Federal Election Commission (FEC) v. Akins, et al.
Decided on June 1, 1998; 524 US 11


A. Issues Discussed: 1st Amendment (press, speech, association)

B. Legal Question Presented:

1. Did respondents have standing to challenge the Federal Election Committee's (FEC) decision?

2. Does an organization fall outside the Federal Election Campaign Act of 1971 (FECA) definition of a "political committee" because "its major purpose" is not "the nomination or election of candidates"?


A. Background:

The Federal Election Campaign Act of 1971 (FECA) imposes record keeping and disclosure requirements upon political committees which receive more than $1,000 in "contributions" or which make more than $1,000 in "expenditures" in a year "for the purpose of influencing any election for Federal office." A complaint filed by a group of voters (respondents) asked petitioners, the Federal Election Commission (FEC), to order the American Israel Public Affairs Committee (AIPAC) to follow FECA's political committee requirements. In dismissing the complaint, the District Court found that AIPAC was not a political committee because its major purpose was not the nomination or election of candidates. The Court of Appeals for the District of Columbia concluded that the FEC's major purpose test improperly interpreted FECA's definition of a political committee. The Court of Appeals also ruled that if AIPAC - or any comparable organization - used $1,001 of resources in "an arguably partisan" way, the entire organization could be deemed a "political committee" subject to all the restrictions and regulations prescribed by FECA.

On appeal, the US Supreme Court granted certiorari.

B. Counsel of Record:
Opposing Side
Solicitor General Waxman argued the cause for the United States. With him on the briefs were Acting Solicitor General Dellinger, Malcolm L. Stewart, Lawrence M. Noble, Richard B. Bader, and David Kolker. Daniel M. Schember argued the cause for respondents. With him on the brief was Abdeen Jabara.
C. The Arguments:
Opposing Side
"Under the holding below, any group or organization, no matter how large or small, no matter how nonpartisan or issue-oriented, which uses a de minimis amount of its resources in any way that could plausibly be characterized as 'for the purpose of influencing any Federal election' is deemed a 'political committee' and thereby subject to the extensive regulations imposed by the Federal Election Campaign Act, including disclosure of members, contributors, disbursements and activities. That ruling is fundamentally at odds with a central tenet of this Court's campaign finance jurisprudence: the imperative of protecting issue advocacy from campaign finance controls.

In furtherance of that goal, this Court's opinion in Buckley repeatedly stressed that campaign finance laws must be narrowly tailored to avoid 'unnecessary abridgment of [First Amendment] freedoms.'... Two particular restrictions adopted in Buckley are critical here. First, the Buckley Court ruled that the government's regulation of expenditures must be limited to 'communications that in express terms advocate the election or defeat of a clearly identified candidate...' This 'express advocacy' doctrine, which Buckley adopted 'to distinguish discussion of issues and candidates from more pointed exhortations to vote for particular persons...' protects and safeguards issue-oriented speech. For two decades, it has played a crucial role in providing a bright line between permissible and impermissible government regulation.

Second, the Buckley Court concluded that the statutory definition of a 'political committee' must also be narrowed to avoid constitutional difficulties. Specifically, the Court held that '[t]o fulfill the purposes of the Act [the disclosure and other obligations of political committees] need only [apply to] organizations that are under the control of a candidate or the major purpose of which is the nomination or election of a candidate.' As construed by the Buckley Court, therefore, the major purpose doctrine provides a second line of defense for issue advocacy groups to avoid improper and unwarranted campaign regulation. That doctrine protects and safeguards issue-oriented speakers.

The decision of the court of appeals in this case ignores both these essential elements of Buckley. Instead, it embraces a constitutionally overbroad definition of a 'political committee' that is unnecessary to serve the government's asserted interest in providing the public with information regarding the source of political funding. That interest can be, and is, fully served by the disclosure obligations currently imposed upon the recipients of contributions by 2 U.S.C. §434(b)(3). Furthermore, the interest in public awareness of the source of coordinated or independent expenditures by groups that are not political committees is adequately satisfied by the disclosure requirements of 2 U.S.C. §434(c). Given these less restrictive alternatives, the far more expansive approach to campaign finance regulation endorsed by the court below fails the narrow tailoring requirement."

-ACLU amicus brief in FEC v. Akins


Opposing Side
Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union et al. by Joel M. Gora, Steven R. Shapiro, and Arthur N. Eisenberg; and for the National Right to Life Committee, Inc., by James Bopp, Jr. A. Stephen Hut, Jr., Roger M. Witten, Jeffrey P. Singdahlsen, and Donald J. Simon filed a brief for Common Cause as amicus curiae urging affirmance.

"Respondents satisfy prudential standing requirements. FECA specifically provides that '[a]ny person' who believes FECA has been violated may file a complaint with the FEC, and that '[a]ny party aggrieved' by an FEC order dismissing such party's complaint may seek district court review of the dismissal... History associates the word 'aggrieved' with a congressional intent to cast the standing net broadly-beyond the common-law interests and substantive statutory rights upon which 'prudential' standing traditionally rested... Moreover, respondents' asserted injury - their failure to obtain relevant information - is injury of a kind that FECA seeks to address...

Respondents also satisfy constitutional standing requirements. Their inability to obtain information that, they claim, FECA requires AIPAC to make public meets the genuine 'injury in fact' requirement that helps assure that the court will adjudicate '[a] concrete, living contest between adversaries.' The fact that the harm at issue is widely shared does not deprive Congress of constitutional power to authorize its vindication in the federal courts where the harm is concrete... The informational injury here, directly related to voting, the most basic of political rights, is sufficiently concrete. Respondents have also satisfied the remaining two constitutional standing requirements: The harm asserted is 'fairly traceable' to the FEC's decision not to issue its complaint, and the courts in this case can 'redress' that injury.

Finally, FECA explicitly indicates a congressional intent to alter the traditional view that agency enforcement decisions are not subject to judicial review...

The upshot, in our view, is that we should permit the FEC to address, in the first instance, the issue presented by Question Two. We can thereby take advantage of the relevant agency's expertise, by allowing it to develop a more precise rule that may dispose of this case, or at a minimum, will aid the Court in reaching a more informed conclusion. In our view, the FEC should proceed to determine whether or not AlPAC's expenditures qualify as 'membership communications,' and thereby fall outside the scope of 'expenditures' that could qualify it as a 'political committee.' If the FEC decides that despite its new rules, the communications here do not qualify for this exception, then the lower courts, in reconsidering respondents' arguments, can still evaluate the significance of the communicative context in which the case arises. If, on the other hand, the FEC decides that AlPAC's activities fall within the 'membership communications' exception, the matter will become moot...

Because of the unusual and complex circumstances in which the case arises, the second question presented cannot be addressed here, and the case must be remanded..."

Held: Vacated and remanded.

Justice Vote: 3 Pro vs. 6 Con

  • Breyer, S. Con (Wrote majority opinion)
  • Rehnquist, W. Con (Joined majority opinion)
  • Stevens, J. Con (Joined majority opinion)
  • Kennedy, A. Con (Joined majority opinion)
  • Souter, D. Con (Joined majority opinion)
  • Ginsburg, R. Con (Joined majority opinion)
  • Scalia, A. Pro (Wrote dissenting opinion)
  • O'Connor, S. Pro (Joined minority opinion)
  • Thomas, C. Pro (Joined minority opinion)

The ACLU filed as amicus in support of petitioner urging reversal; the US Supreme Court only addressed the first question presented. Ruling in favor of the respondents, the high court vacated and remanded the lower court's ruling in a 6-3 vote, giving the ACLU an apparent loss.