Transcript

IN THE SUPREME COURT OF THE UNITED STATES

FEDERAL ELECTION COMMISSION, Petitioner v. JAMES E. AKINS, RICHARD CURTISS, PAUL FINDLEY, ROBERT J. HANKS, ANDREW KILLGORE, AND ORIN PARKER

No. 96-1590

January 14, 1998

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 11:08 a.m.

APPEARANCES:

SETH P. WAXMAN, ESQ., Solicitor General, Department of Justice, Washington, D.C.; on behalf of the Petitioner.

DANIEL M. SCHEMBER, ESQ., Washington, D.C.; on behalf of the Respondents.

PROCEEDINGS

11:08 a.m.

CHIEF JUSTICE REHNQUIST: We'll hear argument next in Number 96-1590, the Federal Election Commission v. James E. Akins.

General Waxman.

ORAL ARGUMENT OF SETH P. WAXMAN ON BEHALF OF THE PETITIONER

GENERAL WAXMAN: Mr. Chief Justice, and may it please the Court:

In holding that the American Israel Public Affairs Committee, or AIPAC, was a political committee within the meaning of the Federal Election Campaign Act, the court of appeals misinterpreted this Court's decisions, and it did so in a case it should not have reviewed on the merits, for the respondents do not have standing.

AIPAC is an association engaged in issue advocacy and lobbying. The FEC investigated a complaint filed by individuals who disagree with AIPAC's policies, and the FEC concluded that AIPAC had, quote, likely made in-kind contributions aggregating over $1,000 in a calendar year.

The commission then considered whether thereby AIPAC was a political committee under the act, in which case it would be required to disclose all receipts and disbursements over $200, whether or not they were related in any way to a campaign, and it would be limited in how much money it could receive, and from whom.

The commission, interpreting the statute in light of this Court's decisions in Buckley and Massachusetts Citizens for Life, concluded that, because campaign-related activity was not a major purpose of AIPAC, its incidental campaign spending did not require it to comply with the act's restrictions on political committees.

In concluding that the FEC acted, quote, contrary to law, the court of appeals erred in two ways. Let me just say a few words about the merits and then address the standing issues.

In Massachusetts Citizens for Life, this Court deemed it, quote, undisputed that an organization making nearly $10,000 in campaign-related spending was not a political committee because its major purpose was issue advocacy, not election activity.

In so holding, this Court relied on its earlier conclusion in Buckley that, quote, to fulfill the purposes of the FECA, the term political committee need only encompass organizations that under--that are under the control of a candidate, or the major purpose of which is the nomination or election of a candidate.

QUESTION: General Waxman, I--you're addressing the merits, and do you mind if I raise a preliminary question before we really wade into the merits of the major purpose test?

GENERAL WAXMAN: I'd be grateful, Justice O'Connor.

QUESTION: Has the FEC changed its notion of who are members within the meaning of the statute so that the expenditures that were made here might be ones that were for publications that went to members, in which case the statute wouldn't be involved at all?

GENERAL WAXMAN: Justice O'Connor, a great deal has happened with respect to the membership issue and the law relating to who consti--what--who is or is not a member since the FEC made its decision in this case, and let me--

QUESTION: Under the FEC's current interpretation and application of who's a member, would the mailings here have gone to members?

GENERAL WAXMAN: The FEC has recently within the last 3 weeks issued a proposed--a notice of proposed regulation in which it has set out for public notice and comment an alternative set of definitions of membership, and what constitutes a member, and under one of the alternative definitions that the FEC is proposing, the AIPAC members, insofar as the record existed in this case at the time, would not qualify as members, but as--

QUESTION: In that case the statute wouldn't be invoked at all, if that were--

GENERAL WAXMAN: Well, no, what--I guess what I--what I meant to say is, the FEC has not yet settled on a firm definition of membership. It did after the decision in this case, but that regulation was struck down by the court of appeals in a case that it decided a few years after the FEC made a decision in this case. In response, the FEC--

QUESTION: Well, in that case I thought that the--I thought that the Chamber of Commerce case intervened between the three-judge panel in this case and the en banc in this case, is that not--

GENERAL WAXMAN: That is correct, and--

QUESTION: So at the time you were arguing political committee at the en banc, the D.C. Circuit had already decided the membership question in the Chamber of Commerce case, and to me it was just a total mystery how come these two never met from the same court.

GENERAL WAXMAN: Well, I--I agree that it is, like many other things in this case, somewhat mysterious, but I think what the en banc court of appeals concluded, and I think correctly, is that for purposes of deciding this case, the FEC's determination was that the people that AIPAC considered members were not, in fact, members, and that the FEC is now in the process of determining--of fixing on a definition of membership which it has not yet done, but still takes the position that membership can be defined in a way to exclude all people who pay $50 a year in dues to AIPAC.

QUESTION: But wasn't AIPAC itself always taking the position that it was a membership organization communicating with its members? I mean, it was not--

GENERAL WAXMAN: Oh--

QUESTION: It was not in this litigation. It was--

GENERAL WAXMAN: Absolutely AIPAC took that position, and in fact the joint--the general counsel's brief and report that are reprinted in the joint appendix devote a very substantial portion of time addressing AIPAC's contention that these papers--these people were just its members, and therefore these weren't expenditures or contributions in any regard.

The commission concluded otherwise, and the commission is now propounding a rule which, if adopted--

QUESTION: General Waxman, isn't it--

GENERAL WAXMAN: --would permit them to adhere to that insofar as AIPAC still has the same rules with respect to membership as it did at the time.

QUESTION: But isn't it true that, if they follow the definition of membership that the D.C. Circuit has followed in the case Justice Ginsburg referred to, then these people would be members?

