not invidious, it did not significantly burden the exercise of fundamental rights, and, in any event, it served a compelling governmental interest. Characterizing the lawsuit as an "attack . . . on incumbency itself," the Commission asserted that as long as the political system allowed incumbents to succeed themselves Common Cause would be able to claim that whenever a Congressman communicated officially with his constituents, the effect might be to enhance his prospects for reelection. [Memorandum of Points and Authorities in Support of Intervening Defendants' Motion for Summary Judgment, May 22, 1981, at 36]

The Commission maintained that Members of Congress have historically had a duty to communicate with their constituents and ascertain their views, and that the franking statute played a vital part in this process. The Commission explained:

The theme is echoed in the affidavits of Congressmen concerning their use of the frank that are in the record. Congressmen have differing views on the nature of their responsibilities. Some think that they represent constituents best by voting their own considered judgments based on information that may not have been available to their constituents. A Congressman of that sort believes that the franked newsletter is an important educational tool. Others think the representative has more of a duty to consult and reflect the wishes of those he represents. To such as these, both newletters and questionnaires are vital to the making of informed decisions. And there are gradations. There is a consensus, however, on the benefit to the legislative and representative process of franked mailings to constituents. [Id. at 45]

The statute, the Commission argued, struck a fair balance between facilitating these necessary communications between Members and their constituents and limiting any incidental effect on the electoral process. The Commission put particular emphasis on the fact that Congress had placed significant restraints on the electoral effect of the frank by statute and rule:

Thus, this Court can premise its judgment concerning the constitutionality of the present-day congressional frank upon the propositions that to take two examples relevant to what Common Cause seems to be complaining about-(1) no more than six postal-patron mailings a year by a Congressman are permitted and no mass mailing is allowed within 60 days of either a primary or general election in which the Member is a candidate; and (2) the frank may not be used to mail material that was not itself prepared at public expense. Those limitations are in the rules. Congress has placed on itself by statute and rule the significant restraints summarized here . . . Common Cause is boldly asking this Court to strike, in the name of the Constitution, a balance-between the need of Members to communicate with constituents and the demands of fairness in the electoral process-different from the balance Congress has struck by its adoption of those restraints. While

Common Cause urges that the restraints are insufficient,
one could fairly contend that the restraints Congress has
imposed are too rigorous. Sixty days is a long time to keep
a Congressman from communicating with his constituents
as a group, however urgent the issues of public policy that
arise in the period and no matter how great the clamor for
his opinions on such matters. And the 60 days before the
primary election plus the 60 days before the general elec-
tion become 120 consecutive days of silence on the issues
in the cases of Congressmen from states with primaries in
early September. [Id. at 49-50 (footnote omitted)]

Turning to the First Amendment issue, the Commission asserted that the franking statute did not suppress any communication or association but rather promoted contact between Members and their constituents. Moreover, the intervenor argued, the statute did not either directly or indirectly chill First Amendment activities. "Instead, the [plaintiffs'] claim is a novel one, not recognized by the Supreme Court, that the enhancement of the speech of others dilutes the plaintiffs' own speech and somehow impairs their right of political association. There is no merit to the claim." [Id. at 52] Finally, the Commission claimed that the franking legislation did not deny the plaintiffs equal protection of the law. It stated:

What plaintiffs' equal protection argument boils down to is that the Congress has an obligation to equalize the resources and the voices of those competing in a congressional race. Equal protection principles impose no such affirmative obligation. See, e.g., San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973), holding that a state has no duty to use its funds to alleviate the effects of a school financing scheme that prevented students in property-poor districts from receiving the benefit of a per pupil expenditure equal to that of students residing in propertyrich districts. Incumbency, no less than the distribution of wealth, is a condition that Congress need not compensate for in every piece of legislation it enacts. The Constitution does not require Congress to make the world a perfect world by the standards of Common Cause. [Id. at 72-73] The Commission argued that a denial of equal protection was not made out, even in cases requiring the strictest scrutiny, unless the governmental interest involved was less than compelling. In this case, however, the Commission reiterated, the governmental interest-that of fostering unimpeded communication between Members of Congress and their constituents-was compelling.

The plaintiffs also filed their motion for summary judgment on May 22, 1981, arguing that: (1) the First and Fifth Amendments protected their rights to a "fair political process" free from government imposed inequities; (2) the franking statute as drafted and implemented deprived them of their rights to such a fair political process and an equal opportunity for speech; (3) the franking statute did not meet the test of strict scrutiny which had to be applied, since it served no compelling governmental interest and was not narrowly drawn to accomplish any legitimate purpose; and (4) the

franking statute violated the General Welfare Clause of the U.S. Constitution (art. I, §8), which limits the taxing and spending power of Congress to matters of the general welfare which serve a "public purpose".

On the first point, the plaintiffs contended that the First and Fifth Amendments stood for the proposition that the government could not unfairly benefit some participants in the political process to the severe detriment of others. The principle of government neutrality, they asserted, was central to the democratic process. The plaintiffs explained:

The franking privilege, as embodied in Section 3210, violates two sets of related fundamental rights protected by the First and Fifth Amendments of the Constitution. First, the Constitution requires that the government remain scrupulously neutral in the political process, and impose neither burdens nor benefits on one speaker or candidate to the detriment of another. The underlying guarantee here is of elemental fairness in the political process, a necessary and basic protection in a democratic system, and a right which is articulated in a long line of Supreme Court decisions. The government may not disturb the fundamental fairness of political competition by putting its financial thumb on one side of the electoral scales. This problem is particularly acute where the legislature funds the political campaign of one candidate but not another without justification for the distinction. The First Amendment incorporates strong principles of equal protection in mandating that the government may not discriminate among speakers in granting to some opportunities for speech which are denied to others. Police Department of the City of Chicago v. Mosley, 408 U.S. 92 (1972). The First Amendment is "plainly offended" by any such governmental attempt to imbalance debate in the political process. First National Bank of Boston v. Bellotti, 435 U.S. 765, 785-6 (1978).

