No. 96-1590 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 FEDERAL ELECTION COMMISSION, PETITIONER v. JAMES E. AKINS, RICHARD CURTISS, PAUL FINDLEY, ROBERT J. HANKS, ANDREW KILLGORE, AND ORIN PARKER ______________ ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT ______________ APPENDIX TO PETITION FOR A WRIT OF CERTIORARI _______________ WALTER DELLINGER Acting Solicitor General SETH P. WAXMAN Deputy Solicitor General MALCOLM L. STEWART Assistant to the Solicitor General Department of Justice Washington, D.C. 20530-0001 (202) 514-2217 LAWRENCE M. NOBLE General Counsel RICHARD B. BADER Associate General Counsel DAVID KOLKER Attorney Federal Election Commission Washington, D.C. 20463 WALTER DELLINGER Acting Solicitor General SETH P. WAXMAN Deputy Solicitor General MALCOLM L. STEWART Assistant to the Solicitor General Department of Justice Washington, D.C. 20530-0001 (202) 514-2217 (1) ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Page Appendix A (court of appeal's opinion dated Dec. 6, 1996, as amended Jan. 3, 1997) . . . . 1a Appendix B (court of appeals' opinion dated Sept. 29, 1995, as amended Nov. 1, 1995) . . . . 41a Appendix C (court of appeals' order dated Jan. 25, 1996) . . . . 75a Appendix D (district court's opinion dated Mar. 30, 1994) . . . . 77a Appendix E (FEC certification and statement of reasons) . . . . 95a ---------------------------------------- Page Break ---------------------------------------- APPENDIX A UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT No. 945088 JAMES E. AKINS, ET AL., APPELLANTS v. FEDERAL ELECTION COMMISSION, APPELLEE [Argued May 8, 1996] [Decided Dec. 6, 1996] [As Amended Jan. 3,1997] OPINION Before: EDWARDS, Chief Judge, WALD, SILBERMAN, WILLIAMS, GINSBURG, SENTELLE, HENDERSON, RANDOLPH, ROGERS, and TATEL, Circuit Judges, and BUCKLEY,* Senior Circuit Judge. Opinion for the Court filed by Circuit Judge SILBERMAN. Dissenting opinion filed by Circuit Judge SENTELLE. ___________________(footnotes) * At the time of en bane argument, Judge Buckley was a circuit judge in active service. He assumed senior status on September 1, 1996. (la) ---------------------------------------- Page Break ---------------------------------------- 2a SILBERMAN, Circuit Judge: Appellants challenge the district court's grant of summary judgment. The court affirmed the Federal Election Commission's dismissal of appellants' admin- istrative complaint, which had alleged that the .Ameri- can Israel Public Affairs Committee (AIPAC) was a "political committee? subject to relevant reporting and disclosure requirements and contribution and expenditure limits of the Federal Election Campaign Act (FECA), 2 U.S.C. par par431-55 (1994 & Supp.1996). The court thought reasonable the Commission's defi- nition of "political committee" as including only or- ganizations that, in addition to meeting the statutory $1,000 expenditure threshold, have as their major pur- pose campaign related activity. We reverse. I. James E. Akins, Richard Curtiss, Paul Findley, Robert J. Hanks, Andrew Killgore, and Orin Parker (collectively appellants) are former ambassadors, con- gressmen, or government officials. .They are regis- tered voters and "politically active persons who . . . . oppose AIPAC views-on US. foreign policy in the Middle East" and who "compete with AIPAC in seek- ing to influence the views and actions of members of Congress, executive policymakers, and the public." Paul Findley is a former congressman from Illinois "widely perceived to be friendly to the Arab cause"; AIPAC is alleged to have helped to defeat him in the 1982 congressional election. AIPAC is an incorporat- ed, tax-exempt organization with. approximately 50,000 supporters nationwide and a budget of about $10 million (as of 1989) that lobbies Congress and the executive branch for. military and economic aid to ---------------------------------------- Page Break ---------------------------------------- 3a Israel and generally encourages close relations with Israel. Appellants filed a complaint with the FEC in 1989, alleging inter alia that AIPAC had made campaign contributions and expenditures in excess of $1,000 and was therefore a political committee. A political com- mittee is defined as "any committee, club, association, or other group of persons which receives contribu- tions aggregating in excess of $1,000 during a calendar year or which makes expenditures aggregat- ing in excess of $1,000 during a calendar year," 2 U.S.C. par 431(4)(A) (emphasis added). "Expenditure" is defined in turn as "any purchase, payment, distribu- tion, loan, advance, deposit, or gift of money or any- thing of value, made by any person for the purpose of influencing any election." 2 U.S.C. par 431(9)(A)(i). Expenditures have been classified by caselaw and FEC interpretation to include three categories: inde- pendent expenditures not connected to any candidate, coordinated expenditures made in cooperation or consultation with a candidate, and direct contribu- tions to a candidate. Once designated a political committee, an organization must file periodic reports disclosing all receipts and disbursements and identi- fying each individual to whom it gives or from whom it receives more than $200. See 2 U. S. Cl. par 434(b)(2)-(5). And it is prohibited from contributing more than $1,000 to any candidate. See 2 U.S.C. par 441a(a). Appellants claimed that AIPAC met the statutory definition of political committee because, for example, it used full-time staff to meet with nearly every candidate for federal office, systematically disseminated campaign literature including candi- dates' position papers, and conducted regular meet- ---------------------------------------- Page Break ---------------------------------------- 4a ings and phone calls with AIPAC supporters en- couraging them to provide aid to particular candi- dates. Since these activities cost more than $1,000, AIPAC'S failure to register as a political comittee and comply with the requirements was a violation of the Act. See 2 U.S.C. par par 433; 434(a)(1), (b); 441a(1), (2). The General Counsel investigated the allegations and issued a report in 1992, making recommendations that were subsequently adopted by the Commission. The Commission determined that AIPAC likely had made campaign contributions exceeding the. $1,000 threshold, but concluded that there was not probable cause to believe AIPAC was a political commitee because its campaign-related activities were only a small portion of its overall activities and not its major purpose. The campaign activities were only con- ducted in support of its lobbying activities. No prece- dent was cited or rationale given, in the General Counsel's brief, his report, or the Commission's order, to support thiS interpretation of the statutory definition of "political committee." The Commission did find probable cause to believe that AIPAC violated par 441b, which generally prohibits campaign expendi- tures and contributions by corporations, but voted to take no action because it thought it was a close question whether AIPAC'S expenditures were made in the course of communicating with its members, an exception to par 441b's prohibition. It therefore dis- missed the complaint and closed the case. Appellants sued in the district court pursuant to par 437g(a)(8), an unusual statutory provision which permits a complainant to bring to federal court an agency's refusal to institute enforcement proceed- ings, cf. Heckler v. Chancy, 470 U.S. 821, 831, 105 ---------------------------------------- Page Break ---------------------------------------- 5a S.Ct. 1649, 1655-56, 84 L,Ed.2d 714 (1985), challenging the Commission's interpretation of the term "politi- cal committee."1 The Commission responded that the Supreme Court, concerned with the Act's burdens on political speech, had narrowed the term's statutory definition in Buckley v. Valeo, 424 U.S. 1, 96 S. Ct. 612, 46 L.Ed.2d 659 (1976), and FEC v. Massachusetts Citizens for Life, 479 U.S. 238, 107 S. Ct. 616, 93 L.Ed.2d 539 (1986) (MCFL). The Commission read these opinions-at least it so asserted in district court-as holding that an organization is a political committee only if its major purpose is the influencing of federal elections. Therefore, notwithstanding the plain language, the Commission claimed it inter- preted the statute at least reasonably. The district court agreed. Combining the Supreme Court's opinions (and our decision in FEC v. Machin- ists Non-Partisan Political League, 655 F.2d 380 (D.C. Cir.), cert. denied, 454 U.S. 897,102 S. Ct. 397,70 L.Ed.2d 213 (1981)), with Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) deference, the court concluded that the Commission's construction was "reasonable." A divided panel of this court affirmed. The FEC had not originally challenged appellants' standing, but the panel sua sponte asked the parties to brief the issue. The panel majority concluded that appellants had suffered an "informa- ___________________(footnotes) 1 Appellants also contest some of the Commission's factual conclusions. In particular, they question the Commission's determination that there was a lack of credible evidence con- cerning AIPAC's involvement in providing assistance to the opponent of Paul Findley-a complainant here-in a 1982 con- gressional election. ---------------------------------------- Page Break ---------------------------------------- 6a tional injury" as voters and members of the public the lack of information on AIPAC's contributions and expenditures, caused by the FEC's action, limited the information available to them as voters and impaired their ability to influence and inform the public and policymakers. The dissent thought appellants' injury was based instead on their competitive lobbying position vis-a-vis AIPAC. We determined to rehear the case en bane and directed the parties to focus on standing as well as the merits. II. The Commission, as it did before the panel (after it was asked to address. standing), challenges the court's jurisdiction. The Commission contends that neither the theories adopted by the panel judges nor appel- lants' somewhat different contentions satisfy Article III standing requirements. Appellants-whether as voters or political competitors (except for Findley whose standing as a candidate the Commission does not challenge) not only lack injury-in-fact, their alleged injury was not caused by the Commission's actions and it is not redressable by this court's order. It is further argued that even if appellants make out Article III standing, they are not parties "aggrieved" under the statute and so lack prudential standing. We take up first appellants' standing as voters. We have recognized in our "informational standing" cases that a party may be entitled to sue in federal court to force the government to provide information ___________________(footnotes) 2 The Commission does not explain why, if Findley does have standing, the rest of its standing objections are nonethe- less determinative, because we would still be obliged to reach the merits. ---------------------------------------- Page Break ---------------------------------------- 7a to the public (and thereby to it) if the government's failure to provide or cause others to provide that particular information specially affects that party. But this type of injury is narrowly defined; the failure must impinge on the plaintiff's daily operations or make normal operations infeasible in order to create injury-in-fact. Compare Scientists' Inst. for Public Info., Inc. v. Atomic Energy Comm'n, 481 F.2d 1079, 1086 n. 29 (D.C. Cir. 1973) (the Atomic Energy Com- mission's decision not to provide an Environmental Impact Statement (EIS) on a reactor program estab- lished Article III injury because the Institute's main function was to distribute such information to the public), and Action Alliance of Senior Citizens `v. Heckler, 789 F.2d 931, 937-38 (D.C. Cir. 1986) (Article III injury where new government regulations re- stricting the availability of information on services for the elderly impaired AASC's ability to provide information, counseling, and referral services for its senior citizen members), vacated on other grounds, 494 U.S. 1001,110 S. Ct. 1329, 108 L.Ed.2d 469 (1990), with Competitive Enter. Inst. v. National Highway Traffic Safety Admin., 901 F.2d 107, 122-23 (D.C. Cir. 1990) (no informational injury where organization failed to show how the NHTSA's decision not to issue an EIS significant] y diminished its ability to educate and inform the public about highway safety). Appel- lants' alleged injury as voters does not seem to fit within the limited contours of our informational standing cases. They do assert that their injury is based on the FEC'S failure to provide appellants, as voters, with certain information, but their injury does not depend on the character of their organizational activity but rather on the proposition that the de- privation of that information impedes their ability to ---------------------------------------- Page Break ---------------------------------------- 8a engage in a particular act guaranteed them in a democracy. They have been deprived of certain specific information that Congress thought voters needed to make an informed choice and therefore required "political committees," inter alia, to dis- close. Although Congress may not "create" an Article III injury that the federal judiciary would not recognize, anymore than Congress could amend the Constitu- tion, see United Tramp. Union v. ICC, 891 F.2d 908, 915-16 (D.C. Cir. 1989), cert. denied, 497 U.S. 1024,110 S. Ct. 3271, 111 L.Ed.2d 781 (1990); Safir v. Dole, 718 F.2d 475,479 (D.C. Cir. 1983), cert. denied, 467 U.S. 1206, 104 S. Ct. 2389, 81 L.Ed.2d 347 (1984), Congress can create a legal right (and, typically, a cause of action to protect that right) the interference with which will create an Article 111 injury. See Lujan. v. Defenders of Wildlife, 504 U.S. 555, 578, 112 S.Ct. 2130,2145-46, 119 L.Ed.2d 351 (1992) (quoting Warth v. Seldin, 422 U.S. 490, 500, 95 S. Ct. 2197, 2205-06, 45 L. Ed.2d 343 (1975)); Havens Realty Corp. v. Coleman, 455 U.S. 363,373, 102 S. Ct. 1114, 1121,71 L.Ed.2d 214 (1982). Such a legal right can be given to all persons in the country. In that event, any person whose individual right has been frustrated or interfered with has standing to sue, even though all other persons have the same right, without the claim being regarded as a generalized grievance. That is why anyone denied information under the Freedom of Information Act (FOIA), 5 U.S.C. par 552 et seq. (1994), has standing to sue regardless of his or her reasons ---------------------------------------- Page Break ---------------------------------------- 9a fox suing. Public Citizen v. FTC, 869 F.2d 1541, 1548 & n. 13 (D.C. Cir. 1989).3 Appellants would analogize this case to a FOIA case; any and all voters, in their view, suffer injury- in-fact when the FEC fails to force a political com- mittee to report its activities to the Commission, which then has an obligation under the statute to make such information available to the public. See 2 U.S.C. par 438(a)(4) (requiring Commission to make all information filed promptly available to the public). But Congress did not quite create a legal right in all individual voters to obtain that information either directly or indirectly. The mere denial of an attempt to gain information does not create a cognizable injury under the Act. An individual must file a complaint with the Commission, which is provided authority to enforce the requirement that political committees report their activities. Only parties aggrieved by the dismissal of a complaint are entitled to challenge in court the Commission's refusal to enforce. (Although under par 437g(a)(8)(C), if a court decision directing the Commission to act is ignored by the FEC, the complainant can actually sue the offending party directly.) This indicates that the statutory entitlement to information is not as cate- gorical or direct as that of FOIA.4 ___________________(footnotes) 3 The dissent's logic suggests that even such a claim is only a generalized grievance; otherwise, to use the dissent's phraseology, the dissent "ducks the consequences." of admitting that all Americans could sue. Dissent at 2. 