ࡱ> u  !"#$%&'()*+,-./0123456789:;<=>?@ABCDEFGHIJKLMNOPQRSTUVWXYZ[\]^_`abcdefghijklmnopqrstvwxyz{|}~Root Entry Fl_\@CompObjnWordDocumentObjectPool@_\@_\  FMicrosoft Word 6.0 Document MSWordDocWord.Document.69q_Oh+'0h   $ Hl  D(C:\MSOFFICE\WINWORD\TEMPLATE\NORMAL.DOT Nate McMahon@ێ"@Y@"Hkܥe= eggjjjjjjjDDDDDD N<D1%Tf j4jjjj~ jjjj2 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. MANKS, ANDREW KILLGORE, AND ORIN PARKER ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT BRIEF FOR THE PETITIONER 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 respondents had standing to challenge the Federal Election Commission's decision not to bring an enforcement action in this case. 2. 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 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. (1) ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Opinions below . . . . 1 Jurisdiction . . . . 1 Constitutional and statutory provisions involved . . . . 2 Statement . . . . 2 Summary of argument . . . . 18 Argument: I. Respondents lack standing to bring this suit . . . . 21 A. Respondents' asserted injury as "competi- tors" of AIPAC does not satisfy Article III and is not within the zone of interests protected by the FECA . . . . 24 B. Respondents' interest as voters is insuffi- ciently particularized to provide a basis for suit . . . . 28 C. Respondents' asserted injuries are not likely to be redressed by a favorable judicial ruling . . . . 29 II. The Federal Election Commission did not act in a manner "contrary to law" in finding no probable cause to believe that AIPAC was a political committee under 2 U.S.C. 431(4)(A) and therefore had violated 2 U.S.C. 433 and 434 . . . . 31 A. This Court's precedents hold that an organi- zation will be deemed a "political committee" under the FECA only if the organization's "major purpose" is campaign-related activity . . . . 32 B. The Commission's finding of no probable cause to believe that AIPAC was apolitical committee under 2 U.S.C. 431(4)(A) was con- sistent with this Court's decisions . . . . 37 Conclusion . . . . 50 (III) ---------------------------------------- Page Break ---------------------------------------- IV TABLE OF AUTHORITIES Cases: Allen v. Wright, 486 U.S. 737 (1984) . . . . 22, 25, 28 Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990) . . . . 9 Bennet v. Spear, 117 S. Ct. 1154 (1997) . . . . 22, 26 Buckley v. Valeo, 424 U.S. 1 (1976) . . . . passim Carter/Mondale Presidential Committee, Inc. v. FEC v. Democratic Senatorial Campaign Com- mittie, 454 U.S. 27 (1981) . . . . 10, 49 FEC v. GOPAC, Inc., 917 F. Supp. 851 (D.D.C. 1996) . . . . 39 FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986) . . . . passim FEC v. National Conservative Political Action Comm., 470 U.S. 480 (1985) . . . . 45 FEC v. National Republican Senatorial Comm., 966 F.2 1471 (D.C. Cir. 1992) . . . . 24 Heckler v. Chaney, 470 U.S. 821 (1985) . . . . 23 International Assn of Machinists &m Aerospace Workers v. FEC, 678 F.2d 1092 (D.C. Cir.), affd mem., 459 U.S. 983 (1982) . . . . 27 Linda R. S. v. Richard D., 410 U.S. 614 (1973) . . . . 23 Liquid Carbonic Indus. Corp. v. FERC, 29 F.3d 967 (D.C. Cir. 1994) . . . . 23 Lorillard v. Pons, 434 U.S. 575 (1978) . . . . 33 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) . . . . 22, 24 NAACP v. Alabama, 357 U.S. 449 (1958) . . . . 43 ---------------------------------------- Page Break ---------------------------------------- V Cases-Continued: National Rifle Ass'n v. FEC, 854 F.2d 1330 (D.C. Cir. 1988) . . . . 10 Public Citizen v. United States Dep't of Justice, 491 U.S. 440 (1989) . . . . 23 Raines v. Byrd, 117 S. (1,. 2312 (1997) . . . . 22, 25 Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26 (1976) . . . . 22, 26 United States v. Harriss, 347 U.S. 612 (1954) . . . . 38 Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464 (1982) . . . . 22 Warth v. Seldin, 422 U.S. 490 (1975) . . . . 28 Whitmore v. Arkansas, 495 U.S. 149 (1990) . . . . 22 Constitution, statutes and regulations: U.S. Const.: Art. III . . . . 12, 13, 17, 18, 19, 21, 22, 25, 28 Amend. I . . . . 2, 44 Administrative Procedure Act. 5 U.S.C. 551 et sea.: 5 U.S.C. 552(a)(4)(E) . . . . 24 5 U.S.C. 702 . . . . 23, 26 Federal Election Campaign Act Amendments of 1979, Pub. L. No. 96-187, 101,93 Stat. 1339 . . . . 33 Federal Election Campaign Act of 1971,2 U.S.C. 43 I et seq.: 2 U.S.C. 431(4)(A) (3 301(4)(A)) . . . . . . . . . . . . . . 2, 3, 13, 32, 33, 35, 39, 47 2 U.S.C. 431(4)(B) . . . . 35 2 U.S.C. 431(8)(A) (301(8)(A)) . . . . 3 2 U.S.C. 431(9)(A) (301(9)(A)) . . . . 3 3 U.S.C. 431(9) (B)(iii) . . . . 10 2 U.S.C. 431(11) . . . . 4 2 U.S.C. 431(17) . . . . 3, 4, 41 2 U.S.C. 432 . . . . 3 2 U.S.C. 433 . . . . 4, 9, 10, 19, 25, 37,31 2 U.S.C. 434 . . . . 9, 10, 19, 25, 37, 38 2 U.S.C. 434(b)(3) . . . . 4, 48 2 U.S.C. 434(b)(3)(G) . . . . 4, 42 ---------------------------------------- Page Break ---------------------------------------- Statutes and Regulation-Continued: Page 2 U.S.C. 434(b)(6)(B)(v) . . . . 4, 42 2 U.S.C. 434(c) . . . . 4, 36, 45, 48 2 U.S.C. 437c(b)(1) . . . . 6 2 U.S.C. 437d(a) . . . . 6 2 U.S.C. 437d(e) . . . . 6 2 U.S.C. 437f . . . . 6 2 U.S.C. 437g . . . . 6, 17 2 U.S.C. 437g(a)(1) . . . . 6 2 U.S.C. 437g(a)(2) . . . . 6 2 U.S.C. 437g(a)(5) . . . . 30 2 U.S.C. 437g(a)(8)(A) . . . . 6, 19, 22, 23, 29, 30 2 U.S.C. 437g(a)(8)(C) . . . . 6-7, 14, 24, 32 2 U.S.C. 437h . . . . 6 2 U.S.C. 441a(a)(7)(B)(i) . . . . 3 2 U.S.C. 441a(a)(1)(C) . . . . 4 2 U.S.C. 441b . . . . 7, 19, 10, 11, 30, 31, 36, 46 2 U.S.C. 441b(b)(2)(C) . . . . 7 11 C.F.R.: Section 100.8(b)(4) . . . . 10 Section 114.1(e)(2) . . . . 31 Section 114.3(a)(2) . . . . 10 Miscellaneous: Advisory Opinion: 1994-25, 2 Fed. Election Camp. Fin. Guide (CCH) 6125 (1994) . . . . 38 1995-11, 22 Fed. Election Camp. Fin. Guide (CCH) 6148 (1995) . . . . 38 58 Fed. Reg. 45, 775 (1993) . . . . 31 H.R. Rep. No. 917, 94th Cong., 2d Sess. (1976) . . . . 41 ----------------------------------------- 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 WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT BRIEF FOR THE PETITIONER OPINIONS BELOW The opinion of the en bane court of appeals (Pet. App. la-40a) is reported at 101 F.3d 731. The opinion of the court of appeals panel (Pet. App. 41a-74a) is re- ported at 66 F.3d 348. The opinion of the district court (Pet. 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 Chief Justice extended the time for filing a peti- tion for a writ of certiorari to and including April 7, (1) ---------------------------------------- Page Break ---------------------------------------- 2 1997. The petition for a writ of certiorari was filed on April 7, 1997, and was granted on June 16, 1997. The jurisdiction of this Court rests on 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 es- tablishment of religion, or prohibiting the free ex- ercise there of 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" committee" 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) gov- erning the activities of a "political committee de- fined by the Act to include "any committee club, as- sociation, 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." ---------------------------------------- Page Break ---------------------------------------- 3 2 U.S.C. 431(4) (A).1 The FECA requires political committees to satisfy certain organizational require- ments. 2 U.S.C. 432. The Act also requires a politi- cal committee to register with the Federal Election ___________________(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" ex- penditures, 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 expendi- tures]," by contrast, are defined as "expenditure[s] by a person expressly advocating the election or defeat of a clearly identi- fied candidate which [are] made without cooperation or consul- tation 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 Commission (FEC or Commission). 2. U.S.C. 433, A political committee is required to make comprehen- sive public disclosures of all of its receipts and dis- bursements, even those that bear no direct relation to electoraI campaigns. See, e.g., 2 U.S.C. 434(b)(3)(G), 434(b)(6)(B)(v); Pet. App. 3a ("Once designated a po litical 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.). The FECA pro- vides in addition that no person may make contribu- tions to a political committee which, in the aggregate, exceed $5,000 in a calendar year. 2 U.S.C. 441a{a)(l) (C); see FEC v. Massachusetts Citizens for Life, Inc. 479 U.S. 238, 253-254 (1986) (MCFL) (Plurality opinion) (describing requirements applicable to politi- cal 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 my "organization or group of person," 2 U.S.C. 431(11)) that make inde- pendent election expenditures (see 2 U.S.C. 431(17); note 1, supra) aggregating more than $250 and are not political committees are required to file disclosure reports with the Commission. MCFL, 479 U.S. at, 252-253 (plurality opinion). In ad- dition, any contributions (including coordinated ex- penditures) aggregating more than $200 from " persons " to candidates or political committees must be reported by the recipient. 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 com- prehensive disclosures of all of its receipts and ---------------------------------------- Page Break ---------------------------------------- 5 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 abroad array of issues concern- ing the construction and constitutionality of the Act. The Court observed: The general requirement that '' political commit- tees" and candidates disclose their expenditures could raise * * * vagueness problems, for " po- litical committee " is defined only in terms of amount of annual "contributions " and "expendi- tures," and could be interpreted to reach groups engaged purely in issue discussion. The lower courts have construed the words " political com- mittee" more narrowly. To fulfill 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 candi- dates and of " political committees " so construed can be assumed to fall within the core area sought to be addressed by Congress. They are, by defini- tion, 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 en- tity 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. And the Court observed that, " should MCFL's independent spending become so extensive that the organization's major purpose may be re- ---------------------------------------- Page Break ---------------------------------------- 6 garded 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 en- forcement of the FECA. See 2 U.S.C. 437c(b)(l), 437d (a) and (e), 437f, 437 & Congress has authorized the Commission to formulate policy " under Act, 2 U.S.C. 437c(b)(1); to institute investigations of pos- sible 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 enforcement of the Act, 2 U.S.C. 437c(b), 437d(e) and to initiate actions in the federal courts to determine the constitutionality of any provision of the Act, 2 U.S.C. 