organization soliciting political contributions through the mail.
Section 3005 of Title 39 is one of the oldest federal consumer protection statutes, having been enacted originally in 1872 in language quite similar to the current provision. Even defendants concede that "it was enacted in response to schemes '. . . which are mostly gotten up in the large cities of New York and Philadelphia . . . involving the sale of counterfeit currency by mail . . . by thieves, forgers, and rapscallions generally, for the purpose of deceiving and fleecing the innocent people in the country.'" Def. Mot. at 15. Plaintiffs insist that this original purpose is echoed in the legislative history of more recent versions of the provisions. They rely almost entirely on a House Report in support of an amendment to the most recent forerunner of § 3005, 39 U.S.C. § 4005 (1968). This report stated that the purpose of the section was "to improve one of the major statutory measures for protecting the consuming public by eliminating the necessity for establishing an 'intent to deceive' in connection with the issuance of mail-stop orders by the Postmaster General under 39 U.S. Code 4005, which are issued to protect consumers who are being victimized by false representations by promoters through the U. S. mails." H.R. Rep. No. 235, 90th Cong., 1st Sess. 3 (1967)(emphasis supplied by plaintiffs). Plaintiffs extract from this thin legislative history the conclusion that the "sole target of Section 3005" is the "prevention of fraud in the commercial context." Pl. Mot. at 18. (emphasis added).
We need not independently explore more fully the legislative history of § 3005. Even were we to agree with plaintiffs that the legislative history establishes a "particular object of Congress's concern" -- the commercial sale of products and services by false representations through the mail -- "such a showing does not lead to the conclusion that the statute was meant to cover only such activities. To legislate is to generalize, and a law motivated by a desire to eliminate a particular abuse often sweeps within its reach activities that do not themselves display that abuse." Block v. Meese, 793 F.2d 1303, 1309-10 (D.C. Cir. 1986), cert. denied, 478 U.S. 1021, 106 S. Ct. 3335, 92 L. Ed. 2d 740, 54 U.S.L.W. 3866 (1986). Indeed, absent from the language of the statute is any implied or express restriction to commercial use of the mails. Section 3005 permits the issuance of mail-stop orders "upon evidence satisfactory to the Postal Service that any person is engaged in conducting a scheme or device for obtaining money or property through the mail by means of false representations. . . ." 39 U.S.C. § 3005(a)(emphasis supplied). Whatever the reality of legislative history, "we do not sit to rewrite laws so that they may address more precisely the particular problems Congress had in mind. There is simply no language within the text of the present enactment that would enable importation of the limitations [plaintiffs] suggest." Block v. Meese, 793 F.2d 1303, 1310 (D.C. Cir. 1986), cert. denied, 478 U.S. 1021, 106 S. Ct. 3335, 92 L. Ed. 2d 740, 54 U.S.L.W. 3866 (July 7, 1986).
Exactly the same argument was rejected by the Supreme Court in U.S. Postal Service v. Council of Greenburgh Civic Associations, 453 U.S. 114, 69 L. Ed. 2d 517, 101 S. Ct. 2676 (1981). At issue was another postal statute, 18 U.S.C. § 1725, prohibiting, under pain of criminal sanctions, the deposit into a mailbox of mailable matter on which postage had not been paid. The appellees, two civil organizations, submitted that the statute could not be applied to them "because it was intended to bar the deposit of commercial materials only." Id. at 127 n.4. Relying in large measure on the statute's express prohibition against the deposit of " any mailable matter" without proper postage, the court concluded that the statute applied "to noncommercial as well as commercial materials." Id. (emphasis supplied by the Supreme Court).
We turn now to the narrower issue of whether § 3005 may constitutionally be applied to plaintiffs' use of the mails to solicit political contributions.
Plaintiffs argue that regulation by the Postal Service of their use of the mails to solicit financial support for their political activities in the manner provided for by § 3005 impermissibly restricts the exercise of their First Amendment right of free speech. We find this contention overly broad and inapplicable to the facts of this case.
It has long been recognized by the Supreme Court that the postal power granted Congress in Article 1, § 8 of the Constitution includes the power to exclude material from the mails. See Ex parte Jackson, 96 U.S. 727, 732, 24 L. Ed. 877 (1878). Yet, "this power of exclusion is obviously a sensitive one." L. Tribe, American Constitutional Law 252-53 (1978). Also well embedded in our constitutional jurisprudence is the proscription that "however broad the postal power conferred by Article I may be, it may not of course be exercised by Congress in a manner that abridges the freedom of speech or of the press protected by the First Amendment to the Constitution." U.S. Postal Service v. Council of Greenburgh Civic Associations, 453 U.S. 114, 126, 69 L. Ed. 2d 517, 101 S. Ct. 2676 (1981). We are also aware of the oft repeated admonition of Justice Holmes, dissenting in Milwaukee Social Democratic Publishing Co. v. Burleson, 255 U.S. 407, 437, 65 L. Ed. 704, 41 S. Ct. 352 (1921), that "the United States may give up the Post Office when it sees fit, but while it carries it on the use of the mails is almost as much a part of free speech as the right to use our tongues. . . ."
With these limitations in mind, the Supreme Court in 1948, upheld a predecessor of § 3005, 39 U.S.C. § 259 against First Amendment attack in Donaldson v. Read Magazine, 333 U.S. 178, 92 L. Ed. 628, 68 S. Ct. 591 (1948).
In that case, two publishers of books and magazines challenged a mail-stop order directing the return of remittances mailed to the publishers in response to a puzzle contest they had sponsored, but which the Postal Service had determined was fraudulent. In holding the fraud order valid, the court expressly rejected the publishers' "contention that the constitutional guarantees of freedom of speech and freedom of the press include complete freedom, uncontrollable by Congress, to use the mails for perpetration of swindling schemes." Id. at 191. As to the publisher's additional argument that the statute was unconstitutionally applied, the court similarly concluded:
Its future effect is merely to enjoin the continuation of conduct found fraudulent. Carried no further than this, the order has not even a slight resemblance to punishment -- it only keeps respondents from getting the money of others by false pretenses and deprives them of a right to speak or print only to the extent necessary to protect others from their fraudulent artifices. And so far as the impounding order is concerned, of course respondents can have no just or legal claim to money mailed to them as a result of their fraudulent practices.