4 By contrast to FOIA, the National Environmental Policy Act, 42 U.S.C. par 4332(2)(C) (1994), does not provide a private right of action to enforce the EIS procedural requirements. To show standing, the litigant therefore must allege that he will be harmed by the underlying agency action contemplated, ---------------------------------------- Page Break ---------------------------------------- l0a While a voter's rights under the Act are not exactly analogous to FOIA, appellants do have a point, and it is a point that distinguishes this case somewhat from our informational standing cases. Cf. Public Citizen v. Department of Justice, 491 U.S. 440, 449-50, 109 S. Ct. 2558,2564-65, 105 L.Ed.2d 377 (1989) (analogizing requests for access to information under the Federal Advisory Committee Act (FACA) to requests under FOIA). Congress clearly intended voters to have access to the information political committees were obliged to report. The whole theory of the statute is that voters are benefited insofar as they can determine who is contributing what to whom. See Buckley, 424 U.S. at 66-67, 96 S. Ct. at 657 (disclosure "provides the electorate with information `as to where political campaign money comes from and how it is spent by the candidate' in order to aid the voters in evaluating those who seek federal office," deters actual corruption and the appearance of corruption, and helps the public detect post-election quid pro quos). Although Congress cannot determine when someone has suffered Article III injury, we do not think it can be denied that this sort of information that Congress required disclosed aids voters, if and when they vote. If a party is denied information that will help it in making a transaction-and a vote can be ___________________(footnotes) and that if forced to prepare (and consider) an EIS, the agency might act differently. See Douglas County v. Babbitt, 48 F.3d 1495, 1501 n. 6 (9th Cir. 1995), cwt. denied, - U.S. -, 116 S. Ct. 698, 133 L. Ed.2d 655 (1996); Foundation on Economic Trends v. Lyng, 943 F.2d 79, 83 (D.C. Cir. 1991). Thus, the lack of the information itself is not an injury. Here, the injury is closer to the FOIA model; the injury to the voter is the lack of the information itself, and the only underlying agency action is the failure to require disclosure. ---------------------------------------- Page Break ---------------------------------------- lla thought of as a kind of transaction-that party is obviously injured in fact. We recognized as much in Public Citizen, 869 F.2d at 1546. & n. 7, where we determined that a group representing consumers had standing to challenge the FTC's regulations exempt- ing from health warnings certain promotional items sold by manufacturers of smokeless tobacco. Those promotional items, a form of advertising, were designed to encourage the purchase of smokeless tobacco, and some of the plaintiffs' members and their families alleged that they used or may use those products without the statutorily required reminder of the dangers that consumption entails. We reasoned that such information would be of substantial value to the plaintiffs' members, and therefore they were injured because they were deprived of it at the time they purchased or used the product. Id. Although admittedly registered voters-even the more limited subset of those who actually vote-is a very large group of Americans, we do not think it analytically sound to describe a lawsuit brought by affected registered voters as presenting only a generalized grievance. The term "generalized grie- vance" does not just refer to the number of persons who are allegedly injured; it refers to the diffuse and abstract nature of the injury. See, e.g., Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 94 S. Ct. 2925,41 L.Ed.2d 706 (1974) (citizen and taxpayer challenge to membership of members of Congress in Armed Forces Reserves during Vietnam War pre- sents generalized grievance); see also Lujan v. Defenders of Wildlife, 504 U.S. at 573-74, 112 S. Ct. at 2143-44. The number of potential plaintiffs matters not so long as each can assert a distinct, individual ---------------------------------------- Page Break ---------------------------------------- 12a injury, See Sierra Club v. Morton, 405 U.S. 727, 734, 92 S.Ct. 1361,1365-66,31 L. Ed.2d 636 (1972); Michel v. Anderson, 14 F.3d 6.23, 626 (D.C. Cir. 1994). A voter deprived of useful information at the time he or she votes suffers a particularized injury in some respects unique to him or herself just as a government con- tractor, allegedly wrongfully deprived of information to be made available at the time bids are due, would suffer a particularized injury even if all other bidders also suffered an injury. As we understand our dis- senting colleagues, they agree with the Commission that appellants are presenting a generalized grie- vance because it is information that they seek. Apparently if Congress provided that public or private employers were obliged to provide their employees free transportation to the polls, enforceable through an agency like the FEC, that would be a parti- cularized right (except that according to Section B of their opinion it would not be redressable). We think the dissent is just incorrect in refusing to see information as a commodity of value.5 To be sure, it would not be enough for standing in this case for appellants to assert only that they were voters, for appellants would not be injured as voters if AIPAC's activities were unrelated to any election in which they voted. But appellants can hardly be ex- pected to allege that AIPAC made contributions in the elections in which they voted, for whether AIPAC made such contributions is precisely the information ___________________(footnotes) 5 Since the dissent concedes that all appellants would have standing if the information had been supplied to the FEC and then simply withheld, Dissent. at 746-47, 745 n.2, it would ap- pear that the dissent's only real objection to standing is redress- ability. ---------------------------------------- Page Break ---------------------------------------- 13a of which appellants claim they have been deprived. As the FEC found that AIPAC likely did contribute in excess of $1,000 in one year, and the FEC did not identify the elections to which these contributions were made, there is nothing to indicate that appel- lants did not vote in various federal elections in which AIPAC allegedly made contributions that qualified it as a political committee. Therefore we conclude that appellants have standing as affected voters. We thus need not resolve whether appellants also have stand- ing as political competitors of AIPAC, or whether M-r. Findley-who was last a candidate in 1982, see Golden V. Zwickler, 394 U.S. 103, 109, 89 S. Ct. 956, 960, 22 L.Ed.2d 113 (1969) (no controversy where it was un- likely that congressman would again be a candidate for Congress)-has standing as a candidate. The Commission also questions the causal con- nection between its decision and appellants' injury, as well as causation's corollary in standing analysis- redressability. As best we understand the FE C's rather confusing argument,6 its causation objection is primarily directed to appellants' alleged lobbying injury rather than their injury as voters. That the Commission does not make the argument vis-a-vis appellants' standing as voters is understandable be- cause such a theory would stretch causation to its breaking point; no one would have standing to chal- lenge the Commission's determination, or for that matter, many other administrative agency actions. It is only necessary for a voter to allege that his vote and others' votes may have been affected by the ___________________(footnotes) 6 Appellants did not, it should be noted, provide much help on the difficult standing issue in this case. ---------------------------------------- Page Break ---------------------------------------- 14a disclosure of information that a contrary FEC deter- mination would have made available. The Commission's argument that appellants lack standing because we cannot issue an order that re- dresses their injury-with which the dissent agrees-strikes us as a breathtaking attack on the legitimacy of virtually all judicial review of agency action. The Commission points out that it has en- forcement discretion, so that even if we were to determine that its statutory interpretation of "political committee" is erroneous, it does not follow that AIPAC would be required to disclose the information a political committee must: the FEC might settle with AIPAC on terms that did not require disclosure. Yet all regulatory agencies enjoy some measure of enforcement discretion. If that factor were to mean that an agency's legal deter- mination was not reviewable, that would virtuaIly end judicial review of agency action. We rarely know when we entertain a case, say, challenging an agency's interpretation of a statute, whether the agency's ultimate action will be favorable to the petitioner or appellant. See Public Citizen, 491 U.S. at 450, 109 S. Ct. at 2564-65 (that FACA documents may not be disclosed pursuant to statutory exceptions no bar to redressability); Competitive Enter. Instit., 901 F.2d at 118 ("[a] remand that would leave the agency free to exercise its discretion in a proper man- ner, then, could lead to agency action that would redress petitioners' injury") (emphasis added); Foundation on Economic Trends v. Lyng, 943 F.2d at 83 & n. 2 (plaintiff typically not required to show that the agency was likely to take a particular substantive action in response to EIS). Our job is limited to ---------------------------------------- Page Break ---------------------------------------- 15a correcting a legal error-if error is committed-in the agency decision. See SEC v. Chenery Corp., 332 U.S. 194, 196-97,67 S. Ct. 1575, 1577-78,91 L.Ed. 1995 (1947). The error must, of course, be one upon which the agency decision rests, an analytical precondition to the agency action. If that is so, it has always been an acceptable feature of judicial review of agency action that a petitioner's "injury" is redressed by the reviewing court notwithstanding that the agency might well subsequently legitimately decide to reach the same result through different reasoning. See id. Nor can it be relevant, as the dissent supposes, that AIPAC might not comply with the Commission's order. That too is always true when an agency's nonaction against a third party is challenged. In any event, under this very unusual statute appellants are not dependent on the Commission's compliance with our decision correcting the Commission's interpreta- tion of the phrase "political committee." As we noted earlier, if the Commission fails to "conform" to our "declaration," the appellants, as the original com- plainant, may bring their own civil action to remedy the violation of law. 2 U.S.C. par 437g(a)(8)(C). It would appear under this provision that if the Commission gave only lip service to compliance with our order and settled with AIPAC without requiring disclosure, as the dissent suggests could occur, appellants would be able to seek disclosure directly. This unique statutory provision then completely undermines the Commission's and the dissent's redressability argument-even on the argument's own terms.7 ___________________(footnotes) 7 In an argument that seems to be based more on mootness than redressability, the Commission also contends that appel- lants' injury would not be redressed by a favorable decision of ---------------------------------------- Page Break ---------------------------------------- 16a Finally, the Commission challenges appellants' prudential standing, claiming they are not parties aggrieved within the meaning of the statute, which provides that "any party aggrieved by an order of the Commission dismissing a complaint filed by such party . . . may file a petition with the United States District Court for the District of Columbia." 2 U.S.C. par 437g(a)(8)(A). The Supreme Court, inter- preting similar language in the Administrative Pro- cedure Act permitting judicial review generally if a party is "aggrieved," has held that term obliges federal courts to determine whether, under the substantive statute, the party seeking judicial review is within the zone of interests. Thus [i]n cases where the plaintiff is not itself the sub- ject of the contested regulatory action, the test denies a right of review if the plaintiff's interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit. The test is not meant to be espe- cially demanding, in particular, there need be no ___________________(footnotes) this court because AIPAC is barred from making future contri- butions to candidates by another section of the statute, par 441b, which prohibits corporate contributions. This is a non sequitur; appellants claim they are injured because AIPAC was permit- ted to avoid registering as a political committee and disclosing its past receipts and expenditures. That disclosure of past activities would presumably affect voters in the future. If such injury were not redressable, once an election ended virtually all electoral conduct would be beyond review. In this case, for example, it took well over two years for the Commission to make a probable cause determination. ---------------------------------------- Page Break ---------------------------------------- 17a indication of congressional purpose to benefit the would-be plaintiff. Clarke, v. Securities Indus. Ass'n, 479 U.S. 388, 399-400, 107 S, Ct. 750, 757, 93 L.Ed,2d 757 (1987) (cita- tions omitted) (emphasis added). Here, although the governing judicial review provision is included within the substantive statute, the same test logically should apply to determine whether a party challeng- ing a Commission decision qualifies. But why would appellants not meet that test? The Commission's argument again is rather convoluted. It concedes, as it surely must, that the statute is designed primarily to aid voters, Buckley, 424 U.S. at 66-67, 96 S. Ct. at 657-58; therefore, it seems strange to even suggest that a voter would not have prudential standing. Yet the Commission asserts that "a pure voter's interest [is] too generalized to satisfy Article III or the zone of interests test" (emphasis added). We have already explained why we do not regard appellants' case as presenting a "generalized grievance." See supra pp. 737-38. And although the numbers of persons who might be eligible to sue might well bear on a deter- mination as to whether Congress intended such a broad class of potential litigants, in this case it is apparent that Congress treated the broad class- voters-as the core beneficiaries of the statute. Therefore, we simply cannot glean any congressional intent to preclude members of that class from suing- so long as they filed a complaint with the FEC that was dismissed.8 ___________________(footnotes) 8 It is not clear from the Commission's argument who would have prudential standing. Although the fact that no one would have standing to sue is not