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 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 Commis- sion dismissing-a complaint filed by such party under paragraph (1), or by a failure of the Com- mission 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 re- viewing court may declare that the dismissal of the complaint or the failure to act is country to law, and may di- rect the Commission to conform with such decla- ration within 30 days, failing which the com- ---------------------------------------- Page Break ---------------------------------------- 7 plainant may bring, in the name of such complain- ant, 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 a budget of approximately $10 million. Its stated purpose is to maintain and improve friendship and goodwill between the United States and Israel. The organization's ac- tivities include lobbying Congress and the Executive Branch for military and economic aid to Israel. Pet. App. 2a-3a. For example, AIPAC's 1989 Policy State- ment listed eleven goals for that year, including items such as " promote peace between Israel and its Arab neighbors," and "oppose the sale of sophisticated U.S. arms to Arab countries in a declared state of war with Israel "; none of the 1989 goals mentioned elections or candidates. J.A. 137-138. AIPAC grew out of the work of the American Zionist Council, which in 1954 created a separate full-time lobbying entity called the American Zionist Committee for Public Affairs- renamed AIPAC in 1959. J.A. 120. Respondents are former ambassadors, Members of Congress, or other government officials. In 1989 they filed an administrative complaint with the Commis- sion, alleging that AIPAC had violated the FECA. Respondents alleged that AIPAC had made campaign contributions and expenditures on behalf of candi- dates for federal office, in violation of 2 U.S.C. 441b, which prohibits corporations from making such con- tributions and expenditures except through the estab- lishment of a separate segregated fund pursuant to 2 U.S.C. 441b(b)(2)(C). Respondents also alleged that ---------------------------------------- Page Break ---------------------------------------- 8 AIPACs activities brought it within the statutory definition of political committee, and that it had failed to comply with the FECA requirements to which political committees are subject. See Pet. App. 3a-4a.2 The FECs General Counsel investigated the alle- gations. The General Counsel issued s report con- cluding that AIPAC has not become a political committee un- der the Act because AIPACs 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 ma- jor purpose. The evidence shows that AIPAC is primarily and fundamentally a lobbying organiza- tion interested in U.S. Israel relations and in leg- islation affecting Israel. Its campaign-related ac- tivities and communication are undertaken as an adjunct to, and in support of, its lobbying efforts. J.A. 146; see J.A. 37-38 (AIPACs political activities did not rise to such a level as to make them a major purpose of the organization.); Pet. App. 43a. The General Counsel therefore recommended that the Commission find no probable cause to believe that ___________________(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 fed- eral office, systematically disseminated campaign litera- ture including candidates position papers, and con- ducted regular meetings and phone calls with AIPAC supporters encouraging them to provide aid to particular candidates. Pet App. 3a-4a. ---------------------------------------- Page Break ---------------------------------------- 9 AIPAC had violated 2 U.S.C. 433 and 434, the organ- izational and reporting requirements applicable to po- litical committees. J.A. 152, 179. The General Coun- sel recommended, however, that the Commission find probable cause to believe that AIPAC had violated 2 U.S.C. 441b. J.A. 152, 179. 3 ___________________(footnotes) 3 The General Counsel concluded that "AIPAC ha[d] made, in cooperation, consultation, or coordination with federal candi- dates, communications to persons urging support, financial or otherwise, for such federal candidates or providing assistance to federal candidates in their campaigns." J.A. 37. The Gen- eral Counsel also concluded that had made coordinated expenditures, in violation of 2 U.S.C. 441b, by acting as a con- tact between its supporters and various candidates or their fundraisers. See J.A. 106-109. The Court in MCFL 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 earn- ings "; and (3) " was not established by a business corporation or a labor union, and it is its policy not to accept contributions from such entities. " 479 U.S. at 264. Because those features " essential to [the Court's] holding " obviated the concerns underlying Section 441b, the Court concluded that corporations with those three features " may not constitutionally be bound by 441b's restriction on independent spending. " Id. at 263-264. Compare Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 662 (1990) ( " Because the Chamber does not share these crucial features, the Constitution does not require that it be exempted " from a comparable state ban on corporate campaign expenditures). In the instant case, the FEC'S General Counsel concluded that AIPAC does not fall within the MCFL exception to Sec- tion 441b because AIPAC has accepted contributions from business corporations. J.A. 150-152. In any event, the MCFL exception applies only to independent expenditures. See 479 ---------------------------------------- Page Break ---------------------------------------- 10 Consistent with the recommendation of the General Counsel, the Commission unanimously found no prob- able cause to believe that AIPAC had violated Sec- tions 433 and 434. Pet. App. 95a. 4. The commission found probable cause to believe that AIPAC had vio- lated Section 441b. Ibid. The FEC voted, however, to take no action regarding that determination, ibid, ex- plaining that the Commission should clarify its membership definition before imposing penalties in close cases such as this, id. at 98a. 5 ___________________(footnotes) U.S. at 259-260, 263. AIPAC would therefore he prohibited from making direct or in-kind contributions (except through a separate segregated fund) even if it satisfied the criteria set forth in MCFL. 4 Absent some affirmative contrary indication, the General Counsels report is presumed to set forth the Commissions ra- tionale for action consistent with the General Counsels recom- mendation. See, e.g., FEC v. Democratic Campaign Committee, 454 U.S. 27, 38 & n.19 (1981); National Rifle Assn v. FEC, 854 F.2d 1330, 1337 n.7 (D.C. Cir. 1988); Carter/ Mondale Presidential Committee, Inc. v. FEC, 775 F.2d 1182, 1186-1187 & n.2 (D.C. Cir. 1985). 5 AIPAC contended that the alleged contributions in this case involved communications to AIPACs own members and were therefore exempt from Section 441bs prohibition on cor- porate campaign contributions and expenditures. The FECAs definition of expenditure generally excludes any communi cation by any membership organization or corporation to its members, stockholders, or executive or administrative person- nel. 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 Counsels recommenda- tion, a majority of the Commissions membership criteria, and there- fore meet the Commissions membership criteria, and there- fore found probable cause to believe that AIPAC had violated Section 441b. Pet. App. 98a. The commission concluded that ---------------------------------------- Page Break ---------------------------------------- 11 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; they did not contest the Commission's decision to take no action with respect to AIPAC's alleged viola- tion of Section 441b. See J.A. 9-26. Respondents al- leged that they "are politically active persons who * * * oppose AIPAC views on U.S. foreign policy in the Middle East." J.A. 11. Respondents further al- leged that they "compete with AIPAC in seeking to influence the views and actions of members of Con- gress, executive policymakers, and the public," and that the Commission's dismissal of their administra- tive complaint " has given AIPAC an illegal advantage in this competition." Ibid. The district court granted summary judgment for the Commission. The court concluded that "the Com- mission interpreted properly the statutory definition of `political committee' and the `major purpose' test." Pet. App. 92a. The court also determined that "the Commission's application of the major purpose test to the facts presented * * * regarding AIPACs campaign-related activities was reasonable." Ibid. 5. A divided panel of the court of appeals affirmed. Pet. App. 41a-74a. The panel first held that respon- dents had standing to bring their suit. Relying on circuit precedent, the panel held that respondents' as- serted "informational injur[y]'' -i.e., respondents' ___________________(footnotes) 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 441 b." Ibid. ---------------------------------------- Page Break ---------------------------------------- 12 contention that " their ability to influence and inform policymakers and the public is impaired by the lack of information about AIPACs contributors and expendi- tures," id. at 45a was-sufficient to meet the re- quirements of Article III. Id. at 45a-46a. The court also concluded that, [b]ecause [respondents] allege that they are voters and persons who seek to "commu- nicate to policymakers and the public about AIPAC's campaign contributions, their interest in information about campaign contributions falls within the zone of interested intended to be served by the statute." Id. at 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" The Panel explained: Although Buckely 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 through 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 cases like NAACP v. Alabama, 357 U.S. 449,460 (1958). It is our duty in the interpretation of a federal stat- ute to avoid serious constitutional doubt. United States v. Rumely, 345 U.S. 41,47 (1953). ___________________(footnotes) Pet. App. 55a-56a (parallel citations omitted). The panel concluded that "[b]ecause a judical gloss on the statute has limited the application of FECA's restric- ---------------------------------------- Page Break ---------------------------------------- 13 tions 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." Id. at 56a. Judge Silberman filed an opinion concurring in part and dissenting in part. Pet. 