James E. Akins v. Federal Election Commission

SILBERMAN, Circuit Judge,

concurring in part and dissenting in part:

Although the FEC did not challenge appellants’ standing, we were sufficiently troubled *356over our jurisdiction to ask the parties to submit supplemental briefs on the issue. I have come to the conclusion that my colleagues are correct that appellants have standing, but my analysis differs from the majority. I disagree with my colleagues on the merits.

I.

The dispute over standing turns entirely on whether appellants have established injury in fact. Appellants assert that they compete with AIPAC in lobbying Congress and seeking to persuade the American people on their views of American interests regarding Arab-Israeli disputes. Although appellants do not allege that they make political contributions, it is asserted that AIPAC’s secret contributions to congressmen have disadvantaged appellants in this political competition. Of course, many cases in both our court and the Supreme Court have recognized Article 111 injury when economic marketplace actors assert that a competitor has received a regulatory advantage. See, e.g., Clarke v. Securities Indus. Ass’n, 479 U.S. 388, 403,107 S.Ct. 750, 759, 93 L.Ed.2d 757 (1987); Arnold Tours, Inc. v. Camp, 400 U.S. 45, 46, 91 S.Ct. 158, 159, 27 L.Ed.2d 179 (1970) (per curiam); International Ladies’ Garment Workers’ Union v. Donovan, 722 F.2d 795, 805-12 (D.C.Cir.1983), cert. denied sub nom. Breen v. International Ladies’ Garment Workers’ Union, 469 U.S. 820,105 S.Ct. 93, 83 L.Ed.2d 39 (1984). We have not before now encountered a case in which the competition takes place in the political arena. I am mindful that a plaintiff may not rely for a claimed injury on a mere ideological interest, see Competitive Enter. Inst. v. National Highway Traffic & Safety Admin., 901 F.2d 107, 112 (D.C.Cir.1990), but I think appellants’ case must be thought of as akin to one brought by an economic competitor, not to one brought by a litigant who can muster only an ideological interest.

The statute, by requiring any organization that makes or receives campaign contributions or expenditures aggregating over $1,000 per year to register as a political committee and meet certain reporting and disclosure requirements, has the clear purpose of leveling the playing field by reducing the value of campaign contributions and expenditures to both spender and recipient. Any campaign contribution or expenditure is worth less to give and receive if it must be disclosed. It is of less value to the spender because interests adverse to the spender will take notice, and the recipient may be politically pressured to avoid any appearance of quid pro quo in policy positions. It is, at the same time, worth less to the recipient because undesirable publicity can be brought to bear on the transaction. And, in any event, the recipient’s competitor will notice, and if the competitor should win the spender will not be among his favorite constituents. Essentially, then, a failure of the FEC to require an organization to disclose its contributions is equivalent to adding to the value of those contributions. Thus, a candidate running for office is certainly injured if his or her opponent, through the failure of the FEC to require disclosure, is enabled to receive secret contributions. It follows that individuals or organizations that can show that they are competing with the donor or spender on the other side of this political market are similarly injured if the FEC does not require disclosure. Appellants therefore have standing as competitors of AIPAC.

The FEC’s primary argument against the application of this reasoning, which, to be sure, is only sketchily presented in appellants’ complaint and supplementary brief, is that appellants only compete in the lobbying market with AIPAC, not in actual election campaigns. (AIPAC claims that it does not normally make campaign contributions, and it presumably will no longer do so given the FEC’s finding of probable cause to believe that AIPAC violated § 441(b)). But, the lobbying “market” is intertwined with election competition. Many campaign contributors expect that if the candidate should win, he or she will be more inclined to listen to a contributor’s views on proposed legislation than would be so if no contribution were made. In this very case, the Commission found that AIPAC’s “campaign-related activities and communications [were] undertaken as an adjunct to, and in support of, its lobbying efforts.” AIPAC presumably will be a less *357effective lobbyist, and the congressmen to whom it contributed will be less likely to present AIPAC’s position effectively (if they are so inclined), if AIPAC is required to disclose its contributions.

