Swygert, Chief Judge, and Stevens and Sprecher, Circuit Judges. Swygert, Chief Judge (dissenting).
The district court enjoined defendant, a Member of Congress, from using the frank*fn1 authorized by 39 U.S.C. § 3210 for mass mailings to residents of Illinois' Eleventh Congressional District until after the election in November. Although he now represents the Seventh Congressional District, defendant is a candidate for election in the Eleventh District; plaintiff is his opposing candidate.
In his appeal to this court, defendant contends: (1) that his mailings into the Eleventh District, even if made for the purpose of advancing his candidacy, were nevertheless "upon official business" within the meaning of § 3210; (2) that inquiry into his motivation is foreclosed by the Speech or Debate Clause, Art. I, § 6 of the Constitution;*fn2 and (3) that an injunction should not have issued because plaintiff failed to prove irreparable injury.
The essential facts are summarized in one paragraph of the district court's written opinion:
"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." 348 F. Supp. 305, 308 (N.D.Ill.1972).
The district court concluded that the mailing of the 34,000 questionnaires into the Seventh Congressional District as franked mail was proper, but the 100,000 mailing into the Eleventh District was not. The court found that the defendant's "mailing outside his district cannot reasonably be viewed as an effort to inform himself" and specifically "that the mailing into the Eleventh District was for the purpose of advancing his candidacy." The Court concluded that mailing into that District was not "upon official business" within the meaning of § 3210.*fn3
There is no question about our jurisdiction to construe the statute. See 28 U.S.C. §§ 1339 and 1291. Although the election will not necessarily moot the case,*fn4 its practical importance will expire on November 7, 1972. For that reason, at defendant's request we expedited the appeal. Despite the political context in which the issue arises, we are not being asked to decide a nonjusticiable "political question." See Baker v. Carr, 369 U.S. 186, 226, 82 S. Ct. 691, 7 L. Ed. 2d 663. The appeal merely requires us to perform our accepted role of construing language which Congress has enacted into law.
That language authorizes various officials, including Members and Memberselect of Congress, to send letters weighing 4 ounces or less at no cost*fn5 provided that the mailing is "upon official business." No one suggests that the statute was intended to authorize purely personal mail to be sent at government expense.*fn6
Plaintiff argues, in effect, that if a mailing is motivated by a Congressman's desire to advance his candidacy, it is personal and, therefore, not within the statute; otherwise, the argument runs, the public purse may be used to finance partisan causes. Illinois State Employees Union, Council 34, et al. v. Lewis (slip opinion at 6-8) (No. 71-1619) (7th Cir. September 18, 1972). At the other extreme, defendant argues that a Congressman's motive in using his franking privilege is wholly irrelevant; under this approach the character of a mailing as official or unofficial should be judged solely by its content. Otherwise, defendant argues, the judiciary may be required to enter into an "uncharted area" in which it must inquire into the motives of individual legislators, an area of inquiry which courts have abjured since the days of Chief Justice Marshall. Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 130, 3 L. Ed. 162. There is merit in both arguments, but we conclude that neither is acceptable.
A legislator's desire to retain his public office or to obtain another is laudable and should be encouraged, not demeaned. Implicit in a representative democracy is the assumption that such motivation will provide a wholesome influence on legislative action as well as incentive for the numerous related functions which legislators properly and legitimately perform in an effort to serve their constituents well.*fn7 The proposition that such legislative activities should lose their character as "official business" whenever motivated by a purpose to please the electorate is manifestly too broad to be accepted.
But on the other hand, a narrow standard that would preclude consideration of any evidence except the contents of the mailing itself would be unreliable and, indeed, would not avoid consideration of the sender's motive. In the extreme case, the text of a letter -- perhaps an overt plea for financial support in a partisan election -- would plainly reveal an unofficial purpose. In other cases, the contents might be neutral or ambiguous -- perhaps a check or a simple affirmative reply -- and additional evidence would be needed to determine whether the mailing served an official or an unofficial purpose: To whom was the letter sent? For what expense was the check a payment? Extrinsic evidence of the sender's motive would clearly be relevant to the question whether such a mailing was "upon official business."
This case falls into a different category. Inquiry limited to the contents of the mailing would indicate an official purpose. For certainly it is appropriate for a Congressman to solicit the views of his constituents on issues of public importance. But if we may go beyond the contents of a letter to ascertain the character of an ambiguous mailing, logic dictates that we should not close our eyes in the face of extrinsic evidence which reveals that an appearance of official business is nothing more than a ...