others. The fact that a Congressman hopes the balance will tilt in his favor does not make the providing of information any the less a part of his overall responsibility.
The argument that a Congressman's sending information to his constituents amounts to a distribution of campaign literature per se is without merit. If it were valid, the use of the frank would be so severely limited that it would be useless. Nothing could be sent without the prepayment of postage, under plaintiffs' theory, except replies to letters received. Plaintiffs are really saying that a Congressman should be required to pay personally almost all the expenses of his legislative duty to keep his constituents informed because his opponent must pay personally the expenses of trying to unseat him. In essence, this argument proposes to muzzle all Members of Congress since plaintiffs themselves recognize the substantial expenses involved in volume-mailing. To limit the free flow of information between Congressmen and those they represent would have grave consequences on our form of government and the freedoms it is designed to protect. The restrictions plaintiffs would impose have far graver implications than any benefits which might be gained from equalizing certain opportunities for political adversaries. Of course, a newsletter could become blatantly political campaign literature. The line might be a fine one in some cases, but here it has not been crossed by Congressman Williams' "Washington Report."
I conclude "Washington Report" is "correspondence . . . upon official business." Correspondence is "communication by letters; also, the letters exchanged."
Letters are "written or printed messages."
The "Reports" fall within these definitions. The plaintiffs have seized on the words "letters exchanged" and argue that the newsletter cannot be correspondence unless sent in response to a specific request for information. This is the equivalent of saying that because automobiles move in both directions on some streets, a one-way street carries no traffic at all. Moreover, the "Reports" have repeatedly requested replys and responses so that the one-way analysis is completely unjustified.
Plaintiffs also suggest that correspondence in volume loses its identity and becomes something else. However, correspondence is not defined in numerical terms. Whether information to a constituent is imparted by an individually typed letter or by one of a hundred thousand printed letters, it is still information and the vehicle which carries information is correspondence.
An examination of the "Reports" show they have been issued to keep the residents of Congressman Williams' district informed as to his activities and opinions. Thus, there has been no abuse of the frank. See Straus v. Gilbert, 293 F. Supp. 214 (S.D.N.Y.1968).
See also Hoellen v. Annunzio, 348 F. Supp. 305 (N.D.Ill., 1972), for a similar result as to a questionnaire mailed to a Congressman's current district. For both philosophical and strictly legal reasons distribution of the "Washington Report" constitutes official correspondence.
The mailing of eight editions of "Washington Report," including the one of June, 1972, could not violate the franking statutes. These issues were taken from the Congressional Record.
See 39 U.S.C. § 3212 (footnote 2, supra). Seven of them, including the June, 1972, edition, were verbatim transcripts of speeches made in the House.
The April, 1971, issue was included under the Extension of Remarks privilege
by which Congressmen may modify and enlarge a prior statement. A minimum of 3 1/2 days elapsed between inclusion of each edition in the Record and its mailing.
The format and type used in the "Reports" differ from the printed Record, but the wording is identical. Parts of the Congressional Record may go out under a Congressman's frank even though a different type face has been utilized to make the copies more legible and despite the fact that pictures are included with it. Straus v. Gilbert, supra. In Straus, the court pointed out that it could not tell Congress what to print or what not to print in its journal. Moreover, as noted in McGovern v. Martz, supra, 182 F. Supp. at p. 348, distribution of portions of the Congressional Record is a convenient and reasonable method of informing constituents.
The plaintiffs rely almost exclusively on Rising v. Brown, 313 F. Supp. 824 (C.D.Cal.1970). This case found an abuse of the franking privilege. Both parties were Congressmen running for the Senate. The defendant, Brown, as a member of a committee which was investigating air pollution, mailed a questionnaire on environmental issues. Later, during the campaign, a brochure containing the results of this study was mailed not just to Brown's current constituents, but throughout the state. Fifty percent of the document was devoted to matters other than the pollution survey. For example, one-eighth was devoted to Brown's opposition to the Viet Nam war. The pamphlet was not placed in the Congressional Record until after a temporary restraining order had been issued to stop the mailing. Hence, the California Court felt that the Straus case was distinguishable because the brochure was mailed to proposed constituents and because the Congressional Record was used in an attempt to avoid a court order. The plaintiffs base their entire argument on dicta that the Congressional Record should not be used to over-ride abuses of the franking privilege and that Members of Congress should not be allowed to insert matters into the Record just for the purpose of getting free mail. Despite this concern by the court, Congress shortly thereafter reenacted the privilege of using franked mail for the Congressional Record in the Postal Reorganization Act, P.L. 91-375, 39 U.S.C. § 3212.
In so doing, Congress demonstrated its intention to encourage wide distribution of the Record, despite the possibility for abuse noted in Rising.
Plaintiffs charge that Congressman Williams is liable in damages because he allowed his frank to be used by his campaign committee in violation of 39 U.S.C. § 3215. It is also contended that plaintiffs are entitled to damages by reason of 18 U.S.C. § 612 which requires election literature to bear the names of those responsible for its publication. There is no merit in either contention. The newsletter was prepared by the Congressman's office staff and is not campaign material. Even if the relevant issue, that of June, 1972, had been prepared by someone else and was campaign material, it would not be covered by 18 U.S.C. § 612, since it was contained in a speech to the House of Representatives and the details of its drafting and preparation are privileged. United States v. Johnson, 383 U.S. 169, 86 S. Ct. 749, 15 L. Ed. 2d 681 (1966). In addition, 18 U.S.C. § 612 is a criminal statute and a questionable basis for the obtaining of money damages.