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 in- terests regarding Arab-Israeli disputes," Judge Sil- berman viewed the suit as "akin to one brought by an economic competitor " and concluded that respondents satisfied the requirements of Article III. Id. at 58a- 59a. On the merits, Judge Silberman acknowledged that " there is language in Buckley and MCFL that can literally be read to support the FEC'S position." Id. at 68a. He concluded, however, that the " major purpose " test could not properly be applied to an or- ganization that had made contributions (as opposed to independent expenditures) in excess of Section 431(4 )(A)'s $1,000 limit. Id. at 73a. Judge Silberman asserted that any such organization would be subject to the statutory requirements applicable to political committees, without regard to the organization's ma- jor purpose. Ibid. 6. The court of appeals vacated the panel decision and granted rehearing en bane. Pet. App. 75a-76a. The en bane court of appeals subsequently reversed the judgment of the district court. Id. at la-40a. a. The court of appeals first concluded that re- spondents had standing as voters because "[t]hey have ___________________(footnotes) 6 The panel also upheld, as reasonable, the Commission's determination that campaign-related activities were not a major purpose of AIPAC. Pet. App. 57a-58a. ---------------------------------------- Page Break ---------------------------------------- 14 been deprived of certain specific information that Congress thought voters needed to make an informed choice and therefore required `political committees,' inter alia, to disclosed " Pet. App 8a. The court ex plained 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 de- prived 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." Id at 12a. Because it concluded that respondents " have standing as affected voters.," it declined to " resolve whether [respondents] also have standing as political competi- tors of AIPAC, or whether respondents Findley- who was last a candidate in 1982 has standing as a candidate." Id. at 13a (citation omitted). The court also rejected the FEC's argument that respondents' claim was not redressable because the Commission possesses enforcement discretion and" might decline to compel disclosure-by AIPAC. The court explained that " it has always been an acceptable feature of judicial review of agency action that a petition tioner's injury' is redressed by the reviewing court not withstanding that the age might well subse quently legitimately decide to reach the same result through different reasoning. " Pet. App. 15a. The court of appeals also noted that respondents 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 [Sec- tion 437g (a)(8)(C)] that if the Commission gave only lip service to compliance with [the court's] order and settled with AIPAC without requires disclosure, ---------------------------------------- Page Break ---------------------------------------- 15 * * * [respondents] would be able to seek disclosure directly." Ibid. b. On the merits, the court of appeals concluded 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 conclu- sion was entitled to deference under the principles announced in Chevron U.S.A. Inc. v. Natural Re- sources Defense Council, Inc., 467 U.S. 837 (1984). Because the controversy involved the proper con- struction of this Court's opinions in Buckley and MCFL, the court concluded, deference was inappro- priate. Pet. 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 limita- tion imposed in certain circumstances for constitu- tional reasons applies in another circumstance-this case-in which the same constitutional concerns may not be implicated." Pet. App. 20a. The court acknowl- edged that " language in Buckley and MCFL can lit- erally be read to support the FEC'S position." Id. at 21a. The court reasoned, however, that " both cases focused on the constitutional concerns raised by inde- pendent expenditures * * * as distinguished from coordinated expenditures or direct contributions. " Ibid. The court noted that " [independent expendi- tures 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 pre- venting election corruption." Ibid. It concluded that the Buckley Court " clearly distinguished independ- ent expenditures and contributions as to their consti- tutional significance, and its references to a major purpose' test seem to implicate only the former." Id. ---------------------------------------- Page Break ---------------------------------------- 16 at 24a. The court of appeals read the , MCFL opinion in a similar fashion. Id. at 24a-25a. The court of appeals also suggested an alternative basis for its conclusion `that AIPAC was a political committee. Respondents "argue[d] that the major purpose test is properly employed to determine whether an organizations 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." Pet. App. 26a n.11. On respondents' view of the statute, any or- ganization making expenditures (defined as disb- ursements whose major purpose is to influence federal elections) aggregating more than $1,000 year is a political committee, regardless of the major purpose of the organization as a whole. The court of appeals, while declining " to determine " finally whether [respondents'] version of the test is the only possible one, " ibid., construed. prior case law to support that approach. See. id. at, 26a (D.C. Circuit precedent " indicates that, as, [respondents] " contend, " it is the purpose of the organization's- disbursements not of the organization itself, that relevant " ). The court of appeals also believed' that the Commiss- ion's approach would have untoward practical conse- quences. Thus, the court stated The FEC'S interpretation of "political commit- tee" 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 im- posed on political committees. Thus, an organiza- tion spending its entire $1milllion budget on cam- ---------------------------------------- Page Break ---------------------------------------- 17 paign activity would be a political committee, while another organization spending $1million of its $l00 million budget on campaign activity would not. Pet. 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 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 campaign contributions in ex- cess of $1,000. Its decision that no probable cause existed to believe AIPAC was a political commit- tee, 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 complaint and remand to the FEC for further action not incon- sistent with this opinion. Pet. App. 29a. c. Judge Sentelle, joined by Judge Henderson, dis- sented. Pet. App. 30a-40a. The dissenting judges con- cluded that respondents asserted only a "generalized grievance ''-" a diffuse rather than a particularized injury ''-and therefore lacked standing under Article III. Id. at 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. " Id. at 38a. The dissenting judges also concluded that ---------------------------------------- Page Break ---------------------------------------- 18 any injury respondents might have suffered was not redressable by a judicial order. They explained that respondent " claim redressability depends on the linked chain that the Commission will enter an order against AIPAC requiring the information [respon- dents seek, that AIPAC " will comply- with that order, and that [respondents] will be sufficiently inter- ested in the information thus produced that they will renew their claim on FEC to present them with that information." Id. at 40a. In the view of the dissenting judges, that chain interferences was " too attenuated to provide the sort redressability necessary to meet Article III standing." Ibid. SUMMARY OF ARGUMENT 1. A. Respondents' complaint alleged that. they oppose AIPAC's views concerning U.S. foreign policy, and that the Commission's decision not to undertake an enforcement action has given AIPAC an unlawful advantage in a competition To influence public and government opinion. That allegation is in sufficient to establish that respondents possess the requisite personal stake in the- litigation. The any event, respondents alleged, competitive injury does not fall within the zone of interests by the FECA generally or the Act's political committee provisions in particular, B. Respondents' alternative interest as voters is insufficiently particularized to provide a basis for their suit. The theory articulated by the court of appeals-that respondents have standing because they vote in elections in which AIPAC may have made contributions -would apply equally to an registered voters in the United States. Respondents' alleged injury a " generalized grievance " rather than the ---------------------------------------- Page Break ---------------------------------------- 19 particularized harm required to establish standing under Article 111. Even if that injury were sufficient to satisfy constitutional requirements, moreover, this suit should not go forward. In light of the background rule that the government's decision not to take an enforcement action against a third party is ordinarily not reviewable at all, Section 437g(a)(8)(A) should not be construed so broadly as to encompass a "grievance" that is shared by the entire electorate. C. Respondents' asserted injuries are not likely to be redressed by a favorable judicial ruling. The Commission is not required to institute an enforce- ment action in every case in which it believes a vio- lation has occurred. AIPAC consistently has argued that it is not a political committee even under respon- dents' proposed construction of the Act, and its view might prevail in court should an enforcement action go forward. It is also quite possible that a court would impose, or the Commission would negotiate, a remedy that did not include the disclosures sought by respondents. 