GENERAL WAXMAN: Well, I don't--I don't think that the--my problem with answering the question, Justice Stevens, is that the D.C. Circuit did not apply, as we understand it, a rule with respect to who was a member. The D.C. Circuit simply struck down the commission's prior rule, which required, as a bright line test, that no matter how many dues anybody paid, and no matter how affirmatively they tried to be a member--

QUESTION: They had to vote.

GENERAL WAXMAN: --there was a bright line requirement that you had to be able to vote for at least one member of the governing body. That was, in many ways, the ratio decidendi of the commission in this particular case, and that was struck down.

But in Chamber of Commerce, the D.C. Circuit left open the possibility that an organization like AIPAC, which requires only $50 to establish oneself as a member, might properly be deemed to be not a member by the FEC, and in fact in the petition for--in its--in its opinion denying rehearing in Chamber of Commerce the court of appeals emphasized that it is open, still open to the commission to define membership in a way--I mean, it wasn't addressing this particular case, but to define membership in a way that would or wouldn't include AIPAC members.

QUESTION: So--

GENERAL WAXMAN: Particularly tricky here is that--

QUESTION: Well, so jurisprudentially, what do we do, faced with this question, or uncertainty?

GENERAL WAXMAN: Well, we--

QUESTION: Is there some way we can safely reach the merits, and if so, how?

GENERAL WAXMAN: I think you can and should reach the merits. No one in this case, even AIPAC in response to the disposition at the administrative level, has challenged the membership issue. It's not been briefed anywhere.

It's a fact-sensitive question, and it may very well be true, Justice O'Connor, that if the court of appeals opinion is sustained, or you otherwise dispose of this case in a way in which the commission will have to reevaluate it, that antecedent question will have to be litigated again. But right now, it seems to me the law of the case, as it comes up, and it's not a question presented--

QUESTION: Well, but the organization--

GENERAL WAXMAN: --is that AIPAC--these people were members.

QUESTION: But the organization is not a party, but they did file an amicus brief in which they do challenge the point.

GENERAL WAXMAN: They--well, they file an amicus brief in which they say they're not members--

QUESTION: Right.

GENERAL WAXMAN: --in any sense in which the Federal Election Campaign Act could constitutionally be interpreted.

QUESTION: I thought you--

QUESTION: Also, they--

QUESTION: --wanted us to reach the merits.

GENERAL WAXMAN: Well--

QUESTION: You just said that we should reach the merits. I--

GENERAL WAXMAN: We think that this--we think that this, that the lower courts should not have reached the merits of this case because these respondents don't have either Article III or statutory standing, but if you do reach the merits, we think that the commission's interpretation of this Court's opinions in Buckley and Massachusetts Citizens for Life is, quote, sufficiently reasonable to--to uphold it.

The one thing that--

QUESTION: General Waxman, just--I don't understand. First you're saying, don't reach the merits because there's a standing hurdle, but if you should find there's no standing hurdle, skip over another possible hurdles--this is my concern.

This question, political question, is not easy, and it could be a really important thing to a lot of organizations that just have mailing lists, that don't have dues-paying members. Why should we decide that question in a case where it may well be that this particular organization qualifies as a membership organization, so the question is really academic for AIPAC?

Why shouldn't we hold off on such a question until we're sure we have the kind of entity that would be affected by it?

GENERAL WAXMAN: Well, it is, of course, open to this Court either, a) to address the membership issue, and announce a determination as to who--whether these people were or weren't members based on the administrative record, or to--

QUESTION: Send it back.

GENERAL WAXMAN: --hold that there was not--vacate the court of appeals decision and send it back. What is intolerable--

QUESTION: I don't see why we have that choice, because the membership issue as such is not what has come to us.

GENERAL WAXMAN: The membership issue certainly is not one that has come to you. What--

QUESTION: It seems to me the only thing we could do, if we are going to advert to that issue at all, is to say, it is in a state of ferment, and the one thing that seems clear is that there is going to be a redetermination, whatever the result may be, of what membership means at the commission level, and we ought to send this case back so that--so that if it ultimately comes to us it will come to us on a concept of membership, which is--which for the foreseeable future will be the permanent one and will give us a good reason to go the length of the adjudication that you want.

GENERAL WAXMAN: Well, I do acknowledge that there is some appeal to that approach, but I would just ask the Court to look at this from the perspective of the commission.

The commission is now in the position of having been told by the en banc court of appeals that virtually any voter in the country can haul it into court whenever it makes a determination that a group, whether it's a civic or religious, or my family, or any other group has made more than $1,000 in political spending, and therefore is required to file with the courts as a political committee, and--so in other words, that--virtually any voter can bring the FEC into court, because that's the standing rule they've applied, and that this--that the commission's efforts to apply the major purpose test that this Court enunciated is wrong, and in fact any group, incorporated or otherwise, that makes more than $1,000 of what the commission would deem to be in-kind, coordinated or independent expenditures is a political--

QUESTION: So you say in just--

GENERAL WAXMAN: We're in an impossible position.

QUESTION: And you say in deciding those questions we wouldn't have to express any definitive view on the membership question.

GENERAL WAXMAN: Absolutely right. It is a question--for purposes of the law of the case, there has been a determination by the commission in this case that AIPAC's, the people that AIPAC was communicating with were not members.

If we are wrong and, in fact, the major purpose test doesn't apply, on remand the FEC will have to consider and take AIPAC's views whether or not, in light of the court of appeals decision in Chamber of Commerce AIPAC's members are, in fact members under the act. It is a very tricky--

QUESTION: General Waxman, I understand your anxiety about standing, and that sounds perfectly sensible, but I--what I don't understand is why you don't have a second step and say, if you should decide standing, then send it back to the commission.