The Commission relies on In re United States Catholic Conference, 885 F.2d 1020 (2d Cir.1989), cert. denied sub nom. Abortion Rights Mobilization, Inc. v. U.S. Catholic Conference, 495 U.S. 918, 110 S.Ct. 1946, 109 L.Ed.2d 309 (1990), to support its argument that only direct competitors in the campaign election market would have standing to challenge its refusal to require AIPAC to register and disclose. In that case — a rather confusing one — the Second Circuit rejected a challenge brought by pro-choice advocacy groups to the Catholic Church’s § 501(c)(3) status under the I.R.S. Code based on the church’s illegal campaign expenditures. The court did note that the plaintiffs did not engage in election activity, but it seems clear to me that the case would not have come out differently even if the plaintiffs had been direct electioneering competitors of the church. The federal judiciary has rarely allowed one private party to challenge the tax status of another. See, e.g., Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 40-41, 96 S.Ct. 1917, 1925-26, 48 L.Ed.2d 450 (1976). Furthermore, the general advocacy market in which both the church and the plaintiffs were competing is so broad and amorphous as to defy measurement of plaintiffs’ injury.1

The majority rests appellants’ standing on what is sometimes referred to as informational standing — that appellants are injured by failing to receive information that the government should compel AIPAC to disclose. That approach is problematic here because recognition of informational standing in this case allows a generalized, undifferentiated interest in information to satisfy Article III requirements. “Informational injury” confers standing only in narrowly defined circumstances. It was first mentioned in a footnote in Scientists’ Inst. for Public Info., Inc. v. Atomic Energy Comm’n, 481 F.2d 1079, 1086 n. 29 (D.C.Cir.1973) (SIPI ).2 We recognized that the AEC’s decision not to provide an impact statement on a reactor program established Article III injury because the Institute’s main function was to distribute such information to the public. Similarly, we determined informational injury satisfied Article III in Action Alliance of Senior Citizens v. Heckler, 789 F.2d 931, 937 (D.C.Cir.1986), vacated on other grounds, 494 U.S. 1001, 110 S.Ct. 1329, 108 L.Ed.2d 469 (1990), where new government regulations restricting the availability of information on services for the elderly impaired AASC’s ability to provide information, counseling and referral services for its members. By contrast, in Competitive Enter. Inst., 901 F.2d at 122-23, the plaintiff organization lacked informational standing because it faded to show how the NHTSA’s decision not to issue an EIS significantly diminished its ability to disseminate information or to continue its activities.

Two cases relied on by the majority to find informational standing are not determinative. In Foundation on Economic Trends v. Lyng, 943 F.2d 79, 84 (D.C.Cir.1991), we only assumed that the organization’s alleged injury — the Foundation’s diminished ability to provide information to its members and the public due to the Agriculture Department’s failure to prepare an EIS — was sufficient to confer informational standing without resolving the issue, because there was no prudential standing. We suggested, however, that informational injury alone is insufficient to establish Article III standing. We worried *358that a broad definition of informational standing would controvert the separation of powers principles enunciated in Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), and would allow plaintiffs to manufacture standing every time an agency was not creating information a member of the public would like to have. Lyng, 943 F.2d at 84-85. And in Animal Legal Defense Fund, Inc. v. Espy, 23 F.3d 496, 501 (D.C.Cir.1994), the decision merely asserted without discussion that Article III requirements were met by informational injury — the Fund’s impaired ability to gather and disseminate information on laboratory conditions under the Agriculture Department’s definition of “animal” — before going on to find no prudential standing.

Thus, under our precedent, “informational injury” satisfies Article III requirements only when the plaintiff is able to demonstrate an actual, concrete injury, that impinges on the plaintiffs daily operations or makes normal activities infeasible, and that is caused by the lack of access to particular information. To call appellants’ injury an informational one is to accept their alternative claim that they are entitled to AIPAC’s disclosures merely because they are members of the voting public. This sort of general interest cannot suffice to show Article III injury. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 572, 112 S.Ct. 2130, 2142, 119 L.Ed.2d 351 (1992); Sierra Club, 405 U.S. at 739, 92 S.Ct. at 1369; Allen v. Wright, 468 U.S. 737, 760-61, 763, 104 S.Ct. 3315, 3329, 3331, 82 L.Ed.2d 556 (1984). If, instead, appellants’ interest is thought more “particular” because of their political positions and their lobbying interests, then the claim of informational injury really reduces to the competitive injury claim. Thus, as I analyze appellants’ injury, it is the Commission’s failure to require AI-PAC to disclose to the world its past campaign expenditures that disadvantages appellants — not appellants’ inability to themselves gain that information.3

II.

Section 431(4)(A) defines “political committee” solely in terms of “expenditures” and “contributions”: a political committee is “any committee, club, association, or other group of persons which receives contributions aggregating in excess of $1,000 during a calendar year or which makes expenditures aggregating in excess of $1,000 during a calendar year.” “Contribution” is defined in turn by § 431(8)(A)(i) as “any gift, subscription, loan, advance, or deposit of money or anything of value, made by any person for the purpose of influencing any election.” “Expenditure” is defined in similar terms by § 431(9)(A)(i) as “any purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value, made by any person for the purpose of influencing any election.”