2. A. The Commission did not act in a manner "contrary to law " in finding no probable cause to be- lieve that AIPAC had violated 2 U.S.C. 433 and 434. Under this Court's precedents, the FECA's political committee provisions apply only to organizations that are controlled by a candidate or whose major purpose is campaign-related activity. The Court first an- nounced that construction of the Act in Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), and reaffirmed that approach in FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986) (MCFL). B. Consistent with this Court's decisions in Buck- ley and MCFL, the FEC determined that campaign- related activity was not AIPAC's major purpose and ---------------------------------------- Page Break ---------------------------------------- 20 that the organization therefore was not a political committee. The court. of appeals overturned that find- ing, suggesting two alternative bases for, its conclu- sion that AIPAC should be treated as a political com- mittee. Neither of three theories is consistent with this Court's precedents. i. The court of appeals suggested that the "major purpose" test might appropriately be used to deter- mine whether a particular disbursement is an "expen- diture" counting towards the $1,000 statute- thresh- old. On that theory, an organization that makes camp- aign expenditures (defined as disbursements whose major purpose is to influence federal elections) aggre- gating more than $1,000 per year is, ipso facto, a political committee, regardless if the major purpose of the organization as a whole, As articulated in Buckley and MCFL, however, the "major purpose" test focuses unambiguously on the purpose of the or- ganization, not on the purpose of a particular dis- bursement. That is particularly clear from MCFL, which held that an organization -making nearly $10,000 in campaign-related expenditures was not a political committee because its central organizational purpose was issue advocacy. ii. The court of appeals also concluded that the practical and constitutional concerns underlying the "major purpose" test are implicated only when the disbursements that exceed the statutory threshold are independent expenditures, and are inapplicable to an organization that makes, makes more than $1,000 per year in direct contributions or coordinated expenditures. That conclusion was incorrect. With respect to re- porting requirements the distinctive consequence of political committee status is that an organization is required to disclose all of its receipts and disburse- ---------------------------------------- Page Break ---------------------------------------- 21 ments, even those that have no direct relation to elec- toral activity. The limiting construction given to the statutory term " political committee " in Buckley serves to address the 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, includ- ing receipts and disbursements used for issue advo- cacy. That danger is equally present whether the triggering disbursements are independent expendi- tures or direct contributions. C. Thus, the "major purpose" test responds to the concern that the FECA's disclosure requirements might unnecessarily burden the non-campaign- related speech of an organization that only occasion- ally makes election expenditures. Contrary to the court of appeals' conclusion, application of the "politi- cal committee " provisions to groups that only occa- sionally engage in campaign activity is unnecessary to ensure that significant contributions and in- dependent expenditures are exposed to public view. AIPACs campaign-related activity will be subject to reporting requirements even if it is not a political committee. To require groups that are minimally in- volved in campaign-related activity to report all of their receipts and disbursements is unnecessary to effectuate the purposes of the Act. ARGUMENT I. RESPONDENTS LACK STANDING TO BRING THIS SUIT Article III of the Constitution confines the juris- diction of the federal courts to actual "Cases" and "Controversies," and "the doctrine of standing serves to identify those disputes which are appropriately re- ---------------------------------------- Page Break ---------------------------------------- 22 solved through the judicial process." Whitmore v. Arkansas, 495 U.S. 149, 155 (1990). To satisfy the "case" or "controversy" require- ment of Article III, which is the "irreducible con- stitutional 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, 117 S. Ct 1154+ 1161 (1997). See also, e.g., Raines v. Byrd, 117 S. Ct. 2312, 2317-2318 (1997); Lujan v. Defenders of Wildlife U.S. 555, 560-561" (1992); Allen v. Wright, 468 U.S. 737, 751 (1984); Valley Forge Christian College v. Americans Limited for Separation of Church and State, Inc., 454 U.S. 464,472 (1982); Simon v. Eastern Kentucky Wel- fare Rights Org., 426 U.S. 26,41-42 (1976). As we ex- plain below, respondents cannot meet those require- ments. Even if a plaintiff satisfies the requirements of Article III, moreover, it does not follow that his suit can go forward. " Congress legislates against the background of [this Court's] prudential standing doctrine, which applies unless it is expressly negated. " Bennett, 117 S. Ct. at 1162. In the instant case, respondents' suit rests on 2 U.S.C. 437g(a)(8)(A), which provides that [a]ny party aggrieved by an order of the Commis- sion dismissing a complaint by such party under paragraph (l), or by a failure of the Com- mission to act on such complaint during the 120 day period beginning on the date the complaint is ---------------------------------------- Page Break ---------------------------------------- 23 filed, may file a petition with the United States District Court for the District of Columbia. For two reasons, Section 437(g)(a)(8)(A) should be given a narrow construction. First, 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. Chancy, 470 U.S. 821, 831-832 (1985); Linda R. S. V. Richard D., 410 U.S. 614, 616-619 (1973). Second, the statutory review provision under which respondents' action was brought is narrower than that in the Administrative Procedure Act (APA), which authorizes suits by persons " adversely affected or aggrieved by agency action within the meaning of a relevant statute." 5 U.S.C. 702. The FECA does not authorize suits by persons "adversely affected, " but only by persons "aggrieved " by the FEC'S dismissal of a complaint that they have filed with the Commission. 2 U.S.C. 437g(a)(8)(A); cf. Liq- uid Carbonic Indus. Corp. v. FERC, 29 F.3d 697, 702 (D.C. Cir. 1994) (Federal Power Act provision author- izing judicial review for "[a]ny party * * * ag- grieved " is narrower than APA's judicial review pro- vision).7 ___________________(footnotes) 7 This Court's "decisions interpreting the Freedom of Information Act [FOIA] have never suggested that those requesting information under it need show more than that they sought and were denied specific agency records." Public Citizen v. United States Dep't of Justice, 491 U.S. 440, 449 (1989). Contrary to respondents' contention (see Br. in Opp. 15), however, their suit is not properly analogized to one brought under the FOIA. First, the gravamen of an FOIA action is that a government agency has breached its legal duty to disclose to the plaintiff ---------------------------------------- Page Break ---------------------------------------- 24 A. Respondents' Asserted Injury As "Comptitors" Of AIPAC Does Not Satisfy Article III And Is Not Within The Zone Of Interests Protected By The FECA In their complaint, respondents broadly alleged that they "are politically active persons who * * * oppose AIPAC views on US, foreign policy in the Middle East"; that they "compete with AIPAC in seeking to influence the views and actions of members of Con- gress, executive policymakers, and the public"; and ___________________(footnotes) information actually in the government's possession. Respon- dents, by contrast, challenge the Commission's failure to ac- quire, through means of an enforcement action, information in the possession of a private party. Cf. Defenders of Wildlife, 504 U.S. at 562 ( " when the plaintiff is not limited the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily substantially more difficult to establish " ) (internal quotation marks omitted). A successful FOIA action, moreover culminates in a judicial order requiring the government to disclose the information to the plaintiff. See 5 U.S.C, 552(a){4){B) (district court "has jurisdiction to enjoin the agency from witholding agency records and to order the production of any agency records improperly withheld from the complainant ). Respondents' suit, by contrast, could result at most in a "declar[ation ] that the dismissal of [their] complaint * * * is contrary to law, " and an order "directing] the Commission to conform with such declaration within 30 days." 2 U.S.C. 437g(a)(8)(c). Any order directing AIPAC to disclose its receipts and disburse- ments could be entered only in a separate lawsuit, See FEC v. National Republican Senatorial Comm., 966 F.2d 1471, 1476 ( D.C. Cir. 1992). And even if AIPAC were ultimately com- pelled to make such disclosures, the information would not be provided to respondents directly, but would be made available on equal terms to all members of the public. Cf. Defenders of Wildlife, 504 U.S. at 574 (plaintiff lacks standing where the requested relief " no more directly and tangibly benefits him than it does the public at large " ). ---------------------------------------- Page Break ---------------------------------------- 25 that the FEC's dismissal of their administrative com- plaint "has given AIPAC an illegal advantage in this competition." J.A. 11. Respondents' purported com- petitive disadvantage does not constitute Article III injury in fact, and it does not fall within the zone of interests protected by the FECA. 1. In order to satisfy the requirements of Article III, " a plaintiff's complaint must establish that he has a `personal stake' in the alleged dispute." Raines, 117 S. Ct. at 2317. Respondents do not allege that they have suffered pecuniary or other personal injury as a result of their diminished ability to influence gov- ernmental or public opinion. Rather, they allege a "diminution in their political voices-their influence in federal elections." J.A. 12. But just as "an as- serted right to have the Government act in accor- dance with law is not sufficient, standing alone, to confer jurisdiction on a federal court," Allen v. Wright, 468 U.S. 737, 754 (1984), the government's adoption (or the public's support) of policies with which respondents disagree is not enough, in and of itself, to cause them injury in fact. Cf. Raines v. Byrd, 117 S. Ct. at 2318 (Members of Congress lacked standing to sue where their "claim of standing [wa]s based on a loss of political power, not loss of any pri- vate right"): ___________________(footnotes) 8 Respondents have offered no basis, moreover, for con- cluding that AIPACs 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 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 ---------------------------------------- Page Break ---------------------------------------- 26 2. Respondents alleged competitive injury does not fall within the zone of interests protected by the FECA generally or the Act's political committee pro- visions in particular. 