The commission doesn't know yet what its membership thing is, but when it gets its act together this case may well be moot as far as a political committee is concerned, so I certainly understand why you want to urge standing first.

What I don't understand is why you're not telling us, but if we're wrong about standing, this case should not be--the ultimate question in this case should not be reached because it might fold at the commission level on what Justice O'Connor said at the very first is a threshold question, a preliminary question.

GENERAL WAXMAN: I guess the reason is that if you hold--if you conclude that there's no standing in this case, the decision in the court below is vacated and, in fact, the commission is back on its own.

QUESTION: That I understand, but what I don't understand--

GENERAL WAXMAN: But if you don't--

QUESTION: --is the political committee--

GENERAL WAXMAN: If you don't, we are left with a decision on the merits of a critically important issue of law, which is, are groups that are organized for any number of hundreds of different reasons political committees?

QUESTION: But the thing would be vacated, because the--just as we would not reach political committee, neither should the D.C. Circuit, so I'm still puzzled why you don't say, standing is our first argument, but if we lose on that, vacate the district court's--the D.C. Circuit's decision, send it--have them send it back to the commission so the membership issue can be determined.

GENERAL WAXMAN: The FEC is in an extremely unusual posture in this case vis-a-vis the substantive law of the Federal Election Commission Act, mainly because in this dance with Congress and the Supreme Court the FEC is very much following--we're--the commission is trying very hard to determine--

QUESTION: But isn't it true that no matter what happens we're going to have to decide standing?

GENERAL WAXMAN: --the extent to which groups are political--excuse me?

QUESTION: Isn't it true--no matter what--with all these alternatives, we're going to have to decide standing anyway, aren't we?

GENERAL WAXMAN: I--you certainly are going to have to decide standing.

QUESTION: Why don't you argue standing?

QUESTION: Yes.

QUESTION: You--

GENERAL WAXMAN: Why don't I argue standing.

QUESTION: Yes. It's not your fault, but you've used up 15 minutes discussing an issue that isn't even considered in the briefs. Why don't you go to the issues that are considered in the briefs.

GENERAL WAXMAN: We think--we believe that the Court erred in holding that respondents held standing in this case, either under the statute or the Constitution, to challenge the commission's decision.

In cases like Heckler v. Chaney and Linda R. S. v. Richard D., this Court has reiterated a fundamental background principle that ordinarily complaints that an agency has failed to take enforcement action are not subject to judicial review, but under the court of appeals' interpretation, as I said, it's now open to almost any voter to bring the FEC into court whenever it decides not to file an enforcement action against a religious, civic, issue advocacy, or any other group that may have made incidental election expenditures.

We believe that Congress did not intend that result, but even if it did, for Article III purposes we believe that respondents have not carried their heavy burden to establish either that they have suffered particularized concrete injury in fact, or that they will likely obtain the single remedy that they allege will redress them. That is, a retrospective order of disclosure, and nothing else.

The FEC--and this is--I think the court of appeals erred in assuming to the contrary. Unlike most other agencies the FEC has no authority, no matter what the court of appeals or this Courts decide, to order AIPAC to produce anything. In fact, Congress' preferred remedy for a violation of the act, a conciliation agreement, certainly need not require this disclosure and is exempt from judicial review.

QUESTION: But isn't there this difference, General Waxman--and maybe I'm wrong on this and I just don't remember it that well--but if the FEC decides not to do anything, can't the litigants then proceed independently?

GENERAL WAXMAN: In other words, if the FEC decides not to do anything, could the respondents sue AIPAC?

QUESTION: Yes.

GENERAL WAXMAN: Absolutely not. Under 437g(a)(8), which is the judicial review provision that's at issue in this case, a third party--there is no third party right of action. There is no private Attorneys General provision here similar to what there is in so many other cases.

Here, what happens is, the act provides that any person can make a complaint with the commission alleging that the FECA has been violated. If the commission dismisses the complaint, and now I'm referring to the judicial review provision here, a party aggrieved by an order of the commission dismissing a complaint may file a petition against the commission in the District of Columbia, and under subsection (C) of that provision, in the event that such a complaint is filed, the authority of the Federal District Court and the court of appeals is simply to declare whether or not the FEC has, quote, conformed, acted in conformity with the law, or contrary to the law.

If the Court concludes that the FEC has acted contrary to the law, the case goes back to the FEC to allow the commission to conform itself to the law. Only if it fails to do that may an individual bring a cause of action against the party that he or it alleges was violating the act.

This is a very, very unusual and limited review provision that reflects, we think, Congress' recognition of the fact that while it's important to regulate, for the benefit of the public, campaign expenditures, campaign spending, and disclosures, there are very, very First--important First Amendment--

QUESTION: Did these plaintiffs comply with all of those steps?

GENERAL WAXMAN: These plaintiffs filed an administrative complaint with the commission under 437g(a)(1), and when the commission voted, 6 to nothing, not to proceed further on their complaint that the--that AIPAC should be required to file these reports and register as a political committee, they brought a suit in the district court against the Federal Election Commission under these provisions.

And I think--one of the things that demonstrates why there is so little standing in this case is reflected by the fact that in their original complaint, filed in the district court, these respondents alleged, among other things, that they were voters, and that they had been injured in the fact that they had been deprived of certain information they might have wanted to have as voters. Their amended complaint deleted that allegation, and alleges standing on the grounds that they are political competitors in the court of public opinion.

