The opinion of the court was delivered by: JOYCE HENS GREEN
On May 18, 1992, plaintiffs Coalition to End the Permanent Congress ("CEPC"), Public Citizen, and National Taxpayers Union initiated this action against Marvin T. Runyon, Postmaster General, and Nicholas F. Brady, Secretary of the Treasury, (collectively, "Executive defendants") and against Donald K. Anderson, Clerk of the United States House of Representatives ("House"), Michael Shinay, Acting Postmaster of the House, and the House Commission on Congressional Mailing Standards (collectively, "House defendants").
Plaintiffs challenge on its face 39 U.S.C. § 3210(d)(1)(B), the provision that grants to incumbent Members of the House of Representatives ("Members") the privilege to send mass mailings under the congressional frank to persons who do not live in the congressional district from which the incumbent was elected, but who, as a result of reapportionment, reside in the district where the incumbent is running in the next election.
There is little question that incumbents enjoy certain benefits by virtue of the fact that they have been elected to office. They experience a visibility that a challenger does not necessarily possess, for example. It is also undisputed that the privilege of incumbent Members to send mass mailings under the congressional frank is a valuable tool in facilitating communication between Congress and voters on public issues. In fact, on the very face of the statute at issue, it is apparent that Congress has bestowed upon itself considerable power in deciding which material should be deemed frankable.
Nonetheless, it is not this Court's mandate "to examine the policing efforts of committees created by Congress to deal with the particular types of concerns raised by plaintiffs in this case with an eye to compel even more refined standards and closer examination." Common Cause v. Bolger, 574 F. Supp. 672, 685 (three-judge court), aff'd mem., 461 U.S. 911 (1983). It is not the judiciary's function to develop rules of behavior for the Legislative Branch of the federal government. See United States ex rel. Joseph v. Cannon, 642 F.2d 1373, 1384-85 (D.C. Cir. 1981). Rather, in a case like the instant one, it is the province of Congress to resolve inequities by striking a different balance or devising another scheme. Under the standard of scrutiny that must be applied, the Court cannot hold that the franking provision challenged here is unconstitutional under either the First Amendment or the Fifth Amendment of the Constitution.
On June 1, 1992, plaintiffs filed a motion for a preliminary injunction. In response to that motion, House defendants submitted a motion for summary judgment. Executive defendants also submitted an opposition to plaintiffs' motion indicating that they "do not, for [purposes of the] preliminary injunction motion, take a position on the validity of the statute in question" but "oppose the entry of an injunction that would require the Postal Service to ascertain the destination of franked mail and refuse its delivery because the destination lies outside an existing congressional district." Executive Branch Defendants' Opposition to Plaintiffs' Motion for a Preliminary Injunction ("Exec. Opp."), at 2-3. The Court set oral argument for June 25, 1992 and at both sides' request, consolidated its decision on the merits with its ruling on the motion for a preliminary injunction. See Order, dated June 18, 1992.
Section 3210(d)(1) of Title 39 of the United States Code, the provision challenged here, states:
(A) within that area constituting the congressional district or State from which he was elected; and
(B) with respect to a Member of the House of Representatives on and after the date on which the proposed redistricting of congressional districts in his State by legislative or judicial proceedings is initially completed (whether or not the redistricting is actually in effect), within any additional area of each congressional district proposed or established in such redistricting and containing all or part of the area constituting the congressional district from which he was elected, unless and until the congressional district so proposed or established is changed by legislative or judicial proceedings.
The privilege of sending mail under the frank is intended "to assist and expedite the conduct of official business, activities, and duties of the Congress of the United States." 39 U.S.C. § 3210(a)(1). Official business is defined as:
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 to 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 those functions.
Material that is frankable includes, but is not limited to, the following:
(A) mail matter to any person and to all agencies and officials of Federal, State, and local governments regarding programs, decisions, and other related matters of public concern or public service, including any matter relating to actions of a past or current Congress;
(B) the usual and customary congressional newsletter or press release which may deal with such matters as the impact of laws and decisions on State and local governments and individual citizens; reports on public and official actions taken by Members of Congress; and discussions of proposed or pending legislation or governmental actions and the positions of the Members of Congress on, and arguments for or against, such matters;
(C) the usual and customary congressional questionnaire seeking public opinion on any law, pending or proposed legislation, public issue, or subject;
(D) mail matter dispatched by a Member of Congress between his Washington office and any congressional district offices, or between his district offices;
(E) mail matter expressing condolences to a person who has suffered a loss or congratulations to a person which has achieved some personal or public distinction;
(F) mail matter expressing congratulations to a person who has achieved some public distinction;
(G) mail matter, including general mass mailings, which consists of Federal laws, Federal regulations, other Federal publications, publications purchased with Federal funds, or publications containing items of general information;
(H) mail matter which consists of voter registration or election information or assistance prepared and mailed in a nonpartisan manner;