pursuant to the
organization's articles, bylaws, constitution or other formal organizational
documents;
(ii) Expressly states the qualifications and requirements for membership in its
articles, bylaws, constitution or other formal organizational documents;
7
that election activity was not AIPAC's "major purpose" were enough to establish a
fortiori that AIPAC was not organized "primarily" for that purpose. F.A.R. Supp. 3982.
This is the only requirement under the regulations defining "membership organizations"
that is contested by the plaintiffs in the instant action. The FEC concluded that AlP AC' s
disbursements for election-related communications were exempt from the definition of
"expenditures" because they were made to AIPAC's "members." F.A.R. Supp. 3982-83.
The FEC found that "the issue of AIPAC's political committee status during the period
covered by the complaint in MUR 2804 has, as anticipated by the U.S. Supreme Court,
become effectively moot." F.A.R. Supp. 3983. Accordingly, the Commission adhered to
its earlier determination that there was no probable cause to believe that AlP AC violated
2 U.S.C. §§ 433 and 434. F.A.R. Supp. 3986.
4. Akins II, No. 00-1478
In 2000, plaintiffs again filed suit in our Court, now seeking review of the FEC's
determination that AIPAC was a membership organization. Akins IL No. 00-1478
(D.D.C. filed nunc pro tunc to May 19,2000). Akins II was consolidated for all purposes
with Akins 1. The parties filed cross-motions for summary judgment. Plaintiffs made two
(iii) Makes its articles, bylaws, constitution, or other formal organizational
documents available to its members upon request;
(iv) Expressly solicits persons to become members;
(v) Expressly acknowledges the acceptance of membership, such as by sending
a membership card or including the member's name on a membership
newsletter list; and
(vi) Is not organized primarily for the purpose of influencing the nominationfor
election, or election, of any individual to Federal office.
11 C.F.R. § 114.1(e)(1) (2000) (emphasis added).
8
arguments: (1) that the FEC erred in determining that AIPAC was a membership
organization and that its communications were to members and (2) that AIPAC's
communications expressly advocated the election of clearly identified candidates and cost
more than $2,000 per election and thus had to be reported pursuant to the Act. The FEC
responded that it had never been presented with the plaintiffs' second argument. On May
20, 2002, the plaintiffs filed a new administrative complaint before the Commission,
designated MUR 5272, making the express advocacy argument. S.A.R. 15-24. The
consolidated case in the District Court was stayed by a now deceased member of our
Court pending the resolution ofMUR 5272. Order Staying Proceedings, Akins II, No. 00-
1478 (D.D.C. Aug. 15,2003).
5. MUR5272
In MUR 5272, plaintiffs argued that even if the membership communication
exemption applies, AlP AC is required to report its membership communications in excess
of $2,000 under 2 U.S.C. § 431(9)(B)(iii) because they are "communication[s] expressly
advocating the election or defeat of ... clearly identified candidate [s]." S.A.R. 15-24.
On November 13,2003, the FEC dismissed the complaint as a matter of prose cutoria I
discretion, noting that in the complaint for MUR 5272, the plaintiffs did not cite any
specific instances of communications containing express advocacy. S.A.R. 344-45. The
Commission reviewed the material from the earlier MUR and the information submitted
by AIPAC in its response to MUR 5272 and concluded that although there may have been
9
"isolated instances" when AIPAC's communications extended from issue advocacy to
express advocacy, there was no indication that the costs associated with these
communications exceeded the $2,000 threshold or that these communications continued
after 1990. S.A.R. 345. The Commission reasoned that any further investigation would
be frustrated by problems of proof and the expiration of the applicable statute of
limitations and concluded that it would not be an appropriate use of the FEC's limited
resources. Id.
