(concurring in part and dissenting in part).
I agree that no issue concerning Dan Johnston or the grand jury could properly be brought before the district court on the review of agency action. I therefore concur in that portion of the majority opinion. I do not agree, however, that there is substantial evidence in the record considered as a whole to sustain a finding that IFTR was at any time a “political committee” as that term was defined in Iowa Code section 56.-2(6) (1979). I therefore dissent from the portion of the majority opinion which concludes that it was.
The latter issue is not, as the majority suggests, simply one of statutory interpretation. Also involved are troublesome questions of proof before the agency coupled with a complete lack of fact finding by the agency on essential elements of the case. The definition of “political committee” in effect during the times involved in the present case is not simply functional as the majority concludes. In using the words “organized for the purpose of” the legislature also established a motivational factor as an essential element of the definition. Accepting the majority’s conclusion that those words do not mean “originally organized for the purpose of,” it still is necessary to establish motive at some point in time.
Because it appears without dispute that IFTR was not originally organized for purposes of accepting contributions or making expenditures to support a ballot issue, it is necessary for the commission to show that at some later time this became the purpose for which the individual members of IFTR were associated together in group action. I submit that there is a complete lack of substantial evidence in the record to sustain such a finding. The record shows that prior to, during, and after the ballot issue, which is the subject of the present controversy, the members of IFTR were associated together for reasons other than promoting that issue. It was a nonprofit organization which after the Bellotti decision had a constitutional right to expend its funds in support of a ballot issue. Whether the funds would be so expended was a corporate policy decision to be made in accordance with the established decisional processes of the organization.
The result achieved by the majority opinion equates — persons organized for the purpose of accepting contributions and making expenditures for designated political activity — with—persons organized for purposes other than accepting such contributions and expenditures but who do in fact engage in such activity incidental to the reason for their affiliation. If the proper elements are established, the statutory definition of political committee can be satisfied in regard to activity relating to expenditures or activity relating to accepting contributions. The definition does not require activity relating to both. For this reason, the practical effect of the majority’s purely functional approach to the definition is to make any permanent organization, which in fact expends funds for any political activities designated in section 56.2(6), a political committee. This ignores completely that portion of the statutory definition of political committee which requires that the purpose for the organization of the individuals constituting the committee be to carry on the designated political activities.
The 1981 amendments to section 56.2(6) adopt the purely functional approach in defining “political committee” that the commission seeks to invoke in the present case. For purposes of this case, however, IFTR’s obligations must be determined -under the former statute which contained an entirely different definition of “political committee.” In addition, the 1981 amendments adopted what is now Iowa Code section 56.6(6) (1981), which requires that a permanent organization temporarily engaging in those functions which qualify it as a political committee under the new definition, must organize a separate political committee and segregate all funds relating to *870political activity from its operating funds. It is only the segregated funds which must be reported as political contributions. I submit that because no duty of segregation was imposed by the prior law, all funds of a nonprofit corporation could be considered as its operating funds unless they were specifically earmarked for one of the prescribed political purposes at the time of receipt. No funds received by IFTR during the period the commission claims it should have been reporting under the campaign disclosure act were earmarked for use in promoting the ballot issue. It appears that the decision on how to use these funds was not made until after they were received and that this was accomplished through the ordinary decisional processes of the corporation.
The commission, in deciding the case adversely to IFTR, acted almost exclusively on the premise that the “Yes For Less Taxes” committee was the alter ego of IFTR. While this may be true, it really has no impact on what the obligations of IFTR are under the campaign disclosure law. That question turns entirely on whether IFTR itself was a political committee as defined in the act. The decision of the commission does not even discuss the statutory definition of political committee or make any findings of fact which bear on the elements of the statutory definition. I would hold that if the proper elements of the statutory definition are laid beside the record made before the commission, there is a lack of substantial evidence to support a finding that IFTR was a political committee. I would affirm the portion of the trial court’s decision which held that it was not.
Because the majority rejected this approach, I believe another issue is thereby presented. In addition to finding that IFTR was guilty of a violation of the campaign disclosure act, the commission also recommended criminal prosecution based on its finding that a willful violation was involved. The district court avoided dealing with the issue of whether there had been a willful violation by holding there had been no violation at all. IFTR in paragraph 12(c) of its petition for judicial review specifically challenges the commission’s finding of a willful violation on the ground such finding is not supported by substantial evidence. In light of the evidence in the record that IFTR was acting in reliance on the opinion of the Attorney General (Op. Att’y Gen. 706 (1978)), which held that the reporting requirements of the act did not apply to corporations, an opinion which was not withdrawn or superseded during the period the commission claims reports were due from IFTR under the act, the majority’s disposition calls for remand to the district court for separate consideration of those issues relating to whether the violation was willful.
HARRIS and LARSON, JJ., and Le-GRAND, Senior Judge, join this dissent.