QUESTION: If Congress, instead of using the word aggrieved, had said, any person who suffers the following injury, and then just listed the things that you'd said, can do whatever it says there, would that have violated the Federal Constitution? That is, would we have lacked standing under the Constitution?

GENERAL WAXMAN: Yes. I mean, I think a point here--

QUESTION: Yes because--so it's constitutional, do--because I thought person aggrieved in a statute, the word aggrieved traditionally traces back--though that isn't clear, it traces back to Sanders Brothers, and cases that did use that to refer to a private Attorney General, at least arguably so, and then that's why I wonder if it's constitutional.

GENERAL WAXMAN: Well, I think there are--I think there are cases that--there are cases going both ways.

QUESTION: There are. There are.

GENERAL WAXMAN: But the question here is, we think that even if the Court were to construe this review provision as extending prudential standing to the limits of Article III, as in Trafficante and Hardin and cases like that, there still would be no constitutional standing here because they haven't demonstrated injury in fact.

QUESTION: Well, they say that what they would like is, they want information, and they think that if the FEC enforces the law, in their view of what it is, that they will get information that Congress by statute has given them an entitlement to.

Now, why isn't that a real injury--

GENERAL WAXMAN: It's--

QUESTION: --assuming they really want it?

GENERAL WAXMAN: Well--

QUESTION: I assume they do.

GENERAL WAXMAN: It's not injury in fact if we're talking about them in their capacity as voters who, after all, are--the electorate is certainly within the zone of interest of the disclosure provisions of the Federal Election Campaign Act.

They have not made any allegations that they are any different than any other voters who allege--

QUESTION: If we took the voter away--if we took the vote, if we closed every voting booth in the United States, every voter in the United States would be affected. I assume they'd have standing.

GENERAL WAXMAN: Of course.

QUESTION: All right. So the simple fact that everybody is affected doesn't always show they don't have standing.

GENERAL WAXMAN: I--it--it certainly does not always show they don't have standing, but I think it's instructive to compare this statute or their claim of standing here with a claim of standing under the FOIA, for example.

FOIA provides a personal right in an individual to ask the Government, to have that individual ask the Government for information, and if the Government doesn't provide that person information, that person is injured within the meaning of the statute and can bring a lawsuit, and there's no issue of redressability, because if the Court agrees with the individual he gets the document that exists.

The Federal Election Campaign Act doesn't create rights in particular individuals to get particular information. It creates an obligation on certain persons and parties that are regulated by the act to provide kinds of information to the Government which the Government then makes available to the public generally, so--

QUESTION: But the public, each member of the public may not have a right in the sense of having a means by which necessarily it can compel the disclosure of the information, but each member of the public has an interest in getting that information.

GENERAL WAXMAN: Well--

QUESTION: And I understand your redressability point as a separate point, but simply with respect to the particularized injury, why isn't the interest, the statutorily provided interest in getting information sufficient on that first point?

GENERAL WAXMAN: Because I don't think--and we do think that the stronger argument, the clearer argument against Article III standing is redressability both because of the discretionary nature of the decision, the particular aft powers and lack thereof of the commission, and particular facts in this case, but with respect to Article III injury in fact, these--even the court below acknowledged that there would not be sufficient particularized injury in all voters.

The court of appeals concluded that these were, quote, affected voters, but its definition of the term affected was, because they are alleging that--assuming that they are, in fact, suing as voters, that AIPAC may have participated in an election that they may have voted in they might have been deprived of information that they could have used, therefore, they--these individuals--

QUESTION: No, but isn't the argument stronger than that? They are being deprived of information by virtue of the fact that they don't know whether there was, in fact, a contribution made.

The deprivation of the information is not contingent. That's actual. They don't know something, and that something that they don't know, it seems to me, is what the statute has given them an interest in finding out.

GENERAL WAXMAN: Well, they--I think another way to put it, Justice Souter, is that these individuals are not asking the commission to do something because they were harmed. They're asking the commission to do something so that they can determine if they have been harmed.

QUESTION: No. They're saying, I have been harmed because I have an interest in knowing this. That interest has been--has been infringed because they haven't filed, et cetera, so they are claiming a present injury, not a contingent one.

GENERAL WAXMAN: Well--

QUESTION: They're saying the harm is the ignorance.

GENERAL WAXMAN: Justice Souter, there are many, many decisions of this Court under Article III that have indicated that just because an individual plaintiff has an interest in having the Government do something and can demonstrate why they have that interest, nonetheless that has been held not to satisfy the particular--

QUESTION: Right, but what--

GENERAL WAXMAN: And I think if the statute had been written--

QUESTION: Yes, but what--

QUESTION: Or even information in particular. Why don't--

QUESTION: Yes, but what's different here is that there's the statute that says you are, subject to certain discretion in the commission, entitled to have it. That's what differentiates them just from the mass of individuals who might walk into a court and say, I think it would be nice if I were to know the following, or to have the following relief, or to have Government officials do what they ought to do.

GENERAL WAXMAN: Well, I--

QUESTION: The statute goes the step further.

GENERAL WAXMAN: I don't--we may just disagree about the statute. This statute, unlike FOIA, does not, we understand, give individuals any particular right to obtain any particular information, particularly information that the commission doesn't have, in light of, as I said, the--a general background principle that's reflected in Linda R. S. and lots of other cases.

This--we're talking about who has standing to haul an agency into court and demand that the agency go and get information from particular individuals, even if the agency otherwise might conclude that they should--they are a political committee and they probably ought to report, but it just chooses not to exercise its prosecutorial discretion that way, and--

QUESTION: And do I understand the reason the agency didn't--it says, this membership question really was in doubt. The agency rejected it in this case and said that's why we're not going to go forward with any enforcement.

