1 2 3 19 (4) the prohibition of the mailing under the frank of nonpartisan voter registration or voting information. (b) This section shall expire on January 1, 1976, unless 4 extended or continued by Act of Congress. 5 SEC. 10. (a) Except as provided in subsection (b) of 6 this section, the provisions of this Act shall become effective 8 (b) The provisions of section 3214 of title 39, United 9 States Code, as amended by section 3 of this Act, and the 10 provisions of subsection (b) of section 3216 of title 39, 11 United States Code, as amended by section 5 of this Act, 12 shall take effect as of December 27, 1972. 13 SEC. 11. If a provision of this Act is held invalid, all 14 valid provisions severable from the invalid provision remain 15 in effect. If a provision of this Act is held invalid in one or 16 more of its applications, such provision remains in effect in 17 all valid applications severable from the invalid application 18 or applications. Passed the House of Representatives April 11, 1973. Attest: W. PAT JENNINGS, Clerk. This is in response to your request for the views of the Postal The Postal Service has no objection to the proposals contained in the bill inasmuch as they involve primarily the administration of the franking privilege which was created for the convenience of Members of Congress with respect to correspondence on official business. In this connection, as you know, we have taken the position that it is not the responsibility of the Postal Service to determine what is or what is not the official business of Members of Congress. Our concern with franked mail is to make certain, along with all other classes of mail, that it is delivered in an efficient and expeditious manner and to see to it that the Postal Service is fully reimbursed for all such mail. Accordingly, we support H. R. 3180 because (1) it recognizes the responsibility of the Congress to assure the proper and lawful exercise of the franking privilege; and (2) it specifically provides that Congress will reimburse the Postal Service for the "equivalent amount of postage" on franked mail. Honorable Gale W. McGee Office and Civil Service Sincerely, T.Keaner E. T. Klassen The CHAIRMAN. Proceed in any way you prefer. STATEMENT OF HON. MORRIS K. UDALL, A U.S. REPRESENTATIVE IN CONGRESS FROM THE STATE OF ARIZONA Mr. UDALL. Thank you, Mr. Chairman. I have a prepared statement, which is neither very long nor very eloquent, but I will go through it, ad libbing a few additional thoughts. Mr. Chairman, I appreciate your inviting me to testify on H.R. 3180, a bill to reform and clarify the use of the frank. The use of the frank by Members of Congress dates back to 1775 when the Continental Congress, in one of its first official acts, declared that any mail which is "official business" may be mailed with the postage paid by the Government. Today, thanks to that simple idea, millions of pieces of congressional mail have become the subject of lawsuits, Members of Congress have been enjoined by the courts from using the frank and the public, right or wrongly, feels that Congress is misusing in the same degree the privilege of the frank. At the hub of this whole problem is a law that is too simple. It establishes no clear definition of "official business" and it provides no guidance for Members in determining what is frankable. For many years, the Post Office Department offered an advisory service aimed at assisting us in determining what was or was not frankable. This service laid down a body of precedents over the years to which Members could refer. In 1968, however, this service was abandoned and each Member was expected to be his own guide on what is or is not frankable. Consequently, in 1970, a variety of lawsuits were filed by nonincumbent candidates for Congress who charged that Members were misusing the frank for political purposes. By 1972, the Joint Committee on Congressional Operations identified 14 pending lawsuits against Members charged with misusing the frank. In a case against Congressman Annunzio of Illinois, the court decided against him and the decisions were upheld in appeals court. We now have, then, the beginning of a body of case law which will sanction judicial dictate on the use of the frank. These events make one point very clear; a new franking law will be created, but it may not come from us. If we do not enact one, the courts will. Indeed the courts have already begun to step into the situation. In New Jersey right now, there is a case on appeals which could render illegal the use of the frank in any mass mailing. We now have in the law, a holding of the U.S. Supreme Court, which held in the Annunzio case (by denying review of the appellate court decision) that a Federal judge has the right to look over a congressional newsletter, questionnaire, or press release and determine the motivation for sending it. If the Federal judge decided that the motive in sending the particular mailing was political, he can enjoin a Member of Congress, any of us, from using the frank. As I said, in New Jersey right now there is a case on appeal which could render illegal the use of the frank in any mass mailing. As you must imagine, there is considerable distress over this. With this in mind, the chairman of the House Post Office and Civil Service Committee appointed a special ad hoc subcommittee on the use of the congressional frank, which I chaired. This subcommittee was told to investigate this matter and come up with recommendations for the first, comprehensive reform of the laws governing the use of the frank. In writing such a bill, we wanted to accomplish two basic aims: 1. Provide, for the first time, clear and concise guidelines; 2. Create for the use of the Members some type of objective authority that could advise the Member on the frankability of an object and could review complaints of