Supreme Court Takes Up "The Case Against AIPAC"

by Richard H. Curtiss

A June 16 Supreme Court decision to accept the eight-year-old "case against AIPAC" was good news and bad news both for the American Israel Public Affairs Committee and for the six surviving former U.S. government officials who have filed a series of legal complaints against Israel's giant lobbying organization and against the Federal Election Commission for not forcing AIPAC to disclose its election contributions and expenditures. While the Supreme Court is considering the case, a decision of the U.S. Circuit Court of Appeals for the District of Columbia upholding the complaint will be put on hold. But if the Supreme Court upholds the earlier 8 to 2 ruling against AIPAC, there will be no more excuses for inaction. The case will be argued during the Supreme Court's October 1997 term, and decided in 1998.

AIPAC, which openly lobbies for "any democratically elected government of Israel," is widely acknowledged to be the most effective lobby in America for either domestic or foreign special interests. Its extraordinary successes in steadily increasing the size of annual U.S. aid to Israel, which now consumes more than one-third of the entire world-wide U.S. foreign aid budget, were the subject of a best-selling book published several years ago entitled simply, The Lobby. That is exactly how AIPAC is referred to by members of Congress, one of whom recently remarked to a foreign visitor that AIPAC visits to his office are "the most unpleasant moments" of his congressional schedule.

AIPAC channels millions of dollars in campaign contributions to candidates for federal office through a network of political action committees established throughout the United States by members of AIPAC's national board of directors. These directors boast that for every dollar that enters congressional campaigns through the PACs, they can steer at least one additional dollar to friendly congressional incumbents, or to opponents of unfriendly incumbents, through contributions by individual supporters which they collect and present as a "bundle" to candidates they favor. In closed meetings for AIPAC members only, AIPAC directors have taken full or partial credit for the defeats of two former chairmen of the Senate Foreign Relations Committee, Republican Charles Percy of Illinois and Democrat J. William Fulbright of Arkansas.

AIPAC also takes credit for the "conversion" of present Senate Foreign Relations Committee Chairman Jesse Helms. The North Carolina Republican topped AIPAC's "hit list" in the 1984 elections because of his unyielding opposition to foreign aid. AIPAC directed immense contributions into the campaign of a Helms rival, making it the most expensive senatorial race in U.S. history up to that time. Helms emerged as the narrow victor and a changed man. He immediately accompanied a group of Jewish constituents to Israel, where he was photographed wearing a yarmulke at the Wailing Wall. From that time he has never again sought to derail aid for Israel.

AIPAC refused to open its financial records to FEC investigators.

Helms does not admit AIPAC's role in his drastic change of attitude, which includes supporting congressional maneuvers to provide Israel its lion's share of U.S. aid without members having to participate in an "up or down" (yes or no) vote on the issue. However, when less hypocritical legislators are asked why they participate in such actions, which their constituents certainly would not tolerate if they understood them, most simply reply: "The Jepsen factor." This refers to the defeat of Republican Senator Roger Jepsen of Iowa in 1984, for which AIPAC officers also took credit.

In presenting their initial case in January 1989 against AIPAC and 27 of the more than 35 political action committees (PACs) formed by its directors, the complainants submitted written evidence that AIPAC had closely managed contributions to candidates both through telephoned "advice" to the PACs and also through a tightly held "green book," which informed PAC directors and trusted AIPAC members which candidates were to be supported and which opposed, who faced tough opponents or close elections, how much each had raised at the beginning of each election cycle, and how much he or she would need by its end.

Avoiding Media Attention

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 scrutiny. Some U.S. Jewish weekly newspapers reported this decision in a way that implied that the "case against AIPAC" had been dismissed. The widely read Washington Jewish Week even quoted an unnamed AIPAC official as saying how thankful he was that "the worst nightmare" in AIPAC's long history was ended.

When there was no further word from the FEC on the case against AIPAC itself, and U.S. Jewish weeklies began reporting that it was AIPAC's refusal to open its financial records to FEC investigators that had forced them to drop the case, the original seven complainants filed a new suit against the FEC demanding that it rule on the original complaint against AIPAC.

The FEC complied by issuing a finding that AIPAC had "likely crossed the $1,000 threshold" defined in the Federal Election Campaign Act of 1971 as the maximum amount an organization or individual can donate to each candidate in each election without becoming a "political committee" subject to financial disclosure laws. However, the FEC said, since such election activities were not "the major purpose of AIPAC," it would not be required to comply with the disclosure laws that require all political committees, from PACs to Republican and Democratic national and state party committees, to reveal the source of every contribution of $200 or more, and also exactly how their funds are spent.

