U.S. Court Orders FEC to Enforce Federal Election Law Against AIPAC

by Richard H. Curtiss

None of the seven retired U.S. officials who filed a complaint with the Federal Election Commission in January 1988 charging that the American Israel Public Affairs Committee (AIPAC) and 27 named political action committees were violating federal election laws were in the bloom of youth at the time. Now, almost nine years later, when 10 judges on the U.S. Court of Appeals finally have ruled 8 to 2 in their favor, one of the complainants has died, and five of the six survivors are in their 70s.

But they exhibited quiet satisfaction at the Dec. 6 ruling, as did the lawyers who had kept the case alive over the years by donating their services, charging only for clerical and related expenses. Their demand was that the FEC follow up its own ruling that AIPAC has functioned as a “political committee” by requiring the giant pro-Israel lobbying group to disclose where it gets its now $12 million annual budget, and how it spends that money.

The complainants believe that if the FEC enforces its own rules, the stranglehold that Israel’s principal Washington, DC lobby has had on U.S. Middle East policy may eventually be loosened. Their charge is that although AIPAC has conducted itself as a political action committee, by not registering as one it has exempted itself both from disclosing publicly its receipts and expenditures, and from the federal law which restricts political action committees from donating more than $10,000 to a single candidate in a single election cycle.

They further believe, although it was not a part of the complaint to the FEC, that AIPAC has functioned as a foreign agent, openly pursuing the interests of each successive elected government of Israel, but without registering as such and thus subjecting itself to federal disclosure laws.

The complaint to the FEC, which in fact consisted of a number of separate filings, has a long and tortuous history. It was largely assembled by Abdeen Jabara, who now practices law in New York. As an activist lawyer in Detroit specializing in discrimination complaints, and during a subsequent four-year stint as president of the American-Arab Anti-Discrimination Committee (ADC), he saw extensive evidence of violations of election laws by AIPAC officers.

The complaint to the FEC has a long and tortuous history.

The seven public figures who eventually filed the complaint were James Akins, former U.S. ambassador to Saudi Arabia; the late George Ball, Kennedy administration under secretary of state who also served the Johnson administration as U.S. ambassador to the United Nations; Richard Curtiss, former chief inspector of the U.S. Information Agency; Paul Findley, an Illinois Republican member of the House of Representatives for 22 years; Rear Admiral Robert Hanks, former commander of the U.S. Navy’s Mideast task force; Andrew Killgore, former U.S. ambassador to the state of Qatar; and Orin Parker, former president of AMIDEAST, a non-profit organization that conducts educational and training projects in the Middle East.

Some of the complainants had joined prominent journalists in writing or speaking publicly on AIPAC activities. They revealed that members of AIPAC’s national board of directors had set up a large number of political action committees in their home states. Although none of the committees mentioned Israel, the Middle East, or Zionism in their non-descriptive titles, their donation patterns to Senate and House candidates followed recommendations in a closely held “green book” circulated to some AIPAC officers and donors.

A “smoking gun” had turned up in the form of a Sept. 30, 1986 memorandum from AIPAC’s then-assistant director of political affairs, Elizabeth Schrayer, telling an AIPAC employee what to say in calls to a number of the PACs concerning their donations to named candidates. The copy of the memorandum that became public also had the employee’s own hand-written notations concerning the calls.

The result of all this was the first complaint to the FEC charging that by setting up 27 named political action committees, and then guiding their donations to specific political candidates, AIPAC itself was acting as a political action committee that should be regulated accordingly. On a Friday afternoon on the last working day of 1990, in an obvious move to avoid media attention, the FEC notified the 27 PACs that they no longer were under investigation.

AIPAC’s “Worst Nightmare”

In its report on the FEC notification, the widely read Washington Jewish Week indicated that the FEC action, in effect, dismissed the complaint. The report even quoted an unnamed AIPAC official as saying that dealing with the complaint had been the “worst nightmare” in the organization’s history.

In fact, however, there was no indication in the FEC release of its findings or actions concerning AIPAC, or of the fact reported in Jewish weekly newspapers that AIPAC was refusing to comply with the FEC’s request for financial records. As a result, the same seven complainants filed a new suit against the FEC itself, seeking to compel it to rule on the original complaint against AIPAC.

The FEC then issued a finding that AIPAC had made in-kind donations that “likely crossed the $1,000 threshold,” meaning the limitation on the amount an individual or organization can donate to a candidate in a single election, and thus functioned as a “political committee.” However, the FEC ruled, it would not require AIPAC to register as such because organizing such contributions was not “the major purpose of AIPAC.”

The seven complainants then filed a third complaint, saying that the FEC had erred in dismissing the complaint against AIPAC, and that its erroneous legal interpretation was the sole reason it exempted AIPAC from disclosing its receipts and expenditures.

When the Circuit Court of Appeals, in March 1995, found 2 to 1 against the complainants, they sought a hearing before the entire appeals court. It was this hearing on May 8, 1996, that resulted in the new decision, with 8 justices ruling for the complainants and against the FEC, and 2 dissenting. The ruling pointed out that in exempting a huge organization such as AIPAC, with its multi-million-dollar budget and some 150 employees, from observing the rules governing political activities on the grounds that such activities were not AIPAC’s “major purpose,” the FEC would open the door to very large-scale political activities conducted without the oversight imposed on other much smaller political committees.

The FEC now has several choices. It can request the U.S. solicitor general to appeal the final Circuit Court of Appeals ruling to the Supreme Court within 90 days of the ruling. Or it can order AIPAC to register as a political committee and open its financial records to the FEC in the same manner as do other political committees, which include the campaign committees of parties and candidates as well as PACs. Or the FEC can seek an injunction to stop AIPAC from making political contributions or it can fine AIPAC. AIPAC, in turn, can interpose legal defenses against FEC orders.

The complainants decline to speculate on what public disclosure of AIPAC records will reveal, both as to sources of AIPAC funding and beneficiaries of AIPAC actions. It is unlikely, however, that many members of Congress will want their constituents to learn how much support they have received through the activities of the powerful group that boasts that it “lobbies for any elected government of Israel,” particularly if the disclosures reveal that a major share of AIPAC’s direction or support has come, directly or indirectly, from foreign sources.

If that is the case, of course, it is unlikely that AIPAC will willingly turn over such records. They could spell the end of its long dominance of congressional action on U.S. military and economic aid to Israel, executive branch appointments of ambassadors to Middle East countries and positions in the State Department and other foreign affairs agencies having a bearing on U.S.-Middle East relations, transfers of military and civilian technology to Israel, and even sales and transfers of American-made military equipment to Arab and Islamic countries.

The fact that AIPAC proved unwilling to comply with the FEC’s first requests for information in 1988 indicates that there may be much in its records that the lobbying group does not want to be made public. If that remains the case, the legal action may be far from over.

The focus, however, now could shift from seven private individuals of limited means suing the powerful Federal Election Commission to that same FEC taking action against what is commonly acknowledged to be the most influential special-interest lobby in Washington, DC. Given the timidity the FEC has exhibited toward AIPAC to date, it is not at all certain that this new court ruling in favor of the plaintiffs will be enough to force the FEC to fulfill its legal mandate. If it does, however, it could change the course of U.S. Middle East policy.