U.S. Supreme Court Questions Merits of Case Involving Aipac

A 9-year-old legal battle involving the American Israel Public Affairs Committee neared its culmination with arguments before the U.S. Supreme Court last week that left its outcome as unpredictable as ever.

In a closely watched case that could have broad implications for groups that lobby in Washington, the justices began grappling with an array of legal issues, including a preliminary question about whether the case should even be before the high court.

At issue is the question of whether the Federal Election Commission was correct when it determined that it would not require AIPAC to disclose how it collects and disburses its money.

But the plaintiffs, all staunch opponents of the pro-Israel lobby and U.S. policy toward Israel, clearly sought to use the Supreme Court as a platform to publicize their grievances against AIPAC.

During arguments in the case heard Jan. 14, their lawyer went beyond the legal issues at hand to level hard-hitting allegations about AIPAC’s political operations.

Attorney Daniel Schember said the organization violated federal election law by making “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.

Alleging that AIPAC made campaign contributions and expenditures on behalf of candidates, the plaintiffs have been urging the FEC to regulate AIPAC as a political action committee — a designation that would force the organization to file public reports about all of its receipts and expenditures.

AIPAC, despite its name, is not a PAC. PACs raise funds for political candidates.

AIPAC defines itself as a membership organization — with 50,000 members — and is a registered lobby on behalf of issues affecting U.S.-Israel relations.

AIPAC officials stress that the allegations about campaign contributions are patently false, but that issue is not directly before the court.

Before the justices reach the merits of the case, they must first make a determination about whether the plaintiffs had standing to bring the case to begin with — did they suffer some “injury in fact” that the court can remedy?

During last week’s proceedings, the justices focused many of their questions on that issue.

Solicitor General Seth Waxman, arguing for the FEC, said the plaintiffs lack standing because they failed to show they were directly injured by the FEC’s action.

AIPAC general counsel Philip Friedman believes that the standing issue is important to the high court because there is concern that parties will use federal campaign laws to carry out “political grievances” through the courts.

Indeed, asked about the political motivations of the plaintiffs, Friedman 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.”

Among the plaintiffs are James Akins, former U.S. ambassador to Saudi Arabia, and former U.S. Rep. Paul Findley (R-Ill.), who has referred to the federal government as “Israeli-occupied territory” and has blamed AIPAC for his failed 1982 re-election bid.

The case, FEC vs. Akins, stems from 1989, when Akins, Findley and several other former government officials who have worked to undermine U.S. support for Israel began battling to convince the FEC to scrutinize AIPAC’s finances.

In 1992, the FEC found that AIPAC spent money in an effort to influence congressional elections. But it decided not to designate AIPAC as a PAC because it said that was not the group’s “major purpose.”

The U.S.Court of Appeals for the District of Columbia rejected the FEC’s major purpose test in 1996 and held that AIPAC should be classified as a PAC because it spent more than $1,000 a year on campaigns.

The case before the Supreme Court deals with the action the FEC took regarding AIPAC, and not AIPAC’s activity itself. As a result, AIPAC finds itself essentially on the sidelines because it is not a direct party to the case.

Nevertheless, the organization was the central focus of last week’s proceedings. Indeed much of the proceedings focused on a friend-of-the-court brief submitted by AIPAC that argues that AIPAC, as a membership organization, has the constitutional right to communicate with its members on any subject.

Speaking to reporters outside the Supreme Court last week, Tom Hungar, a lawyer representing AIPAC, said, “AIPAC does not make political campaign contributions. It does not write checks to candidates. That’s a misnomer that may be out there in the minds of some people, but it is simply not true.

“All we are talking about here,” he added, “is AIPAC communicating with its members and with members of Congress on important public affairs issues, and that is the kind of activity that is at the very core of our American political democracy, and it’s protected by the First Amendment.”

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 against the major purpose test, either of which would effectively end the case.

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.

AIPAC contends that regardless of the outcome, the high court’s decision would not affect AIPAC.

“We’re not frankly concerned with what’s before the Supreme Court right now,” Friedman said. “Whichever way the Supreme Court decides, it’s not really going to affect what we as an organization do.