9 Because respondents do not al- lege that they engage in any campaign activity-let alone that they make such efforts in support of candi- dates that AIPAC opposes-there is no "competition " between AIPAC and respondents in the sphere regu- lated by the Act. 10. The FECA's disclosure provisions ___________________(footnotes) 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' claims would not' be cognizable in federal court even if their alleged competitive disadvantage were held to constitute injury in fact. 9 The zone-of-interests test was devised as " a gloss on the meaning of [6 U.S.C.] 5702," the judicial review provision of the APA. Clarke v. Securities Industry Ass'n 479 U.S 388. 395 (1987). This Court has applied the zone of interests test outside the context of APA review, while "ma[king] clear *** that the breadth of the zone of interests varies according to the provisions 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 for other purposes." Bennett, 117 S. Ct. at 1161 (internal quotation marks omitted). As we explain above, see page 23, supra, the statutory review provision under which respondents' action was brought is narrower than that in the APA it does not authorize suits by persons " adversely affected," but only by persons "aggrieved " by the FEC's dismissal of a complaint that they have filed with the Commission. 10 The court of appeals suggested that the (Commission had conceded respondent Findley's standing as a candidate. See Pet. App. 6a & n.2. That is incorrect. Respondents did not allege that Findley had standing as candidate or intended to run for office in the future, although they did allege that Findley was a former member of the House of Representatives. See J.A. 14. The FECs brief to the en-banc court noted the ---------------------------------------- Page Break ---------------------------------------- 27 were enacted for the purposes of educating the elec- torate, deterring corruption in federal elections, and detecting violations of contribution limits, see Buck- ley v. Valeo, 424 U.S. 1, 66-68 (1976) (per curiam), not to aid lobbyists in gaining influence in the legisla- ture. Compare International Ass'n of Machinists & Aerospace Workers v. FEC, 678 F.2d 1092, 1098 (D.C. Cir.) (en bane), aff'd mem., 459 U.S. 983 (1982) (under provision of the Act designed to balance electoral fundraising between labor and corporate interests, union members had standing because of alleged dimi- nution in their unions' influence in federal elections). Thus, while respondents' allegation that they "are politically active persons who * * * oppose AIPAC views on U.S. foreign policy" (J.A. 11) may differenti- ate them from the public at large, their asserted in- terest is not one that the FECA's disclosure provi- sions were intended to serve. Indeed, a wide range of potential plaintiffs-e.g., purveyors of books or maga- zines focusing on the Middle East-might have a " par- ticularized " interest in obtaining a list of AIPAC's members or donors. Such persons would not, how- ever, be "aggrieved" by the Commission's failure to undertake an FECA enforcement action aimed at compelling disclosure of AIPAC's receipts and dis- bursements, because their interest in obtaining that information would not be one that the FECA was in- tended to protect. Respondents' suit is similarly flawed. ___________________(footnotes) absence of any allegation that respondents were candidates. FEC C.A. In Bane Br. 22. ---------------------------------------- Page Break ---------------------------------------- 28 B. Respondents' Interest As Voters Is Insufficiently Particularized To Provide A BASIS The court of appeals Concluded that respondents had standing as voters, reasoning that "[a] voter- de- prived of useful information at the time he or she votes suffers a particularized injury in some respects unique to him or herself. " Pet. App. 12a. The court acknowledged that respondents " would not be injured as voters if AIPAC's activities were unrelated to any election in which they voted. " Ibid. It concluded, however, that the absence of proof on that point was not fatal to respondents' claim, explaining that whether " AIPAC made contributions in-the elections in which they voted * * * is precisely the informa tion of which [respondents] claim they have been de- prived." Id. at 12a-13a; see also id. at 13a ( " there is nothing to indicate that [respondents] did not vote in various federal elections which AIPAC allegedly made contribution that qualified it as a political committee " ). 1. The court of appeals' analysis does not support its finding of a " particularized injury. " The theory of standing articulated by the court of appeals-that re- spondents vote in elections in, which AIPAC may have made contributions-would- apply equally to all registered voters in the United -States. That as- serted injury is insufficiently concrete and personal to satisfy the requirements of 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 US. 490, 499 (1975). " [T]hat harm alone normally does not warrant exercise of jurisdiction." Ibid.; see Allen v. Wright, 468 US. at 755-756. ---------------------------------------- Page Break ---------------------------------------- 29 2. Even if respondents' alleged injuries as voters satisfied constitutional requirements, this suit should not go forward. In light of the background rule that the government's decision not to take an enforce- ment action against a third party is ordinarily not reviewable at all (see page 23, supra), Section 437g(a) (8)(A) should not be construed so broadly as to encom- pass a " grievance " that is shared by the entire elec- torate. This Court should not lightly conclude that Congress intended to include persons such as respon- dents as parties "aggrieved " by the Commissions dis- missal of a complaint seeking to require it to bring an enforcement action against a private organization with respect to disclosure of all its receipts and dis- bursements. C. Respondents' Asserted Injuries Are Not Likely To Be Redressed By A Favorable Judicial Ruling Even if this Court were to adopt respondents' pro- posed construction of the Act's political committee provisions, it is far from clear that respondents would ultimately acquire the information they seek. The Commission is not required to institute a civil en- forcement action in every instance in which it con- cludes that a violation has occurred. AIPAC has con- sistently argued that it is not a political committee even under respondents' proposed construction of the Act, see note 5, supra, and it is possible that its view would prevail in court should an enforcement action go forward. Moreover, there is no guarantee 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 disclo- sures respondents seek. The parties have little or no idea whether AIPAC has retained the information ---------------------------------------- Page Break ---------------------------------------- 30 sought by respondents, a monetary penalty might be deemed a sufficient remedy to forgo enforcement liti- gation; and the Act does not provide for judicial re- view of co conciliation agreements, Compare 2 U.S.C. 437g(a)(5) with 2 U.S.C 437g (a)(8)(a). The circumstances described above-i.e, the Com- mission's authority to exercise prosecutorial discre- tion the existence of possible alternative defenses to an enforcement action and the availability of alterna- tive remedies if a violation is found-will be present to some degree in most suits brought under Section 437g(a)(8)(A). The circumstances. of this case, how- ever, make it particularly speculative that a ruling by this Court in respondents' favor will ultimately give them access to the information they hope to acquire. AIPAC has contended that the alleged contributions in this case involved communication to AIPAC's own members, which are specifically exempted from the statutory definition of "expenditure." See note 5, supra. The Commission rejected that argument and found probable cause to believe that AIPAC bad 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 Com- mission should clarify its membership definition before imposing penalties in close cases such as this." Pet. App. 98a; see note 5, supra. Respondents have not challenged the Commission's authority to exer- cise 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 de- pend upon the antecedent determination that the ---------------------------------------- Page Break ---------------------------------------- 31 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 suffi- ciently close so as to warrant a decision to take no further action with respect to Section 441b.11 Those circumstances make it especially uncertain whether the Commission would attempt to compel disclosure of all of AIPAC's receipts and disbursements, even if this Court were to affirm the court of appeals' ruling on the merits. II. THE FEDERAL ELECTION COMMISSION DID NOT ACT IN A MANNER "CONTRARY TO LAW" IN FINDING NO PROBABLE CAUSE TO BELIEVE THAT AIPAC WAS A POLITICAL COMMITTEE UNDER 2 U.S.C. 431(4)(A) AND THEREFORE HAD VIOLATED 2 U.S.C. 433 AND 434 If this Court concludes that respondents satisfy the requirements of Article III and were "aggrieved" by the Commission's dismissal of their complaint, the ___________________(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 requirements." Pet. 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. 