a reason to find Article III standing, Schlesinger v. Reservists, 418 U.S. at 227, 94 S. Ct. at ---------------------------------------- Page Break ---------------------------------------- 18a The Commission contends that "aggrieved" must be read to require a more direct connection to or a greater stake in the conduct in question, call it "voter plus" status. But appellants are not merely voters; they are voters who have filed a complaint with the Commission that has been dismissed. In sum, appel- lants' interests as voters clearly are not "so marginally related to or inconsistent with the pur- poses implicit in the statute," Clarke, 479 U.S. at 399, 107 S. Ct. at 757, for it to be unreasonable to assume Congress intended to permit them to sue. III. Section 431(4)(A) defines "political committee" solely in terms of "expenditures" and "contribu- tions": a political committee is "any committee, club, association, or other group of persons which receives contributions aggregating in excess of $1,000 during a calendar year or which makes expenditures aggre- gating in excess of $1,000 during a calendar year." The FEC concedes that this language sets unambigu- ous requirements for classification as a political committee. But it asserts that Supreme Court de- cisions have narrowed the reach of the statutory language in response to First Amendment concerns. The FEC relies on language in Buckley, 424 U.S. 1, 96 S. Ct. 612,46 L.Ed.2d 659, and MCFL, 479 U.S. 238, 107 S. Ct. 616, 93 L.Ed.2d 539, in claiming that an organization should only be classified as a political committee if, in addition to exceeding the $1,000 ___________________(footnotes) 2935, the same cannot be said for prudential standing. Where Congress has created a right to seek judicial review, see 2 U.S.C. par 437g(a)(8), it cannot be the case that Congress in- tended that right to extend to no one. ---------------------------------------- Page Break ---------------------------------------- 19a expenditure limit, the organization's major purpose is the nomination or election of a candidate or the organization is controlled by a political candidate. At minimum, the Commission argues, these cases created an ambiguity in the statutory definition of "political committee" so that the Commission's subsequent interpretation of the term is owed de- ference-and passes muster-under Chevron Step II. Chevron U.S.A. inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S. Ct. 2778,81 L.Ed.2d 694 (1984). When Congress is silent or ambiguous, the Commission reminds us, an agency's construction is owed deference if it is permissible. That the ambiguity here arose from Supreme Court interpre- tation does not, it is argued, affect this general rule of deference; the agency still has discretion to fill the interpretive "gap." According to the FEC, the gap to be addressed here is not whether the Court esta- blished a major purpose test as a generic definition of political committee (which the Commission assumes), but how such a test is to be implemented. Since the Court did not decide the types of organizations that are within its "definition" of political committee, whether contributions and expenditures are treated the same, and so on, the Commission has discretion to flesh out the concept, consistent with Supreme Court precedent. We think the FEC'S plea for deference is doc- trinally misconceived. It is undisputed that the statutory language is not in issue, but only the limitation-or really the extent of the limitation-put on this language by Supreme Court decisions. We are not obliged to defer to an agency's interpretation of Supreme Court precedent under Chevron or any ---------------------------------------- Page Break ---------------------------------------- 20a other principle. The Commission's assertion that Congress and the Court are equivalent in this respect is inconsistent with Chevron's basic premise. Chev- ron recognized that Congress delegates policymaking functions to agencies, so deference by the courts to agencies' statutory interpretations of ambiguous language is appropriate. But the Supreme Court does not, of course, have a similar relationship to agencies, and agencies have no special qualifications or legiti- macy in interpreting Court opinions. There is there- fore no reason for courts-the supposed experts in analyzing judicial decisions-to defer to agency interpretations of the Court's opinions. This is espe- cially true where, as here, the Supreme Court pre- cedent is based on constitutional concerns, which is an area of presumed judicial competence. See Public Citizen v. Burke, 843 F.2d 1473,1478 (D.C. Cir. 1988). In sum, since it is not, and cannot be, contended that the statutory language itself is ambiguous, and the asserted "ambiguity" only arises because of the Supreme Court's narrowing opinions, we must decide de novo the precise impact of those opinions. In that regard, we think the Commission misstates the interpretation issue. As we noted, it casts the ques- tion as how the major purpose test applies, as if the test were set forth categorically. But as we see the key question, it is whether the Supreme Court's major purpose limitation imposed in certain circum- stances for constitutional reasons applies in another circumstance-this case-in which the same consti- tutional concerns may not be implicated. Turning to the Supreme Court's decisions, the Court did state in Buckley that the term political committee "need only encompass organizations that ---------------------------------------- Page Break ---------------------------------------- 21a are under the control of a candidate or the major purpose of which is the nomination or election of a candidate." 424 U.S. at 79, 96 S.Ct. at 663 (emphasis added). And this notion was repeated in MCFL: "an entity subject to regulation as a `political committee' under the Act is one that is either `under the control of a candidate or the major purpose of which is the nomination or election of a candidate.'" 479 U.S. at 252 n. 6, 107 S. Ct. at 625 n. "6 (quoting Buckley, 424 U.S. at 79, 96 S. Ct. at 663). Although MCFL ap- parently was not charged with violating the political committee provisions, the Court in dicta said that "should MCFL's independent spending become so extensive that the organization's major purpose may be regarded as campaign activity, the corporation would be classified as a political committee." Id. at 262, 107 S.Ct. at 630. While the above language in Buckley and MCFL can literally be read to support the FEC's position, both cases focused on the constitutional concerns raised by independent expenditures, which are not coordinated with or made in consultation with any candidate, as distinguished from coordinated expendi- tures or direct contributions. See Colorado Republi- can Fed. Campaign Comm. v. FEC, - U.S. -, - - - -, 116 S. Ct. 2309, 2315-16, 135 L.Ed.2d 795 (1996). Independent expenditures are the most pro- tected form of political speech because they are closest to pure issue discussion and therefore farthest removed from the valid goal of preventing election corruption. Buckley, 424 U.S. at 19-23, 78-81, 96 S.Ct. at 634-37, 663-64; MCFL, 479 U.S. at 259-60, 107 S. Ct. at 628-29. They raise more serious First Amendment concerns because it is difficult to deter- ---------------------------------------- Page Break ---------------------------------------- 22a mine when an expenditure is independent, and regulation therefore risks chilling protected speech. For that reason, in Buckley the Supreme Court determined that expenditure limits are more likely to violate the First Amendment because they place substantial and direct restrictions on the ability to engage in political speech. See 424 U.S. at 39-59, 96 S. Ct. at 644-54. Limitations on contributions or coordinated expenditures, on the other hand, were thought to raise fewer constitutional concerns because they serve the basic governmental interest of protecting the electoral process while only marginally restricting political debate and dis- cussion. See Colorado Republican Fed. Campaign Comm., - U.S. at -, 116 S. Ct. at 2315; Buckley, 424 U.S. at 28, 96 S.Ct. at 639 (such limits "focus[ ] precisely on the problem of large campaign contri- butions-the narrow aspect of political association where the actuality and potential for corruption have been identified"); see also Buckley, 424 U.S. at 28,30, 36,96 S.Ct. at 639, 640, 643. To support its interpretation, the FEC points to Buckley's discussion of par 434(e), which imposes disclosure requirements on "[e]very person (other than a political committee or candidate)" making contributions or expenditures exceeding $100? "Con- tributions" -when defined as direct or indirect contributions to a candidate, political party, or cam- paign committee, or expenditures placed with the ___________________(footnotes) 9 Section 434(e) has subsequently been amended: "Every person (other than a political committee) who makes independ- ent expenditures in an aggregate amount or value in excess of $250 during a caIendar year" shall be subject to certain report- ing and disclosure requirements. 2 U.S.C. par 434(c)(l). ---------------------------------------- Page Break ---------------------------------------- 23a cooperation or consent of a candidate-were deter- mined to "have a sufficiently close relationship to the goals of the Act," and therefore limits on them are constitutional. Id. at 78, 96 S. Ct. at 663. The Court noted that the meaning of "expenditure," however, posed line-drawing difficulties because it posed the danger of "encompassing both issue discussion and advocacy of a political result." Id. at 79, 96 S. Ct. at 663. Therefore, the reach of par 434(e) was limited by "construing] `expenditure' for purposes of that section . . . to reach only funds used for communica- tions that expressly advocate the election or defeat of a clearly identified candidate." Id. at 80, 96 S. Ct. at 663. In the midst of this analysis of the scope of "expenditures" under par 434(e), the Court noted in dicta that the meaning of political committee, because it was defied solely in terms of contributions and expenditures, posed the same line-drawing problem. The Court's language that apparently refers to the major purpose of an organization, given this context, does not really support the Commission's interpreta- tion: To fulfill the purposes of [FECA, political com- mittees] need only encompass organizations that are under the control of a candidate or the major purpose of which is the nomination or election of a candidate. Expenditures of candidates and of "political committees" so construed can be as- sumed to fall within the core area sought to be addressed by Congress. They are, by definition, campaign related. Id. at 79,96 S.Ct. at 663 (emphases added). We think the better interpretation of this language, as appel- ---------------------------------------- Page Break ---------------------------------------- 24a lants suggest, is that when an organization controlled by a candidate or the major purpose of which is election-related makes disbursements, those dis- bursements will presumptively be expenditures with- in the statutory definition. The Court clearly distin- guished independent expenditures and contributions as to their constitutional significance, and its refer- ences to a "major purpose" test seem to implicate only the former. As we noted, certain language in MCFL can also be read to support the FEC's position, but the Court was again addressing First Amendment problems with the regulation of independent expenditures. The Court held that par 441b, which prohibits corporate contribu- tions or expenditures "in connection with any election," was unconstitutional as applied to MCFL because the Act's reporting and disclosure require- ments might discourage protected political speech of such advocacy groups. See 479 U.S. at .253-56, 107 S. Ct. at 625-27. Still, the Court's analysis clearly distinguished contributions and expenditures "should MCFL's independent spending become so extensive that the organization's major purpose may be regarded as campaign activity, the corporation would be classified as a political committee." Id. at 262, 107 S. Ct. at 630 (citing Buckley, 424 U.S. at '79, 96 S.Ct. at 663) (emphasis added). As in Buckley, this language can be read as merely creating a presump- tion that certain organizations' expenditures are "made . . . for the purpose of influencing any election"; an organization devoted almost entirely to campaign spending could not plead that the administrative burdens associated with such spending were uncon- stitutional as applied to it. As in Buckley, the under- ---------------------------------------- Page Break ---------------------------------------- 25a lying concern is that congressional regulation, in its effort to achieve full disclosure, may impermissible discourage protected independent expenditures. In short, the Court's rationale in MCFL and Buckley is simply inapplicable to the present case. There is no constitutional problem with applying par 431(4)(A) to AIPAC or to other organizations making campaign contributions (or coordinated expenditures) exceed- ing the statutory limits.10 The FEC further contends, however, that we endorsed its "major purpose" test in Machinists Non- Partisan Political League, 655 F.2d at 392. In Machinists, we held that "draft groups" that pro- moted the acceptance of particular individuals prior to their actual nomination did not fall within the definition of "political committee" because the ex- penditures and contributions were not made to a "candidate." Id. at 396. Our decision was based in large part on Congress' intent to exclude draft groups from the definition of political committee. See id. at 394-96 (Congress failed to respond to the FEC's repeated requests to amend the Act to apply contri- bution limits to draft groups). And our analysis, contrary to the FEC's suggestion, supports appel- lants' interpretation of the major purpose test We __________________(footnotes) 10 The Commission makes no claim that AIPAC actually qualifies for the MCFL constitutional exemption, which re- quires that the organization be engaged in issue advocacy, that it not accept contributions from labor unions or corporations, and that it have no shareholders or other persons with a claim on its assets who would have a disincentive to withdraw if they disagreed with its political positions. 