The FEC tacitly concedes that the language of § 431(4)(A) is unambiguous and sets clear requirements for classification as a political committee, but asserts that the Supreme Court has narrowed the reach of the statutory language in response to First Amendment concerns. The FEC relies on language in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), and Federal Election Comm’n v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 107 S.Ct. 616, 93 L.Ed.2d 539 (1986) (MCFL), in claiming that *359an organization should only be classified as a political committee if — in addition to exceeding the $1,000 contribution or expenditure limits — the organization’s major purpose is the nomination or election of a candidate or the organization is controlled by a political candidate, i.e., the so-called major purpose test.4 This interpretation of “political committee” is owed deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).

Appellants respond by asserting that the statutory language is clear, and that it has not been narrowed by the Supreme Court. Tracing the development of the term “major purpose,” appellants argue that the test is properly employed to determine whether an organization’s independent disbursements constitute “expenditures” within the meaning of § 431(9)(A)(i), i.e., whether they are “made ... for the purpose of influencing any election,” such that they count toward the $1,000 limit defining political committee status. Buckley and MCFL endorse this test; any references to the major purpose of an organization, rather than an expenditure, merely establish the presumption that the expenditures of an organization the major purpose of which is election activity will fall within the statutory definition. Further, MCFL noted that independent expenditures raise more serious First Amendment concerns and therefore require more compelling justification for government restrictions, than do contributions like those made by AIPAC here. Appellants point out that the FEC’s major purpose test has the anomalous result of allowing large organizations that spend only a small portion of their budgets on direct campaign contributions to avoid the requirements placed on political committees, undermining FECA’s emphasis on disclosure as a means of curbing the threat or appearance of election abuse.

The FEC’s assertion that its interpretation of “political committee” is entitled to deference is simply wrong. It is undisputed that the statutory language is not in issue, but only the gloss put on this language by Supreme Court decisions. We are not obliged to defer to an agency’s interpretation of Supreme Court precedent under Chevron or any other case. Appellants thus do not bear “the difficult burden of demonstrating that the Commission’s interpretation was impermissible and contrary to law,” Maj.Op. at 352; they need only show that their interpretation better reflects the statutory language and purpose, as interpreted by the Supreme Court, than does the FEC’s.

While there is language in Buckley and MCFL that can literally be read to support the FEC’s position, both eases focused on the constitutional concerns raised by independent expenditures. Independent expenditures are the most protected form of political speech because they are closest to pure issue discussion and therefore farthest removed from the goal of preventing election corruption. Buckley, 424 U.S. at 19-23, 78-81, 96 S.Ct. at 635-37, 663-64; MCFL, 479 U.S. at 259-60, 107 S.Ct. at 628-29. They raise graver First Amendment concerns because it is difficult to determine when an expenditure is independent — rather than coordinated with or by a particular candidate — and regulation therefore risks chilling protected speech.

Thus, in Buckley the Supreme Court determined that expenditure limits are more likely to violate the First Amendment because they place substantial and direct restrictions on the ability to engage in political speech. See Buckley, 424 U.S. at 39-59, 96 S.Ct. at 654. Contribution limitations, on the other hand, raise fewer constitutional concerns, it was thought, because they serve the basic governmental interest of protecting the electoral process without restricting political debate and discussion. See id. at 28, 96 S.Ct. at 639 (such limits “focus[ ] precisely on the problem of large campaign contributions— the narrow aspect of political association where the actuality and potential for corruption have been identified”); see also id. at *36023-38, 96 S.Ct. at 636-44. To support its major purpose test, the FEC relies on the Court’s discussion of § 434(e), which imposes disclosure requirements on “[e]very person” making contributions or expenditures exceeding $100.5 The Court rejected the claim that § 434(e) imposed burdens that would deter individuals “from making expenditures for them independent political speech.” See id. at 74-75, 96 S.Ct. at 661. It was determined that “contributions” — when defined as direct or indirect contributions to a candidate, political party, or campaign committee, or expenditures placed with the cooperation or consent of a candidate — “have a sufficiently close relationship to the goals of the Act,” and therefore limits on them are constitutional. Id. at 76, 96 S.Ct. at 662. The Court noted that the meaning of “expenditure,” however, posed line-drawing difficulties because it created the danger of “encompassing both issue discussion and advocacy of a political result.” Id. at 77, 96 S.Ct. at 662. Therefore, the reach of § 434(e) was limited by “constru[ing] ‘expenditure’ for purposes of that section ... to reach only funds used for communications that expressly advocate the election or defeat of a clearly identified candidate.” Id. at 80, 96 S.Ct. at 664. Coming in the midst of its analysis of the scope of “expenditures,” the Court’s language that apparently refers to the major purpose of an organization is at best ambiguous:

To fulfill the purposes of FECA [political committees] need only encompass organizations that are under the control of a candidate or the major purpose of which is the nomination or election of a candidate. Expenditures of candidates and of “political committees” so construed can be assumed to fall within the core area sought to be addressed by Congress. They are, by definition, campaign related.