those charging abuses of the frank. This is based on the theory that I have often expressed that we, as Members, have an obligation to police our own ranks and restore and provide for public confidence in the institution of the Congress. After extensive hearings last February, we drew up such a bill and reported it out by vote of 21-2. The full House concurred with our proposal and approved it by an overwhelming margin. The specifics of our proposal include a statement of congressional policy that the use of the frank is to "expedite and assist in the conduct of official business, activities and duties." In addition, the policy points out that such official business should deal with Federal legislative and representative functions, and the obtaining of information from the public through solicitations of such opinion, et cetera. We also list specific types of mail which are considered frankable. In the past there was no such list, it was tradition and practice, but nowhere in the law could one find the kind of things that were frankable. In compiling this list, we drew on the traditional practices of Members; we drew on the precedents which the Post Office Department has compiled and we made other judgments as to what we thought was fair. For example, we make it clear that Members can send photographs or biographical material when it is requested, but they should not use the frank for simply sending out publicity materials in mass mailings. We made it clear that the frank can be used for nonpartisan voter registration information, which the Post Office Department has always said was frankable, and we statutorily authorize the continued use of newsletters, questionnaires, and press releases. Now, after establishing this policy, we go on to provide in the same way for what is not frankable. We try to spell out in a general way these kinds of guidelines. The general policy is that nothing which is purely personal to the sender or to any other person and which is unrelated to the official business activities and duties of the Member, may be sent as franked mail. We did allow that condolences over a death in the family, even though it provides a personal message. The CHAIRMAN. You also abolished the spouse. Mr. UDALL. Yes. The CHAIRMAN. That is some of the frankest mail we get, you know. Mr. UDALL. Indeed. We then list some specific examples of what is not frankable. For example, we excluded laudatory material based on a personal or political basis rather than on the basis of a Member's duties as a Congressman. We eliminated the ability to use the frank for sending greetings, personal information on what the Member's family might be doing, and the use of the frank for political purposes of any type. We also included well established postal regulations on the right of House Members to use the "postal patron" method of sending bulk mailings. As you know, House Members have been authorized to send their newsletters and questionnaires in this manner since the House does not have the extensive mailing service which the Senate provides its Members. We also clarified the problems which may arise when a Member uses the frank in an area added to his district by reapportionment. An amendment to the bill, by Congressman Gubser, proposed a test of the frankability of mail by its content and not the manner in which it is paid. A peculiar problem a House Member has stems from a ruling by the Clerk of the House stating that excess campaign funds cannot be used to pay for newsletters or questionnaires because it would make them "political" documents, even though the actual contents were totally in accord with existing or proposed law. Senators do not have this problem since your rules state that excess campaign funds can be used in this manner. One of the worst abuses that cropped up over the years was the use of the Congressional Record to "launder" material which was otherwise unfrankable. Under an archaic provision, any material inserted in the Record is automatically "official business" and thus frankable. This meant a Member could malign a political opponent, as has been done, put it in the Record, and then mail reprints out all over the State using the frank. What we have done in this bill is to say: "If you want to insert something in the Record and then send it out, the material must still meet the test of frankability as outlined in the bill." Thus, you can no longer just say, "It's an excerpt from the Congressional Record," as the reason for sending it out. If you want to send the entire Record out, you may, but the Postal Service indicates that the cost of first class handling is about $1 in postage. This says if you are going to mail reprints of the Congressional Record out, it must meet the standard test of frankability. In the second part of the bill, we establish a special commission of the House known as the House Commission on Congressional Mailing Standards. Let me, at the outset, make clear that we enacted this provision as a rule of the House so that the Senate could make its own judgment as to how the use of the frank should be monitored in their body, whether the Senate might wish to lodge that kind of function in your existing ethics committee The CHAIRMAN. My guess is that we would find it difficult to get five or six Senators to serve on such a committee. We may wish to have the House committee preside over our conduct. Mr. UDALL. There is one other option which I wanted to mention which had been recommended on the House side and it was discussed, and that is a joint commission. Why should there be the potential of a standard for frankability in the Senate and another one in the House, and maybe we might have a small joint committee, staffed by existing personnel on the legislative committees, which would establish overall standards and police the use of the frank for both |