6. Akins III, No. 03-2431
Undaunted, plaintiffs filed a third suit in our Court, seeking review of the FEC's
decision to dismiss MUR 5272. Akins III, No. 03-2431 (D.D.C. filed Nov. 25, 2003). On
October 25,2007, following the death of the presiding District Judge, all three related
cases were reassigned to this Court by our Calendar Committee. Akins III was
consolidated with Akins I and Akins II. The parties then filed the currently pending cross-
motions for summary judgment in 2009.
DISCUSSION
A. Standard of Review
The standard to be applied in reviewing a decision by the FEC not to prosecute is
whether the FEC has acted "contrary to law." Orloski, 795 F.2d at 161 (citing 2 U.S.c.
§ 437g(a)(8)(C)). "The FEC's decision is 'contrary to law' if(l) the FEC dismissed the
complaint as a result of an impermissible interpretation of the Act or (2) if the FEC's
10
dismissal of the complaint, under a permissible interpretation of the statute, was arbitrary
or capricious, or an abuse of discretion." Id. (internal citation omitted). In determining
whether the Commission's action was contrary to law, a reviewing court is "not to
interpret the statute as it [thinks] best but rather the narrower inquiry into whether the
Commission's construction was 'sufficiently reasonable' to be accepted by a reviewing
court." FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 39 (1981)
("DSCC'). "To satisfy this standard it is not necessary for a court to find that the
agency's construction was the only reasonable one or even the reading the court would
have reached" on its own. Id. The arbitrary, capricious, or abuse of discretion standard is
"an extremely deferential standard which requires affirmance if a rational basis for the
agency's decision is shown." Orloski, 795 F.2d at 167 (internal quotation marks and
citation omitted).
B. Analysis
1. Waiver
The Commission first argues that the plaintiffs waived their challenge to the
Commission's determination that AIPAC was a membership organization. This claim is
based on the fact that the plaintiffs did not seek review of the Commission's finding in
MUR 2804 that AIPAC did not violate 2 U.S.C. § 441b through its communications to
members of its Executive Committee, who did qualify as "members" of AlP AC under the
regulations in force at that time. The FEC asserts that the only question on remand was
11
whether additional individuals, outside of the executive board, qualified as "members,"
since the "organized primarily for the purpose of influencing" federal elections language
was already in the statute during MUR 2804. In response, the plaintiffs draw a distinction
between the Commission's 1992 determination that the Executive Committee was not
"organized primarily" for the purpose of influencing elections and the currently pending
issue of whether the entire 50,000 "membership organization" is "organized primarily"
for that purpose. I agree.
The Supreme Court's remand required the FEC to revisit whether AIPAC was
organized primarily for the purpose of influencing federal elections. As described above,
the Court granted certiorari on the issue of the definition of "political committee," but the
Court then chose not to address that issue and instead directed the Commission to
reconsider the issue of AIPAC's membership organization status under the newly revised
regulations. See Akins Supreme Court Opinion, 524 U.S. at 29.7 It would be ridiculous to
say that the Supreme Court ordered the FEC to issue a new determination under a new set
of rules, but barred any judicial review of that determination. In fact, the Supreme Court
specifically contemplated judicial review. See id. (noting that the FEC's remand
determination would either moot the political committee issue or allow the "lower courts,
in reconsidering the respondents' arguments" to evaluate the communicative context of
7 To that end, when the en bane D.C. Circuit issued its vacate and remand order following
the Supreme Court's decision, Judge Silberman wrote separately to note certain unusual
circumstances of the case. See Akins v. FEe, 146 F.3d 1049 (D.C. Cir. 1998) (per curiam)
(Silberman, J., writing separately).