The mails have been recognized as an important means of communications, and the government may not favor one user over another who is similarly situated. To do otherwise is to impermissibly burden the disfavored party in political competition, and to discriminate among political participants by granting unequal access to an extraordinarily important means of campaign speech. Neither the First nor the Fifth Amendment can tolerate such a result. [Memorandum in Support of Plaintiffs' Motion for Summary Judgment, May 22, 1981, at 25-26]

Turning to their second point, the plaintiffs maintained that the franking statute provided a significant electoral advantage to incumbent Members of Congress and that incumbents designed the statute for that purpose and used it to that effect. Referring in detail to the record developed during discovery, the plaintiffs contended:

As the evidence in this case overwhelmingly demonstrates,
the frank is used by incumbents for their personal political

benefit. The leadership of both parties have urged Mem-
bers of Congress to use the frank for their political benefit,
and Members have eagerly taken that advice. The frank is
used to send an avalanche of self-serving and laudatory
mail into voters' homes, and to mail everything from
garden seeds to calendars to household advice, material
which has no possible relationship to a Member's legisla-
tive responsibilities. Members have also hired direct mail
experts to design re-election mailing programs that rely
upon the frank. Typically, these consultants recommend
targeted franked mailings to selected constituency groups
in order to maximize the political impact of the mailings.
The record shows that Members have followed this advice.
Further, the amount of mail sent under the frank is not
just enormous, it is also directly grafted onto the election
cycle. When Members face re-election, they mail more;
when they do not face re-election, they mail less. The
volume figures amply illustrate this simple rule. Evidence
to show that the frank is used as a political tool could be
no more compelling.

As such a tool, the frank amounts to little more than a
government subsidy of the campaign mailing costs of in-
cumbents-and incumbents only-to the enormous finan-
cial and political disadvantage of their challengers. This
one-sided subsidy subverts the fairness of competition be-
tween incumbents and challengers in congressional elec-
tions, and compromises the integrity of the political proc-
ess. It indisputably violates the government's constitution-
al obligation of neutrality.

The harms suffered by challengers and their supporters because of the frank are substantial. They suffer an obvious disadvantage in electoral outcomes, i.e., it is harder for them to compete with incumbents in elections and thus to gain office. But they also suffer a harm related directly and solely to the electoral process. The competitive imbalance caused by the frank makes it more difficult for challengers to attract supporters and volunteers, to gather funds and to command press attention. This, in turn, significantly impairs their ability to associate for political purposes, to advocate their ideas, to educate the public and to accomplish the other, similar purposes served by participation in the political process. [Id. at 26-27]

As to their third argument-on the need for a strict standard to be applied in judging the franking statute-the plaintiffs reasoned that the case was particularly unsuitable for judicial deference to legislative determinations about the need for the frank or the interests served by the frank since the Members of Congress who enacted the legislation were its "sole beneficiaries." [Id. at 52] Therefore, the plaintiffs contended, the franking statute must not only be shown to serve plainly compelling governmental interests but must be shown to do so in the most narrowly tailored and precise fashion. While admitting that there might be a "legitimate state interest in Members of Congress being able to communicate with

their constituents about official legislative matters," the plaintiffs claimed that there was no legitimate, much less compelling, interest "in allowing Members to use the frank to promote their re-election, while denying the same benefit to their challengers." [Id. at 55] Since, they argued, the evidence in the case demonstrated that the franking privilege was in fact used by Members for the latter purpose, the statute was manifestly overbroad and must be held unconstitutional.

On their final point, the plaintiffs argued that the franking statute violated the General Welfare Clause because it required the expenditure of funds for private (i.e., that of the Members), not public, political benefit and discriminated against political challengers.

On June 12, 1981, the Senate, as amicus, filed a memorandum in support of the motion of the defendants and intervening House Commission and in opposition to the motion of the plaintiffs for summary judgment. The Senate memorandum did not repeat the discussion of the relevant law on the case-which it noted had been adequately briefed by the parties-but instead focused on the amended complaint and attempted to compare it to the proof and contentions developed up to that point.

According to the Senate, there was simply "no parallel in American jurisprudence" for the breadth of the injunction sought by the plaintiffs in their motion for summary judgment. In the Senate's view, the proposed injunction could result in the end of all official communications from Congress, a particularly startling result given what it characterized as the "dearth of specific complaints about franking by Senators." [Memorandum of United States Senate In Support of Motion of Defendants . . ., June 12, 1981, at 3] The Senate proceeded to review the plaintiffs' objections to the statute outlined in the amended complaint in light of the evidence, disputing each contention separately and concluding that:

Members of Congress exercise their responsibilities under the Constitution until the end of their terms. The Congress has sought to strike a balance between the official responsibilities of its members and their activities as candidates. No constitutional rule, and certainly none on summary judgment, should be based on mailing statistics which are responsive to a host of individual, demographic and governmental factors. In any event, a fair reading of the facts demonstrates that the present balance was struck in good faith and is reasonable. [Id. at 16]

Also on June 12, 1981, the Executive branch defendants and the intervening House Commission filed their oppositions to the motion of the plaintiffs for summary judgment. These memoranda reiterated the legal arguments the parties had made previously and asserted as well that many of the "facts" on which the plaintiffs based their motion were neither material nor undisputed.

The House Commission in particular took pains in its memorandum to try to demonstrate that the factual record did not support the plaintiffs' constitutional claims. The Commission argued that: (1) a Member's use of the frank to communicate with constituents on official business was not improper simply because it might also