114.l(e)(2)). During the pendency of the appeal in this case, the D.C. Circuit held that regulation to be invalid, concluding that it defined the term member in an unduly restrictive fashion. See Chamber of Commerce v. FEC, 69 F.3d 600, 604-606 (D.C. Cir. 1995). That decision casts further doubt on respondents' prospects of ultimately obtaining an order compelling disclosure of AIPAC's receipts and disbursements. ---------------------------------------- Page Break ---------------------------------------- 32 judgment of the court of appeal should be reversed on the merits. Under 2 U.S.C. 437g(a)(8), respon- dents may prevail only if the FEC'S dismissal of their complaint was "contrary to law." Because the Com- mission's disposition of their complaint was consis- tent with this Court's decisions construing the Act's political committee provisions, respondents cannot make that showing. A. This Court's Precedent Hold That An Organi zation Will Be Deemed A Political Committee Under The FECA Only If The Organization's Major Purpose Is Campaign-Related Activity The FECA defines the term "political committee" 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 during a calendar year," 2 U.S.C. 431(4)(A). On its face, the statute provides no exception for or- ganizations whose campaign-related spending, while exceeding the $1,000 threshold, & is minor part of the group's overall operation. This Court's decisions, however, have construed the Act's political committee provisions to apply only to organizations whose major purpose is campaign-related activity. 1. In Buckley v. Valeo, 424 U.S.1 (1970) (per cu- riam), this Court addressed a wide range of issues concerning the interpretation and constitutionality of the FECA. In discussing the financial disclosure re- quirements imposed by the FECA, the Court ob- served that ___________________(footnotes) [t]o fulfill the purposes of the Act [the term " political committee " ] need only encompass or- ganizations that are under the control of a candi- ---------------------------------------- Page Break ---------------------------------------- 33 date or the major purpose of which is the nomina- tion or election of a candidate. Expenditures of candidates and of " political committees " so con- strued 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 ap- plication of those provisions to any particular organi- zation or pattern of spending. Rather, the Court asserted-apparently as a categorical matter-that the statutory provisions pertaining to political com- mittees would apply only to "organizations that are under the control of a candidate or the major purpose of which is the nomination or election of a candidate." Id. at 79. 12 2. In FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986) (MCFL), this Court reaffirmed the " major purpose " test for status as a political commit- tee. A plurality of the MCFL Court stated that " [i]n [Buckely] this Court said that an entity subject to ___________________(footnotes) 12 The current definition of " political committee " con- tained in 2 U.S.C. 431(4)(A) was reenacted without substantive change in 1980 (see Federal Election Campaign Act Amend- ments of 1979, Pub. L. No. 96-187, 101, 93 Stat. 1339; compare Buckley, 424 U.S. at 145 (quoting prior definition)) after this Court's decision in Buckley. Because " Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change," Lorillard v Pons 434 U.S. 575, 580 (1978), that reenactment suggests congressional acquiescence in the construction of " political committee " articulated by this Court in Buckley. ---------------------------------------- Page Break ---------------------------------------- 34 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. " Id. at 252 n.6 (quoting Buckley, 424 U.S. at 79). MCFL had spent nearly $10,000 in "publishing a "Special Edition" of its newsletter. See 479 U.S. at 244. The Court squarely wild that the Special, Edi- tion" contained "express advocacy of the election or defeat of identified candidates, and that the payments made to publish it were therefore independent " expen- ditures " within the meaning of the Act. Id. at 248-251. The Court nevertheless concluded that MCFL was not a political committee. The plurality stated that it was "undisputed on this record" that MCFL did not fall within the Buckley Court's definition of " political committee " because MCFL's " central organizational purpose is issue advocacy, although it occasionally engages in activities on behalf of political candidates, " Id. at 252 n.6; see also id. at 252 ( " If it were not in- corporated, MCFL's obligation under the Act would be those specified by 434(c), the section that- "pre- scribes the duties of [e]very person (other than a political committee). ). And the majority observe that., should MCFL's independent spending become so extensive that the organzation's major purpose may be regarded as campaign activity the corporation would be classified as a political committee. Id. at 262. Thus, while squarely holding that MCFL had made campaign 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. ---------------------------------------- Page Break ---------------------------------------- 35 3. The Buckley Court's articulation of the " major purpose " test could plausibly be characterized as dicta. In MCFL, however, the existence of a "major purpose " limitation on the Act's political committee provisions was central to the reasoning both of the four-Justice plurality opinion and of Justice O'Connor's concurrence. As we explain above (see note 3, supra), the MCFL Court recognized a narrow, constitutionally based exception to Section 441b's ban on corporate campaign expenditures. In explaining the need for such an exception, the MCFL plurality emphasized that "[b]ecause it is incorporated, * * * MCFL must establish a `separate segregated fund' if it wishes to engage in any independent spending whatsoever." 479 U.S. at 253. That separate segre- gated fund, the plurality observed, would be subject to the organizational and recordkeeping requirements that apply to political committees. Id. at 253-254; see 2 U.S.C. 431(4)(B) (definition of " political committee " includes "any separate segregated fund established under the provisions of section 441b(b) of this title"). The thrust of the plurality's analysis was that ___________________(footnotes) 13 In MCFL, moreover, the parties directly joined issue with respect to the existence of a "major purpose" limitation on the statutory definition of "political committee." MCFL argued that "[t]he definition of a political committee encom- passes groups under the control of a candidate or the major purpose of which is the nomination or election of a candidate, * * * unquestionably not the case for MCFL." MCFL Br. 45 (No. 85-701) (citing Buckley, 424 U.S. at 79). The Commission clisputed the existence of a major purpose test; relying on the "express terms " of Section 431(4)(A), the FEC argued that " MCFL's expenditure of more than $9,000 on its special election edition would make it a political committee under the terms of the statute * * * if that expenditure had been lawful." FEC Reply Br. 31-32 n.38 (No. 85-701). ---------------------------------------- Page Break ---------------------------------------- 36 MCFL, by reason of its corporate status (and conse- quent need to engage in campaign activity through a separate segregated fund)t was subject to significant burdens to which a similarly-situated unincorporated organization would not be subject See 479 U.S. at 252-253 ("All unincorporated organizations whose ma- jor purpose is not campaign advocacy, but who oc- casionally make independent expenditures on behalf of candidates, are subject only to " the provisions of 2 U.S.C. 434(c), which governs persons other than po- litical committees). The plurality concluded that "[t]hese additional regulations may create a disincentive for such or- ganizations to engage in political speech," 479 U.S. at 254, explaining that " while 441b does not remove all opportunities for independent spending by organiza- tions such as MCFL, the avenue it leaves open is more burdensome than the one it forecloses," id. at 255. The Court held that, because of the three essen- tial features that obviated the concerns underlying Section 441b, see note 3, supra, imposition of those burdens upon MCFL was not supported by any com- pelling government interest. For that reason, Sec- tion 441b's prohibition on corporate campaign expen- ditures was unconstitutional as applied to MCFL. See id. at 256-263 Justice 0'Connor's (decisive) vote was similarly based on her conclusion that the organ- izational requirements applicable to a separate seg- regated fund would pose substantial and unjustified burdens on MCFL. See id. at 266 (O'Connor, J., con- curring in part and concurring in the judgement). Thus, five Justices in MCFL concluded that the FECA requirements applicable to political commit- tees were sufficiently onerous to warrant a limited constitutional exemption from Section 441b's re- ---------------------------------------- Page Break ---------------------------------------- 37 quirement that any corporate independent campaign expenditures be made through a separate segregated fund. That exemption would not, however, have alle- viated the burdens associated with the establishment of a separate segregated fund if MCFL itself had been treated as a political committee. The MCFL Court's assertion that MCFL was not a political committee, and its reiteration of the "major purpose " test, were therefore central to the Court's disposition of the case. B. The Commission's Finding Of No Probable Cause To Believe That AIPAC Was A Political Committee Under 2 U.S.C. 431(4)(A) Was Con- sistent With This Court's Decisions In the instant case, the Commission applied the " major purpose " test and found no probable cause to believe that AIPAC had violated 2 U.S.C. 433 and 434, the organizational and reporting requirements appli- cable to political committees, In the report on which the Commission based its findings (see note 4, .supra), the General Counsel conclude[d] that AIPAC has not become a politi- cal 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 fundamen- tally a lobbying organization interested in U. S Israel relations and in legislation affecting Is- rael. Its campaign-related activities and commu- nications are undertaken as an adjunct to, and in support of, its lobbying efforts. ---------------------------------------- Page Break ---------------------------------------- 38 J.A. 146; see J.A. 37-38 ( AIPAC's political activities did not rise to such a level as to make them a major purpose of the organization. ); Pet. App. 43a. Consis- tent with the recommendation of the General Coun- sel, the Commission unanimously found no probable cause to believe that AIPAC had violated