For other versions of this document, see http://wikileaks.org/wiki/CRS-RL34085
------------------------------------------------------------------------------
¢
¢
¢
Prepared for Members and Committees of Congress
¢
¢
Current law prohibits the franking of mass mailings by Senators fewer than 60 days, and by
House Members fewer than 90 days, prior to any primary or general election in which the
Member is a candidate. H.R. 1614, S. 936, and S. 1285 would amend Title 39, United States
Code, by altering the prohibition for both Senators and House Members to the period starting 90
days prior to any primary and ending on the day of the general election for any federal election to
which the Member is a candidate for reelection.
The legislation would also prohibit the mailing of mass mailings for the same period by any
congressional committee or subcommittee of which the chair or ranking member was a candidate
for reelection to any federal office.
These changes would increase the mass-mailing-prohibited period for all Senators and some
House Members. Had the legislation been enacted prior to the 2006 election, affected Members
would have seen increases ranging from one day to 215 days, depending on the primary date in
the Members home state. Table 1 of this report details these increases by state.
This report provides an overview of the proposed changes and an analysis of the effect of the
legislation on the mass-mailing-prohibited period for each state's Members, and other issues
related to the proposed changes.
H.R. 1614 and S. 936 have been referred to committee. S. 1285 was referred to committee, and
on June 20 hearings were held on the bill by the Committee on Rules and Administration.
This report will be updated as events warrant.
¢
Legislative History .................................................................................................................... 1
Overview of Legislative Provisions .......................................................................................... 1
Amendment of Election Year Mass Mailing Restrictions................................................... 1
Prohibition of Election Year Committee Mass Mailing...................................................... 2
Analysis..................................................................................................................................... 3
Increased Election Year Restricted Period .......................................................................... 3
Applicability to Jurisdictions Without Primary Elections................................................... 4
Applicability to Candidates for Non-Federal Offices ......................................................... 5
Table 1. Comparison of Actual 2006 Mass Mailing Restrictions and Hypothetical
Restrictions Based On Proposed Legislation ............................................................................... 6
Author Contact Information ............................................................................................................ 8
¢
¢
On March 20, 2007, Representative John Tierney introduced the Clean Money, Clean Elections
Act of 2007 (H.R. 1614, 110th Congress).1 Section 203 of the bill would amend the election year
mass mailing restriction on Members in Title 39, United States Code, by extending the period
during which mass mailings are prohibited. In addition, H.R. 1614 provides for election year
mass mailing restrictions on congressional committees and subcommittees. The bill was referred
to the Committees on House Administration, Energy and Commerce, Ways and Means, and
Oversight and Government Reform. No further action has been taken.
Similar legislation, with identical language in regards to election year mass mailing restrictions,
was introduced in the Senate (S. 936, the Fair Elections Now Act, 110th Congress) by Senator
Richard Durbin on March 20, 2007. The bill was referred to the Committee on Finance. No
further action has been taken. On May 3, 2007, Senator Durbin introduced similar legislation (S.
1285, 110th Congress, the Fair Elections Now Act), also with identical language in regards to
election year mass mailing restrictions, which was referred to the Committee on Rules and
Administration. The committee held hearings on S. 1285 on June 20, 2007. No further action has
been taken.
During the 109th Congress, Representative Tierney introduced similar legislation, the Clean
Money, Clean Elections Act (H.R. 3099). Had the legislation been enacted, Section 303 would
have amended the election year mass mailing restrictions on Members by extending the period
during which mass mailings were prohibited. H.R. 3099 did not contain provisions restricting
committee mass mailings. The bill was referred to the House Committees on House
Administration, Energy and Commerce, and Government Reform. No further action was taken.
Current law and chamber rules provide that mass mailings2 may not be franked by a Senator
fewer than 60 days, or by a House Member fewer than 90 days, immediately before the date of
any primary or general election (whether regular, special, or runoff) in which such Member is a
candidate for any public office.3 Senate rules further state that no Senator may frank mass
mailings in the 60 days prior to the general election, regardless of whether or not they are a
candidate for election.4
1
For an overview of the Clean Money, Clean Elections Act, see CRS Report RL33814, Public Financing of
Congressional Elections: Background and Analysis, by R. Sam Garrett.
2
A mass mailing is defined at 39 U.S.C. 3210(6)(e) as "any mailing of newsletters or other pieces of mail with
substantially identical content (whether such mail is deposited singly or in bulk, or at the same time or different times),
totaling more than 500 pieces" in one session of Congress. Direct responses, correspondence with government officials,
and releases to media are exempt.
