THE MEMBERS Ch. 7 § 7

For 10 other House committees, official business and to use foreign the House agreed to amendments currencies credited to the United authorizing no counterpart funds States (pursuant to H. Res. 368) for members of those commit- although the House Committee on tees.(8) However, denial of such Rules had previously disallowed authorization did not preclude a use of governmental funds for committee from requesting spe- overseas travel by members of the Committee on Education and cific authorization of the Com- Labor.(11) mittee on Rules for overseas trav- el funds for specific purposes.(9) § 6.9 Where members of a com- § 7. Franking mittee have no authority, under the committee’s inves- The franking privilege is the statutory right of Representatives tigatory resolution, to travel to send certain material through overseas or to use foreign the ’ without currencies while on com- postage cost to themselves,(12) the mittee business, the House cost being paid from public reve- may grant such authority nues.(13) Members, along with when the Speaker appoints members of that committee 11. 109 CONG. REC. 1553, 88th Cong. 1st Sess., Jan. 31, 1963. See § 6.6, supra, as delegates to an inter- for further discussion. national conference. 12. For a statutory synopsis, see House On May 31, 1963, Speaker John Rules and Manual § 984 (1973). See W. McCormack, of Massachusetts, also ‘‘Law and Regulations Regard- appointed several delegates from ing Use of the Congressional Frank,’’ the Committee on Education and Subcommittee on Postal Service, Committee on Post Office and Civil Labor to attend the International Service, 92d Cong. 1st Sess. (1971). Labor Organization Conference in Case decisions on the franking ( ) Switzerland. 10 By virtue of that privilege are summarized in ‘‘The appointment, the delegates were Franking Privilege of Members of authorized to travel overseas on Congress,’’ special report of the Joint Committee on Congressional Oper- 8. Id. at pp. 1547–59; see also 109 ations, 92d Cong. 2d Sess. (Oct. 16, CONG. REC. 2463, 88th Cong. 1st 1972). Sess., Feb. 18, 1963. 13. Postage on franked correspondence 9. 109 CONG. REC. 1548, 1549, 1552, is paid by a lump-sum appropriation 88th Cong. 1st Sess., Jan. 31, 1963. to the legislative branch, which rev- 10. 109 CONG. REC. 9896, 88th Cong. 1st enue is then paid to the postal serv- Sess. ice. 39 USC § 3216(a).

725 Ch. 7 § 7 DESCHLER’S PRECEDENTS other federal officials, have en- prohibits franked containing joyed the privilege almost continu- certain material that is ‘‘purely ously from the founding of the Re- personal or political’’ and pro- public.(14) Although the scope and hibits ‘‘mass mailings’’ less than applicability of franking has var- 28 days before elections in which ied through the history of Con- the Member is a candidate.(17) It gress, only during a brief period allows franked mailing ‘‘with a in the 19th century was the privi- simplified form of address for de- lege totally abolished.(15) livery’’ (patron or occupant mail, Members, Members-elect, House for example) within certain lim- (18) officers, and others entitled to the its. Another provision (§ 3211) franking privilege may, until the resulted in uncertainty as to the first day of April following the ex- scope of the privilege, and up until piration of their term of office, 1968 the Post Office Department, send free through the mails, now the United States Postal Serv- under their frank, any matter re- ice, inquired on occasion into the lating to their ‘‘official business, proper use of the frank (see § 7.2, infra). For interpretation by the activities, and duties, as intended’’ House Committee on Post Office and under the guidelines set out in Civil Service prior to the enactment title 39 of the United States of Pub. L. No. 93–191, see Com- Code.(16) The controlling statute mittee Print, Law and Regulations Regarding Use of the Congressional 14. See 1 Stat. 237, Feb. 20, 1792, an act Frank, Subcommittee on Postal which codified the entitlement of Service, Committee on Post Office Representatives to use the frank. and Civil Service, 92d Cong. 1st The passage of the act continued the Sess. (1971). practice which was established by For two notable judicial decisions the (see XXIII on the scope of the franking privilege Journals of the Continental Con- (decided prior to the passage of Pub. gress, pp. 670–679). L. No. 93–191, clarifying the use of 15. The Act of Jan. 31, 1873, 17 Stat. the frank), see Hoellen v Annunzi, 421, effective July 1, 1873, abolished 468 F2d 522 (7th Cir. 1972), cert. de- the franking privilege. Limited use nied, 412 U.S. 953 (1973) and of the frank was reinstated in 1875 Schiaffo v Helstoski, 350 F Supp by 18 Stat. 343, §§ 5, 7, Mar. 30, 1076 (D.N.J. 1972), rev’d 492 F2d 1875. 413 (1974). 16. Prior to the enactment of Pub. L. No. 17. 39 USC § 3210(a) (5). 93–191, 39 USC § 3210 permitted 18. 39 USC § 3210(d). Such mailings, franked mailing of certain matter on within certain requirements, are also official or departmental business by allowed to Members-elect, Delegates a government official. That language and Delegates-elect, and Resident