12
the case). Thus, there was no waiver. 8
2. "Organized Primarily"
The FEC found that AlP AC was not "organized primarily for the purpose of
influencing" elections, within the meaning of2 U.S.C. § 431(9)(8)(iii) based on the
FEC's finding in MUR 2804 that "[t]he evidence shows that AIPAC is primarily ... a
lobbying organization." F.A.R. 3772; see F.A.R. Supp. 3982. The plaintiffs argue that in
making this determination, the FEC erred by failing to consider whether AIPAC's
lobbying efforts were primarily based on campaign-related activities and communications
that influence elections. In other words, the plaintiffs argue that AlP AC should not be
considered a "membership organization" by virtue of the "organized primarily" clause of
§ 431(9)(8)(iii) because AIPAC is primarily organized for the purpose oflobbying that is
primarily focused on influencing elections. Plaintiffs assert that the FEC's opposing view
is contrary to law because it is at odds with the purpose of the Act. Plaintiffs also argue
that the FEC failed to consider whether AIPAC's lobbying is primarily quid pro quo
lobbying, i.e., demands that members of Congress vote for legislation and appropriations
favored by AIPAC in return for AIPAC's support, which plaintiffs assert is prohibited
under the Act.
The Commission also argues that even if the plaintiffs have not waived their claim, any
post-remand claims are barred because the plaintiffs did not present any arguments to the
Commission when the matter was remanded by the Supreme Court. Not so. The plaintiffs had
no duty to present their arguments to the FEC on remand and, further, they were not permitted to
do so under the regulations. See 11 C.F.R. § 111.22. Thus, for similar reasons to finding no
waiver, I find no bar on the plaintiffs' arguments, particularly in light of the fact that the
Commission does not cite a single FEC case to support its position that such a bar exists.
13
The FEC responds that its conclusion that AlP AC was primarily a lobbying
organization was firmly rooted in the record before the FEC and included an extensive
review of AIPAC's by-laws, its history, and its organizational structure and activities.
The Commission argues that the plaintiffs' suggestion that AlP AC was involved in quid
pro quo lobbying is squarely addressed under criminal bribery statutes, rather than under
the FECA. Furthermore, the FEC asserts that Explanation and Justification issued with
the new membership regulations indicate that the requirement not to be organized
primarily for the purpose of influencing federal elections was intended to prevent
individuals from establishing sham membership organizations to circumvent the Act's
contribution and expenditure limits. Such a sham, according to the Commission, is
clearly not in issue here, given AIPAC's primary focus on lobbying, which it has actively
conducted for more than forty years. The FEC argues that plaintiffs have provided no
support for bootstrapping the primacy of AIPAC's lobbying efforts into federal election
activity by arguing that its lobbying is primarily based on campaign-related activities.
According to the Commission, the proper forum for such an argument eliding the
distinction between lobbying and electioneering is Congress, not the Courts. For the
following reasons, I agree with the FEC.
As an initial matter, the Commission's interpretation of the Act's "organized
primarily" language regarding membership organizations is to be given deference. See
Chevron, US.A., Inc. v. Natural Res. De! Council, 467 U.S. 837, 842-43 (1984) ("[I]fthe
14
statute is silent or ambiguous with respect to the specific issue, the question for the court
is whether the agency's answer is based on a permissible construction of the statute.");
see also DSCC, 454 U.S. at 37 (stating the Commission "is precisely the type of agency to
which deference should presumptively be afforded"). As the FEC explained in the
Explanation and Justification issued with the new membership regulations, the
membership communications exception "addresses [the] concern that an organization not
be used as a conduit by a candidate or other outside entity seeking to influence unlawfully
a Federal election." Definition of "Member" of a Membership Organization, 64 Fed.
Reg. 41266, 41269 (July 30, 1999). To that end, "[s]ince the purpose of the Act's
'membership communications' exception is to allow bona fide membership organizations
to engage in political communications with their members, these rules are intended to
prevent individuals from establishing 'sham' membership organizations in an effort to
circumvent the Act's contribution and expenditure limits." Id. This interpretation of the
membership communications exemption language is "sufficiently reasonable" as to be
accepted by this Court and entirely consistent with the purpose of the Act. See DSCC,
454 U.S. at 39; see also Buckley, 424 U.S. at 26 (stating that the Act's primary interest is
"to limit the actuality and appearance of corruption resulting from large individual
financial contributions").