479 U.S. at 264, 107 S. Ct. at 631. Indeed, the General Counsel's brief advised that AIPAC did not qualify because it apparently receives certain contri- butions from corporations. ---------------------------------------- Page Break ---------------------------------------- 26a did quote Buckley's language-noted above to be equivocal-on an organization's major purpose. Id. at 392. But we concluded that Buckley had endorsed the "narrowing construction" of "political committee" developed in United States v. National Comm. for Impeachment, 469 F.2d 1135 (2d Cir.1972) (NCFI), and American Civil Liberties Union, Inc. v. Jennings, 366 F. Supp. 1041 (D. D.C. 1973) (ACLU) (three-judge court), vacated as moot sub nom. Staats v. ACLU, 422 U.S. 1030,95 S.Ct.. 2646,45 L.Ed.2d 686 (1975), and we noted that "[a]ll three of these decisions recognized the grave constitutional difficulties inherent in construing the term `political committee' to include groups whose activities are not under the control of a `candidate,' or directly related to promoting or de- feating a clearly identified `candidate' for federal office." Id. at 393 (emphasis added). Our use of the word "activities"- while admittedly not free from ambiguity-indicates that, as appellants contend, it is the purpose of the organization's disbursements, not of the organization itself, that is relevant.11 ___________________(footnotes) 11 Appellants argue that the major purpose test is properly employed to determine whether an organization's independent disbursements constitute "expenditures" within the meaning of par 431(9)(A)(i), such that they count toward the $1,000 limit defining political committee status. See NCFI, 469 F.2d 1135; ACLU, 366 F.Supp. 1041. We do not for purposes of this ap- peal have to determine finally whether appellants' version of the test is the only possible one. But we reject the FEC's contention that appellants' interpretation of the major purpose test is redundant because the statute already requires that an expenditure be "made for the purpose of influencing an election." A "major purpose" test was developed at least part- ly in order to construe this definition narrowly so as to avoid constitutional concerns. See NCFI, 469 F.2d 1135; ACLU, 366 F.Supp. 1041; cf Buckley, 424 U.S. at 76-78, 96 S.Ct. at 662-63. ---------------------------------------- Page Break ---------------------------------------- 27a The FEC'S interpretation of "political committee" would, as appellants point out, allow a large organi- zation to contribute substantial sums to campaign activity, as long as the contributions are a small portion of the organization's overall budget, without being subject to the limitations and requirements imposed on political committees. Thus, an organiza- tion spending its entire $1 million budget on campaign activity would be a political committee, while another organization spending $1 million of its $100 million budget on campaign activity would not. This would wholly eviscerate the $1,000 limit in par 431(4 )(A)'s definition of "political committee." That such an organization, as the Commission emphasizes, may be limited by other statutory provisions as well-e.g., par 441b's prohibition on corporate expenditures and par 434(c)'s restrictions on persons (defined in par 431(11) to include corporations) making independent election expenditures-is irrelevant. There is no indication that Congress intended to limit one section in light of others or to make their application mutually exclu- sive. As the Commission concedes, various statutory provisions impose different, if overlapping, limits and requirements on organizations; these differences re- present the sound exercise of congressional judgment as to the various degrees of risk to the election process posed by certain activities. ___________________(footnotes) The FEC assumes that this statutory language already had a precise meaning-under the control of a candidate or made with the consent or authorization of a candidate-which in fact NCFI, 469 F.2d at 1141, and Buckley, 424 U.S. at 40-42, 79, 80, sought to impose. Appellants' major purpose test thus can be seen not as a tautology but as a necessary judicial gloss on the statutory definition of expenditure. ---------------------------------------- Page Break ---------------------------------------- 28a The Commission seeks to minimize the implicat- ions of its interpretation by arguing that it has not yet resolved when an organization's spending be- comes "a" major purpose that counts toward the "political committee" threshold.12 But we think little of this suggested safety valve; the inevitable logic of the Commission's test is that the two organizations described above, spending precisely the same amount to influence federal elections and therefore presenting precisely the same threat of election corruption, will be treated differently. And if the Commission is truly considering a variable major purpose standard as applied to contributions-now it applies and now it does not-such discretion in itself raises First Amendment concerns. Cf.Forsyth County v. Nationalist Movement, 505 U.S. 123, 130-33,112 S.Ct. 2395,2401-03, 120 L.Ed.2d 101 (1992) ___________________(footnotes) 12 The Commission nevertheless claims that it has con- sistently implemented its interpretation of the statute post- Buckley. The FEC points to two of its recent decisions, post-dating this litigation, to show its adherence to the major purpose test. See AO 1995-11, 2 Fed. Elec. Camp. Fin. Guide (CCH) 6148-49 (1995); AO 1994-25, 2 Fed.) Elec.. Camp. Fin. Guide (CCH) 6125. But as appellants note, earlier FEC advisory opinions-in the nearly 20 years after Buckley and 10 after MCFL-did not articulate a major purpose test; they instead appear to examine whether particular expenditures exceeded the $1,000 limit, without regard to the percentage of spending that was campaign related or to the organization's major purpose. See, e.g., AO 197941, 1 Fed- Elec. Camp. Fin. Guide (CCH) 5426; AO 1988-22, 2 Fed. Elec. Camp. Fin. Guide (CCH) 5932. We by no means think the FEC's ap- parent change of position dispositive, but it does undermine the Commission's insistence that the Supreme Court clearly im- posed this test, particularly given its failure to explain that view in its Order in this case. ---------------------------------------- Page Break ---------------------------------------- 29a (First Amendment prohibits investing official in li- censing scheme with discretion). Moreover, if it relied on such a standard, the Commission should have determined more precisely the level of AIPAC's campaign spending and should have explained why that funding was not "a" major purpose.13 There is no contention that AIPAC's disburse- ments were independent expenditures, so there is no constitutional barrier to application of par 431(4) (A)'s plain terms. The FEC found that AIPAC likely made campaign contributions in excess of $1,000. Its de- cision that no probable cause existed to believe AIPAC was a political committee, and its consequent dismissal of appellants' complaint, were therefore based on its mistaken interpretation of par 431(4)(A). This error requires that we reverse the dismissal of the complaint and remand to the FEC for further action not inconsistent with this opinion. ___________________(footnotes) 13 The FEC's decisions on how and to what extent to in- vestigate a complaint, while reviewable, command substantial deference. See FEC v. Rose, 806 F.2d 1081, 1091 (D. C.Cir. 1986). However, the investigation here likely would have been insufficient to support a finding that AIPAC's contributions were not "a" major purpose. The Commission asserts in its brief, without citation to the record, that "the evidence indi- cated that AIPAC's campaign spending never even reached one percent of its annual budget," but that already approaches $100,000 (emphasis added). In any event, given our resolution of the case, the factual findings already made by the FEC indicate that AIPAC should be classified as a political commit- tee. ---------------------------------------- Page Break ---------------------------------------- 30a **** The judgment of the district court is Reversed. SENTELLE, Circuit Judge, dissenting, with whom Circuit Judge HENDERSON joins: The standing doctrine "requires that anyone who would invoke the aid of the courts in resolving a complaint must allege, at a minimum, an actual or imminent injury personal to the plaintiff that is fairly traceable to the defendant's conduct and that is likely to be redressed by requested relief." Louisiana Env. Action Network v. Browner, 87 F.3d 1379,1382 (D.C. Cir. 1996). For the reasons that follow, I would hold that appellants have not established these minimum requirements. A. Informational Standing When this matter was before the panel, I wrote for the majority finding standing based on "informational injuries." I concluded at the time, and believe now, that the panel was compelled by circuit precedent to reach that result. See, e.g., Save Our Cumberland Mountains, Inc. v. Hodel, 826 F.2d 43, 54 (D.C. Cir. 1987) (R.B. Ginsburg, J., concurring) (law of the circuit " `whether or not [it] is correct' . . . binds us unless and until overturned by the court en bane or by Higher Authority."). Because circuit precedent dic- tated that an organization can establish standing by alleging that a governmental action restricted the flow of information disseminated by the organization in its regular activities, Action Alliance of Senior Citizens v. Heckler, 789 F.2d 931,939 (D.C. Cir. 1986), I thought the panel had no choice on the issue. Be- cause the en bane court is not so restricted but is ---------------------------------------- Page Break ---------------------------------------- 31a empowered to depart from circuit precedent, if I were writing for the majority today, I would take this occasion to modify circuit law on informational stand- ing and would not find informational standing on the present record. The majority, rightly, rejects informational stand- ing for plaintiffs in this case. I applaud the majority's decision to treat the concept as a narrow one. I agree with the majority that a party cannot successful] y claim informational standing -where he cannot esta- blish that "the government's failure to provide or cause others to provide" information "impinge[s] on the plaintiff's daily operations or make[s] normal operations infeasible . . . . " Maj. Op. at 735 (citing Scientists' Inst. for Public Info., Inc. v. Atomic Energy Comm'n, 481 F.2d 1079, 1086 n. 29 (D.C. Cir. 1973)). While the majority is not clear on why appellants' complaint differs from that of, for example, the organization for the elderly in Action Alliance, it at least seems to be attempting to narrow the concept of informational standing by holding that the "[appellants' alleged injury as voters does not seem to fit within the limited contours of" informational standing precedent. Maj. Op. at 736. But the majority retains the fundamental error which has infected our informational standing jurisprudence when it affords standing to the plaintiffs/appellants as voters, on a rationale indistinguishable from informational standing. Indeed, it recites in informational terms that "[a] voter deprived of useful information at the time he or she votes suffers a particularized injury in some respects unique to him or herself just as a government contractor, allegedly wrongfully deprived of information to be made available at the time bids ---------------------------------------- Page Break ---------------------------------------- 32a are due, would suffer a particularized injury even if all other bidders also suffered an injury." Maj. Op. at 737 (emphasis added). In setting forth this analysis, the majority admits that the class of "registered voters-even the more limited subset of those who actually vote-is a very large group of Ameri- cans . . . . "l Id. at 737. But the majority ducks the consequences of this admission. The Supreme Court expressly held in Warth v. Seldin, 422 U.S. 490, 95 S. Ct. 2197, 45 L.Ed.2d 343 (1975), that "when the asserted harm is a `generalized grievance' shared in substantially equal measure by all or a large class of citizens, that harm alone normally does not warrant exercise of jurisdiction." Id. at 499, 95 S.Ct. at 2205 (citing, e.g., Schlesinger V. Reservists Committee to Stop the War, 418 U.S. 208, 94 S. Ct. 2925,41 L.Ed.2d 706 (1974)). The majority has not explained why the claimed lack of information for the entire class of voters (or potential voters) does not fall squarely within this precept. The attempted distinction that " `generalized grievance' does not just refer to the number of persons who are allegedly injured [but] refers to the diffuse and abstract nature of the injury," Maj. Op. at 737, gets nowhere without an explanation as to why this is not a diffuse and abstract injury.2 The comparison to the bidder de- ___________________(footnotes) 1 It is not at all clear why the injury is limited to the class of registered voters as opposed to all potential voters as the information, if useful, could be as likely to warrant registration and voting as voting in a particular direction. 2 Contrary to the majority's assertion, Maj. Op. at 736 n.3, our logic does not suggest that a claim for information under FOIA is only a generalized grievance. FOIA gives everyone a right to information. A FOIA injury, therefore, is not a " `generalized grievance' shared in substantially equal measure ---------------------------------------- Page Break ---------------------------------------- 33a prived of information accomplishes even less. Chief Justice Burger in Schlesinger v. Reservists made that comparison for us. "It is one thing for a court to hear an individual's complaint that certain specific government action will cause that person private competitive injury . . . but it is another matter to allow a citizen to call on the courts to resolve ab- stract questions." Schlesinger, 418 U.S. at 223, 94 S. Ct. at 2933 (footnote omitted). Cases in this second category, Chief Justice Burger noted, raise "only a matter of speculation whether the claimed violation has caused concrete injury to the particular com- plainant." Id. This is the flaw of the new form of standing-voter standing-that the majority creates today, It, like the broad definition of informational standing, relies on a diffuse rather than a particular- ized injury. I would not only reject informational standing as a basis for this claim, but, because I see no basis for distinction between this case and, for example, Action Alliance, I would reexamine the entire concept of informational standing as it now exists in this cir- cuit, and I would reject it. I do not find within the majority opinion any justification for our precedent on that subject. The majority's creation violates the principle that a plaintiff generally may not rely for a claimed injury on a mere ideological interest, Competitive Enter. Inst. v. NHTSA, 901 F.2d 107, 112 ___________________(footnotes) by all or a large class of citizens." Warth, 422 U.S. at 499, 95 S.Ct. at 2205. It is a particularized injury personal to the disappointed requester, and Warth's holding is therefore not implicated. Similarly, if the FEC had the information appel- lants want and refused to provide it, they might have a cogniz- able injury affording them standing. ---------------------------------------- Page Break ---------------------------------------- 34a (D.C. Cir. 1990), by perpetuating the notion that an organization has standing where the alleged injury is that the government's failure to provide information to the organization "impinge[s] on the plaintiff's daily operations or make[s] normal operations infeasible." Maj. Op. at 735 (citing Scientists' Inst. for Public Info., Inc. v. Atomic Energy Comm'n, 481 F.2d 1079, 1086 n. 29 (D.C. Cir. 1973)). While the Supreme Court's standing jurisprudence may not always be pellucid, the Court has left no doubt that "a mere `interest in a problem,' no matter how longstanding the interest and no matter how qualified the organi- zation is in evaluating the problem, is not sufficient by itself to render the organization `adversely affected' or `aggrieved' within the meaning of the APA." Sierra Club v. Morton, 405 U.S. 727, 739, 92 S. Ct. 1361,1368,31 L.Ed.2d 636 (1972). As the Court noted, if a special interest in a subject were enough to provide the floor for standing to a long-interested organization, there would be no objective basis for barring the same theory of standing to any other organization no matter how small or new, or to an individual with an interest in the subject matter. That the organization has made the collection and dissemination of information on a particular subject its goal in life no more gives it an injury in fact each time it cannot obtain the information it wants