726 THE MEMBERS Ch. 7 § 7 permits the officers as well as entitled to the use of a frank may Members of the House to send not loan it to another (§ 3215). and receive public documents Cross References through the mail until the first day of April following the expira- allowance, § 8, infra. tion of their terms of office. And Application of constitutional immunity to the Congressional Record, or any material mailed under the frank, §§ 15–17, infra. part or reprint of any part thereof, including speeches and reports Collateral References contained therein, may be sent as Committee Print, Law and Regulations franked mail, if consistent with Regarding Use of the Congressional the guidelines for such mail set Frank, Subcommittee on Postal Serv- out in section 3210. Seeds from ice, Committee on Post Office and Civil the Department of Agriculture Service, 92d Cong. 1st Sess. (1971). may be sent under the frank pur- The Franking Privilege of Members of suant to section 3213. Congress, Special Report of the Joint Committee on Congressional Oper- In the event a Member, Dele- ations, 92d Cong. 2d Sess. (Oct. 16 gate, or Resident Commissioner 1972). dies in office, the surviving spouse The Franking Privilege of Members of may send under the frank non- Congress, Committee Print, Joint Com- political correspondence relating mittee on Congressional Operations, to the death for a period of 180 92d Cong. 2d Sess., Identifying Court Proceedings and Actions of Vital Inter- days thereafter under section est to the Congress (Oct. 16, 1972). 3218. In preparing material to be sent out under his frank, a Mem- ber is entitled to the services of the Public Printer.(19) The person Congressional Guidelines on Franking Commissioners and Resident Com- missioners-elect. § 7.1 In the 93d Congress, the For judicial decisions, prior to the Congress passed into law a enactment of Pub. L. No. 93–191, re- bill to clarify the proper use lating to the area within which a Member of Congress could send such franks for mailing of public docu- franked mail, see Hoellen v Annun- ments, and prints on official enve- zio, 468 F2d 522 (7th Cir. 1972), lopes the Member’s name, date, and cert. denied, 412 U.S. 953 (1973); topic, not to exceed 12 words. Rising v Brown, 313 F Supp 824 Under 44 USC § 907, the Public (D.C. Calif. 1970). Printer furnishes Members with en- 19. Under 44 USC § 733, the Public velopes for mailing the Congres- Printer furnishes printed blank sional Record or parts thereof.