Plaintiffs arguments that the Commission's interpretation does not go far enough
to effectuate the purposes of the Act provides no basis for this Court to expand it. While
15
the dividing line between lobbying and electioneering may be, at times, hard to draw, and
lobbying efforts may be, at times, linked to influencing elections, nothing in the Act
indicates that the Commission acted contrary to law by refusing to equate lobbying in
general-and AIPAC's lobbying in particular-with efforts to influence federal elections.
Rather, the FEC's determination that the membership communications exception be
construed as an effort to prevent "sham" membership organizations from circumventing
the campaign finance rules is completely consistent with the FECA's purpose. "'[N]o
legislation pursues its purposes at all costs .... [I]t frustrates rather than effectuates
legislative intent simplistically to assume that whatever furthers the statute's primary
objective must be the law.'" Albany Eng 'g Corp. v. Fed. Energy Regulatory Comm 'n,
548 F.3d 1071, 1076 (D.C. Cir. 2008) (quoting Rodriguez v. United States, 480 U.S. 522,
525-26 (1987) (emphasis in original). Stated simply, such an approach makes sense in
this case, especially given the deference due to the Commission in interpreting and
enforcing the Act. Accordingly, the Commission did not act contrary to law by
maintaining a distinction between an organization primarily devoted to lobbying and one
organized primarily to influence elections.
Furthermore, the Commission's decision under its interpretation of the Act not to
prosecute AIPAC was neither arbitrary or capricious, nor an abuse of discretion. In 1992,
the FEC concluded in MUR 2804 that AlP AC was not a "political committee" because
the nomination or election of candidates was not AIPAC's "major purpose";
16
AIPAC's campaign related activities, while likely to have crossed the $1,000
threshold, constitute only a small portion of its overall activities and does not
appear to be its major purpose. The evidence shows that AlP AC is primarily
and fundamentally a lobbying organization interested in U.S.-Israel relations
and in legislation affecting Israel. Its campaign-related activities and
communications are undertaken as an adjunct to, and in support of, its
lobbying efforts.
F.A.R.3772. In 2000, the FEC stated in MUR 2804R that the facts that had led it to
conclude that election activity was not AIPAC's "major purpose" were enough to
establish a fortiori that AIPAC was not organized "primarily" for that purpose:
Another requirement of membership organizations set out at new 11 C.F .R.
§ 114.[1](e)(l) is that a potential membership organization "not be organized
primarily for the purpose of influencing" federal elections. This was the
conclusion reached in MUR 2804 with regard to AlP AC, with the result that
the Commission found no probable cause to believe that the organization had
violated 2 U.S.C. §§ 433 and 434.
F.A.R. Supp. 3982. Although such reasoning is susceptible to the accusation of
conflating two different tests-the "major purpose" test that the Commission used for
political committees and the "organized primarily" test for membership
organizations-such a result is also logically unavoidable. After all, if influencing
federal elections is not a major purpose of AlP AC, then AlP AC cannot be organized
primarily to influence federal elections. 9
9 The plaintiffs also argue that the FEC should be required to clarify what it means by
"major purpose" and to state whether an organization can have more than one "major purpose."
The FEC responds that this argument is irrelevant because the General Counsel's report
originally dismissing the plaintiffs' complaint stated that "AIPAC's political activities did not
rise to such a level as to make them a major purpose of the organization." Def.' s Reply 7
(quoting F .A.R. 3672) (emphasis added). I agree with the FEC that even if an organization could
be organized primarily for more than one "major purpose," it would be inconsequential in this
situation because the Commission has already determined that AlP AC did not have even "a"
17
The Commission's decision in MUR 2804 that formed the basis of its decision in
MUR 2804R resulted from an extensive investigation and development of a substantial
administrative record documenting AIPAC's political interests, finances, and campaign-
related activities. AlP AC was incorporated in 1963 as a non-profit organization with the
"sole function," as a registered domestic lobby, to encourage close U.S.-Israel relations
and to provide services to its own members. F .A.R. 1469. Based on a careful review of
the administrative record and the parties' arguments, I find no evidence that AlP AC' s
focus on lobbying for more than forty years has been a sham perpetrated to circumvent
the Act's contribution and expenditure limits. Accordingly, I find that the Commission
had a rational basis to conclude that AlP AC was not "organized primarily" for the
purpose of influencing federal elections. Therefore, the Commission's decision not to
prosecute AIPAC was not an act contrary to the law.
