by George Hadijski
Members of Congress utilize a mechanism for mailing constituent letters, newsletters, and general constituent information under postage called the Congressional Frank, a Member’s signature in the corner of an envelope that is substituted for postage. The franking privilege which allows Members of Congress to send mail under their signature has its origin in 17th century Great Britain. The British House of Commons instituted it in 1660, and free mail was available to many officials under the colonial postal system, although today’s postal mail is charged to the Member’s official office account called the Members’ Representational Allowance, or MRA.
An example of the exterior of an envelope sent out under the Frank by Rep. Gerald Connolly (D-VA). The Member’s signature in the upper right substitutes for prepaid postage.
Source: Stamp Community Forum
George Hadijski worked for the Committee on House Administration for 27 years, serving as its director of Committee and Member Services from 1998 to 2016 and as a senior advisor from 2016 to 2019.
In 1775, the First Continental Congress passed legislation giving Members mailing privileges so they could communicate with their constituents, as well as giving free mailing privileges to soldiers. Congress continues to use the franking privilege to meet a public interest goal in facilitating official mail communications from elected officials to the citizens who they represent. The communications may include letters in response to constituent requests for information, newsletters regarding legislation, legislative surveys and Member votes, press releases about official Member activities, copies of the Congressional Record and government reports, and notices about upcoming town hall meetings organized by Members of Congress.
This privilege was loosely regulated up until the early 1970s. In the absence of substantial regulations, the franking privilege was subject to abuse in various ways. The lines between content used in campaign pieces and the content used in official communications were blurred as taxpayer funded mailers contained content that was largely indistinguishable between the two.
The Courts Step In and Congress Self-Regulates
In 1973, court challenges posed threats to the franking privilege. Questions from various entities were being raised surrounding Members’ use of the Frank on Constitutional grounds, and on the basis that the franking privilege provided an incumbent Member advantage over campaign challengers. These legal challenges made it clear that if Congress did not regulate its privilege, the courts would intervene. In 1973, the Congress eager to avoid outside intervention into Congressional operations, established the Commission on Congressional Mailing Standards and its rules were adopted. In 1977, the mailing structure and regulations were refined and the Commission strengthened its self-regulating mission by limiting the number of mass mailings in a year, and it barred mass mailings during the 60 days prior to an election. It also required postal mailings to be submitted to the Commission for an advisory opinion.
Offices can go through a rigorous process for seeking approval on a communication piece requiring an advisory opinion. An office begins the process by submitting their individual piece with the requested paperwork to the staff of the Member’s own party. There it is reviewed by the staff initially for compliance with Franking content rules. After that review is completed, any changes are noted in the Franking database system and then sent over to the staff of the opposing party’s staff. That staff reviews the original comments and will either agree that no edits need to be made, the staff can concur with the original requested edits, or they can disagree with the original comments and submit their own requested changes.
The piece is then sent back to the original staff. If there are no edits, the Member office is sent an email approval, and the office may proceed with sending the piece. If the Franking staff requests edits that both parties agree to, the original staff will contact the office and explain the requested changes so the piece may be resubmitted for approval. If there is disagreement amongst the staff on the requested changes, then the staff must negotiate based on past precedents and work until a resolution is agreed upon. Changes to communication pieces or delays as a result of the partisan staff negotiating differences can delay a Member’s communication from going out, so there is a clear desire to have clarity on the rules and agreement on how those rules must be interpreted.
The content rules are structured in a manner to allow for official information to be communicated to constituents, while minimizing the self-promotion of the Member and avoiding any political campaign content. Fundraising, political endorsements, references to other political candidates, or any content prepared with campaign resources are prohibited. Also banned are endorsements or private companies and charitable organizations. Content must be official, not personal in nature, and Members are advised to steer clear of biographical information (except for that related to official duties) or family photos.
In 1981, Franking regulations were codified in U.S.C. Title 39 to reinforce the authority of the Commission and in 1989 the number of mass mailings was reduced from six to three. Instituted in 1991, the official mail allowance was established, which set for the first time that all mail matter would be accessed against each Member’s account and establish public disclosure, but also removed the cap on the number of mailings. Mass mailings were redefined to include all unsolicited mass mailings over 499 pieces regardless of mail type.