3
39 U.S.C. 3210(6)(a).
4
U.S. Senate Handbook, Appendix I-D, p. I-116, available from Senate computers at http://webster/rules/
rules.cfm?page=handbook and Senate Ethics Manual, p. 171, available at http://ethics.senate.gov/downloads/pdffiles/
manual.pdf.
¢
The House and Senate define "candidate" differently. As defined by the House Commission on
Congressional Mailing Standards, a candidate is a "Member whose name appears anywhere on
any official ballot to be used in such election,"5 without regard to whether or not the candidate is
running unopposed.
Because state laws vary considerably in regard to ballot practices in primary elections, this
definition of candidate may impact House Members differently, depending on which state they
represent. In some states, candidates running unopposed are not placed on primary ballots, and
therefore a House Member running in such a state would not be subject to the mass mailing
prohibition. In other states, unopposed candidates do appear on primary ballots, in which case the
mass mailing prohibition would apply to House Members running unopposed.
Senate rules define a candidate as "an individual who seeks nomination for election" if that
individual has either received campaign contributions in excess of $5,000 or made campaign
expenditures in excess of $5,000.6 All Senators are prohibited from franking mass mailings prior
to the general election, regardless of whether or not they are candidates. In regard to primary
elections, Senate rules exempt candidates running unopposed from the mass mailing restrictions.7
Uncontested candidacy is only established when the Committee on Rules and Administration
receives written certification from the appropriate state official.
H.R. 1614, S. 936, and S. 1285 would amend election year mass mailing restrictions by altering
the period of time during which Members are prohibited from franking any mass mailing and the
statutory conditions under which the prohibition applies. If enacted, Members of both the House
and Senate would be prohibited from mailing any mass mailing during the period starting 90 days
prior to any primary election in which such Member is a candidate and ending on the day of the
general election.
The new statutory prohibition would apply only to Members who were candidates for reelection
to any federal office. However, Members would still be subject to further restrictions found in
House and Senate rules.
Current law does not prohibit congressional committees and subcommittees from sending mass
mailings during the election year period in which individual Members are restricted from mailing
any mass mailings. If enacted, H.R. 1614, S. 936, and S. 1285 would prohibit a congressional
committee or subcommittee from mailing any mass mailing during the same period individual
members are prohibited from mass mailings, if either the chair or ranking member of the
committee or subcommittee were a candidate for reelection to any federal office.
5
U.S. Congress, Commission on Congressional Mailing Standards, Regulation of the Use of the Congressional Frank
By Members of the House of Representatives, 105th Cong., 2nd sess. (Washington: GPO, 1998), p. 25.
6
U.S. Senate Handbook, Appendix M, Franking Privileges for Members of Congress, available at
http://webster.senate.gov/rules/handbook/1713.htm, p. 11.
7
Senate Rule XL. See also U.S. Senate Handbook, Appendix I-K, and Senate Ethics Manual, p. 171.
¢
¢
If enacted, the provisions of H.R. 1614, S. 936, and S. 1285 that amend the election year mass
mailing restrictions would generally increase the period of time individual Members were
restricted from mailing any mass mailings. However, because state laws vary in regards to the
timing of primary elections, both current law and the proposed legislation affect individual
Members differently, based on when primary elections are held in the state they represent.
Had the proposed legislation been enacted prior to the 2006 election, some House Members
would have seen no difference in the length of their restricted period; others would have seen an
increase of up to 155 days. All Senators would have seen an increase in the restricted period of at
least 30 days; some would have seen an increase of up to 215 days. Table 1 reports the 2006
primary date and the length of the mass-mailing-restricted period for the 2006 election by state. It
also reports the length of the hypothetical mass-mailing-restricted period for the 2006 election
(and the difference between the hypothetical and actual period) if the election year mass mailing
restrictions proposed in H.R. 1614, S. 936, and S. 1285 had been in effect.
For House Members, the restricted period would have been increased for all Members whose
states hold primaries more than 90 days prior to the general election. In 2006, sixteen states held
primaries fewer than 90 days prior to the general election. Thirty-three states held primaries more
than 90 days prior to the general election.8
For example, under current law, in 2006, all House Members seeking reelection were prohibited
from sending mass mailings fewer than 90 days prior to the general election--August 9, 2006, to
November 7, 2006. Texas held its primary on March 7, 2006. House Members from Texas were
thus also prohibited from making mass mailings between December 7, 2005, and March 7, 2006.