3. Communications "by" Candidates
Plaintiffs next argue that the FEC improperly failed to consider whether AlP AC' s
communications should be disentitled to the membership communications exemption
because they solicit campaign contributions for and are coordinated with candidates and
therefore are communications "by" the candidates. Essentially, plaintiffs argue that
communications by AlP AC to its members were in such close coordination with
candidates that they create an appearance, and danger, of quid pro quo corruption. I
major purpose to influence elections. Thus, remand for clarification on this point is unnecessary.
The Court also notes that the FEC's General Counsel indicated that election-related activities
were a "small portion" of AIPAC's activities overall. See F.A.R. 3772.
18
disagree. If the communications were in fact "by" the candidates, any disclosure
obligation would then fall on the candidate. Indeed, coordination with candidates is
explicitly provided for within the statutory exemption for membership communications,
see 11 C.F.R. § 114.3(a), and the Supreme Court and our Circuit adjudicated this case
based upon the assumption that AIPAC's communications to its supporters had been
coordinated with candidates. As such, the plaintiffs are, in essence, asking this Court to
invalidate the regulation: a request that is neither procedurally possible nor legally
sustainable. How so?
The Commission's regulations state that communications to members are within
the statutory exemption for membership communications even if they "involve election-
related coordination with candidates." 11 C.F.R. § 114.3(a)(l). Plaintiffs have failed to
advance any legal basis for why the FEC should not be afforded deference in its
construction of the Act. Moreover, the Supreme Court and our Circuit Court assumed
that there had been coordination with the candidates. See Akins Supreme Court Opinion,
524 U.S. at 28; Akins En Bane Opinion, 101 F.3d at 744 ("There is no contention that
AIPAC's disbursements were independent expenditures."). There would have been no
reason for the Supreme Court to remand the case to the Commission if coordination had
been enough, alone, to disqualify AIPAC's reliance on this exemption. Accordingly, I
find that the FEC did not improperly fail to consider whether AIPAC's communications
were in fact communications "by" the candidates.
19
4. Adequacy of Investigation
Plaintiffs next argue that the Commission improperly failed to adequately
investigate whether AIPAC's non-communication expenditures in past elections make it a
political committee. I disagree.
The FEC has broad discretionary power in determining whether to investigate a
claim, and how, and whether to pursue civil enforcement under the Act. Plaintiffs'
speculation based on twenty-year-old evidence about what may have turned up in further
investigation falls far short of proving an abuse of discretion. The Commission's
investigation, pursuant to the Supreme Court's remand instructions, was properly ended
after the Commission determined that AIPAC's activities fell within the membership
communications exemption. Indeed, the prosecutorial discretion given to the
Commission is entitled to great deference as to the manner in which it conducts
investigations and its decisions to dismiss complaints, provided it supplies reasonable
grounds. See Democratic Cong. Campaign Comm. v. FEC, 831 F .2d 1131, 1134 (D.C.
Cir. 1987); 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). Here, the FEC's investigation of AIPAC in
MUR 2804 and MUR 2804R produced an exhaustive administrative record totaling
almost 4000 pages in twelve volumes, which was summarized in three lengthy General
Counsel's Reports. See F.A.R. 3671-3778,3842-69; F.A.R. Supp. 3964-85. Moreover,
due to the lengthy history of this case, many courts have already reviewed the adequacy of
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the FEC's investigation. To date, none have found the FEC's work inadequate. lo As
such, plaintiffs argument that further investigation is likely to find evidence of "similar
activities now" is purely speculative and inconsistent with the heavy burden it has to
establish an abuse of discretion.