As to the assertion that the frank was illegally loaned: assuming for the sake of argument that Mr. Williams' campaign committee paid for all or part of the actual printing of a newsletter which was then sent out under the Congressional frank, it does not follow that the frank was loaned to the committee unless the newsletter also went out under the aegis of the committee. There has been no indication that any of the newsletters were issued in this manner.
THE POSTAL SERVICES' MOTION
Since the franking privilege has not been improperly used, there can be no order against the Postal Service's delivering the newsletter. However, even if there had been an abuse, injunctions prohibiting handling of the "Washington Report" and granting Candidate Bowie the privilege of using the "Postal Customer Local" type of address could not be granted.
The Postal Service must deliver the mail unless an item is "non-mailable" within the definition of 39 U.S.C. § 3001.
As the "Washington Report" is not covered by the terms of this section, the postal authorities have the duty to forward it. 39 U.S.C. § 403.
The plaintiffs have admitted that the newsletter is first class mail which is not subject to discretionary inspection, United States v. VanLeeuwen, 397 U.S. 249, 251, 90 S. Ct. 1029, 1031, 25 L. Ed. 2d 282 (1970), and can only be opened with a search warrant authorized by law to determine if the frank has been abused: 39 U.S.C. § 3623(d). Therefore, the Postal Service cannot be liable for obeying the statutory mandate to forward correspondence. If the postal authorities opened or detained "Washington Report", they would be placing themselves in the position of being censors of Congressional mail. If the court ordered the Postal Service to refuse to deliver "Washington Report", it would amount to the judicial branch of the government ordering the executive branch to tell members of the legislative branch what they can and can not mail. Such an order would be clearly improper and beyond the authority of this court under the separation of powers contained in the Constitution. ". . . [Just] as the Constitution forbids the Congress to enter fields reserved to the Executive and Judiciary, it imposes on the Judiciary the reciprocal duty of not lightly interfering with Congress' exercise of its legitimate powers." Hutcheson v. United States, 369 U.S. 599, 622, 82 S. Ct. 1005, 1017, 8 L. Ed. 2d 137 (1962). There can be no injunction prohibiting the Postal Service's delivery of the "Washington Report".
The other relief sought against the Postal Service is an order allowing the plaintiff to use the address "Postal Customer Local".
However, the authorizing regulation was adopted pursuant to 39 U.S.C. § 401(2) to aid the handling of franked mail. The broadest of the sections authorizing use of the frank, 39 U.S.C. §§ 3210 and 3211, are limited to the Vice President, members and members-elect of Congress, and certain official employees of the House or Senate. Other sections such as 39 U.S.C. § 3212 are limited to Members of Congress. The plaintiffs are not in any of the named categories and cannot use the frank. Therefore, even if they personally pay the postage, they are not entitled to use the simplified address adopted to implement the franking statute. Candidate Bowie claims that allowing a special address to ease Congressional correspondence to constituents constitutes a violation of equal protection through the due process clause of the Fifth Amendment.
This is claimed to follow because the plaintiffs must expend campaign funds and maintain address listings to counter the "Washington Report." Such straining for a Constitutional argument fails because the statutes and regulations do not present a "patently arbitrary classification utterly lacking in rational justification." Flemming v. Nestor, 363 U.S. 603, 611, 80 S. Ct. 1367, 1373, 4 L. Ed. 2d 1435 (1960). The simplified address eases communication by elected representatives with those represented. Although it is safe to assume that individually addressed mail will not reach the same households as the "Postal Customer Local" designation, this does not render the classification arbitrary. It was adopted to meet a specific need of the Congress and its members and is obviously the easiest way for a representative to reach the people in his district.
The Postal Service is required to provide the types of mail service to meet the needs of the different categories of users: 39 U.S.C. § 403(b)(2). The elected members of the House of Representatives are clearly such a class. On the other hand, candidates have no special reason to be considered a separate group. Their positions are temporary and they do not represent anyone. Hence, there is a rational basis for the regulation despite plaintiffs' claims. In this situation, the courts will show deference to administrative orders implementing a statute and, if there is a reasonable interpretation, the courts will respect the ruling. Griggs v. Duke Power Company, 401 U.S. 424, 433-434, 91 S. Ct. 849, 854-855, 28 L. Ed. 2d 158 (1971); Udall v. Tallman, 380 U.S. 1, 16-18, 85 S. Ct. 792, 801-802, 13 L. Ed. 2d 616 (1965). See also Red Lion Broadcasting Company v. F.C.C., 395 U.S. 367, 381. 89 S. Ct. 1794, 1801-1802, 23 L. Ed. 2d 371 (1969). Accordingly, there can be no relief against the Postal Service.
As shown above, the plaintiffs have no basis for any recovery. Therefore, there is no need to consider the arguments of either candidate concerning standing, justiciability or the Speech and Debate Clause of the Constitution.