727 Ch. 7 § 7 DESCHLER’S PRECEDENTS

of the franking privilege, re- of the frank. Under the controlling stricting judicial review of statute, the jurisdiction of courts franking practices, and cre- to inquire into the permissible use ating an advisory and inves- of the frank is limited. tigatory commission on the Postal Service Interpretation use of the frank. and Enforcement Public Law No. 93–191 (87 Stat. 737), originally reported as H. R. § 7.2 Beginning in 1968, the 3180 by the Committee on Post Post Office Department and Office and Civil Service, amended its successor, the U.S. Postal title 39 of the Service, discontinued the in- to clarify the proper use of the terpretation and enforce- franking privilege by Members of ment of statutes regulating Congress, and established a spe- the franking privilege. cial commission of the House of On Dec. 26, 1968, the General Representatives entitled the Counsel of the Post Office Depart- ‘‘House Commission on Congres- ment issued a memorandum (1) to sional Mailing Standards.’’ Congress stating that the depart- The law amended title 39, sec- ment would no longer interpret tion 3210 to define the scope of the laws on the use of the con- gressional frank,(2) and would no permissible use of the frank in as- longer attempt to enforce the sisting and expediting the conduct statutes and regulations by re- of the ‘‘official business, activities, questing payment of postage for and duties of the Congress of the material allegedly improperly United States.’’ (20) The commis- franked.(3) The memorandum also sion provides guidance to Mem- bers, promulgates regulations, 1. Reprinted in ‘‘Law and Regulations Regarding Use of the Congressional and renders decisions on the use Frank,’’ Subcommittee on Postal Service of the Committee on Post Of- 20. Prior to the enactment of Pub. L. No. fice and Civil Service, Committee 93–191, a variety of federal court de- print No. 14, 92d Cong. 1st Sess., p. cisions inquired into the permissible 1 (1971). use of the franking privilege and 2. For an example of Post Office De- limited the scope of ‘‘official busi- partment interpretations issued ness’’ in relation to the use of the prior to 1968, see ‘‘The Congressional frank. See, for example, Hoellen v Franking Privilege,’’ publication No. Annunzio, 468 F2( 522 (1972), cert. 126, Post Office Department (Apr. denied, 412 U.S. 953 (1973); Schiaffo 1968). v Helstoski, 350 F Supp 1076 (1972), 3. See publication No. 126, id. at p. 1. rev’d 492 F2d 413 (1974). According to a Comptroller General

728 THE MEMBERS Ch. 7 § 7 stated that the department would sending of ‘‘patron’’ mail continue to tender to individual under the frank of any Mem- Members, on their request, advi- ber of Congress,(6) the House sory opinions on particular mate- concurred in the Senate rial sought to be franked. amendment with an amend- After the Post Office Depart- ment prohibiting such mail ment was converted in 1971 to an under a Senator’s frank but independent U.S. Postal Service,(4) permitting a House Member the General Counsel of the Postal to use his frank for mail ad- Service informed the Chairman of dressed to patrons within his the House Committee on Post Of- own congressional district. fice and Civil Service that the new On Dec. 17, 1963,(7) the House service would not only refrain was considering a Senate amend- from enforcement of statutes and ment to a legislative appropriation regulations on the congressional bill which prohibited the use of frank, but would also cease ren- the franking privilege by any Member of Congress for delivery dering advisory opinions.(5) of mailings to postal patrons (‘‘oc- cupant’’ mail). The House amend- Franking ‘‘Patron’’ Mail ed the Senate amendment by pro- hibiting that use of the franking § 7.3 Where a Senate amend- privilege by Senators but not for ment to a legislative appro- Members of the House. The priation act prohibited the amendment limited such mailings to the Representative’s immediate decision, No. B128938, Aug. 16, congressional district. 1956, the Post Office Department The Senate agreed to the had authority to collect postage which should have been paid on ma- amendment on the following day, terial not properly franked. 6. ‘‘Patron’’ mail is mail identified with 4. See the Postal Reorganization Act, the Member’s frank, with neither a Pub. L. No. 91–375, 84 Stat. 719, name or address but marked ‘‘occu- Aug. 2, 1970 (effective July 1, 1971). pant’’ or ‘‘patron,’’ and distributed by 5. Letter of Mr. David Nelson to Chair- postal carriers to every postal patron man Thaddeus Dulski (N.Y.) Aug. on an established route. See the tes- 12, 1971, reprinted in ‘‘Law and Reg- timony of Postmaster General Day, ulations Regarding Use of the Hearings Before a Subcommittee of Frank,’’ Subcommittee on Postal the Committee on Appropriations, Service, Committee on Post Office U.S. Senate, 88th Cong. 1st Sess., p. and Civil Service, Committee print 256 (1963). No. 14, 921 Cong. 1st Sess., p. 6 7. 109 CONG. REC. 24831, 24832, 88th (1971). Cong. 1st Sess.