First, plaintiffs' argument depends on "similar activities" both existing and, unlike
in the past, rising to a significant level. Plaintiffs's simple disagreement with the results
of the FEC's earlier investigation, however, is not enough to warrant further action. See
Common Cause, 655 F. Supp. at 623; see also FECv. Rose, 806 F.2d 1081,1091 (D.C.
Cir. 1986) ("It is not for the judiciary to run roughshod over agency procedures or sit as a
board of superintend [e]nce directing where limited agency resources will be devoted. ").
Absent evidence that the Commission's investigation was so inadequate as to constitute
an abuse of discretion, it is not this Court's place to direct the Commission how to expend
its resources, and it is certainly not the plaintiffs'. Indeed, the Supreme Court itself
merely directed the Commission to consider whether AlP AC was a political committee
only if the Commission decided that AIPAC's spending did not qualify as membership
communications. See Akins Supreme Court Opinion, 524 U.S. at 29 ("If ... the FEC
decides that AIPAC's activities fall within the 'membership communications' exception,
10 Although the D.C. Circuit noted that the investigation may have been insufficient, that
comment was directed to the FEC's investigation into whether AlP AC' s contributions were a
major purpose of the organization. That determination is not at issue on remand, and the D.C.
Circuit's comment was dicta in a footnote in an opinion that was later vacated. See Akins En
Bane Opinion, 101 F.3d at 744 n.13. In contrast, the District Court and the original panel of the
D.C. Circuit found that the FEC had conducted an extensive investigation. See Akins Panel
Opinion, 66 F.3d at 355; Akins I, No. 92-1864, slip op. at 17.
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the matter will become moot.'"). The political committee question has thus become moot.
5. Express Advocacy
Finally, the plaintiffs argue that the FEC improperly failed to find that AIPAC's
past membership communications constituted "express advocacy," thereby warranting an
investigation into AIPAC's current membership communications. Specifically, plaintiffs
contend that the combination of (1) communications from AlP AC urging its members to
choose candidates to support, either financially or by working in their campaigns, and (2)
Campaign Update reports deeming candidates who received the highest ratings on issues
relevant to AIPAC as deserving of support triggers the "express advocacy" exception of
2 U.S.c. § 431(9)(B)(iii). Moreover, plaintiffs assert that the FEC erroneously limited its
assessment of which communications crossed the $2,000 threshold to certain isolated
incidents, rather than considering the costs involved in creating the above combination as
well as AlP AC' s routine, widespread membership communications. 11 As to each of their
arguments, I disagree.
Supreme Court precedent indicates that for a communication to constitute "express
advocacy," it must "in express terms advocate the election or defeat of a clearly identified
candidate for federal office" by using words "such as 'vote for,' 'elect,' 'support,' 'cast
your ballot for,' 'Smith for Congress,' 'vote against,' 'defeat,' 'reject.'" Buckley, 424
U.S. at 44 & n.52. In Federal Election Commission v. Massachusetts Citizens for Life,
11 Plaintiffs also argue that the FEC's assertion that their allegations were barred by the
applicable statute of limitations was contrary to law and, regardless, there is no reason to believe
AIPAC has not continued its election-related membership communications to the present day.
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the Court found that a publication that "urges voters to vote for 'pro-life' candidates" and
"identifies and provides photographs of specific candidates fitting that description"
constituted express advocacy, even though "this message is marginally less direct than
'Vote for Smith. '" 479 U.S. 238, 249 (1986) ("MCFL"). In contrast, in Federal Election
Commission v. Christian Coalition, the District Court found that a communication
including both a scorecard with candidates' voting records and a cover letter explaining
that the scorecard '''will give America's Christian voters the facts they need to distinguish
between GOOD and MISGUIDED Congressmen'" was not express advocacy. 52 F.