than would be true of any one of its members. The organization's standing can, like water, rise no higher than its members' source. That the organization cannot carry on its ordinary affairs because it cannot get the information it desires from the government no more creates injury in fact than if it were seeking government funds to which it was not ---------------------------------------- Page Break ---------------------------------------- 35a otherwise entitled because it could not operate its ordinary affairs without that funding. That could hardly be said to provide it with an injury in fact for standing purposes unless the government were under some duty to provide the funding. I see no reason why the same is not true with respect to information. Informational standing, of course, has a legitimate origin in those areas of the law where Congress has created a right to information and an obligation on the government to furnish it, and a plaintiff, attempting to exercise that right, has been denied the same. As the majority rightly notes, "Congress may not `create' an Article III injury that the federal judiciary would not recognize, [but] . . . Congress can create a legal right ., . the interference with which will create an Article III injury." Maj. Op. at 736 (citations omitted). Thus, under statutes such as FOIA, where Congress has expressly entitled citizens to certain information, the withholding of that information by the government violates that statutory right and causes the injury in fact which underlies standing. This is so despite the fact that all citizens hold the right equally and that generalized grievances do not provide the injury in fact necessary for Article III standing. See Public Citizen v. United States Dep`t of Justice, 491 U.S. 440,449-50, 109 S. Ct. 2558, 2564-65, 105 L.Ed.2d 377 (1989). The logic of allowing that deprivation to constitute injury in fact despite the generalized nature of the right violated is, upon examination, inescapable. The right is generalized, but the injury is not. The injury has occurred specifically, individually, and palpably to the person who tried to exercise the right and was thwarted. If the generalized nature of a right were ---------------------------------------- Page Break ---------------------------------------- 36a sufficient to make the injury suffered in the depriva- tion of that right nonjusticiable, then there would be no way to vindicate, for example, First Amendment rights. Thus, standing under FOIA, under FACA, see Public Citizen, supra, and perhaps under the FECA is not "informational" standing at all. It is standing in its most traditional form. A plaintiff brings suit to vindicate an injury to a statutorily created right. That right happens to be access to information. But that type of action is not before us here. Plaintiffs in the instant case are not seeking to vindicate a statutorily created right. The FEC is, as the majority makes clear, obligated under the Act to provide certain information to vot- ers, indeed, to the population at large. If the plaintiffs had gone to the FEC seeking information that the Commission possessed and been denied it, and then jumped through the proper procedural hoops, the FEC could not credibly have argued that the plaintiffs did not have the injury in fact to make out standing. But that is not what happened. The plaintiffs did not seek access to information in the Commission's possess- ion, but rather sought to have the Commission per- form its alleged legal duty to regulate a third party- the American Israel Public Affairs Committee ("AIPAC'')-in such a fashion as to cause the third party to give it the information to which the plaintiffs would then be entitled. Although the Act contemplates citizen complaints initiating Commission investigation of violation of the Acts, 2 U.S.C. par 437g (1994), this is not to say that Congress has created a right to enforcement of the law, the violation of which constitutes an injury in fact for standing purposes. In Heckler v. Chaney, ---------------------------------------- Page Break ---------------------------------------- 37a 470 U.S. 821, 831, 105 S. Ct. 1649, 1655, 84 L.Ed.2d 714 (1985), the Supreme Court reaffirmed "that an agency's decision not to prosecute or enforce, whether through civil or criminal process, is a de- cision generally committed to an agency's absolute discretion," That being the case, the Court re- cognized "the general unsuitability for judicial review of agency decisions to refuse enforcement." Id. For an injury to afford standing, it must be reme- diable in the action brought. As we cannot, under Heckler, afford a remedy for an injury consisting of no more than the generalized grievance that the Commission has failed to enforce the law, the Com- mission's failure to take the regulatory action of declaring AIPAC a political committee which would allegedly cause AIPAC to turn over the information to which appellants would then have access is not an injury which this court can remedy under Heckler. Neither does the congressional provision affording a right to sue overcome the lack of standing. Granted, section 437g(a)(8)(A) permits any party aggrieved by the Commission's dismissal of a complaint or failure to act on such complaint to file a petition with the United States District Court for the District of Columbia. Such a statute creating a right to sue does not, however, create standing. At most, it invests a right to sue in those who otherwise have standing but would not necessarily have a clear claim to relief cognizable by a district court. The Supreme Court has clearly enunciated this concept in the analogous context of environmental litigation. In Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S. Ct. 2130, 119 L.Ed.2d 351 (1992), the Court of Appeals had held, inter alia, that the citizens [sic] suit provision in 16 ---------------------------------------- Page Break ---------------------------------------- 38a U.S.C. par 1540(g) provided standing. Lujan, 504 U.S. at 572, 112 S. Ct. at 214243 (citing 901 F.2d at 121-22). In reversing that holding, the Supreme Court expressly rejected the view that "the injury-in-fact requirement had been satisfied by congressional conferral upon all persona of an abstract, self-contained, noninstrumental `right' to have the Executive observe the procedures required by law." 504 U.S. at 573, 112 S.Ct. at 2143. The Court recognized without difficulty that such a view rejected the consistent holding of the Supreme Court "that a plaintiff raising only a generally available grievance about government . . . does not state an Article III case `or controversy." Id. at 573-74, 112 S.Ct. at 2143. The logic of Lujan is no less applicable here. These plaintiffs have no statutory right, through section 437g or any other provision, to force the FEC to collect and turn over this information. In the absence of such a right, no injury-informational or otherwise-is possible. I would discard the entire notion of informational standing to the extent that it is something separate from traditional standing doctrine. Under traditional standing doctrine it is clear that these plaintiffs have stated no claim. B. Redressability Although I have alluded above to the absence of re- dressability as defeating standing, I wish to make it quite express that even if the grievance of voters is not held to be too generalized to afford standing, that grievance lacks the redressability essential to an Article III injury. Both we and the Supreme Court have repeatedly made it plain that where an injury to putative plaintiffs is "highly indirect" as to a governmental actor defendant, and " `results from the ---------------------------------------- Page Break ---------------------------------------- 39a independent action of some third party not before the court, `" it is " `substantially more difficult to meet the minimum requirement of Art. III'" standing than in the case of a direct injury. Allen v. Wright, 468 U.S. 737, 757-58, 104 S. Ct. 3315, 3328, 82 L.Ed.2d 556 (1984) (quoting Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 42, 96 S. Ct. 1917, 1926, 48 L.Ed.2d 450 (1976), and Warth v. Seldin, 422 U.S. at 505,95 S.Ct. at 2208). The Allen Court pronounced that analysis in a discussion that began with the causation element of standing, finding the line of causation between a grant of tax exemption and the third party's offending conduct "attenuated at best." Id. at 757, 104 S. Ct. at 3327-28. The Court then reasoned from that attenuated causation to a conclusion that "it is entirely speculative . . . whether withdrawal of a tax exemption from any particular school would lead the school to change its policies." Id. at 758, 104 S. Ct. at 3328. The Simon decision makes it even more clear that multi-level relief is not only problematic as to causation-that is to say that the independent act of a third party is rarely fairly traceable to the government's failure to regulate-but also as to re- dressability. In that case, the Court held that "Art. III still requires that a federal court act only to redress injury that fairly can be traced to the chal- lenged action of the defendant, and not injury that results from the. independent action of some third party not before the Court." Simon, 426 U.S. at 41-42,96 S. Ct. at 1926. In Simon, in Allen v. Wright, in Fulani, the high court and this one have re- peatedly held that it is too speculative to meet the redressability requirement of Article III standing to ---------------------------------------- Page Break ---------------------------------------- 40a assume that an independent third-party actor would so amend its conduct to redress the wrong allegedly being done to the plaintiffs because of a court decree against the government. In those cases, admittedly, the regulatory act involved taxation. But the ration- ale is no different here. In this case, no more than those, to find a lack of standing where redressability would depend on the Commission's regulation of a third party and that third party's response to the regulation is no "breath- taking attack on the legitimacy of virtually all judicial review of agency action," as the majority suggests. Maj. Op. at 738. Rather, it is only a specific application of general principles of standing juris- prudence. Appellants' claim of redressability depends on the linked chain that the Commission will enter an order against AIPAC requiring the information plaintiffs seek, that AIPAC will comply with that order, and that appellants will still be sufficiently interested in the information thus produced that they will renew their claim on FEC to present them with that in- formation after they jump through the procedural hoops. This, I submit, is too attenuated to provide the sort of redressability necessary to meet Article III standing. CONCLUSION Because the injury plaintiffs allege is neither per- sonal to the plaintiffs nor redressable in this action, they lack standing to bring the claim to an Article III court. I would therefore affirm the grant of summary judgment entered by the district court. ---------------------------------------- Page Break ---------------------------------------- 41a APPENDIX B UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT No. 94-5088 JAMES E. AKINS, ET AL., APPELLANTS v. FEDERAL ELECTION COMMISSION, APPELLEE [Argued May 10, 1995] [Decided Sept. 29, 1995] [As Amended Nov. 1, 1995] OPINION Before: EDWARDS, Chief Judge, SILBERMAN and SENTELLE, Circuit Judges. Opinion concurring in part and dissenting in part filed by Circuit Judge SILBERMAN. SENTELLE, Circuit Judge: Appellants sought review in district court of the Federal Election Commission's dismissal of their administrative complaint alleging various violations of the Federal Election Campaign Act, 2 U.S.C. $$431-55 (1994). The district court granted summary ---------------------------------------- Page Break ---------------------------------------- 42a judgment for the Federal Election Commission. Be- cause we agree that the Commission acted in a reasonable manner in its interpretation and applica- tion of the Federal Election Campaign Act as to the administrative complaint, we affirm. I. BACKGROUND James E. Akins, Richard Curtiss, Paul Findley, Robert J. Hanks, Andrew Killgore, and Orin Parker (collectively, "appellants") are former ambassadors, congressmen or government officials. They are po- litically active people who seek to influence policy- makers and the public and who oppose the views of the American Israel Public Affairs Committee ("AIPAC") regarding United States foreign policy in the Middle East. AIPAC is an incorporated, tax-exempt organization with approximately 50,000 supporters nationwide that lobbies Congress and the Executive Branch for mili- tary and economic aid to Israel. AIPAC has an annual budget of close to $10 million. AIPAC's stated pur- pose is to encourage close relations between the United States and Israel. On January 9, 1989, appellants filed a complaint with the Federal Election Commission ("FEC" or "Commission"), the independent government agency responsible for enforcement of the Federal Election Campaign Act ("FECA" or "Act"), claiming that AIPAC was a political committee under 2 U.S.C. par par 431(4) and 431(9)(A)(i) because it made expendi- tures, including contributions, aggregating in excess of $1,000 in a year for the purpose of influencing any election for federal office. As a political committee, AIPAC would be subject to registration and reporting ---------------------------------------- Page Break ---------------------------------------- 43a requirements involving disclosure of its donors and the amounts it had contributed to candidates, as well as the $1,000 limit for contributions to individual candidates. 