Behind the Headlines: New Supreme Court Session Includes Case Involving Aipac

After a tumultuous end to the Supreme Court’s last term, the next session could mean trying times once again for the Jewish community.

In June, the court dealt the Jewish community its most stunning legal blow in recent years when it invalidated the Religious Freedom Restoration Act, a law that made it harder for the government to interfere with the free practice of religion.

While the church-state front appears quiet as the court prepares to begin its 1997-1998 term Monday, an affirmative-action case that could dramatically alter the civil rights landscape is garnering Jewish attention.

But hitting closest to home is a case involving the legal status of the American Israel Public Affairs Committee.

Shortly before adjourning in June, the court announced that it would hear oral arguments in an eight-year-old battle involving allegations of improper political activity by the pre-eminent pro-Israel lobby.

A group of former government officials, all known as staunch opponents of Israel, have battled in vain since 1989 to convince the Federal Election Commission to regulate AIPAC as a political action committee and thereby subject it to restrictive federal campaign finance laws.

The plaintiffs in the case include James Akins, a former U.S. ambassador to Saudi Arabia, former U.S. Rep. Paul Findley (R-Ill.) and Richard Curtiss, a former official at the U.S. Information Agency and the current editor of the Washington Report on Middle East Affairs.

Such a designation would limit contributions to — and expenditures by – - AIPAC, which in spite of its name is not a political action committee.

Political action committees, commonly known as PACs, raise funds to support political candidates.

AIPAC, for its part, says it makes no such expenditures. It defines itself as a registered lobby on behalf of legislation affecting U.S.-Israel relations.

In 1992, the FEC found that AIPAC spent money in an effort to influence congressional elections.

But the FEC, which monitors compliance with campaign laws, also ruled that this was not AIPAC’s “major purpose” and determined that the pro-Israel lobby did not have to register as a PAC.

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 last December, the full U.S. Court of Appeals for the District of Columbia, in FEC vs. Akins, ruled that the FEC misapplied the law.

The court, ruling 9-2, said the percentage of an organization’s work that is campaign-related should not determine the definition of a PAC.

If the Supreme Court overturns the lower court’s ruling and allows a group’s “major purpose” to determine if it is a PAC, then the case against AIPAC would end.

But if the court upholds the appeals court and strikes down the major purpose test, AIPAC’s fate would once again lie with the FEC, which, some legal observers say, could restrict the organization’s ability to raise and spend money and force the lobby to open its books for public disclosure.

AIPAC, however, maintains that the outcome of the case would not have any impact on its operation because “the FEC will recognize that AIPAC is a membership organization and is permitted to engage in the political process in the same way we always have,” according to AIPAC spokeswoman Toby Dershowitz.

AIPAC filed a brief with the court, saying that as “the organization whose alleged conduct is at issue in these proceedings, AIPAC has a direct interest in ensuring that a complete and accurate portrayal of the facts and issues is presented.”

In the brief written by Ted Olson, considered one of the top campaign finance attorneys in the country, AIPAC said that regardless of the validity or invalidity of the major purpose test, AIPAC’s conduct is permissible because it “consists entirely of communications by AIPAC to its own members.”

The brief points out that campaign finance law expressly states that “any communication by any membership organization or corporation to its members” cannot qualify as an expenditure by the organization.

Although the FEC previously determined that AIPAC’s members were not “members” within the meaning of the law, AIPAC maintains in its brief that “developments in the law since the issuance of that decision confirm the incorrectness of the Commission’s ruling.”

Therefore, AIPAC says the issue is moot and is asking the court to dismiss the complaint.

“We want the court to dismiss the complaint and send it back to the commission to say, `We goofed and we’re dismissing the entire complaint against AIPAC,’” said Philip Friedman, general counsel for AIPAC.

Legal observer Marc Stern, co-director of the American Jewish Congress’ legal department, said it is hard to know with certainty what the court will do, given these “highly technical regulatory statutes.”

To say that the case would absolutely have no impact on AIPAC, he added, “is to anticipate a series of events that I don’t think can be anticipated.”

A spokesman for the FEC said it was too early to say what the FEC might do if the case came back to the commission.

Beyond any potential ramifications for the pro-Israel lobby, legal observers say the case could have important implications for a wide range of advocacy organizations that could become subject to regulation or a substantial restructuring of their operations.

The case, moreover, comes at a time when campaign finance practices are coming under increasing scrutiny. Some observers fear the atmosphere might adversely affect the pro-Israel lobby as the case comes before the court.

“It would be very unfortunate if in the current climate, people misunderstood a highly technical question of campaign finance law as a judgment about AIPAC’s morality,” Stern said.

“Unfortunately, the nasty people who are bringing this lawsuit are attempting to cast it in that light,” he added.

A decision is expected by the end of the court’s term next June.

On the affirmative-action front, the high court has agreed to review a potential landmark case involving a white teacher in Piscataway, N.J., who lost her job to an African American.

The case, Piscataway Board of Education vs. Taxman, dates back to 1989, when the school board was faced with having to cut one teaching position in a 10- member department.

Sharon Taxman, a white teacher, was laid off, while a black teacher was retained in order to maintain department diversity under the school board’s affirmative-action plan. Both were hired on the same day and had essentially identical qualifications.

The Supreme Court has held that affirmative-action programs used to remedy the effects of past discrimination are constitutional. But the Piscataway case raises the question of whether promoting racial diversity is justifiable as a public policy goal.

The Jewish community, for its part, remains split on affirmative action, although informal surveys showed that a majority of Jewish voters in California last year rejected a landmark ballot initiative barring affirmative-action programs in the state. The measure passed with the support of 55 percent of the voters.

The American Jewish Congress and the Anti-Defamation League are both planning to file briefs supporting the fired white teacher in the Piscataway case.

ADL maintains that Taxman was wrongly discharged. Although the group is still discussing exactly what position to take, Steve Freeman, ADL’s director of legal affairs, said, “The bottom line is obvious. We have a long-standing policy opposing race-based decision-making and that will be the core of what we say to the court.”

The court could arrive at a narrow ruling upholding previous law stating that firing for reasons of race is discriminatory. Or it could issue a broad ruling against affirmative action.

Stern, for his part, hopes that the court does not use this case to make a definitive ruling on affirmative action.

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