Supp. 2d 45,64-65 (D.D.C. 1999) (quoting cover letter). The District Court in Christian
Coalition also found that explicit directives such as "stand together," "get organized," and
"start now," all for the purpose of "making our voices heard in the elections" fell short of
express advocacy. Id. at 64.
Here, the plaintiffs argue that the combination of communications urging AIPAC
members to support unidentified candidates with "Campaign Update" reports that include
information identifying which candidates rate best on issues relevant to AlP AC are, in
effect, express advocacy. Fiddlesticks! Putting aside the substantial problem of proof as
to whether any individual AlP AC members actually received both of these
communications within a close enough period of time to even suggest they should be read
together, and the novel legal question of whether two communications can even be
combined in this manner to constitute express advocacy, this proposed combination falls
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far short of the "pointed exhortations to vote for particular persons" that is required for
express advocacy. MCFL, 479 U.S. at 249. Communications from AIPAC that state,
"We urge you to choose candidates to support and we urge you to support them
financially or by working in their campaigns," stand in sharp contrast to the newsletter at
issue in MCFL, which urged its members to "vote pro-life" and then, in the same
document, identified by name and picture the candidates who were "pro-life." See id. at
249. The Campaign Update reports that plaintiffs rely on as identifying particular
candidates for AIPAC members to support consisted primarily of voting records and
electoral prospects of candidates, similar to the scorecards found in Christian Coalition.
See F.A.R. 3700; see, e.g., S.A.R. 123-24 (describing Lawton Chiles' voting record and
re-election prospects); see also 2 U.S.C. § 431 (9)(B)(iii) (carving out communications
"primarily devoted to subjects other than ... express advocacy" from the express
advocacy exception to membership communications). Urging organization members to
become politically active in general, or even to lobby incumbents on certain issues, is not
express advocacy. See Christian Coalition, 52 F. Supp. 2d at 64. The general categories
of communications plaintiffs attempt to bundle together fall closer to the line drawn in
Christian Coalition than those in MCFL. Not surprisingly, plaintiffs failed in both their
administrative complaint and in their pleadings before this Court to identify a single
specific instance of express advocacy.12 See S.A.R. 345. Therefore, the Court finds no
12 Plaintiffs' remaining arguments regarding MUR 5272 are premised on the first one and
thus also fail. The Commission did not erroneously limit its consideration of costs by refusing to
consider the costs in creating the above-described combination of communications or the cost of
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abuse of discretion with respect to the plaintiffs' express advocacy allegations.
CONCLUSION
This never ending legal saga has spanned almost twenty years, multiple
administrative complaints, and the careers of numerous Judges and Justices. To say the
least, the time to complete the judicial review of these FEC decisions is long overdue.
While time will tell what role, if any, this Opinion will have played in this interminable
legal drama, I certainly trust that I will be the last District Judge that has to wrestle with
this seemingly inexhaustible Hydra.
In the meantime, for all of the foregoing reasons, the Court DENIES the plaintiffs'
Motion for Summary Judgment, GRANTS the defendant's Cross-Motion for Summary
Judgment, and DISMISSES the action in its entirety. An order consistent with this
decision accompanies this Memorandum Opinion.
United States District Judge
AIPAC's membership communications in general. See 2 U.S.C. § 431 (9)(B)(iii) (requiring
spending be "directly attributable to a communication expressly advocating the election or defeat
of a clearly identified candidate" (emphasis added)). Finally, the Commission acted within its
prosecutorial discretion in considering the lack of evidence supporting the plaintiffs' position.
See Common Cause, 655 F. Supp. at 623. Regardless, because the plaintiffs' combination
approach to express advocacy is fatally flawed, any further investigation into similar present-day
communications would have been pointless.
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