Therefore, Members from Texas were restricted from making mass mailings for two separate 90-
day periods and a total of 180 days.9
If the proposed legislation in H.R. 1614, S. 936, and S. 1285 had been enacted prior to the 2006
primary and general election, House Members from Texas would have been prohibited from
mailing any mass mailings from December 7, 2005 (90 days prior to the primary election), until
November 7, 2006, a total of 335 days
There would have been no increase for House Members representing states that held primaries
fewer than 90 days prior to the general election. For example, Hawaii held its primary on
8
One state--Louisiana--has no primary election. A runoff election, if necessary, is held following the general election.
Current law restricts mass mailings by Members from Louisiana in the 90-day period prior to the general election and,
if necessary, until the day of the runoff election.
9
The phrase "fewer than 90 days" has several plausible interpretations. In Interpretive Rule 149, the Senate Ethics
Committee stated that the "limitation is computed by excluding the actual day of the election, whether it is a primary,
general, regular, special, or runoff" and used the following example: if a primary election is scheduled for May 1, the
moratoria restrictions would begin at 11:59.59 PM on March 2. All dates listed in this report follow this guideline, and
cut-off dates are listed strictly; the cut-off date for the example would be listed as March 2. Because the proposed
amendment to the restrictions describes a "period" of time rather than using the "fewer" formulation, it is not clear how
the new restrictions would be interpreted. In this report, "90-day period" will be interpreted as "fewer than 90 days" as
defined by the Senate rules.
¢
September 23, 2006. House Members from Hawaii were thus prohibited from making mass
mailings between June 25, 2006, and September 23, 2006. Because this period overlapped with
the general election restrictions that began on August 9, 2006, House Members from Hawaii were
restricted from making mass mailings for a single period of 135 consecutive days.
If the proposed changes in H.R. 1614, S. 936, and S. 1285 had been enacted prior to the 2006
primary and general election, House Members from Hawaii would have been prohibited from
mailing any mass mailings from June 25, 2006, until November 7, 2006, the identical 135 days
prohibited under current law.
Senators would be restricted for at least 30 additional days under the proposed legislation,
because of the provision which extends the restricted period from 60 days to 90 days prior to the
primary election.
All Senators who represent states that hold primaries fewer than 90 days prior to the general
election would be restricted for 30 additional days. For example, under current law, in 2006, a
Senator who represented Arizona was prohibited from mailing any mass mailing from July 14,
2006, until November 7, 2006, a total of 116 days. If the proposed changes in H.R. 1614, S. 936,
and S. 1285 had been enacted prior to the 2006 primary and general election, a Senator from
Arizona would have been prohibited from mailing any mass mailings from June 14, 2006, until
November 7, 2006, a total of 146 days.
Under current law, Senators who represent states that hold primaries more than 90 days prior to
the general election are restricted from making mass mailings for a total of 120 days, 60 prior to
the primary election and 60 prior to the general election. For example, in 2006, a Senator who
represented North Dakota was prohibited from mailing any mass mailing from April 14, 2006,
until June 13, 2006, and from September 8, 2006, until November 7, 2006.
If the proposed changes in H.R. 1614, S. 936, and S. 1285 had been enacted prior to the 2006
primary and general election, a Senator from North Dakota would have been prohibited from
mailing any mass mailings from March 15, 2006, until November 7, 2006, a total of 257 days.
If enacted, H.R. 1614, S. 936, and S. 1285 would also make the election year mass-mailing-
restricted period identical for House Members and Senate Members. Members of both chambers
would be prohibited from sending mass mail during the period 90 days prior to the primary
election until the date of the general election. Under current law, as already noted, election year
mass mailing restrictions are shorter for Senators than for House Members.
¢ ¢
One question raised by the proposed legislation is how the new restrictions on mass mailing by
individual Members would apply to Members from states and territories that do not hold primary
elections. Currently, one state (Louisiana) and one territory (American Samoa) do not hold
primary elections. Instead, each uses a system in which the general election is an open contest. If
no candidate receives more than 50% of the vote, a runoff election is held several weeks later,
with the date set pursuant to state or territorial law.
¢
Under current law, the restrictions on states and territories without primaries are clear; candidates
are prohibited from franking mass mailings fewer than 60 days (90 for House Members) prior to
any primary or general election, including runoff elections.10 Thus, for example, Members who
represent Louisiana are prohibited from franking mass mailings fewer than 60 days prior to the
general election, as well as during the 60 days prior to any runoff election that might take place
after the general election.