GENERAL WAXMAN: That's right. That's what makes this case particularly nonredressable. That is, there were two related questions before the commission, both having to do with the allegation, and the commission's conclusion that there were, in fact, expenditures, in-kind, coordinated expenditures over $1,000.

There were two possible legal conclusions that the commission could reach. One is, AIPAC is a corporation, and corporations can't make expenditures, and therefore AIPAC has violated 441b. The commission voted 4 to 2 to conclude that they had, but decided not to proceed with any sanction at all, even a civil fine, because a) the law was so unclear, and b) it was a very close question on the facts, and those two--

QUESTION: If you--if we decided the redressability on the basis of the membership question, you're no better off if we related that to standing than if we decided it first.

GENERAL WAXMAN: If I understand--

QUESTION: If we decided no standing because of the special problem related to membership affecting redressability, you haven't gotten anywhere, I guess.

GENERAL WAXMAN: We haven't gotten anywhere near as far as we'd like to be at the end of this argument.

QUESTION: All right.

GENERAL WAXMAN: If I may just reserve the balance of my time, Justice--

QUESTION: Very well, General Waxman.

Mr. Schember, we'll hear from you.

ORAL ARGUMENT OF DANIEL M. SCHEMBER ON BEHALF OF THE RESPONDENTS

MR. SCHEMBER: Mr. Chief Justice, and may it please the Court:

First of all, our amended complaint certainly pleaded information standing and information injury. Joint appendix 11, paragraph 6, the FEC's improper action has deprived plaintiffs of their legal right to learn the amounts and beneficiaries of AIPAC's unreported campaign expenditures in their capacity as voters and members of the public.

The only difference between standing in this case and standing in a FOIA case concerns the issue of redressability. We certainly have a--within the zone of interests of this statute an interest as voters and members of the public in obtaining information concerning campaign contributions. The Government admits in is reply brief that voters and, we would add, members of the public, are primary intended beneficiaries of this--

QUESTION: What about cases such as Heckler v. Chaney and Linda R. S., where we've said that citizens don't have--or perhaps someone more than--you don't ordinarily have standing to require that a person, an agency or a prosecutor commence a prosecution?

MR. SCHEMBER: Well, Linda R. S. certainly is a standing case. Now, Heckler v. Chaney, that's an APA reviewability case, but Linda R. S. concerns--

QUESTION: Linda R. S.

MR. SCHEMBER: What happened there, of course, the interest at stake was one spouse's or ex-spouse's interest in child support, and what the spouse wanted to have happen, or the ex-spouse, is have the Government take some sort of criminal action against the father, I guess, that was obliged to make child support payments, and hopefully the coercive power of the prosecution would somehow result in the payment of child support.

The Court said, that's speculative. That's not the case here.

QUESTION: But the Court's reasoning was considerably broader than that, just that traditionally private individuals do not have any claim to have a prosecutor commence something that is discretionary.

MR. SCHEMBER: Well, that issue was involved with that case, too, but here, under the statutory scheme, we have a right to go to court. When our complaint is dismissed the--

QUESTION: You have a statutory right that is shared by everybody in the country, right?

MR. SCHEMBER: Well, we have a stat--no, no. You have to file an administrative claim. Not everyone in the country can simply go to court. You have to go through the administrative process.

QUESTION: But everybody can follow that administrative process.

MR. SCHEMBER: Yes, but only if they--

QUESTION: To vindicate the right to the information.

MR. SCHEMBER: Correct.

QUESTION: Which everyone has.

MR. SCHEMBER: Correct.

QUESTION: But we've decided a case where there was not only a statutory right to information on the part of the public at large, but a constitutional right to information in a case involving the Statements and Accounts Clause, where plaintiffs came in here and said, the CIA is not publishing its precise expenditures. It's all buried under the Defense Department or other agencies. We want a statement. And we said, no standing. Why is that any different from your case? These people say--

MR. SCHEMBER: Well, because we have a statute.

QUESTION: --we have a right to this--a statute is more important than the Constitution?

MR. SCHEMBER: Well, if the Court--I'm not familiar with that case, but if that case held that a constitutional right to information is a generalized grievance, then--

QUESTION: Then it was wrong.

MR. SCHEMBER: No.

QUESTION: No?

MR. SCHEMBER: Then that is to--then how--then to reconcile that holding with cases saying that Freedom of Information Act requestors have standing to seek information under the act is accomplished by saying we have a statute that grants a right of review for that injury in fact, and we have a statute here that grants a right to judicial review.

QUESTION: The FOIA grants it to particular individuals.

MR. SCHEMBER: Yes, those who--

QUESTION: You may request--you may request information.

MR. SCHEMBER: That's right.

QUESTION: This statute does not say particular individuals may come to private organizations and request the information, does it?

MR. SCHEMBER: No. It says something different.

QUESTION: It doesn't purport to--

MR. SCHEMBER: The only difference, though, goes to the question of redressability. What the statute says is that the plaintiffs may file an administrative complaint seeking disclosure, and if that complaint is dismissed, they may go to court and say that's contrary to law, just what the respondents did, and then the question is, well, if there is a favorable ruling on the merits for the respondents, is it likely--Bennett v. Spear--that the ruling on the merits will, in fact, result in the disclosure that they seek.

That is the case here, for five reasons that are very different from the circumstances in Linda R. S. Number 1, a favorable ruling on the merits for the respondents would result in--would essentially mean that AIPAC is under a statutory duty to disclose the information that the respondents seek. Second, the commission has power to order that--

QUESTION: Are you saying that in that situation the FEC would have no discretion to decline prosecution?