Sections 433 and 434. Pet. App. 95a.14 ___________________(footnotes) 14 As we explain above (see note 13, supra), the FEC's reply brief to this Court in MCFL disputed the existence of a major purpose test and argued that MCFL's election expenditures would have been sufficient, if lawful, to make the organization a political committee This Court rejected that position. In recent years, the Commission has on at. least two occasions (in addition to the case) articulated a major purpose test for political committee statue. See Advisory Opinion (AO) 1996-11, 2 Fed. Election Camp. Fin. Guide (CCH) 6148, at 12,065-12,066 (1995); AO 1994-25.2 Fed Election Camp. Fin. Guide (CCH) 6125, at 12,001 (1994). Two aspects of the Commission's application of the major purpose test, while not directly implicated by this case, warrant brief mention here. First while the Court in Buckley defined political committees as organizations major pur- pose of which is the nomination or election of a candidate," 424 U.S. at 79 [emphasis added], the FEC has phrased the test as whether campaign-related activity is a major purpose of the organization. See AO 1995-11, 2 Fed. Election Camp. Fin. Guide (CCH) 6148, at 12,065-12,066 ( " the standard used is whether a major purpose of the organization is campaign activity"); AO 1994-25, 2 Fed. Election Camp. Fin. Guide (CCH) 6125, at 12,001 (1994) ( " the standard that has been used is whether a major purpose of the organization is to make expenditures or solicit contributions for the nomination or election of candidates " ). The FEC's brief in the court of ap- peals in this case noted that " the Commission has said nothing that would foreclose it from finding that a large- organization with more than one major purpose could qualify as a political committee." FEC C.A. In Bane Br. 42 Cf. United States v, Harriss, 347 U.S. 612, 622-623 [1954] statute regulating per- ---------------------------------------- Page Break ---------------------------------------- 39 The court of appeals nevertheless concluded that "the factual findings already made by the FEC indi- cate that AIPAC should be classified as a political committee." Pet. App. 29a n.13. The court based its decision- on the "plain terms " of Section 431(4)(A), to- gether with the fact that " [t]he FEC found that AIPAC likely made campaign contributions in excess of $1,000." Id. at 29a. The court suggested two alter- native bases for its conclusion that AIPAC should be treated as a political committee. First, the court suggested that the " major pur- pose " test might appropriately be used simply as a means of determining whether a particular disburse- ment is an " expenditure " counting towards the $1,000 statutory threshold. See Pet. App. 26a (suggesting that " it is the purpose of the organization's disburse- ___________________(footnotes) sons whose " principal purpose " was to lobby Congress held ap- plicable where lobbying was "one of the main purposes of " the person in question). Because the report on which the Commis- sion relied concluded that "AIPAC's political activities did not rise to such a level as to make them a major purpose of the organization," J.A. 37-38, that aspect of the " major purpose " test is not directly presented by this case. Second, the Commission believes that an organization is a political committee if (1) electoral activity is a major purpose of the group, and (2) the group receives contributions and/or makes expenditures of more than $1,000 in a year for the purpose of influencing federal elections. In the FEC's view, so long as those characteristics are present, federal campaign activity need not be the group's major purpose. But see FEC v. GOPAC, Inc., 917 F. Supp. 851, 853, 862 (D.D.C. 1996) (rejecting FEC'S position and holding that " an organization is a `political committee' under the Act if it received and/or expended $1,000 or more and had as its major purpose the election of a particular candidate or candidates for federal office"). That issue is likewise not presented by this case. ---------------------------------------- Page Break ---------------------------------------- 40 ments, not of the organization. itself, that is rele- vant"); see also Br. in Opp. 2 (characterizing the " major purpose " test as a criterion for determining whether an activity undertaken independently of a candidate is an election `expenditure '") On that the- ory, an organization that makes campaign expendi- tures (defined as disbursements whose major purpose is to influence federal elections) aggregating more than $1,000 per year is, ipso facto; a political commit- tee, regardless of the substantiality of campaign ac- tivity in comparison to " the group's overall operation. See Br. in (Opp. 4 n.3. Second, the court of appeals noted that this Court in Buckley " clearly distin- guished independent expenditures and contributions as to their constitutional significance " Pet. App. 24a. Although an organization making more than $1,000 in independent expenditures might not be a political committee if campaign activities were not its major purpose, the court held, an organization making more than $1,000 in contributions will always be a political committee. See id. at 24a-25a. Neither of those theo- ries is consistent with this Court's precedents. 1. The "major purpose" test, as articulated in Buckley and MCFL, focuses unambiguously on the purpose of the organization, not on the purpose of a particular disbursement. In Buckley this Court stated that " [t ]o fulfill the purposes of the Act [the words `political committee' ] need only encompass or- ganizations 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 (emphasis added). Grammatically, the word "organizations is the only possible antecedent for the phrase " of which. " The ensuing pages of the Buckley opinion addressed the term " expenditure " as it applies to in- ---------------------------------------- Page Break ---------------------------------------- 41 dependent expenditures made by individuals and by groups other than political committees. See id. at 79- 82. The Court construed the term in that context as " reach[ing] only funds used for communications that 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. Indeed, respondents have never identified any reason for the Court to have formulated alternative tests for defining independent expendi- tures. 15 This Court's subsequent decision in MCFL makes it particularly clear that the relevant inquiry focuses on the organization's major purpose, not on the major ___________________(footnotes) 15 After this court's decision in Buckley, moreover, Con- gress amended the FECA to define " independent expendi- tures " 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); see H.R. Rep. No. 917, 94th Cong., 2d Sess. 5 (1976) (the term " independent ex- penditures " is " defined in the [1976 amendments] in conformity with the Buckley Court's definition " ). That statutory amend- ment further undermines respondents' contention that the " major purpose " test should be used to define independent ex- penditures counting against the $1,000 threshold for political committee status. ---------------------------------------- Page Break ---------------------------------------- 42 purpose of an individual disbursement. Although MCFL had spent nearly $10,000 publishing a newslet- ter that contained "express advocacy" of the election or defeat of identified candidates (see 479, U.S at 244, 248-251; page 34, supra), the plurality deemed it "un- disputed" that MCFL did not meet Buckley's defi- nition of "political committee" because "[i]ts central organizational purpose [wa]s issue advocacy," 479 U.S. at 252 n.6. The majority observed that, "should MCFL's independent spending become so extensive that the organization's major purpose may be re- garded as campaign activity, the corporation would b classified as a political committee." Id. at .262. .MCFL makes clear that it is " the organization's major pur- pose," ibid not the major purpose of any particular disbursement-that is dispositive of the "political committee" inquiry. Moreover, a test focusing on the major purpose of a particular disbursement would not satisfactory dress the practical and constitutional problems poten- tially created by the Act's political committee provi- sions. A political committee is required to make comp- rehensive disclosures of all of its receipts and dis- bursements, 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 campaign-related expenditures by an or- ganization that are but a small percentage of the or- ganization's overall disbursements may trigger a far- reaching obligation to disclose all non-campaign- related receipts and disburserements, including re- ceipts and disbursements used for issue advocacy. See pages 44-45, infra, A narrowing construction of the term expenditure alone would not alleviate that risk. ---------------------------------------- Page Break ---------------------------------------- 43 2. The court of appeals' primary rationale was its determination that the practical and constitutional concerns underlying the "major purpose" test are im- plicated only when the disbursements that exceed the $1,000 statutory threshold are independent expendi- tures rather than direct contributions or coordinated expenditures. See Pet. App. 24a-25; see also id. at 20a, 29a. That premise 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 " significant encroachments on First Amendment rights of the sort that compelled disclosure imposes cannot be justified by a mere showing of some legitimate governmental interest ." 