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COMMON CAUSE v. BOLGER

September 7, 1982

COMMON CAUSE, et al., Plaintiffs,
v.
William F. BOLGER, et al., Defendants, and House Commission on Congressional Mailing Standards, Intervening Defendant



The opinion of the court was delivered by: PRATT

JOHN H. PRATT, District Judge.

 STATEMENT OF THE CASE

 By an amended complaint filed March 12, 1974, plaintiffs seek a declaratory judgment that 39 U.S.C. § 3210, granting to Members of Congress the privilege of sending mail through the United States Postal Service as franked mail, is unconstitutional. Plaintiffs claim, in essence, that the franking privilege afforded by the statute provides an unconstitutional "subsidy" to incumbent candidates for Congress because franked mail inevitably has the effect of aiding Members' reelection efforts. Plaintiffs reason that because they are not afforded similar campaign advantages, section 3210 abridges their First Amendment rights to associate freely for the advancement of political beliefs, as well as deprives them of equal protection under the due process clause of the Fifth Amendment. In addition, plaintiffs seek a judgment that section 3210 permits an unlawful use of public funds for a non-public purpose in violation of the General Welfare Clause of Article I, Section 8, of the Constitution.

 The Postmaster General and the Secretary of the Treasury were the original named defendants in this case. Subsequently, on September 8, 1976, the House Commission on Congressional Mailing Standards was permitted to intervene as a defendant and the United States Senate, through its Select Committee on Ethics, formerly the Select Committee on Standards and Conduct of the United States Senate, was allowed to participate as amicus curiae.

 It is the position of all defendants and the amicus that the franking statute and the congressional rules enacted thereunder facilitate the necessary and constitutionally protected communication between Members of Congress and their constituents and draw a proper line between legitimate and illegitimate uses of the frank, i.e., between communications on official business and communications for personal political advantage. They deny that the franking statute violates any of plaintiffs' First or Fifth Amendment rights. The case therefore presents a classic example of the tension which sometimes arises between conflicting claims of right.

 PRIOR PROCEEDINGS

 On July 1, 1974, after denying defendants' motion to dismiss, the court granted plaintiffs' motion to convene a statutory court of three judges pursuant to 28 U.S.C. § 2284. *fn1" This court, in turn, considered and denied defendants' renewed motion to dismiss on February 10, 1975. Both motions to dismiss were predicated in part on plaintiffs' alleged lack of standing to bring this action, and were denied. Thereafter, all parties engaged in discovery through interrogatories, documentary requests, depositions and requests for admissions. Because of the nature of much of the material, a protective order was issued on March 1, 1976 and various coding systems were established to protect the confidentiality of Members of Congress and other witnesses. Without detailing the precise nature and volume of the discovery pursued by both sides, it is fair to say that the discovery concluded on April 22, 1981 has been thorough and complete. Many of the basic facts are not in dispute; what is sharply contested are the inferences to be drawn therefrom.

 PRESENT POSTURE

 Pursuant to the Court's timetable, plaintiffs, defendants and the intervening defendant filed motions for summary judgment on May 22, 1981. Oppositions were filed by the parties on June 12, 1981, as well as a memorandum of the United States Senate in support of the motions of defendants and intervening defendant and in opposition to plaintiffs' motion for summary judgment. The matter was argued at length on September 30, 1981.

 STATUTORY BASIS FOR THE FRANKING PRIVILEGE

 1. The History of the Frank

 The origin of the franking privilege can be traced to 17th Century England, when the privilege was granted to Members of the House of Commons concurrent with the establishment of the first public postal service in that country. The clear purpose then, as it is today, was to facilitate the carrying on of official business.

 In 1775, the Continental Congress authorized the use of the frank by its own members and by those on active duty in the Continental Army. The First Congress, when it acted to establish a postal system in 1789, retained the privilege for official correspondence and documents. In 1873, after the Civil War, the privilege was temporarily abolished by Congress, but was restored in proprio vigore in 1895. 28 Stat. 601, 622 (Sec. 85).

 Until the comprehensive revision of 1973, the Act of 1895 authorized Members of Congress to use the frank for correspondence on "official business." The responsibility to interpret the meaning of the term "official business" was exercised by the Post Office Department, which upon request of anyone, including members of the public, provided official guidance in the form of advisory opinions as to whether a mailing or contemplated mailing could be franked.

 This procedure was changed in 1968 when, in recognition of the practical as well as possible constitutional problems of its advisory position, the Department decided to give up its practice of issuing opinions to members of the public. It did, however, continue to give advisory opinions to Members of Congress until 1971, when, with the establishment of the new Postal Service, the Post Office Department relinquished any remaining responsibility in this area.

 This confused state of affairs led to a spate of lawsuits in the federal courts of four different circuits by candidates running against incumbent members. At least two of these challenges, focused on the propriety of certain franked mailings by particular members, *fn2" were an acute embarrassment to Congress. Other more flagrant abuses surfaced, among them the reported event of a member mailing his lawn furniture to Bimini in the Bahamas, under a frank with the tag reading "Official Business." The combination of these factors plus the threat of further lawsuits led to Arizona Congressman Morris Udall's introduction of H.R. 3180 in early 1973. Similar proposals were introduced in the Senate, and after the differences between the two bodies were accommodated in conference, the Franking Act of 1973, Pub.L. No. 93-191, was signed by the President and became law on December 18, 1973.

 2. The 1973 Statute

 The statute is set forth primarily in 39 U.S.C. §§ 3201, 3210-19. In this litigation, our attention is focused on section 3210.

 
cover all matters which directly or indirectly pertain to the legislative process or to any congressional representative functions generally or to the functioning, working, or operating of the Congress and the performance of official duties in connection therewith, and shall include, but not be limited to, the conveying of information to the public, and the requesting of the views of the public, or the views and information of other authority of government, as a guide or a means of assistance in the performance of these functions.

 39 U.S.C. § 3210(a)(2).

 There follows a list of what the Congress considered to be frankable mail matter. The list includes, but is not limited to:

 
(a) Mailings to any person or any government official regarding programs, decisions and other matters of public concern.
 
§ 3210(a)(3)(A);
 
(b) The "usual and customary congressional newsletter or press release."
 
§ 3210(a)(3)(B);
 
(c) The "usual and customary congressional questionnaire."
 
§ 3210(a)(3)(C);
 
(d) Mail expressing condolences to a person who has suffered a loss or congratulations to a person who has achieved some personal or public distinction.
 
§ 3210(a)(3)(F);
 
(e) Mass mailings of federal documents and publications and publications containing items ...

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