MR. SCHEMBER: I'm not saying no discretion. That's not our burden. All we need show to establish redressability is that it is likely that enforcement action would be taken that is likely to result in the producing of that information, and for four additional reasons that is the case here.

The second reason is that under the statute, 437d(a), the commission does have power to order AIPAC to disclose this information. 437d(a) states the commission has the power to require any person to submit such written reports and answers to questions as the commission may prescribe. Now--

QUESTION: Mr. Schember, can we just go back a step, because--

MR. SCHEMBER: Mm-hmm.

QUESTION: --there are many cases, are there not, where anyone can come to an agency and say, agency, I want you to consider this, like, I want you to make a rule on that, and the agency statute is broad enough to say yes, we have to take petitions from anybody.

But when the agency says no, then there's an effort to get to an Article III court that does have constitutional limitations on what it can hear.

MR. SCHEMBER: Mm-hmm.

QUESTION: So I think there's a whole category of cases, are there not, where you have a right to go to the agency, but you don't have a right to go further.

MR. SCHEMBER: Absolutely correct, but we do have the right here, because we have injury in fact. We have--that falls within the zone of interests of the statute. Voters and members of the public are primary intended beneficiaries of the disclosure provisions of this act. That is undisputed.

They have a right to make an administrative request seeking disclosure, and if their complaint is dismissed, go to court, as they did, and it is likely to result in disclosure in this case for the two reasons that I've said so far, and for a third reason, that when--

QUESTION: Would there be a likelihood of disclosure if the FEC takes the position that the mailings here went to members?

MR. SCHEMBER: The answer is no.

QUESTION: No.

MR. SCHEMBER: Because then--yes, if you--if the membership--

QUESTION: So I'm not sure it is so likely that there would be redressability.

MR. SCHEMBER: Well, but we have standing to contest the issue of whether or not the AIPAC contributors are members, and we most vigorously maintain that they are not. The ruling below on that question was correct.

QUESTION: Yes, but on standing we have to see if it's redressable, and I guess the FEC has some leeway in determining who are members and who aren't under that statute.

MR. SCHEMBER: Well, but under the--yes, but under the law of this case the ruling that's been made, the AIPAC contributors were found not to be members, and we would maintain that Chamber of Commerce does not require a change in that conclusion.

QUESTION: But General Waxman said that if we go all the way in this case they would still request at the end of the line a remand on that question.

MR. SCHEMBER: Yes, well, of course shifting off of standing to the question of whether or not what's appropriate to do--

QUESTION: Well, it impacts standing, I think. I mean, it's linked somehow with redressability, I think.

MR. SCHEMBER: Well, it's another legal issue in the case. We maintain as a matter of law on the facts present in this case that, under Chamber of Commerce or the prior authority, that the AIPAC contributors are not members.

We also maintain, on the record of this case, that there is additional indication of contributions by AIPAC going beyond merely communication to the persons that these--that AIPAC calls its members. We maintain that what happens after AIPAC makes these communications to its contributors, that these contributors then not only go out in their individual capacities to make campaign contributions involving themselves in campaigns, but that they then report back to AIPAC that they have done so.

QUESTION: But there's nothing like that--there's nothing like that in this record.

MR. SCHEMBER: Oh, yes, there is, Your Honor. There was evidence submitted to that. No findings by the FEC on that question.

QUESTION: Yes.

MR. SCHEMBER: But that's another issue to be addressed on remand.

QUESTION: --on membership, there's one little thing that's bothering me. Is there a rule in their proposed rulemaking that would make members nonmembers of those who both contribute $50 and have the right to affect agency policy?

MR. SCHEMBER: I haven't seen the proposed rules. I'm relying on General Waxman's--

QUESTION: Are they published?

MR. SCHEMBER: I haven't seem them if they are, but I'm not saying they're not. I'm just saying I'm ignorant. I'm relying on General Waxman's representation.

QUESTION: Do we know, though, that AIPAC has conceded or not conceded that they both get the $50 and the member has a right to affect policy?

MR. SCHEMBER: Well, that's far from established on the record. No. They contribute $50. The precise--AIPAC, from the record that we have, which is not complete on this question, is a top-down organization. Power vests--is at the top, and the $50 contributor does not have much right to determine a policy of that--of the organization.

That's what the record shows so far, and based upon that, and if we have to litigate it further, yes, we have to litigate it further, but we staunchly maintain that these contributors are not members, but even if they were, there would be another basis for finding, upon further investigation, that AIPAC is engaged in political campaign contributions of a different sort, which I just mentioned.

QUESTION: Mr. Schember, may I go to a different point on this redressability issue? Isn't it also--maybe this is not the case. Isn't it also your position that redressability should be judged on the assumption that there is a body of law of certain content, and the question of redressability should not turn on whether there might be a change in the law? Is that your position, ultimately?

MR. SCHEMBER: Yes. I--

QUESTION: You're saying even if that's not so there are other grounds--

MR. SCHEMBER: It--

QUESTION: --to say that it would be redressable, but at the base, isn't it your position that you don't--you shouldn't consider a change of law in determining the redressability point?

MR. SCHEMBER: Well, I certainly would say that a plaintiff cannot be denied standing on--to sue under a law on the assumption, well, there might be a change of the law in the future.

One has--that kind of speculation doesn't defeat redressability. All the--

QUESTION: What about the--oh, I'm sorry.

QUESTION: We're not talking about a change in the law. The question is whether the agency interpreted the law correctly, and the D.C. Circuit said it didn't, that it--that its rule that was applied in this very case, whatever the right rule is, that was the wrong rule.