Id. at 79, 96 S.Ct. at 663 (emphasis added).6 When parsed carefully, this wording does not support the FEC’s major purpose test for “political committee” status as applied to contributions. Perhaps the best interpretation of this language is that an organization controlled by a candidate or the major purpose of which is election-related will presumptively have expenditures falling within the statutory definition. In any event, the Court clearly distinguished expenditures and contributions and referred to a “major purpose” test only with regard to the former.

While certain language in MCFL can also be read to support the FEC’s position, the Court was again addressing First Amendment problems with the regulation of independent expenditures. The Court held that § 441(b), which prohibits corporate contributions or expenditures “in connection with any election,” was unconstitutional as applied to MCFL, a non-profit advocacy group that had made independent expenditures violating § 441(b). The Court’s concern was that the reporting and disclosure requirements of FECA might discourage protected political speech of advocacy groups. See id., 479 U.S. at 253-56, 107 S.Ct. at 625-27. While MCFL’s references to the major purpose of an organization may thus have relevance for the issue of when independent expenditures suffice to establish political committee status, MCFL does not control cases involving contributions or coordinated spending. The Court’s analysis clearly distinguishes contributions and expenditures: “should MCFL’s independent spending become so extensive that the organization’s major purpose may be regarded as campaign activity, the corporation would be classified as a political committee.” Id. at 262, 107 S.Ct. at 630 (quoting Buckley, 424 U.S. at 79, 96 S.Ct. at 663) *361(emphasis added).7 As in Buckley, this language can plausibly be read as merely creating a presumption that certain organization’s expenditures are “made ... for the purpose of influencing any election.” Also as in Buckley, the underlying concern is that congressional regulation, in its effort to achieve full disclosure, may impermissibly discourage protected independent expenditures. In short, the Court’s rationale in MCFL and Buckley is simply inapplicable to the present case. There is no longer a constitutional problem with applying § 431(4)(A) to AIPAC or to other organizations making campaign contributions exceeding the statutory limits.

The FEC’s conception of the major purpose test does not make this distinction between expenditures and contributions, and it therefore imposes an unduly narrow definition of “political committee.”8 It allows a large organization to contribute substantial sums to campaign activity, as long as the contributions are a small portion of the organization’s overall budget, without being subject to the limitations and requirements imposed on political committees. This ignores the $1,000 limit in § 481(4)(A)’s definition of “political committee,” even in the absence of significant First Amendment concerns with regulating contributions. Moreover, that such an organization may be limited by other provisions of FECA as well is irrelevant. There is no indication that Congress intended to limit one section in light of others or to make their application mutually exclusive. Various provisions impose different, if overlapping, limits and requirements on organizations; these differences represent the sound exercise of congressional judgment as to the various degrees of risk to the election process posed by certain activities. While the FEC’s “major purpose” test may therefore be valid in determining whether an organization making independent expenditures is subject to the requirements imposed on “political committees,” it cannot legitimately be used to place contributions exceeding $1,000 outside the scope of § 431(4)(A)’s definition of “political committee.”

There is no contention that AIPAC’s disbursements were independent expenditures, so there is no constitutional barrier to application of § 431(4)(A)’s plain terms. The FEC found that AIPAC likely made direct campaign contributions in excess of $1,000. The FEC’s decision that no probable cause existed to believe AIPAC was a political committee, and its consequent dismissal of appellants’ complaint, were therefore based on its mistaken interpretation of § 431(4)(A). This error requires that we reverse the dismissal of the complaint and remand to the FEC for further consideration — and if necessary further investigation9 — of AIPAC’s status. I respectfully dissent.

. Of course, as the Commission indicates, the appellants are in one sense seeking a more severe sanction for AIPAC’s illegal expenditures than the FEC determined was appropriate, but that does not undermine their standing. Under most statutes, this sort of action could not be brought because of Heckler v. Chaney’s bar on judicial review of an agency’s nonenforcement decision. 470 U.S. 821, 831, 105 S.Ct. 1649, 1655-56 (1985). But this statute squarely directs review of the Commission's determination. See § 437(g)(8)(c) ("In any proceeding under this paragraph the court may declare that the [FEC’s] dismissal of the complaint or the failure to act is contrary to law.”).

