Washington Report on Middle East Affairs, July/August 1998, Pages 21, 94

Special Report

In the Case Against AIPAC, the Gorilla Gets a Stay of Execution

By Paul Findley

The U.S. Supreme Court rendered a decision on June 1 favoring six plaintiffs, including myself, in a nine-year-old lawsuit against the American Israel Public Affairs Committee (AIPAC).

In reporting the decision, The New York Times described the victory as Pyrrhic, a contest won at excessive cost. I call it an ignominious judicial retreat—a predictable one—in a confrontation with one of the most powerful lobbies in the United States.

The purpose of the suit, filed in 1989, was to establish that AIPAC is a political committee within the meaning of the Federal Elections law and therefore required to disclose details of both income and expenditures.

The law defines a political committee as “any committee” that receives or spends more than $1,000 in a 12-month period with the objective of “influencing any election for federal office.”

AIPAC is one of the most influential political organizations in the world. A cursory examination of its activities in just two years, 1982 and 1984, would suffice to prove the point.

An AIPAC insider told me the organization expended most of its multimillion-dollar resources during 1984 in a successful effort to defeat Charles Percy’s bid for reelection to the U.S. Senate. What could be more political?

At the time Percy served as chairman of the Senate Foreign Relations Committee. On almost any day in 1984, AIPAC expenditures aimed at influencing—that is, spoiling—Percy’s bid for re-election probably exceeded the $1,000 annual limit set by the law.

When the votes were in—with Percy among the defeated—AIPAC’s executive director, Thomas Dine, crowed about the achievement.

In 1982, AIPAC focused much of its horsepower on bringing about my defeat. I was the lobby’s number one target that year and an examination of its expenditures would surely show outlays aimed at “influencing” my bid for re-election far exceeding the $1,000 legal limit. During the same year, AIPAC weighed in heavily in Maine, helping to pull off the upset victory of George Mitchell over Representative David Emory. Mitchell had never before won an election. In a post-election call Mitchell thanked AIPAC’s Dine for his critical support and said, “I will remember you.”

In its argument before the Supreme Court, the government contended that the petitioners lacked “standing to sue” and moreover that AIPAC is not mainly a political committee and therefore exempt from the $1,000 ceiling imposed by the Federal Elections law.

The Federal Election Commission (FEC), an independent agency intended to be the watchdog that would force candidates and organizations to meet legal requirements, despite frequent pressures to the contrary, has never required AIPAC to disclose its membership, sources of income and details of expenditures. It has contended that AIPAC’s “major purpose” is non-partisan and therefore exempt from public disclosure of financial details.

Last year a lower federal court ruled against the “major purpose” test and concluded that AIPAC must be treated as a political committee by the FEC. The government appealed the decision and the Supreme Court agreed to hear the case.

Bravery and Cowardice

The Supreme Court’s decision disclosed an element of bravery on one front but cowardice on another.

By a 6-to-3 decision the high court decided that petitioners had standing to sue because we were voters and had the right to information that FEC should provide to the public.

This part of the decision was a welcome surprise, because it opened the door to future lawsuits by voters demanding withheld information.

The decision’s author, Justice Stephen G. Breyer, wrote; “The informational injury at issue here, directly related to voting, the most basic of political rights, is sufficiently concrete and specific such that the fact that it is widely shared does not deprive Congress of constitutional power to authorize its vindication in the Federal courts.”

But the decision became what The New York Times called a Pyrrhic victory for petitioners when the court, in a curious deference to future changes in FEC rules, declined to rule on whether AIPAC must report financial dealings.

Breyer’s opinion, supported by a majority of the court, did not address what the petitioners considered a fundamental if not the most important aspect of the suit, i.e., the definition of “political committee.”

Breyer’s decision avoided the definition issue because FEC was “currently considering a new rule that could make the decision irrelevant to AIPAC’s status.” Speculating that a proposed rule change by the FEC would view most AIPAC expenditures as “membership communications,” Breyer’s decision concluded that, if approved, the proposal would exempt AIPAC from the campaign law and the controversy over FEC’s “major purpose” test would no longer have importance.

Under normal circumstances, the court would be expected to rule that, under present law and existing FEC rules, the “major purpose” test is invalid. Therefore, following the normal logic of judicial decision-making, until such time as the law and/or rules are changed, AIPAC must make the required public disclosures. Instead, the court simply told the FEC how to duck the issue.

I am not an expert on Supreme Court decisions, but I will venture to guess that Breyer’s decision is one of those extremely rare cases in which the high court deliberately and blatantly finessed a showdown with one of the nation’s most powerful lobbies. It did so in a supine, abject way by informing the FEC how rule changes can clear its skirts of legal trouble and then, assured that the changes are in the works, gave AIPAC absolution.

The decision, of course, left AIPAC officials smiling broadly. Indeed, although not a party in the case before the court, AIPAC filed a friend of the court brief which suggested the precise course Breyer’s decision cited. Thomas G. Hungar, an attorney for AIPAC, said the high court “did exactly what we asked.” Under the proposed changes in FEC operations, AIPAC would “clearly qualify” as a membership group exempt from public disclosures of financial operations.

Former U.S. Ambassador Andrew 1. Killgore, one of the great stalwarts in the history of endeavors for free speech and human rights, is undismayed by the court decision. In a reaction to its decision, Killgore, the publisher and co-founder of the Washington Report on Middle East Affairs, announced that the plaintiffs will not give up their quest and predicted eventual success in forcing disclosure of AIPAC’s financial dealings.

Killgore said, “In the clear light of day, AIPAC’s activities will cease to be those of an 800-pound gorilla on Capitol Hill when it comes to U.S. policies in the Middle East.”

The New York Times gave public attention to views of both Killgore and myself. The newspaper reported that I have blamed AIPAC for my re-election defeat in 1982 and quoted me, accurately, as referring to the U.S. government as “Israeli-occupied territory.” In fact, AIPAC’s Thomas Dine has stated publicly that over 90 percent of $750,000 in funds that went to my opponent that year came from pro-Israel sources from across the country.

Although I rejoice in the challenge of the petitioners, I must state that I have never had much confidence in ultimate success. AIPAC has such muscle on Capitol Hill that, even if—a big if—the courts order financial disclosure, Congress would quickly—and quietly—enact an amendment to the election law relieving AIPAC of that requirement. Still needed is a groundswell of protest from the American countryside before AIPAC will stop acting like an 800-pound gorilla.