U.S. justices hear AIPAC case even as they question its merit

WASHINGTON, Jan. 14 (JTA) — The American Israel Public Affairs Committee was hit with sharp allegations about its political operations during oral arguments before the U.S. Supreme Court this week. In a closely watched case that could affect the pro-Israel lobby, a lawyer representing several staunch opponents of AIPAC charged the organization with violating federal election law by making campaign contributions and expenditures on behalf of political candidates. The case, FEC vs. Akins, stems from 1989, when a group of former government officials, all known as anti-Israel, began battling to convince the Federal Election Commission to regulate AIPAC as a political action committee and thereby subject it to restrictive campaign finance laws. Such a designation would limit contributions to and expenditures by AIPAC, which defines itself as a membership organization, not a political action committee. PACs raise funds for political candidates. A move by the court could have a broader impact on all membership organizations in the political arena. Among the plaintiffs are James Akins, former U.S. ambassador to Saudi Arabia and former U.S. Rep. Paul Findley (R-Ill.). The case is unusual in that AIPAC — a registered lobby on behalf of issues affecting Israel-U.S. relations — is not a direct party to the case. But the organization was the central focus of the proceedings at the Supreme Court on Wednesday. Daniel Schember, an attorney representing the plaintiffs, argued that AIPAC is a PAC that has made “extensive campaign contributions over an extended period of time.” “What we’re seeking essentially is to determine to which candidates did AIPAC contribute, how much time did AIPAC staffers devote” to making such contributions “and how much effort did they put into it,” Schember told the justices. AIPAC maintains that it makes no such expenditures. “AIPAC communicates with its members about matters of interest to them and seeks to educate members of Congress about the issues that are important to AIPAC and its members,” Tom Hungar, a lawyer representing AIPAC, told reporters outside the Supreme Court. “That’s no different than what any other grass-roots lobbying organization does, and that’s constitutionally protected activity.” Although AIPAC’s status as a membership organization dominated much of the discussion, that issue is not directly before the court. In the one-hour proceedings, the justices grappled with a host of other legal issues stemming from the 9-year-old case, including whether the plaintiffs
had standing — meaning they had a direct, personal stake in the outcome. In fact, the justices, several times throughout the arguments, questioned whether the case should even be before the high court. Meanwhile, U.S. Solicitor General Seth Waxman, who represented the FEC, said the plaintiffs “haven’t demonstrated injury in fact,” as required under law. A key issue at hand is the so-called “major purpose” test used by the FEC to determine whether AIPAC qualified as a PAC. In 1992, the FEC, which monitors compliance with campaign laws, found that AIPAC spent money in an effort to influence congressional elections.
But the FEC decided not to designate AIPAC as a political committee because it said that was not the group’s “major purpose.” A lower court and a three-judge panel of the U.S. Court of Appeals for the District of Columbia initially upheld the FEC’s decision. But in December 1996, the U.S. Court of Appeals for the District of Columbia ruled that the FEC misapplied the law. The court said the percentage of an organization’s work that is campaign-related should not determine the definition of a PAC. Now the Supreme Court, which is expected to rule by the end of its term in June, could take a number of possible actions. It could determine that the plaintiffs have no standing or it could overturn the lower court’s ruling, either of which outcome would mean the case would end. Or, if the court upholds the appeals court and strikes down the major purpose test, AIPAC’s fate would once again lie with the FEC. For their part, AIPAC officials and lawyers for the organization remain confident that the high court’s decision would not affect the organization. They have long maintained that AIPAC, as a membership organization, has the constitutional right to communicate with its members on any subject. Speaking to reporters outside the court, meanwhile, a few of the plaintiffs in the case expanded on the attacks against AIPAC. AIPAC is “disposing huge amounts of money and they don’t have to reveal anything,” said Andrew Killgore, publisher of the Washington Report on Middle East Affairs, a publication that has long criticized AIPAC and U.S. policy toward Israel. “If AIPAC has nothing to hide, what the devil have they been fighting this nine years for?” he asked. Asked about the political motivations of the plaintiffs, Philip Friedman, general counsel for AIPAC, said that because the plaintiffs haven’t been successful in advancing their anti-Israel agenda on Capitol Hill, “they’ve tried to take their case to the courts and fight what they can’t win over in Congress on the steps of the Supreme Court. “We’re not frankly concerned with what’s before the Supreme Court right now,” he added. “Whichever way the Supreme Court decides, it’s not really going to affect what we as an organization do.”