However, under the proposed changes in H.R. 1614, S. 936, and S. 1285, the beginning of the
restricted period is defined in relation only to primary elections; Members are prohibited from
franking mass mailings beginning 90 days prior to the primary election. This creates an ambiguity
for states and territories that do not have primary elections. Arguably, the intent of the proposed
legislation is that the restricted period would begin 90 days prior to the general election in states
without primaries.
However, the legislation could be alternatively read to place no restrictions on mass mailings in
states and territories that do not have primaries. In this case, Members from such states would be
subject only to mass mailing restrictions in House and Senate rules.
Similarly, the end of the restricted period in the proposed legislation is defined in relationship
only to the general election, with no specific mention of runoff elections. As with the beginning
of the restricted period, arguably the intent of the legislation is to restrict mass mailings in the
period between the general election and runoff election in a state without a primary election.
However, the legislation could be alternatively read to place no restrictions on mass mailings
between the general and runoff elections. In this case, again, Members from such states would be
subject only to mass mailing restrictions in House and Senate rules.
¢
Another question raised by the proposed legislation is how the new restrictions would apply to
Members seeking non-federal public office. Under the current statute, House members are subject
to the election year mass mailing restrictions if they are a candidate for reelection or for any other
public office.11 Senators are subject to election year mass mailing restrictions for the general
election regardless of their status as candidates, and for primary elections if they are a candidate
for any national, state, or local office.12
Under the proposed changes in H.R. 1614, S. 936, and S. 1285, Members are only subject to the
restrictions if they are candidates for reelection to any federal offices. Candidates for non-federal
office would only be subject to the restrictions of House and Senate rules. Current House rules
reflect the current statutory laws, restricting election year mass mailings 90 days prior to any
primary or general election to which the Member is a candidate. Current Senate rules also reflect
the current statutory laws, restricting election year mass mailings fewer than 60 days prior to any
primary election to which the Senator is a contested candidate, and fewer than 60 days prior to
any general election.
10
39 U.S.C. 3210(6)(A)(i).
11
39 U.S.C. 3210(6)(A)(ii)(II).
12
39 U.S.C. 3210(6)(C).
03+ 0 641 60/41/6 611 641 60/21/9 erihspmaH weN
45+ 0 471 60/71/5 021 471 60/51/8 adaveN
251+ 29+ 272 60/8/2 021 081 60/9/5 aksarbeN
421+ 46+ 442 60/8/3 021 081 60/6/6 anatnoM
16+ 1+ 181 60/01/5 021 081 60/8/8 iruossiM
421+ 46+ 442 60/8/3 021 081 60/6/6 ippississiM
03+ 0 641 60/41/6 611 641 60/21/9 atosenniM
16+ 1+ 181 60/01/5 021 081 60/8/8 nagihciM
03+ 0 041 60/12/6 011 041 60/91/9 sttesuhcassaM
03+ 0 641 60/41/6 611 641 60/21/9 dnalyraM
711+ 75+ 732 60/51/3 021 081 60/31/6 eniaM
? ? ? ? 06 09 cA/N anaisiuoL
541+ 58+ 562 60/51/2 021 081 60/61/5 ykcutneK
86+ 8+ 881 60/3/5 021 081 60/1/8 sasnaK
421+ 46+ 442 60/8/3 021 081 60/6/6 awoI
951+ 99+ 972 60/1/2 021 081 60/2/5 anaidnI
102+ 141+ 123 50/12/21 021 081 60/12/3 sionillI