2 U.S.C. par par 433, 434(a)(1) and (b), 441a(1) and (2) (1994). The FEC investigated the allegations and after a substantial investigation, the General Counsel issued a report regarding AIPAC's corporate- expenditures, campaign-related activities and political activities. While the FEC found that AIPAC has made contribu- tions that likely crossed the $1,000 threshold, it concluded that AIPAC is not a political committee under the statute because its campaign-related activi- ties constitute only a small portion of its overall activities and are not AIPAC's major purpose. The FEC stated that AIPAC is primarily a lobbying organization interested in promoting U.S Israel re- lations and its campaign-related activities are under- taken as an adjunct to its lobbying efforts. Adopting the General Counsel's recommendations, the Commission found that there was no probable cause to believe that AIPAC was a political com- mittee in violation of the disclosure and reporting requirements of sections 433 and 434 of the Act. The Commission did find probable cause to believe that AIPAC violated section 441b, which restricts ex- penditures and contributions by corporations, but unanimously voted to take no action. Appellants filed suit in district court claiming that the FEC's final agency action-its determination of no probable cause to believe that AIPAC was a politi- cal committee under the Act-was arbitrary, capri- cious and contrary to law. Appellants allege that the FEC's major purpose standard is contrary to law and ---------------------------------------- Page Break ---------------------------------------- 44a that the Commission's findings, reasons, and investi- gation were insufficient to support its conclusion that there is no probable cause to believe that AIPAC's campaign-related activities were at such a level as to make them a major purpose of the organization. The district court granted summary judgment on the basis that the FEC's construction and application of the major purpose standard was proper under the Supreme Court's and" this Circuit's interpretations of the Act. The court found no evidence that the Com- mission failed to investigate adequately appellants' administrative complaint. II. DISCUSSION A. Standing Before addressing appellants' claim on the merits, we must first resolve a jurisdictional issue: whether appellants have standing, both constitutional and prudential, to pursue their claims in federal court at all. In order to establish constitutional standing, appellants "must show injury in fact that is fairly traceable to the defendant's action and redressable by the relief requested." Animal Legal Defense Fund, Inc. v. Espy, 23 F.3d 496, 498 (D.C. Cir. 1994) ("ALDF") (citing Allen v. Wright, 468 U.S. 737, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984); Valley Forge Christian College v. Americans United for Separa- tion of Church and State, Inc., 454 U.S. 464, 47475, 102 S. Ct. 752,759-60,70 L.Ed.2d 700 (1982)). Section 437g(a)(1) of FECA allows any person who believes that there has been a violation of the Act to file a complaint with the FEC. In turn, section 437g(a)(8)(A) states that any party aggrieved by an order of the FEC dismissing its complaint may file a ---------------------------------------- Page Break ---------------------------------------- 45a petition with the U.S. District Court for the District of Columbia. Appellants allege that the FEC's action has denied them their right as citizens, registered voters, and members of the public to obtain information that AIPAC as a political committee would be required to disclose. They contend that their ability to influence and inform policymakers and the public is impaired by the lack of information about AIPAC's contributors and expenditures.1 While arguably an injury of this type would not appear to meet the requirements of Article III standing, a line of circuit precedent, begin- ning with a footnote in Scientists' Inst. for Public Info., Inc. v. Atomic Energy Comm'n, 481 F.2d 1079 (D.C. Cir. 1973), has recognized certain "informa- tional injuries" resulting from agency action. Id. at 1087 n. 29 (finding appellants have standing to chal- lenge AEC decision not to issue environmental im- pact statement because agency action limited appellants' ability to inform public about social issues and questions of public policy); see also Action Alliance of Senior Citizens v. Heckler, 789 F.2d 931, 937-38 (D.C. Cir. 1986) (finding organization ade- quately alleged informational injury in regulations restricting flow of information regarding services available to the elderly); Foundation on Economic Trends v. Lyng, 943 F.2d 79, 83-85 (D.C. Cir. 1991) (assuming that Agriculture Department's failure to prepare impact statement with respect to germplasm program injured Foundation because its mission is to ___________________(footnotes) 1 Appellants have also alleged that their ability to compete in the political arena with AIPAC is weakened without the information. We do not recognize standing on that basis in this case. ---------------------------------------- Page Break ---------------------------------------- 46a provide information to its members and general public about such matters, but holding that appellants lacked standing on grounds that they failed to show parti- cular agency action that triggered violation and caused injury). This court recently found informa- tional injuries that satisfied the minimum require- ments of Article III standing in Animal Legal De- fense Fund, Inc. v. Espu, 29 F.3d 720 (D.C. Cir. 1994) (finding constitutional standing, but dismissing case for lack of prudential standing); ALDF, 23 F.3d 496 (same). Although we acknowledge that this broad approach raises "complex and difficult considera- tions," Lyng, 943 F.2d at 84 (quoting Natural Re- sources Defense Council, Inc. v. SEC, 606 F.2d 1031, 1042 n. 6 (D.C. Cir. 1979)), circuit precedent compels that we find that appellants in this case meet the requirements of Article III standing with the infor- mational injury they have alleged. Appellants must also satisfy the prudential pre- requisites of standing, they must show that they fall within the statute's "zone of interests" by demon- strating "either a congressional intent to protect or regulate the interest asserted, or some other indi- cation that the litigant is a suitable party to pursue that interest in court." ALDF, 23 F.3d at 502 (citations omitted). Given the broad purposes of FECA, appellants appear to meet think test. Two of the three purposes of the Act's disclosure requirements were intended to serve the information interests of the public, the electorate, and individual voters. These purposes were noted in Buckley v. Valeo, 424 U.S. 1, 96 S. Ct. 612,46 L.Ed.2d 659 (1976): ---------------------------------------- Page Break ---------------------------------------- 47a First, disclosure provides the electorate with in- formation "as to where political campaign money comes from and how it is spent by the candidate" in order to aid the voters in evaluating those who seek federal office. . . . Second, disclosure require- ments deter actual corruption and avoid the appearance of corruption by exposing large contri- butions and expenditures to the light of publicity . . . . A public armed with information about a candidate's most generous supporters is better able to detect any post-election special favors that may be given in return. Id. at 66-67, 96 S. Ct. at 657 (footnotes omitted). Be- cause appellants allege that they are voters and persons who seek to communicate to policymakers and the public about AIPAC's campaign contribu- tions, their interest in information about campaign contributions falls within the "zone of interests" intended to be served by the statute. While arguably this interest is so generalized as to encroach upon the separation of powers concerns underlying Article III standing requirements, see Lujan v. Defenders of Wildlife, 504 U.S. 555,571-78, 112 S. Ct. 2130,2142-46, 119 L. Ed.2d 351 (1992), to reject standing on that basis would put us at odds with circuit precedent on infor- mational injury as discussed above. B. Standard of Review The district court's grant of summary judgment is subject to de novo review. Petersen v. Dole, 956 F.2d 1219, 1221 (D.C. Cir. 1992). In conducting that review, we must determine anew whether the Commission's dismissal of the portion of appellants' administrative complaint alleging that AIPAC violated the Act by ---------------------------------------- Page Break ---------------------------------------- 48a failing to register and report as a political committee is "contrary to law." 2 U.S.C. par 437g(a)(8)(C). It is well settled that judicial review under this provision is limited. Common Cause v. FEC, 842 F.2d 436, 448 (D.C. Cir, 1988). The Commission's dismissal of an administrative complaint cannot be disturbed unless it was based on "an impermissible interpretation of the Act" or was "arbitrary or capricious, or an abuse of discretion." Orloski v. FEC, 795 F.2d 156,161 (D.C. Cir. 1986). See also FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27,37,102 S.Ct. 38,4445, 70L.Ed.2d23(1981)("DSCC"). Appellants bear the difficult burden of demonstra- ting that the Commission's interpretation was impermissible and contrary to law. The Commission must show only that its disposition of the administra- tive complaint w-as "sufficiently reasonable." DSCC, 454 U.S. at 39, 102 S.Ct. at 46 (citations omitted). Thus, the Commission's construction of its own stat- ute cannot be disturbed if it is a permissible one. Chevron U. S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45, 104 S. Ct. 2778, 2781-83,81 L. Ed.2d 694 (1984). Under this standard of review, the court will presume that the Commission's action was valid, even if the court would have inter- preted the Act in a different manner. See American Horse Protection Ass'n v. Yeutter, 917 F.2d 594, 596 (D.C. Cir. 1990). Indeed, the Supreme Court has held that the Commission "is precisely the type of agency to which deference should presumptively be afforded." DSCC, 454 U.S. at 37, 102 S. Ct. at 45. Accord Com- mon Cause, 842 F.2d at 448 ("Deference is parti- cularly appropriate in the context of the FE CA . . . . "). ---------------------------------------- Page Break ---------------------------------------- 49a C. Analysis FECA defines a "political committee" as "any com- mittee, club, association, or other group of persons which receives contributions aggregating in excess of $1,000 during a calendar year or which makes expenditures aggregating in excess of $1,000 during a calendar year." 2 U.S.C. par 431(4) (A).2 The Act limits contributions to political committees, 2 U.S. C. par 441a(a)(l)(C), and requires any organization that qualifies as a political committee to register with the Commission and file periodic reports of all its re- ceipts and disbursements for disclosure to the public. 2 U.S.C. par par 433 and 434. The Act defines "contribution" to include "any gift, subscription, loan, advance, or deposit of money or anything of value made by any person for the purpose of influencing any election for Federal office . . . . " 2 U.S.C. par 431(8)(A)(i). The definition of "expendi- ture" includes "any purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of ___________________(footnotes) 2 Section 431(4) also includes two other definitions of the term "political committee" not pertinent to this case: (B) any separate segregated fund established under the provisions of section 441b(b) of the title; or (C) any local committee of a political party which re- ceives contributions aggregating in excess of $5,000 during a calendar year, or makes payments exempted from the definition of contribution or expenditure as defined in paragraphs (8) and (9) aggregating in excess of $5,000 dur- ing a calendar year, or makes contribution aggregating in excess of $1,000 during a calendar year or makes expendi- tures aggregating in excess of $1,000 during a calendar year. ---------------------------------------- Page Break ---------------------------------------- 50a value made by any person for the purpose of influenc- ing any election for Federal office . . . . " 2 U.S.C. par 431(9)(A)(i). An expenditure "for a communication expressly advocating the election or defeat of a clear- ly identified candidate" is a "contribution in kind" unless it is "not made with the cooperation or with the prior consent of, or in consultation with, or at the request or suggestion of, a candidate . . . . " 11 C.F.R. par 109.l(a), (c) (1995). The debate in this case centers around the defini- tion of "political committee" and the FEC's applica- tion of the major purpose standard. Appellants argue that the Act's language governing whether an organization making contributions is a political com- mittee depends on a single quantitative standard: if its aggregate contributions are in excess of $1,000 in a calendar year. 2 U.S.C. par 431(4). They assert that because the statutory language is clear, the Commission's interpretation is not entitled to de- ference under Chevron. Appellants also argue that the major purpose test conflicts with the fundamental purposes of the Act, which are to prevent corruption and the appearance of corruption that arise when large contributions are given to secure a political quid pro quo from current and potential officeholders. Buckley, 424 U.S. at 2%,96 S. Ct. at 638. We recognize that the Act has a broad definition of political committee; Congress intended to "address[ ] broadly the problem of political campaign financing," and wanted to "promote full disclosure of campaign- oriented spending" with FECA. Id. at 78, 96 S, Ct. at 663. The Commission, however, has construed the words "political committee" narrowly and applied a major purpose standard in determining whether ---------------------------------------- Page Break ---------------------------------------- 51a AIPAC was a political committee. Under this narrow interpretation, gleaned from case law, an organization is not a political committee unless, in addition to crossing the $1,000 threshold, it is under the control of a candidate or its major purpose is the nomination or election of a candidate. Buckley, 424 U.S. at 79, 96 S.Ct. at 663; FEC v. Massachusetts Citizens for Life, 479 U.S. 238, 252 n. 6, 107 S. Ct. 616, 624-25 n. 6, 93 L.Ed.2d 539 (198(5). Accord FEC v. Machinists Non-Partisan Political League, 655 F.2d 380, 391-92 (D.C. Cir.), cert. denied, 454 U.S. 897,102 S. Ct. 397,70 L.Ed.2d 213 (1981). A more expansive definition would be constitutionally dangerous due to interference with "fundamental First Amendment interests." Buckley, 424 U.S. at 23, 96 S. Ct. at 636; Machinists, 655 F.2d at 392. We agree with appellants that the statutory lan- guage is clear in that it broadly defines political committee in economic terms. But our inquiry does not end there. Rather, we must determine whether the Commission acted contrary to law by going beyond the text of the statute to narrow the definition of the term "political committee." To answer this question, we must look to case law interpreting the Act. In Buckley, one of `the plaintiffs' claims was that the reporting and disclosure provisions applicable to political committees were overbroad in their applica- tion to minor-party and independent candidates and in their extension to small contributions. 424 U.S. at 26, 96 S. Ct. at 638. The Court cautioned that the phrase "for the purpose of . . . influencing" an election or nomination in section 431's definition of "expendi- ture" could raise vagueness problems and "could be ---------------------------------------- Page Break ---------------------------------------- 52a interpreted to reach groups engaged purely in issue discussion." Id. at 79, 96 S. Ct. at 663. Noting that the lower courts had construed the term "political com- mittee" more narrowly, the Court went on to state that to fulfill the purposes of the Act the term "need only encompass organizations that are under the control of a candidate or the major purpose of which is the nomination or election of a candidate." Id. It further noted that expenditures by political com- mittees can be assumed to fall within the core area Congress sought to address because "[t]hey are, by definition, campaign related." Id. Prior to Buckley, at least two lower courts were concerned with the Act's broad-based definition of political committee because it would likely include groups that were not meant to be subject to the restrictions of the Act. See United States v. National Comm. for Impeachment, 469 F.2d 1135, 1141-42 (2d Cir. 1972) ("NCFI"); American Civil Liberties Union v.. Jennings, 366 F. Supp. 1041 (D.D.C. 1973), vacated on other grounds, 422 U.S. 1030,95 S.Ct. 2646,45 L.Ed.2d 686 (1975). In NCFI the Second Circuit considered whether a newspaper advertisement was an "expenditure," and whether the National Committee must be deemed a political committee. 