Fiddlesticks! The end of the line for AIPAC litigation

Back in 1989, James E. Akins, U.S. Ambassador to Saudi Arabia during the Nixon and Ford administrations, and several other former public officials* filed a complaint with the Federal Election Commission agains the American-Israeli Public Affairs Council, or AIPAC, alleging that AIPAC was a PAC and therefore had to register as a PAC with the FEC.

On Wednesday of this week, the U.S. District Court for the District of Columbia probably (maybe, we will see if there is an appeal) brought down the curtain on this long running litigation by granting summary judgment to the FEC.  Akins v. FEC, 2010 U.S. Dist. Lexis 93296.  In the 21 years since the complaint was filed, AIPAC made a trip to the Supreme Court, and was the subject of numerous lower court decisions, none of which decided the issue.

Meantime, a quick Lexis search reveals that Judge Leon is only the second U.S. judge ever to employ the term “fiddlesticks” in an opinion, and the first since 1998, when Justice Joyce Kennard of the California Supreme Court used the term in her dissent in Birbrower, Montalbano, Condon & Frank v. Superior Court of Santa Clara, a disciplinary action for practicing law without a license.**  And Judge Leon appears to be the first judge in U.S. history to use the term “fiddlesticks” followed by an exclamation point.

From a purely legal standpoint, perhaps the most interesting part of Judge Leon’s memorandum opinion is his conclusion that two separate, independent statements cannot be combined to create the “express advocacy” needed to trigger the hook for political committee status.  We think Judge Leon got it right, and we hope the long AIPAC saga is finally at an end.

*Sadly, plaintiff James Akins did not quite make it to the finish line: Ambassador Akins passed away on July 15 of this year.  Plaintiff George Ball, an official in the Kennedy and Johnson administrations, passed away nearly two decades ago, in 1994, and plaintiff Robert J. Hanks died of cancer in July of 2001.

**The term also appears in 14 reported decisions in which one of the parties was a business with the word “Fiddlesticks” in its name.  Additionally, the term appears in Phillips v. Phillips, 215 Md. 28 (1957) quoting the testimony of one witness, and in State v. Rasco, 239 Mo. 535 (1912), in which the Court cited a statement made from the bench by the trial court judge in dismissing an objection.  While upholding the ruling, the Court duly noted that the use of “fiddlesticks” by the trial court judge was “improper and undignified.” (It is possible that “fiddlesticks” was a euphemism for the judge’s actual words).  Also, in Prompt Foods Corp v. Commissioner of Internal Revenue, 55 T.C.M (CCH) 1397 (1988), a tax court judge quoted from the Gilbert & Sullivan operetta “The Mikado,” including the word “fiddlesticks,” suggesting that the taxpayer’s corroborative details nonetheless left the actual case unconvincing.

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