The 1990s and 2000s: Congress Moves Into the Digital Age
Members have used this system of paid postage communications with their constituents for most of their existence until Members started utilizing electronic communications in their internal as well as external communications during the mid-1990s. Long a target of criticism from taxpayer watchdog groups and the press, Congressional spending on mail steadily decreased as new forms of communications began to take over. With the advances in technology, Members also started to target their communications more efficiently. This use along with previous franking reforms led to a decrease in franked mail spending by Members of Congress.
In 1992, the “two sheets of paper” restriction limiting how much content may be sent out by Members was eliminated, and on the heels of a U.S. Court of Appeals ruling, the law was changed to restrict members from mass mailings outside their districts. In 1996, the Castle amendment in the 1997 Legislative Branch Appropriations Bill required mass mailing disclosures, and extended blackouts from 60 to 90 days prior to an election.
In 1995, the House undertook reforms to their communications systems in response to the rise of email and the World Wide Web. Offices were converted to a uniform email system, the development of individual Member websites commenced, and the Library of Congress’ THOMAS website was introduced to enable the U.S. Congress to better communicate with their constituents about the activity of Congress and the content and status of legislation. In September 1995, the Committee on House Administration adopted regulations that spelled out the initial regulatory structure for websites and electronic mail, with the intent of treating all communications consistently. In 1996, the Committee on House Administration extended blackout restrictions from mail only to all forms of communications. In 1998, as a result of the continuing shift from hard copy mail to more digital communications in the form of electronic mail, the Committee removed the official mail allowance limit within the MRA.
In the 106th Congress from 2001 to 2002, the Committee on House Administration began revisiting how this new medium of digital communications was being utilized and realized that many antiquated regulations did not make sense as applied to electronic mail. The initial restrictions were put in place to minimize incumbent Members’ monetary advantage in communicating with constituents through paid taxpayer-funded mailers. However, through Member websites, constituents could actively sign up for email newsletters, and the incremental cost of sending out an additional email newsletter to each subscriber was effectively zero. This type of communication was quite different than the kinds unsolicited mailers printed at taxpayer expense that the House initially sought to regulate. As a result, the Committee redefined regulated communications to exclude routine electronic communications, including email newsletters, to which an individual actively subscribes.
As a result of this decision, email newsletters sent to subscribers were not subject to advisory opinions, meaning that offices could truly take advantage of the nearly instantaneous nature of digital communications. Unsurprisingly, these newsletters became a preferred mode of communications by Member offices, with a premium placed on building up the number of subscribers receiving these newsletters. While many methods used for building these subscriber lists — including paid digital advertising and unsolicited emails and surveys to constituents enticing them to subscribe — are still subject to approval, the ability to communicate with these subscribers on a regular basis was greatly sped up by the reforms adopted by the 106th Congress.
These changes also removed blackout restrictions on solicited communications. As email communications did not have the burden of postage payments, and campaign challengers now had the ability to set up similar electronic communication structures at minimal cost, the Committee revised the regulations to allow for subscribed email communications even during election year blackouts to more closely mirror the same solicited communications constituents routinely utilize when they subscribe to newsletters and promotional materials from private sector organizations.In some cases, Members in states where primaries 90-days prior to the general election blackout would have been restricted in back-to-back periods, they would have been restricted from communicating with their constituents for a total of 180 days or six months prior to a general election. It severely restricted a Member’s ability to update their constituents about legislative activity that might be incredibly important to those constituents, since much of this important legislative activity can occur towards the end of a session.
In the latter part of the decade, telephone town hall meetings became prevalent. After 2010, there was a substantial focus on broadening the number of Members who were utilizing teletownhalls, where thousands or tens of thousands of constituents could be contacted simultaneously over the phone. As a result, constituents were now able to participate in interactions with their Member of Congress from the comfort of their own homes.
The 116th Congress Looks to Modernize
As smartphones and social media have become ubiquitous, regulatory structures have lagged far behind modern day developments in technology. With mobile devices deeply embedded in their constituents’ day-to-day lives, Members have increasingly turned to social media communications and have begun to explore the possibility of communicating via texting.
With this growing gap between what technology makes possible and current regulation, the 116th Congress starting in 2019 is taking a fresh look at how the House operates — from the work of the Modernization Committee to recently revamped House Communications Standards Commission. Though these bodies are collectively addressing challenges that go well beyond communications, the groundwork has been laid for deep and lasting reforms to how Congress engages and interacts with citizens.