MR. SCHEMBER: Well, whether the membership question was decided correctly by the FEC or not is not pertinent to standing. It would only be pertinent to standing if Chamber of Commerce decided the issue, and we had no--we had no ability to contend that AIPAC's contributors are not members.

Certainly then, if we had no hope of being able to maintain our claim that those contributors aren't members, then perhaps that would be linked to standing. We would have no possibility of redress, that would be true. But that's not the case here. We maintain, notwithstanding Chamber of Commerce, that AIPAC's contributors are not members, and they are not--and that these communications are campaign contributions.

QUESTION: Do you plan to give us your other three reasons?

MR. SCHEMBER: Yes, Your Honor.

(Laughter.)

MR. SCHEMBER: Well, the--to review, we've had the first--the first one is, determine a favorable--

QUESTION: We've learned the first two. I'm afraid you won't get to the others if you--

(Laughter.)

MR. SCHEMBER: The commission has--when the commission finds a violation it is under a mandatory legal duty under section 437g(4) (A) to attempt to correct such violation. Now, the likely way to correct a disclosure violation, by which I mean a failure to disclose information that should be disclosed, particularly where the information to be disclosed is readily available, is to demand that the information be disclosed.

Certainly, to maintain that it is not even likely that a good faith attempt to in--to correct a disclosure violation will not in any way involve a demand for disclosure of readily available information is absurd. It is likely that a good faith enforcement of this statute under this provision to correct a disclosure violation will result in disclosure where the information is readily available.

Point 4, the record here shows that the information sought by the respondents includes types of information that is readily available. What we're seeking essentially is, to which candidates did AIPAC contribute, and since the manner of contribution was in-kind, essentially having the paid staff of AIPAC drum up support in the field for those candidates, how much time did the AIPAC staffers devote to those particular campaigns. How much effort did they put into it?

This kind of information doesn't require elaborate reconstruction of records and broad disclosure this is simple information that is the core information that we're entitled to get and that we want to know. We want to know this simple type of information. AIPAC cannot plausibly claim that it doesn't know who its paid staffers were who engaged in these activities. The paid staffers can't plausibly claim that they can't remember what candidates they supported, or what they did. This is readily available information that can be disclosed.

The last point is that, on the record before the Court, when the FEC, during the investigation of this case, asked AIPAC for information, there wasn't recalcitrance and nondisclosure by AIPAC. AIPAC complied with the FEC's requests for information.

What we have in the totality of circumstances, the record here and this legal framework, which gives the commission power to order disclosure, a likelihood that disclosure will result if AIPAC is found to be a political committee because the major purpose test is invalid.

Now, when we get to the merits, we face a fundamental question which Justice Ginsburg has been pressing: what question should be decided first, the membership question, or the major--or whether--or the validity of the major purpose test.

I suppose--we put a lot of energy into briefing the major purpose test, and we're convinced that it's wrong, and then the Court--and we would like the Court to decide that question, but if the Court is troubled by the question and thinks the D.C. Circuit should not have reached it, it would be a permissible disposition of this case to say that the membership question ought to be addressed first. I can't raise an argument against that.

QUESTION: What about the major purpose question? The Attorney--if the Attorney General had more than a minute, which he doesn't, why would he say the major purpose test is incorrect--or is correct?

MR. SCHEMBER: Is correct?

QUESTION: Is correct.

MR. SCHEMBER: I don't--the bottom line argument they say that I find in their reply brief as well, that's what the dicta in Buckley said. The court of appeals properly held that this dicta in Buckley literally construed and applied in the way that the FEC has applied it here--for the first time, I might add. This is the first time that the FEC has applied the major purpose test in this way--is contrary to law because it would eviscerate the statute.

It simply makes no sense to exempt from political committee status an organization that makes a million dollars in campaign contributions simply because they're rich and have got $9 million to spend on something else.

QUESTION: Mr. Schember, could your clients have brought this action as an APA review procedure against the FEC?

MR. SCHEMBER: That's a very difficult question. I think General Waxman would say no under 437d(e), which says that this section shall be the exclusive civil remedy for enforcement.

QUESTION: It's ironic in a way, if you had an APA remedy and you would have been barred by Heckler v. Chaney, to say that by taking this other remedy you solve that problem.

MR. SCHEMBER: Well, but we would say under Heckler that we would--if Heckler applied, if the APA applied, that there would not be total denial of judicial review here. There is law to apply.

Under 437g(4) (A) a conciliation agreement by the FEC must be one that corrects that violation. That's law to apply, and if they--the court of appeals correctly determined, if the FEC's gave mere lip service to AIPAC's disclosure obligation and dismissed our complaint saying, well, we agree with AIPAC that they don't have to do it, we have a right of judicial review, and there is law to apply.

This statutory framework contemplates active judicial involvement in the determination of appropriate remedies for violations.

QUESTION: If you foresee the Court going through the standing question and then deciding in your favor, which is what you want, and then you'd say, well, then the membership issue perhaps comes up first, in which case I guess we'd have to remand it--

MR. SCHEMBER: This--

QUESTION: --why not remand it first? I mean, why go through this standing question? Do we have to? Why do we have to--

MR. SCHEMBER: No. I think the standing question could be pretermitted as well--

QUESTION: --since the standing question may well turn on the special point here, on--the standing question could well turn on the special membership point, you see, making it more difficult for the--for us to predict that you could obtain the relief you want because of that issue being in the case, so why not do that first, and send it back?

MR. SCHEMBER: I suppose that would be permissible. What I'm saying is that we certainly have standing to contend that the AIPAC contributors aren't members, and that--in that sense I don't think it--that issue pertains to standing.