469 F.2d at 1138. The court articulated a test that construed "the Act to apply only to committees soliciting contributions or mak- ing expenditures the major purpose of which is the nomination or election of candidates." Id. at 1141. It concluded that the advertisement was not an "ex- penditure," but noted that its interpretation of the phrase "for the purpose of influencing . . . [an] election" might make "enforcement of the Act . . . . ---------------------------------------- Page Break ---------------------------------------- 53a somewhat more burdensome, as the supervisory officials will be forced to glean the principal or major purpose of the organizations they seek to have comply with the Act." Id. at 1142. This test was later adopted by the United States District Court for the District of Columbia in ACLU v. Jennings, supra. Appellants argue that the major purpose test set forth in NCFI and Jennings is the correct one be- cause it centers on the major purpose of the expendi- ture as opposed to the purpose of the organization itself. We reject this argument for three reasons. First, it is inconsistent with the language in NCFI noting that "supervisory officials will be forced to glean the principal or major purpose of the organi- zations they seek to have comply with the Act." 469 F.2d at 1142. Second, the statutory definition of "ex- penditure" includes the requirement that it be made "for the purpose of influencing any election for Federal office." 2 U.S.C. par 431(9)(A)(i), making the test that every expenditure have the major purpose of nomination or election of a candidate and rendering appellants' test a tautology. Third, Supreme Court precedent supports a conclusion that the focus is on the major purpose of the organization, rather than the major purpose of individual expenditures by an organization. For example, in Massachusetts Citizens, the Supreme Court again mentioned the major purpose test while discussing whether a small-issue advocacy group could be considered a political committee, 479 U.S. at 262, 107 S. Ct. at 630. The Court found that although the group had made $10,000 in independent expenditures to influence federal elections, it had not violated the restriction on independent spending by ---------------------------------------- Page Break ---------------------------------------- 54a corporations contained in section 441b. The Court based its holding on three features of the citizens group, one of which was that its purpose was promot- ing political activities, not amassing capital.3 Id. at 263-64, 107 S.Ct. at 630-31. The Court further noted that if the group's independent spending became "so extensive that the organization's major purpose may be regarded as campaign activity," then it would be classified as a political committee. Id. at 262, 107 S. Ct. at 630 (citing Buckle, 424 U.S. at 79,96 S.Ct. at 663). This Circuit also adopted a narrow construction to determine whether a "draft group," that is, an or- ganization that seeks to encourage a specific candi- date to run for office, is a political committee under FECA. See Machinists, 655 F.2d at 394-96. In Machinists, we expressed concern about finding a fair reading of the statute that "comports with first amendment safeguards," and recognized the "grave constitutional difficulties inherent in construing the term `political committee' to include groups whose activities are not under the control of a `candidate' or directly related to promoting or defeating a clearly identified `candidate' for federal office." Id. at 393. We declined to extend the term "political committee" to cover draft groups and noted that in doing so we would "avoid the constitutional problems which Buckley and its lower court predecessors were able to avoid by ___________________(footnotes) 3 The Court also based its holding on the fact that the citizens group had no shareholders or other persons having a claim on its assets or earnings and that the group was not formed by a labor union or business corporation, and its pOliCY was not to accept contributions from these entities. Massachu- setts Citizens, 479 U.S. at 264, 107 S.Ct. at 631. ---------------------------------------- Page Break ---------------------------------------- 55a narrowly construing the term . . . . " Id. at 394. Because we found the Machinists Non-Partisan Political League's activities did not support an existing candidate, it was not a political committee under the Act. Id. at 396. Appellants ask that we disregard both Buckley and Massachusetts Citizens as mere dicta. However, the scope of our inquiry is limited to the issue of whether the Commission's interpretation of the Act was con- trary to law. Thus, even if the Court's discussion of the major purpose test in these decisions was dicta- and we do not necessarily agree-that would not make it an abuse of discretion for the Commission to follow this construction of the Act by the Supreme Court, particularly in light of our decision in Machinists. The Supreme Court's dicta may not bind federal courts and agencies, but an agency's reliance on dicta may nonetheless be reasonable. See generally McCoy v. Massachusetts Inst. of Technology, 950 F.2d 13 (lst Cir. 1991), cert. denied, 504 U.S. 910, 112 S. Ct. 1939, 118 L.Ed.2d 545 (1992). Although Buckley and Massachusetts Citizens concern expenditures under the Act, the Court's rationale concerning the constitutional implications of a broad application of' the Act to expenditures applies equally to the Act's reach over contributions. A broader construction of "political committee" would likely require advocacy groups to disclose their contributors even though the group is not principally involved in advancing the election or defeat of a candidate. This could raise a First Amendment issue of the sort seen in cases like NAACP v. "Alabama, 357 U.S. 449,460,78 S.Ct. 1163,1170-71, 2 L.Ed.2d 1488 (1958). It is our duty in the interpretation of a federal ---------------------------------------- Page Break ---------------------------------------- 56a statute to avoid serious constitutional doubt. United States v. Rumely, 345 U.S. 41,47,73 S. Ct. 543,546,97 L.Ed. 770 (1953). We find that it was reasonable for the Commission to follow the Court's and this Circuit's narrow inter- pretation of "political committee." Because a judicial gloss on the statute has limited the application of FECA's restrictions for political committees to groups whose major purpose is the nomination or election of a candidate, the FEC's interpretation of the major purpose test was not contrary to law. Having established the validity of the Commission's major purpose test, we must next determine whether its application of that test and its determination that AIPAC is not a political committee under the ,Act was contrary to law. 2 U.S.C. par 437g(a)(8)(C). The Com- mission determined that AIPAC's campaign-related expenditures, while likely to have exceeded $1.000 in some years, were not its major purpose but were made as an adjunct to, and in support of, the lobbying efforts that were the organization's primary focus. The Commission correctly applied the major purpose test, the concern of which is the core purpose of the organization itself, not the individual expenditure or contribution. We are convinced that the Commiss- ion's determination was not so arbitrary or capricious to render it contrary to law. Appellants' final and related argument is that the Commission's findings, reasons, and investigation were inadequate to support its conclusion that "only a small portion" of AIPAC's activities are campaign related. They assert that the inadequacy of the FEC's findings, reasons, and investigation preclude affirmance of the Commission's decision. In challeng- ---------------------------------------- Page Break ---------------------------------------- 57a ing the extent and techniques of the Commission's investigation, appellants are asking that we review the Commission's exercise of prosecutorial discre- tion, a sensitive matter within the Commission's expertise. See Heckler v. Chaney, 470 U.S. 821,831, 105 S. Ct. 1649, 1655-56, 84 L.Ed.2d 714 (1985). We are mindful that "[i]t is not for the judiciary to ride roughshod over agency procedures or sit as a board of superintendence directing where limited agency resources will be devoted. We are not here to run the agencies." FEC v. Rose, 806 F.2d 1081, 1091 (D.C. Cir. 1986). Under FECA, the Commission enjoys a "broad grant of discretionary power in determining whether to investigate a claim or to bring a civil action . . . . " Common Cause v. FEC, 655 F.Supp. 619, 623 (D.D.C. 1986), rev'd on other grounds, 842 F.2d 436 (D.C. Cir. 1988). A review of the General Counsel's report reveals that the Commission conducted a fairly ex- tensive inquiry into appellants' claims, even if it was not as in-depth an investigation as appellants would have liked. The Act does not require the Commission to invoke any particular investigatory techniques, nor does it require the Commission to exhaust every last inquiry. Moreover, appellants suggest no specific areas that the FEC failed to investigate that would have undermined its determination. The Commission has broad discretion to decide whether further investment of resources is worthwhile, Heckler, 470 U.S. at 831, 105 S. Ct. at 1655-56, and we defer to its expertise regarding the direction and extent of the investigation. Based on all of the evidence, it was reasonable for the Commission to ---------------------------------------- Page Break ---------------------------------------- 58a conclude that campaign-related activities were not a major purpose of AIPAC. There is no evidence that the Commission failed to investigate adequately the administrative complaint. III. CONCLUSION The Commission's interpretation of the statute was permissible, its application of the interpretation was reasonable, and its underlying investigation was ade- quate. Thus, we are unable to find that the Commiss- ion's actions were "contrary to law" or arbitrary, capricious, or an abuse of discretion. The decision of the district court is therefore Affirmed. SILBERMAN, Circuit Judge, concurring in part and dissenting in part: Although the FEC did not challenge appellants' standing, we were sufficiently troubled over our jurisdiction to ask the parties to submit supplemental briefs on the issue. I have come to the conclusion that my colleagues are correct that appellants have stand- ing, but my analysis differs from the majority. I dis- agree with my colleagues on the merits. I. The dispute over standing turns entirely on whether appellants have established injury in fact. Appellants assert that they compete with AIPAC in lobbying Congress and seeking to persuade the American people on their views of American interests regarding Arab-Israeli disputes. Although appellants do not allege that they make political contributions, it is asserted that AIPAC's secret contributions to con- gressmen have disadvantaged appellants in this politi- ---------------------------------------- Page Break ---------------------------------------- 59a cal competition. Of course, many cases in both our court and the Supreme Court have recognized Article III injury when economic marketplace actors assert that a competitor has received a regulatory advan- tage. See, e.g., Clarke v. Securities Indus. Ass `n, 479 U.S. 388,403,107 S.Ct. 750, 759,93 L.Ed.2d 757 (1987); Arnold Tours, Inc. v. Camp, 400 U.S. 45, 46, 91 S. Ct. 158, 159, 27 L.Ed.2d 179 (1970) (per curiam); International Ladies' Garment Worker's Union v. Donovan, 722 F.2d 795, 805-12 (D.C. Cir. 1983), cert. denied sub nom. Breen v. International Ladies' Gar- ment Workers' Union, 469 U.S. 820, 105 S. Ct. 93, 83 L.Ed.2d 39 (1984). We have not before now en- countered a case in which the competition takes place in the political arena. I am mindful that a plaintiff may not rely for a claimed injury on a mere ideologi- cal interest, see Competitive Enter. Inst. v. National Highway Traffic & Safety Admin., 901 F.2d 107, 112 (D.C. Cir. 1990), but I think appellants' case must be thought of as akin to one brought by an economic competitor, not to one brought by a litigant who can muster only an ideological interest. The statute, by requiring any organization that makes or receives campaign contributions or expendi- tures aggregating over $1,000 per year to register as a political committee and meet certain reporting and disclosure requirements, has the clear purpose of leveling the playing field by reducing the value of campaign contributions and expenditures to both spender and recipient. Any campaign contribution or expenditure is worth less to give and receive if it must be disclosed. It is of less value to the spender because interests adverse to the spender will take notice, and the recipient may be politically pressured ---------------------------------------- Page Break ---------------------------------------- 60a to avoid any appearance of quid pro quo in policy positions. It is, at the same time, worth less to the recipient because undesirable publicity can be brought to bear on the transaction. And, in any event, the recipient's competitor will notice, and if the competitor should win the spender will not be among his favorite constituents. Essentially, then, a failure of the FE C to require an organization to disclose its contributions is equivalent to adding to the value of those contributions. Thus, a candidate running for office is certainly injured if his or her opponent, through the failure of the FEC to require disclosure, is enabled to receive secret contributions. It follows that individuals or organizations that can show that they are competing with the donor or spender on the other side of this political market are similarly injured if the FEC does not require disclosure. Appellants therefore have standing as competitors of AIPAC. The FEC's primary argument against the applica- tion of this reasoning, which, to be sure, is only sketchily presented in appellants' complaint and supplementary brief, is that appellants only compete in the lobbying market with AIPAC, not in actual election campaigns. (AIPAC claims that it does not normally make campaign contributions, and it presumably will no longer do so given the FEC's finding of probable cause to believe that AIPAC violated par 441(b)). But, the lobbying "market" is intertwined with election competition. Many cam- paign contributors expect that if the candidate should win, he or she will be more inclined to listen to a contributor's views on proposed legislation than would be so if no contribution were made. In this very ---------------------------------------- Page Break ---------------------------------------- 61a case, the Commission found that AIPAC's "campaign- related activities and communications [were] under- taken as an adjunct to, and in support of, its lobbying efforts." AIPAC presumably will be a less effective lobbyist, and the congressmen to whom it contributed will be less likely to present AIPAC's position effectively (if the y are so inclined), if AIPAC is required to disclose its contributions. The Commission relies on In re United States Catholic Conference, 885 F.2d 1020 (2d Cir. 1989), cert. denied sub nom. Abortion Rights Mobilization, Inc. v. U.S. Catholic. Conference, 495 U.S. 918,.110 S. Ct. 1946, 109 L.Ed.2d 309 (1990), to support its argument that only direct competitors in the campaign election market would have standing to challenge its refusal to require AIPAC to register and disclose. In that case-a rather confusing one-the Second Circuit rejected a challenge brought by pro-choice advocacy groups to the Catholic Church's par 501(c)(3) status under the I.R.S. Code based on the church's illegal campaign expenditures. The court did note that the plaintiffs did not engage in election activity, but it seems clear to me that the case would not have come out differently even if the plaintiffs had been direct electioneering competitors of the church. The federal judiciary has rarely allowed one private party to challenge the tax status of another. See, e.g., Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26,40-41,96 S. Ct. 1917, 1925-26,48 L.Ed.2d 450 (1976). Furthermore, the general advocacy market in which both the church and the plaintiffs were competing is ---------------------------------------- Page Break ---------------------------------------- 62a so broad and amorphous as to defy measurement of plaintiffs' injury.1 The majority rests appellants' standing on what is sometimes referred to as informational standing- that appellants are injured by failing to receive in- formation that the government should compel AIPAC to disclose. That approach is problematic here because recognition of informational standing in this case allows a generalized, undifferentiated interest in information to satisfy Article III requirements. "Informational injury" confers standing only in nar- rowly defined circumstances. It was first mentioned in a footnote in Scientists' Inst. for Public Info., inc. v. Atomic Energy Comm'n, 481 F.2d 1079, 1086 n. 29 (D.C. Cir. 1973) (SIPI).2 We recognized that the AEC's decision not to provide an impact statement on a reactor program established Article 111 injury because the Institute's main function was to distri- bute such information to the public. Similarly, we determined informational injury satisfied Article III ___________________(footnotes) 1 Of course, as the Commission indicates, the appellants are in one sense seeking a more severe sanction for AIPAC's illegal expenditures than the FEC determined was appropri- ate, but that does not undermine their standing. Under most statutes, this sort of action could not be brought because of Heckler v. Chancy's bar on judicial review of an agency's non- enforcement decision. 