The opinion of the court was delivered by: Tone, District Judge.
This is an action challenging the use of the franking
privilege by a Member of Congress for certain mailings which
are alleged not to have been "upon official business" within
the meaning of 39 U.S.C. § 3210. The case proceeded to trial
before the court without a jury on an amended complaint seeking
Congressman Frank Annunzio, the defendant, was elected in
1970 in the then Seventh Congressional District. He is now the
Democratic candidate for Member of Congress in the new
Eleventh Congressional District.*fn1 There is no overlap
between the two districts. The plaintiff is Congressman
Annunzio's Republican opponent in the Eleventh Congressional
District, John J. Hoellen.*fn2
In May 1972 the defendant used his franking privilege to
mail 134,000 printed questionnaires asking for opinions on
various public issues. Approximately 34,000 were addressed to
persons who were his constituents in the old Seventh District,
in which he is the incumbent Congressman, and approximately
100,000 were addressed to persons in the new Eleventh
District, where he is a candidate. Printed on one side of the
questionnaire are a picture of the Capitol, a picture of
Congressman Annunzio, and in large type, "Congressman Frank
Annunzio Asks Your Opinion!" Then follows a letter, with the
salutation, "Dear Friend," signed by Congressman Annunzio,
urging the addressee to fill out the questionnaire. The
dateline shows "May 1972" and "Vol. 1, No. 1." The
questionnaire portion is printed on the reverse side.
The names and addresses for the mailing were obtained from
voter registration sheets. The mailing to the Eleventh
District was to addressees in what defendant described as the
six major wards in that district. The mailing to the Seventh
District was to addressees in parts of each of three of the
wards in that district.
Although Congressman Annunzio is in his fourth term, he has
never before mailed a questionnaire. Shortly after the mailing
he asked the opinion of Congressman Morris K. Udall, Chairman
of the Subcommittee on Postal Service of the House Committee
on Post Office and Civil Service as to the propriety of the
mailing. Congressman Udall replied by a letter, received in
evidence, in which he reviewed the contents of the
questionnaire, noted that it is similar to those "mailed daily
by hundreds of Members of Congress" and concluded that the
questionnaire could properly be sent as franked mail. It does
not clearly appear that the question of whether the mailing
could be made to the district in which Congressman Annunzio
was only a candidate was expressly presented to Congressman
Udall, but his letter did state:
"Legally speaking, a member of Congress can send
`official business' (which your questionnaire is)
anywhere in the United States."
The other three mailings complained of were made in July
1972 after the filing of this action. They consisted of news
releases, approximately 200 of which were sent to news
services and newspapers throughout the country, including
neighborhood newspapers in the Eleventh District, and to
community leaders who would presumably be interested in the
subjects of the releases, some of whom were in that district.
One release dealt with a reduction in Government crime
insurance policy rates by the Department of Housing and Urban
Development made at the suggestion of Congressman Annunzio;
the second announced House passage of a "Copernicus Day"
resolution; and the third announced introduction by the
Congressman of a resolution for a "National Sokol U.S.A. Day."
Each of the releases carried Congressman Annunzio's picture.
A memorandum has been submitted to the Court by the
Committee on House Administration of the United States House
of Representatives as amicus curiae, pointing out "a
congressional intention that the [franking] privilege not be
unlimited," but further urging that "in general, the regulation
of the privilege is a congressional and not a judicial matter,"
that "the federal courts should adopt an attitude of restraint
in passing upon usages by Members of Congress of the franking
privilege," that "the Court should not in any event adopt an
approach which will subject Congressmen to detailed inquiries
regarding their motives and purposes in the conduct of their
offices," and that injunctive relief against further franked
mailings "would be improper and would impair proper utilization
of the franking privilege." I am sympathetic with the concerns
expressed by the Committee, and yet as I view the law I have a
duty to assume jurisdiction, interpret the statute as it
applies to the facts before me, and decide the case.
Postal Statutes and Regulations
The privilege of sending franked mail is conferred on
Members of Congress by 39 U.S.C. § 3210, et seq. That section
permits them, and other named public officials, to "send as
franked mail —
"(1) matter, not exceeding 4 pounds in weight,
upon official or departmental business, to a
Government official; and
"(2) correspondence, not exceeding 4 ounces in
weight, upon official business to any person."
Other provisions of Title 39 authorize Members of Congress
to use the franking privilege to send any public document, any
part of the Congressional record, and seeds and agricultural
reports emanating from the Department of Agriculture, without
restriction as to purpose or addressee (§§ 3211, 3212, 3213);
authorize a former President to send all his domestic mail as
franked mail (§ 3214); and allow the surviving spouse of a
Member of Congress to send correspondence relating to his death
as franked mail for 180 days after his death (§ 3218). A person
entitled to use the frank is prohibited from lending it or
permitting its use by or for the benefit of any committee,
organization, or association except a Congressional committee
(§ 3215). Payment of the postage on franked mail to the Postal
Service from public funds is provided for (§ 3216).
Postal Service regulations repeat the restriction that
"official correspondence transmitted under frank of . . .
Members . . . of Congress . . . must be on official or
departmental business." 39 C.F.R. ...