831+ 87+ 852 60/22/2 021 081 60/32/5 ohadI
03+ 0 531 60/52/6 501 531 60/32/9 iiawaH
A/N 0 651 60/4/6 A/N 651 60/2/9 mauG
28+ 22+ 202 60/91/4 021 081 60/81/7 aigroeG
33+ 0 351 60/7/6 021 351 60/5/9 adirolF
aibmuloC
A/N 0 641 60/41/6 A/N 641 60/21/9 fo tcirtsiD
03+ 0 641 60/41/6 611 641 60/21/9 erawaleD
16+ 1+ 181 60/01/5 021 081 60/8/8 tucitcennoC
16+ 1+ 181 60/01/5 021 081 60/8/8 odaroloC
421+ 46+ 442 60/8/3 021 081 60/6/6 ainrofilaC
831+ 87+ 852 60/22/2 021 081 60/32/5 sasnakrA
03+ 0 641 60/41/6 611 641 60/21/9 anozirA
aomaS
A/N ? ? ? A/N 09 bA/N naciremA
74+ 0 761 60/42/5 021 761 60/22/8 aksalA
421+ 46+ 442 60/8/3 021 081 60/6/6 amabalA
etaneS esuoH syaD aetaD tratS etaneS esuoH etaD
yramirP yrotirreT
)syad( egnahC snoitcirtseR gniliaM syaD detcirtseR 6002 / etatS
ssaM lacitehtopyH gniliaM ssaM lautcA
noitalsigeL desoporP nO desaB snoitcirtseR
lacitehtopyH dna snoitcirtseR gniliaM ssaM 6002 lautcA fo nosirapmoC .1 elbaT
¢
.snoitcirtser lacitehtopyh eht rednu syad 953 dna wal tnerruc rednu syad detcirtser 081
fo latot a gnikam ,3002 ,9 rebmevoN no dleh saw yramirp eht ,noitcele 4002 eht roF .noitcele laitnediserP
.S.U eht htiw tnerrucnoc ,sraey ruof yreve renoissimmoC tnediseR sti rof noitcele na sdloh ociR otreuP .d
.retal skeew
ruof )yrassecen fi( noitcele ffonur a dna ,noitcele lareneg eht fo etad eht no noitcele nepo na sdloh anaisiuoL .c
.retal skeew owt )yrassecen
fi( noitcele ffonur a dna ,noitcele lareneg eht fo etad eht no noitcele nepo na sdloh aomaS naciremA .b
.2 hcraM eb dluow elbaT eht ni detsil etad ehT .2 hcraM no
MP95.95:11 ta nigeb dluow snoitcirtser airotarom eht ,1 yaM rof deludehcs si noitcele yramirp a fi ,elpmaxe
roF ".ffonur ro ,laiceps ,raluger ,lareneg ,yramirp a si ti rehtehw ,noitcele eht fo yad lautca eht gnidulcxe
yb detupmoc si noitatimil yad-06" eht taht setats 941 gniluR eviterpretnI eettimmoC scihtE etaneS ehT .a
.7002/5/7 deweiv ,fdp.setadp6002
/6002ef/cerbup/vog.cef.www//:ptth noissimmoC noitcelE laredeF eht morf era setad yramirp no ataD :ecruoS
74+ 0 761 60/42/5 021 761 60/22/8 gnimoyW
03+ 0 641 60/41/6 611 641 60/21/9 nisnocsiW
251+ 29+ 272 60/8/2 021 081 60/9/5 ainigriV tseW
03+ 0 931 60/12/6 901 931 60/91/9 notgnihsaW
711+ 75+ 732 60/51/3 021 081 60/31/6 ainigriV
A/N 0 941 60/11/6 A/N 941 60/9/9 sdnalsI nigriV
03+ 0 641 60/41/6 611 641 60/21/9 tnomreV
311+ 35+ 322 60/92/3 021 081 60/72/6 hatU
512+ 551+ 533 50/7/21 021 081 60/7/3 saxeT
66+ 6+ 681 60/5/5 021 081 60/3/8 eessenneT
421+ 46+ 442 60/8/3 021 081 60/6/6 atokaD htuoS
711+ 75+ 732 60/51/3 021 081 60/31/6 aniloraC htuoS
03+ 0 641 60/41/6 611 641 60/21/9 dnalsI edohR
A/N A/N A/N A/N A/N A/N dA/N ociR otreuP
541+ 58+ 562 60/51/2 021 081 60/61/5 ainavlysnneP
541+ 58+ 562 60/51/2 021 081 60/61/5 nogerO
59+ 53+ 591 60/62/4 021 081 60/52/7 amohalkO
951+ 99+ 972 60/1/2 021 081 60/2/5 oihO
711+ 75+ 732 60/51/3 021 081 60/31/6 atokaD htroN
951+ 99+ 972 60/1/2 021 081 60/2/5 aniloraC htroN
03+ 0 641 60/41/6 611 641 60/21/9 kroY weN
421+ 46+ 442 60/8/3 021 081 60/6/6 ocixeM weN
421+ 46+ 442 60/8/3 021 081 60/6/6 yesreJ weN
etaneS esuoH syaD aetaD tratS etaneS esuoH etaD
yramirP yrotirreT
)syad( egnahC snoitcirtseR gniliaM syaD detcirtseR 6002 / etatS
ssaM lacitehtopyH gniliaM ssaM lautcA
¢
¢
Matthew Eric Glassman
Analyst on the Congress
mglassman@crs.loc.gov, 7-3467
------------------------------------------------------------------------------
For other versions of this document, see http://wikileaks.org/wiki/CRS-RL34085