470 U.S. 821, 831, 105 S.Ct. 1649, 1655-56 (1985). But this statute squarely directs review of the Com- mission's determination. See par 437(g)(8)(c) ("In any proceeding under this paragraph the court may declare that the [FEC's] dismissal of the complaint or the failure to act is contrary to law."). 2 The footnote was subsequently declared "unnecessary to the decision." Foundation on Economic Trends v. Lyng, 943 F.2d 79, 83 (D.C. Cir. 1991). ---------------------------------------- Page Break ---------------------------------------- 63a in Action Alliance of Senior Citizens v. Heckler, 789 F.2d 931, 937 (D.C. Cir. 1986), vacated on other grounds, 494 U.S. 1001,110 S. Ct. 1329,108 L.Ed.2d 469 (1990), where new government regulations re- stricting the availability of information on services for the elderly impaired AASC's ability to provide information, counseling and referral services for its members. By contrast, in Competitive Enter. Inst., 901 F.2d at 122-23, the plaintiff organization lacked informational standing because it failed to show how the NHTSA's decision not to issue an EIS signifi- cantly diminished its ability to disseminate informa- tion or to continue its activities. Two cases relied on by the majority to find informational standing are not determinative. In Foundation on Economic Trends v. Lyng, 943 F.2d 79, 84 (D.C. Cir. 1991), we only assumed that the organization's alleged injury-the Foundation's di- minished ability to provide information to its mem- ers and the public due to the Agriculture Depart- ment's failure to prepare an EIS-was sufficient to confer informational standing without resolving the issue, because there was no prudential standing. We suggested, however, that informational injury alone is insufficient to establish Article III standing. We worried that a broad definition of informational standing would controvert the separation of powers principles enunciated in Sierra Club v. Morton, 405 U.S. 727, 92 S. Ct. 1361, 31 L.Ed.2d 636 (1972), and would allow plaintiffs to manufacture standing every time an agency was not creating information a member of the public would like to have. Lyng, 943 F.2d at 84-85. And in Animal Legal Defense Fund, Inc. v. Espy, 23 F.3d 496, 501 (D.C. Cir. 1994), the ---------------------------------------- Page Break ---------------------------------------- 64a decision merely asserted without discussion that Article III requirements were met by informational injury-the Fund's impaired ability to gather and disseminate information on laboratory conditions under the Agriculture Department's definition of before going onto find no prudential stand- "animal"-before going on to find no prudential stand- ing. Thus, under our precedent, "informational injury" satisfies Article III requirements only when the plaintiff is able to demonstrate an actual, concrete injury, that impinges on the plaintiff's daily operat- ions or makes normal activities infeasible, and that is caused by the lack of access to particular information. To call appellants' injury an informational one is to accept their alternative claim that they are entitled to AIPAC's disclosures merely because they are members of the voting public. This sort of general interest cannot suffice to show Article III injury. See Lujan v. Defenders of Wildlife, 504 U.S. 555,572, 112 S. Ct. 2130, 2142, 119 L.Ed.2d 351 (1992); Sierra Club, 405 U.S. at 739, 92 S. Ct. at 1369; Allen v. Wright, 468 U.S. 737,760-61,763,104 S.Ct. 3315,3329, 3331, 82 L.Ed.2d 556 (1984). If, instead, appellants' interest is thought more "particular" because of their political positions and their lobbying interests, then the claim of informational injury really reduces to the competitive injury claim. Thus, as I analyze appellants' injury, it is the Commission's failure to require AIPAC to disclose to the world its past campaign expenditures that disadvantages appellants-not appellants' inability to themselves gain that information. 3 ___________________(footnotes) 3 Plaintiffs in this case clearly meet prudential standing requirements in that they are within the statutory "zone of ---------------------------------------- Page Break ---------------------------------------- 65a II. Section 431(4)(A) defines "political committee" solely in terms of "expenditures" and "contribu- tions": a political committee is "any committee, club, association, or other group of persons which receives contributions aggregating in excess of 1,000 during a calendar year or which makes expenditures aggre- gating in excess of 1,000 during a calendar year." "Contribution" is defined in turn by 431(8)(A)(i) as "any gift, subscription, loan, advance, or deposit of money or anything of value, made by any person for the purpose of influencing any election." "Expenditure" is defined in similar terms by 431(9)(A)(i) as "any purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of ___________________(footnotes) interest." See Clarke v. Securities Indus. Ass`n, 479 U.S. at 394-99, 107 S. Ct. at 754-57 Animal Legal Defense Fund, 23 F.3d at 503. As the majority notes, FECA's purposes are broadly stated. But FECA's "zone of interest" cannot, se the FE C asserts, include only individuals' interests as voters and not individuals' interests as both competitors and voters. The logical implication of the FEC's argument is that prudential standing exists (as a "pure" voter) only where Article III standing is precluded (as a general interest under Lujan), so that no one would have standing. This result is absurd. Clearly a direct competitor of a political candidate, as the party most directly injured by improper campaign activities, is within the zone of interests intended to be protected by the statute. Thus, the statutory zone of interest is not limited to voters, but includes other political interests as well. Moreover, FECA's broad language may in fact make a prudential standing inquiry irrelevant. If all voters are beneficiaries of the statute and are thus "aggrieved" within the meaning of 437(g)(8), Article III always would impose a more restrictive standard, such that meeting Article III require- ments alone would establish standing. ---------------------------------------- Page Break ---------------------------------------- 66a value, made by any person for the purpose of influencing any election." The FEC tacitly concedes that the language of 431(4)(A) is unambiguous and sets clear require- ments for classification as a political committee, but asserts that the Supreme Court has narrowed the reach of the statutory language in response to First Amendment concerns. The FEC relies on language in Buckley v. Valeo, 424 U.S. 1, 96 S. Ct. 612, 46 L.Ed.2d 659 (1976), and Federal Election Comm'n v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 107 S. Ct. 616, 93 L.Ed.2d 539 (1986) (MCFL), in claiming that an organization should only be classified as a political committee if-in addition to exceeding the 1,000 contribution or expenditure limits-the organization's major purpose is the nomi- nation or election of a candidate or the organization is controlled by a political candidate, i.e., the so-called major purpose test. 4. This interpretation of "political committee" is owed deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837,104 S.Ct. 2778,81 L.Ed.2d 694 (1984). Appellants respond by asserting that the statutory language is clear, and that it has not been narrowed by the Supreme Court. Tracing the development of the term "major purpose," appellants argue that the test is properly employed to determine whether an ___________________(footnotes) 4 This is apparently the first time the FEC has formulated this test; it has pointed to no Advisory Opinion that articulates either explicitly or implicitly a major purpose test, even 10 years after the Supreme Court cases on which it primarily relies-Buckley, 424 U.S. 1, 96 S.Ct. 612, and MCFL, 479 U.S. 238, 107 S.Ct. 616-supposedly imposed this test on the de- finition of political committee. ---------------------------------------- Page Break ---------------------------------------- 67a organization's independent disbursements constitute "expenditures" within the meaning of 431(9) (A)(i) i.e., whether they are "made . . . for the purpose of influencing any election," such that they count toward the 1,000 limit defining political committee status. Buckley and MCFL endorse this test; any references to the major purpose of an organization, rather than an expenditure, merely establish the presumption that the expenditures of an organization the major purpose of which is election activity will fall within the statutory definition. Further, MCFL noted that independent expenditures raise more serious First Amendment concerns and therefore require more compelling justification for government restrictions, than do contributions like those made by AIPAC here. Appellants point out that the FEC's major purpose test has the anomalous result of allowing large organizations that spend only a small portion of their budgets on direct campaign contribu- tions to avoid the requirements placed on political committees, undermining FECA's emphasis on dis- closure as a means of curbing the threat or appear- ance of election abuse. . The FEC's assertion that its interpretation of "political committee" is entitled to deference is simply wrong. It is undisputed that the statutory language is not in issue, but only the gloss put on this language by Supreme Court decisions. We are not obliged to defer to an agency's interpretation of Supreme Court precedent under Chevron or any other ease. Appellants thus do not bear "the difficult burden of demonstrating that the Commission's inter- pretation was impermissible and contrary to law," Maj. Op. at 352; they need only show that their inter- ---------------------------------------- Page Break ---------------------------------------- 68a pretation better reflects the statutory language and purpose, as interpreted by the Supreme Court, than does the FEC's. While there is language in Buckley and MCFL that can literally be read to support the FEC's position, both cases focused on the constitutional concerns raised by independent expenditures. Independent expenditures are the most protected form of political speech because they are closest to pure issue dis- cussion and therefore farthest removed from the goal of preventing election corruption. Buckley, 424 U.S. at 19-23, 78-81, 96 S. Ct. at 635-37, 663-64; MCFL, 479 U.S. at 259-60, 107 S.Ct. at 628-29. They raise graver First Amendment concerns because it is difficult to determine when an expenditure is independent- rather than coordinated with or by a particular candidate-and regulation therefore risks chilling protected speech. Thus, in Buckley the Supreme Court determined that expenditure limits are more likely to violate the First Amendment because they place substantial and direct restrictions on the ability to engage in political speech. See Buckley, 424 U.S. at 39-59, 96 S.Ct. at 654. Contribution Imitations, on the other hand, raise fewer constitutional concerns, it was thought, be- cause they serve the basic governmental interest of protecting the electoral process without restricting political debate and discussion. See id. at 28, 96 S. Ct. at 639 (such limits "focus[ ] precisely on the problem of large campaign contributions-the narrow aspect of political association where the actuality and potential for corruption have been identified"); see also id. at 23-38, 96 S.Ct. at 636-44. To support its major purpose test, the FEC relies on the Court's ---------------------------------------- Page Break ---------------------------------------- 69a discussion of 434(e), which imposes disclosure re- quirements on "[e]very person" making contribu- tions or expenditures exceeding 100. 5. The Court rejected the claim that 434(e) imposed burdens that would deter individuals "from making expenditures for their independent political speech." See id. at 74- 75, 96 S. Ct. at 661. It was determined that "con- tributions''-when defined as direct or indirect con- tributions to a candidate, political party, or campaign committee, or expenditures placed with the coopera- tion or consent of a candidate-''have a sufficiently close relationship to the goals of the Act," and therefore limits on them are constitutional. Id. at 76, 96 S.Ct. at 662. The Court noted that the meaning of "expenditure," however, posed line-drawing difficul- ties because it created the danger of "encompassing both issue discussion and advocacy of a political result." Id. at 77, 96 S.Ct. at 662. Therefore, the reach of 434(e) was limited by "constru[ing] `ex- penditure' for purposes of that section . . . to reach only funds used for communications that expressly advocate the election or defeat of a clearly identified candidate." Id. at 80, 96 S. Ct. at 664. Coming in the midst of its analysis of the scope of "expenditures," the Court's language that apparently refers to the major purpose of an organization is at best ambiguous: ___________________(footnotes) 5 Section 434(e) has subsequently been amended and is now 434(c): "Every person (other than a political committee) makes independent expenditures in an aggregate amount or value in excess of 250 during a calendar year" shall be subject to certain reporting and disclosure requirements. 2 U.S.C. 434(c) (West 1985 & Supp. 1995). ---------------------------------------- Page Break ---------------------------------------- 70a To fulfill the purposes of FECA [political com- mittees] need only encompass organizations that are under the control of a candidate or the major purpose of which is the nomination or election of a candidate. Expenditures of candidates and of "political committees" so construed can be as- sumed to fall within the core area sought to be addressed by Congress. They are, by definition, campaign related. Id. at 79, 96 S.Ct. at 663 (emphasis added). 6. When parsed carefully, this wording does not support the FEC's major purpose test for "political committee" status as applied to contributions. Perhaps the best interpretation of this language is that an organiza- tion