729 Ch. 7 § 7 DESCHLER’S PRECEDENTS and the provision became perma- On Jan. 28, 1944,(10) there was nent law.(8) inserted in the Record a letter from the Solicitor General of the Franking and the Congres- Post Office Department stating sional Record that all material in the Congres- § 7.4 The Solicitor General in- sional Record, regardless of the place of printing or the of formed a Member of Con- type, could be sent out under the gress that the franking privi- franking privilege. The latter lege extended to any mate- added that extracts from the Con- rial printed in the Congres- gressional Record should bear (9) sional Record. identifying marks to clearly dem-

8. 109 CONG. REC. 25025, 25026, 88th onstrate that they appeared in the Cong. 1st Sess. Congressional Record. In the two preceding fiscal years, the Senate and House had disagreed Abuse of Frank as Question of over the inclusion of patron mail within the franking privilege (see Privilege Pub. L. No. 87–332, 75 Stat. 747, Sept. 30, 1961 and Pub. L. No. 87– § 7.5 Public charges of misuse 730, 76 Stat. 694, Oct. 2, 1962). A of the franking privilege give Senate report (S. REPT. NO. 88–313), rise to a question of personal 88th Cong. 1st Sess. explained in part the 1963 compromise as follows privilege. at p. 6: ‘‘While in the past the [Ap- On Jan. 28, 1944,(11) Speaker propriations] Committee has voted to pro tempore John W. McCormack, bar the use of the simplified and oc- cupant mailing privileges to all of Massachusetts, ruled that a Members of Congress and has not changed its opinion, it is believed in which allows the sending of the the interest of comity and under- Record, or any part thereof, or standing that the committee should speeches or reports contained there- make the prohibition applicable sole- in. See also Straus v Gilbert, 193 F ly to the U.S. Senate.’’ The report Supp 214 (S.D.N.Y. 1968) (under 39 added: ‘‘The Constitution provides USC § 3212, Congressmen could send that each House may determine the as franked mail, within and without rules of its proceedings. While the his congressional district, material mailing privilege does not specifi- reprinted from the Congressional cally come under the rules of either Record, even if mailed for election body, in view of the past history of this legislation the committee be- campaign purposes) . lieves each House should make its 10. 90 CONG. REC. 879, 880, 78th Cong. own determination in this regard.’’ 2d Sess. 9. See 39 USC § 3212, as amended by 11. 90 CONG. REC. 879, 78th Cong. 2d Pub. L. No. 93–191, 87 Stat. 741, Sess.

730 THE MEMBERS Ch. 7 § 8 question of personal privilege had equipment furnished to Mem- been stated when a Member pre- bers.(16) Other expenses of Mem- sented a newspaper article bers are reimbursed by the House quoting a book containing an ac- up to a certain limit, such as tele- cusation that a Member permitted phone service (17) and home dis- the use of his frank by one of trict office space in nonfederal questionable character.(12) buildings.(18) Another method of fi- nancing prevails over clerk-hire, which is paid directly by the § 8. Office and Personnel House of Representatives to em- ( ) Allowances; Supplies ployees of the Member. 19 If an al- lowance may be withdrawn in Congress has established a vari- cash as needed, as may the sta- ety of allowances and allotments tionery allowance,(20) the allow- which enable Members to equip, ance is taxable income to the staff, and operate offices, both in Member.(1) the Capitol and in the home dis- All office allowances are drawn trict.(13) Some allotments are fur- from the contingent fund of the nished in kind with no dollar House.(2) Measures and regula- limit, such as office space in fed- tions relating to such expendi- eral buildings.(14) Other allot- tures, and to the clerk-hire and of- ments are limited to a certain dol- fice space of Members, are within lar value, such as postage the jurisdiction of the Committee stamps (15) and electrical office 16. See 2 USC § 112e. The Committee on 12. 39 USC § 3215, enacted into law by House Administration may prescribe Pub. L. No. 91–375, 84 Stat. 754, the dollar value limit of mechanical Aug. 12, 1970, prohibits a Member office equipment. from lending or permitting another 17. See 2 USC §§ 46g and 46g–1. to use his frank. 18. See 2 USC § 122 and § 8.6, infra 13. The allowances and allotments dis- (power of Committee on House Ad- cussed in this section apply to the ministration to adjust the home dis- Delegates from the District of Co- trict office allotment). lumbia, Guam, and the Virgin Is- 19. See 2 USC § 92. lands and to the Resident Commis- 20. See 2 USC § 46b. sioner from Puerto Rico, unless oth- 1. The Revenue Act of 1951, 65 Stat. erwise indicated. 452, § 619(d), Oct. 20, 1951, which 14. See 40 USC §§ 177–184 (House office became effective Jan. 3, 1953, ren- buildings) and 2 USC § 122 (home dered cash allowances of Members district office buildings). accountable as taxable income. 15. See 2 USC § 42c. 2. See 2 USC § 57(b).

731