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 re- quirements "appear to be the least restrictive means of curbing the evils of campaign ignorance and cor- ruption that Congress 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 "engaged purely in issue dis- cussion." Id. at 79. The Court addressed that concern in two distinct ways. With respect to independent expenditures by individuals and groups other than political commit- tees, 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 omit- ted). The Court observed that " [t]his reading is di- rected precisely to that spending that is unambigu- ously related to the campaign of a particular federal ---------------------------------------- Page Break ---------------------------------------- 44 candidate." Ibid. So construed, the Court held, "the disclosure requirement is narrowly limited to three situations where the information sought has a sub- stantial connection with the governmental interest sought to be advanced." Id. at 81. The disclosure requirements. applicable to political committees, however, raise distinct concerns, Be- cause of their particular importance in election cam- paigns, political committees are required to file regu- lar reports of all of their receipts and disbursements, including those pertaining to issue advocacy not di- rectly related to elections campaigns. As applied to an organization whose campaign-related spending con- stitutes a small percentage of the overall operation, the Act's disclosure requirements could place sub- stantial burdens on core First Amendment activities while contributing only slightly to the achievement of the statutory purposes. The Buckley Court ad- dressed that danger by construing the term " political committee " as limited to "organization that are un- der 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 disburse- ments of such organizations "are by definition, cam- paign related," ibid., application of the Act's broad disclosure requirements to " political committees " so defined can be expected to have little impact on non- campaign-related speech. The Court thus 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 cam- paign-related activity to report all of its receipts and disbursements, but not to impose such abroad report- ing requirement (and attendant burdening of associa- tional interviews) on issue advocacy groups for whom ---------------------------------------- Page Break ---------------------------------------- 45 election expenditures are but a small percentage of their overall activities. Thus, the limiting construction given to the statu- tory term " political committee " in Buckley serves to address the danger that relatively small amounts of campaign-related expenditures by an organization may trigger a far-reaching obligation to disclose the much broader category of non-campaign-related re- ceipts and disbursements that are its primary activity, including receipts and disbursements used for issue advocacy. As the panel in this case cor- rectly recognized (see Pet. App. 55a), that danger is equally present whether the triggering disburse- ments are independent expenditures or direct contri- butions. 16 The en banc court was therefore wrong in ___________________(footnotes) 16 As the en bane court of appeals correctly observed (see Pet. App. 21a-22a), this Court has recognized a " fundamental constitutional difference 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 differ- ence, however, is largely irrelevant to the basis for and proper application of the "major purpose " test. As applied to organi- zations that make independent 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 consti- tutionally be required, even where the expenditure is made by a person other than a political committee. 424 U.S. at 80-82; see 2 U.S.C. 434(c) (persons other than political committees that make independent expenditures aggregating more than $250 must file disclosure reports). Rather, the " major purpose " test is designed to shield organizations that only occasionally make campaign-related expenditures from compelled disclosure of the other associational and communicative activities, unrelated ---------------------------------------- Page Break ---------------------------------------- 46 concluding (see id. at 24a) that the concerns underly- ing the Buckley Court's narrowing construction of " political committee " are inapplicable to organiza- tions that make more than $1,000 per year in direct contributions coordinated expenditures. 17 3. The en bane court of appeals also criticized the Commission's approach on the ground that [t]he FEC's interpretation of " political commit- tee would * * * allow a large organization to contribute substantial sums to campaign activity, ___________________(footnotes) to campaigns, that are their primary enterprise. Application of the FECA's disclosure requirements to those organizations remains problematic regardless of. the nature of the campaign activities that triggered the reporting requirements m the first instance. 17 The Court of appeals decision has broad ramifications for issue-oriented, lobbying, and charitable groups that only occa- sionally make election expenditures. Although the court of ap- peals acknowledged that, " [o]nce designated a political commit- tee, 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, " Pet. App. 3a, the court made no effort to address the concerns that arise from applying those requirements to every group that has made contributions or coordinated expenditures exceeding $ 1,000 in a year. Because corporations and labor unions are prohibited from making campaign contributions except through a separate seg- regated fund (see 2 US.C. 441b, page 7, supra ), the court of appeals' decision has no effect on the range of lawful options available to those entities. At least in theory, however, the court's decision creates the possibility that a corporation or union making (illegal) contributions aggregating more than $1,000 in a year could be required to disclose all of its re- ceipts and disbursements including receipts and disbursements wholly unrelated to election campaigns, in addition to being subject to penalties for its violation of Section 441b. ---------------------------------------- Page Break ---------------------------------------- 47 as long as the contributions are a small portion of the organization's overall budget, without being subject to the limitations and requirements im- posed on political committees. Thus, an organiza- tion spending its entire $1 million budget on cam- paign activity would be a political committee, while another organization spending $1 million of its $100 million budget on campaign activity would not. Pet. App. 27a. That distinction is inherent in Buck- ley's " major purpose " test, however, and the court of appeals' analysis does not eliminate the supposed anomaly. As we explain above, the court of appeals' primary rationale was that the " major purpose " test should apply only where a group's disbursements ex- ceeding the $1,000 threshold are independent expendi- tures rather than contributions or coordinated ex- penditures. Even under that approach, "an organiza- tion spending its entire $1 million budget on [inde- pendent expenditures] would be a political committee, while another organization spending $1 million of its $100 million budget on [independent expenditures] would not. " Hid. The court of appeals did not explain why that disparity is acceptable in the context of groups making independent expenditures, but " would wholly eviscerate the $1,000 limit in 431(4)(A's definition of political committee " (ibid.) when ap- plied to groups making contributions or coordinated expenditures. Any apparent anomaly disappears, moreover, once the justification for the Buckley Court's narrowing construction is understood. As we have explained, that construction addresses the danger that an or- ganization might be subject to comprehensive disclo- ---------------------------------------- Page Break ---------------------------------------- 48 sure requirements with-respect to extensive non- campaign-related receipts and disbursements based on its relatively insignificant involvement in cam- paign activity. The hypothetical "organization spending its entire $1 million budget on campaign activity" (Pet. App. 27a), however, 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 disclosure requirements might have the effect of unnecessarily burdening the non-campaign- related speech of an organization that only occasion- ally makes election expenditures-is implicated in one situation but not in the other. Application of the " political committee " provisions to groups that only occasionally engage, in campaign activity is unnecessary to ensure that significant contributions and independent expenditures are ex- posed to public view. Even if groups like AIPAC are not political committees, their campaign-related ac- tivity is nevertheless subject to reporting require- ments. See page 4, supra, Such groups must file dis- closure reports if they make independent expendi- tures aggregating more than $250 in a calendar year. 2 U. S.C. 434(c); see MCFL, 479 U.S. at 252-253 (plurality opinion). The Act also requires that con- tributions aggregating more than $200 from such groups to a candidate or political committee must be reported by the recipient, 2 U.S.C. 434(b)(3). TO re- quire groups that are minimally involved in cam- paign-related activity to report all of their receipts ---------------------------------------- Page Break ---------------------------------------- 49 and disbursements is thus unnecessary to effectuate the purposes of the Act. 18 ___________________(footnotes) 18 This Court has recognized that the Federal Election Commission " is precisely the type of agency to which deference should presumptively be afforded. " FEC v. Democratic Sena- torial Campaign Comm., 454 U.S. 27, 37 (1981); see also id. at 39 [I]n determining whether the Commission's action was con- trary to law, the task for the [court] [i]s not to interpret the statute as it th[inks] best but rather the narrower inquiry into whether the Commission's construction was sufficiently reason- able to be accepted by a reviewing court.") (internal quotation marks omitted). 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. " Pet. 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. See Pet. App. 19a. 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 question remain applicable. That is especially so where (as here) the choice between two methods of construing the statute rests in part on the evaluation of policy concerns-e.g., the extent to which other FECA pro- visions will ensure adequate public scrutiny of campaign- related activity-as to which the Commission possesses special expertise. ---------------------------------------- Page Break ---------------------------------------- 50 CONCLUSION The judgment of the court of appeals should be va- cated and the case remanded with instructions to dismiss for lack of jurisdiction. In the alternative, the judgment of the court of appeals should be re- versed. Respectfully submitted. WALTER DELLINGER Acting Solicitor General SETH P. WAXMAN Deputy Solicitor General MALCOLM L. STEWART Assistant to the Solicitor General LAWRENCE M. NOBLE General Counsel RICHARD B. 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