What I did concede is that if Chamber of Commerce destroyed our contention that the AIPAC contributors are members, that certainly might say that we don't have standing, but it remains an open question. It's just another legal issue in--to be decided in the case, and so I guess I'm moving a bit in your favor on--in the direction that you're going on that, Your Honor, because we have a collection of legal issues that need to be decided, the membership question, the major purpose test question, and in the way that's been discussed possibly that's linked to standing.

Presum--yes, remand for consideration of the issues in a different order I would think would be a permissible disposition. We have raised the arguments as to why we have standing to bring this case and why it's likely that a ruling on the merits will result in the disclosure that we seek, and--

QUESTION: Isn't the major purpose test necessary to prevent this statute from being applied to many, many entities and transactions that were far from the contemplation of the Congress?

MR. SCHEMBER: No, Your Honor. What we're dealing with is a dual purpose organization. The test is not necessary to protect dual purpose organizations from having their noncampaign-related activities disclosed.

Dual purpose organizations can avoid that kind of disclosure through the simple expedient of setting up a separate organization or a special segregated fund. Section 441b(b) expressly provides for that contingency, and then section 431 says that, well, when a corporation has set up a special segregated fund for purposes of campaign activity, only the activities of the special segregated fund constitute a political committee, and only those activities are subject to disclosure.

QUESTION: Well, is that so easy? That is, what worries me about your position on the merits is that vast numbers of organizations who suddenly send a letter to their members once, who they think are members, the--you know, Congressman Jones helped save the Brazilian cardinal, and the--the bird--

(Laughter.)

QUESTION: --and we think that he's a wonderful thing, and really nice, and that's it, and all of a sudden they have to disclose everybody under the sun, and--you know, for all kinds of other things that really had nothing to do with that particular letter that somebody thought was a nice idea to send.

MR. SCHEMBER: Well, two points about that. First of all, it sounds to me like the organization that you're describing would be--may likely be constitutionally exempt under the Massachusetts Citizens for Life exemption.

Now, if you've got a small issue advocacy organization that only makes an occasional independent expenditure and that would be burdened by the administrative requirements of setting up a special segregated fund, then clearly under MCFL they're entitled to a constitutional exemption. They have that safeguard.

AIPAC's not that kind of an organization, a large, sophisticated organization, able to meet many administrative requirements. They haven't claimed that--

QUESTION: By the way, the person, before he wrote the letter, talked to Congressman Jones and said, what do you think of that? Oh, a great idea, he said. I like--

MR. SCHEMBER: So you're saying it's a contribution, and--well, I think I have to say two things about that. Number 1, you know, every person is presumed to know the law, and if you run afoul of the law inadvertently, but in the manner that you've described, certainly there is enforcement discretion that the FEC has, can exercise and say, now, this one time thing you did, you made a mistake, it wasn't a wilful violation, you didn't know what you were doing, you can't do that kind of thing, don't do it again, and that would be an appropriate disposition of that case.

What we have here with respect to AIPAC is years and years and campaign after campaign of extensive contributions to candidates, and the public needs to know which current officeholders were the recipients of AIPAC campaign contributions so they can know in the next election cycle who they should vote for, considering that factor.

But your hypothetical might be one that could both--that might fall either within the constitutional exemption, or that might be appropriately subject to disposition by the FEC's enforcement discretion, in that manner.

But on the facts of this case, based upon the voluminous investigation that we have here, there are very substantial campaign contributions over an extended period of time here, and I think that distinguishes this case from that hypothetical.

All we need show to establish redressability is a likelihood that a ruling on the merits will result in disclosure. We've shown the likelihood. The Court--not only is the major purpose test not necessary to protect against what--the danger that the FEC hypothesizes, it's not sufficient to do so, either.

Under the test that the FEC has clarified it to be, a dual purpose organization that has as a major purpose campaign contributions will be a political committee even if another major purpose of the organization is pure issue advocacy, yet under their own test, as they apply it, that organization as a whole would be a political committee and be subject to all--full disclosure.

For this reason, of all its activities, including the noncampaign activity, the test is neither necessary nor sufficient to accomplish the goal that's put forward for it, and it eviscerates the statute, because the problem is, it exempts from disclosure campaign contributions, not just noncampaign activities.

If there are no further questions, I have presented the argument that I intended to present.

QUESTION: That's all we can ask of you, Mr. Schembler.

(Laughter.)

QUESTION: Thank you. You're luckier than most.

(Laughter.)

QUESTION: General Waxman.

REBUTTAL ARGUMENT OF SETH P. WAXMAN ON BEHALF OF THE PETITIONER

GENERAL WAXMAN: I'm hoping against hope I have more than 1 minute, but let me just say that the consequences of allowing--on the merits of allowing the court of appeals opinion to stand is that every group in this country, including my family, and any association, whether it's incorporated or not, is now--has to live under the very real chill of knowing that if they--in the course of a year, a group like the Catholic Conference of the United States, in the course of a year, makes more than a thousand dollars in either contributions, independent expenditures, coordinated expenditures, or in-kind contributions, all of its other disbursements and receipts have to be disclosed and--

QUESTION: Well, can they set up a special segregated fund to do that?

GENERAL WAXMAN: Only corporations can set up segregated funds, so it--but for the fact that AIPAC happens to be incorporated it could not, but even if it could, that really doesn't get at the chilling effect that I think this Court was addressing in Buckley and Massachusetts Citizens for Life.

CHIEF JUSTICE REHNQUIST: Thank you, General Waxman.

GENERAL WAXMAN: Thank you.

CHIEF JUSTICE REHNQUIST: The case is submitted.

(Whereupon, at 12:03 p.m., the case in the above-entitled matter was submitted.)