The complainants then filed a third complaint, saying that the FEC erred in not enforcing its own ruling that AIPAC was functioning as a political committee. The U.S. Court of Appeals for the District of Columbia first found 2 to 1 against the complainants, who then sought and were granted a hearing before the entire appeals court. This hearing resulted in an 8 to 2 decision on Dec. 6, 1996 in favor of the complaint, which called upon the FEC, which is composed of an equal number of Republican and Democratic political appointees and thus often seems unable to act decisively in controversial matters, to enforce its own ruling that AIPAC is a political committee by requiring AIPAC to comply with federal disclosure laws.

In seeking to evade those laws, AIPAC attorneys have charged that compliance will impose an intolerable burden on the 150-employee organization that claims 50,000 members and whose budget is said to be between $10 million and $16 million. In fact the requirement to disclose the source of every donation of $200 or more, and how the organization's money is spent, is less than the obligations imposed by the Internal Revenue Service on all non-profit organizations. The difference is that information disclosed to the FEC goes into the public domain, while information disclosed to the IRS remains confidential and beyond the reach of investigative journalists.

Rather than forcing the FEC to comply with the appeals court decision, Clinton administration Solicitor General Walter Dellinger now has appealed that ruling to the Supreme Court on behalf of the FEC. Aside from its implications for U.S. foreign policy, the case has important domestic implications at a time of public pressure to reform the campaign finance laws, which most Americans feel give special interests the power to override constituent wishes with their representatives in Congress.

A group of primarily Republican politicians, led by Sen. Mitch McConnell of Kentucky, a tobacco-growing state, defend the status quo by equating the injection of large quantities of unregulated "soft money" into the system with "free speech." Their argument is that in the television age it takes a great deal of money to buy enough television advertising to overcome an incumbent's built-in advantages. Ironically, the Clinton administration's appeal of the AIPAC decision aligns it with the "money equals free speech" philosophy articulated by Senator McConnell, who also is a major recipient of donations from the AIPAC- founded pro-Israel PACs.

In considering the FEC appeal, the Supreme Court will be dealing with two issues. Washington attorney Dan Schember, who with attorney Abdeen Jabara represents the complainants, has pointed out that under the present FEC ruling a group taking in $1 million a year and contributing it all to candidates must report every transaction, but a group that takes in $100 million and also contributes $1 million to candidates need not reveal its financial records because its "major purpose" is not political. "The amount matters," Schember told The Washington Times on June 16. "Whether the million dollars has the potential to corrupt does not relate to how many other millions the organization has."

He charged that "AIPAC routinely has made undisclosed campaign contributions" and exercises undue influence through a cycle of lobbying and contributions that "is at the root of that influence."

The point was tellingly argued in Schember's brief for the case which pointed out: "The FEC's test exempts organizations that flood every election with millions of dollars of contributions, provided they spend many more millions of dollars for other purposes such as lobbying for favors from the officials whom the campaign contributions helped to elect."

The other issue the Supreme Court probably will re-examine is whether the seven complainants, now reduced to six by the death of Kennedy administration Assistant Secretary of State George Ball, who also was U.S. ambassador to the United Nations in the Johnson administration, had "standing" to pursue the suit. The two dissenting judges in the previous 8 to 2 appeals court decision in favor of the complainants based their dissent not on the merits of the complaint but on whether the complainants had such standing.

Surviving complainants are former U.S. Ambassador to Saudi Arabia James E. Akins; Former U.S. Information Agency chief inspector Richard H. Curtiss; Paul Findley, former Republican member from Illinois in the U.S. House of Representatives (and the subject of two major AIPAC campaigns to deny him re-election in 1980 and 1982); Adm. Robert J. Hanks, former commander of the U.S. Navy Middle East Force; former U.S. Ambassador to Qatar Andrew I. Killgore; and former U.S. military officer Orin Parker who, for many years, was president of AMIDEAST, a non-profit organization that conducts student counseling and educational and training activities in Middle East countries with financing from USAID, USIA's cultural exchange program, and the host countries themselves. Former Detroit civil rights activist Abdeen Jabara is the attorney who in 1988 prepared much of the documentation for this long-running suit.

Reached in New York, where he now practices public interest law, Jabara said: "What the Supreme Court decides regarding the 'standing' of the plaintiffs, will reflect whether or not the justices believe Congress intended American voters to have access to information concerning contributors to campaigns and coordinated expenditures on behalf of candidates." What he might have added is that under present campaign finance laws those contributors, and the lobbying organizations that coordinate their efforts, have become the major players in deciding who represents the American people in Congress and in the White House.