. The footnote was subsequently declared "unnecessary to the decision.” Foundation on Economic Trends v. Lyng, 943 F.2d 79, 83 (D.C.Cir. 1991).

. Plaintiffs in this case clearly meet prudential standing requirements in that they are within the statutory "zone of interest.” See Clarke v. Securities Indus. Ass’n, 479 U.S. at 394-99, 107 S.Ct. at 754-57; Animal Legal Defense Fund, 23 F.3d at 503. As the majority notes, FECA’s purposes are broadly stated. But FECA's “zone of interest” cannot, as the FEC asserts, include only individuals' interests as voters and not individuals' interests as both competitors and voters. The logical implication of the FEC's argument is that prudential standing exists (as a "pure” voter) only where Article III standing is precluded (as a general interest under Lujan), so that no one would have standing. This result is absurd. Clearly a direct competitor of a political candidate, as the party most directly injured by improper campaign activities, is within the zone of interests intended to be protected by the statute. Thus, the statutory zone of interest is not limited to voters, but includes other political interests as well.

Moreover, FECA's broad language may in fact make a prudential standing inquiry irrelevant. If all voters are beneficiaries of the statute and are thus "aggrieved” within the meaning of § 437(g)(8), Article III always would impose a more restrictive standard, such that meeting Article III requirements alone would establish standing.

. This is apparently the first time the FEC has formulated this test; it has pointed to no Advisory Opinion that articulates either explicitly or implicitly a major purpose test, even 10 years after the Supreme Court cases on which it primarily relies — Buckley, 424 U.S. 1, 96 S.Ct. 612, and MCFL, 479 U.S. 238, 107 S.Ct. 616 — supposedly imposed this test on the definition of political committee.

. Section 434(e) has subsequently been amended and is now § 434(c): "Every person (other than a political committee) who makes independent expenditures in an aggregate amount or value in excess of $250 during a calendar year” shall be subject to certain reporting and disclosure requirements. 2 U.S.C. § 434(c) (West 1985 & Supp.1995).

. Buckley cited both United States v. National Comm, for Impeachment, 469 F.2d 1135 (2d Cir. 1972) and American Civil Liberties Union, Inc. v. Jennings, 366 F.Supp. 1041 (D.D.C.1973) (three-judge court), vacated as moot sub nom. Staats v. American Civil Liberties Union, Inc., 422 U.S. 1030, 95 S.Ct. 2646, 45 L.Ed.2d 686 (1975), as developing this "major purpose” test. These two cases applied a "major purpose" test to determine whether a particular disbursement was "made ... for the purpose of influencing any election” under § 431(9)(A)(i).

. Of the Court’s two references to a major purpose test, the first was joined by only a plurality of Justices. The second, quoted here, was joined by Justice O’Connor, whose concurrence emphasized that Buckley still applied and that disclosure requirements for independent expenditures were generally valid. Id., 479 U.S. at 265-66, 107 S.Ct. at 631-32.

. Contrary to the FEC’s assertion, we did not endorse its "major purpose” test in Federal Election Comm’n v. Machinists Non-Partisan Political League, 655 F.2d 380 (D.C.Cir.), cert. denied, 454 U.S. 897, 102 S.Ct. 397, 70 L.Ed.2d 213 (1981). In Machinists, we held that "draft groups” that promoted the acceptance of particular individuals prior to their actual nomination did not fall within § 441(a)’s definition of political committee because the expenditures and contributions were not made to a "candidate.” Id. at 296. While our language suggested that it is not the "purpose” of the organization itself but of its disbursement (its "activities”) that is relevant to determining whether a group is a political committee, our decision was based on Congress' expressed intent to exclude draft groups from the definition of political committee. See id. at 394-96.

.Appellants alternatively claimed that the FEC’s investigation was inadequate. The FEC’s decisions on how and to what extent to investigate, while reviewable, command substantial deference. Cf. Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985) (judicial review particularly circumscribed in area of prose-cutorial discretion); Federal Election Comm’n v. Rose, 806 F.2d 1081, 1091 (D.C.Cir.1986) (courts have limited role in supervising agency use of limited resources). And the statute imposes no *362particular investigatory techniques or obligations. Here, even though appellants note several leads that the FEC could have pursued more vigorously, the investigation probably passes the minimal level of sufficiency. To require a full-blown court examination of each investigatory decision would intrude too deeply into the FEC's proper area of authority. Moreover, under the circumstances of this case, the factual findings already made by the FEC indicate that AIPAC should be classified as a political committee.