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have improved his chances of re-election; (2) the use of "special mailing lists” to send “targeted” franked mail raised no material issue of fact; (3) the plaintiffs at most had identified only two percent of the total House mailings over a six-year period to which they objected on content grounds; (4) the two percent of mailings specifically objected to were too trivial to form the basis for declaring the franking statute unconstitutional and in any event often involved the official duties of the Members; and (5) there was no showing whatsoever that any of the mailings had the slightest impact on either the electoral results or the electoral process even though more franked mail may have been sent in election years.

In its brief discussion of the legal issues, the Commission again asserted that the plaintiffs' attack was in essence nothing more than an attack on incumbency and should be rejected just as the challenges to the constitutionality of public financing of elections had been rejected. The Commission also revived its argument that the plaintiffs lacked standing because they had suffered no injury in fact, but had only "vague, contradictory, and self-serving if not self-delusive .. grievances.” [Memorandum of Intervening Defendant in Opposition To Plaintiffs' Motion for Summary Judgment, June 12, 1981, at 22] Finally, the Commission insisted again that the franking privilege did not violate any right guaranteed by the First Amendment nor did it deny the plaintiffs equal protection.

On June 19, 1981, the plaintiffs moved to strike from the record certain exhibits (purportedly showing how Senators had used the frank since the adoption of the Senate Code of Official Conduct) and a declaration of an employee of the Senate Computer Center (addressing the plaintiffs' assertions dealing with the volume of franked mail) filed by the Senate. In the plaintiffs' view, these filings were inappropriate under Federal Rule 56(c), which establishes what constitutes the record for purposes of a ruling on a motion for summary judgment. In memoranda filed on June 29, 1981, the Senate and the defendants and intervening defendant opposed this motion. In a one-sentence order filed on July 6, 1981, Judge Pratt denied the motion.

On July 24, 1981, the plaintiffs filed a memorandum in opposition to the motions of the Federal defendants and the intervening House Commission for summary judgment. Charging that the intervening Commission in particular had mischaracterized the lawsuit and ignored the extensive record in the case, the plaintiffs argued that: (1) the franking statute in fact authorized the use of the frank by incumbents for re-election purposes as well as for official business (by permitting mailings of newsletters, questionnaires, condolences, voter registration information, etc.); (2) the statute was not justified by any compelling state interest, including communication between a Member and his constituents (which could have justified only a more circumscribed franking privilege); and (3) the franking statute infringed on rights protected by the First and Fifth Amendments because it provided a substantial financial advantage in the electoral process to incumbents, which had a concomitant substantial impact on challengers' campaigns. The plaintiffs also argued that the court should reject the various justiciability arguments which had been raised by the defendants, since the

court had already held that the Federal defendants were proper parties, that the action was subject to judicially manageable relief, and that the plaintiffs had standing.

On September 25, 1981, the various parties and intervenors submitted their proposed findings of fact and conclusions of law, and on September 30, the cross-motions for summary judgment were argued before the three-judge court and taken under advisement.

On September 2, 1982, the three-judge court issued a memorandum opinion and order granting the motions of the Executive branch defendants and the intervening Commission for summary judgment and dismissing the complaint. (Common Cause v. Bolger, Civil Action No. 1887-73 (D.D.C. 1982)] The court found no constitutional violation inherent in the franking statute.

After reviewing the history of the frank, the substance of the 1973 act being challenged, and subsequent efforts by Congress to tighten the franking rules, the court set forth the factual record in the case and two underlying assumptions which affected its decision:

First, it stands to reason that incumbency alone is a valuable asset to the public official who seeks reelection. An incumbent Member of Congress enjoys a certain "visibility" among his constituents that a challenger may find difficult or impossible to match. It is also beyond argument that any communication with constituents, whether through local meetings or through the mail or mass media, contributes to such visibility and thus may have a direct effect (however slight) in influencing the outcome of an election. To the extent that the effect is positive from the incumbent's standpoint, it is undoubtedly detrimental to his challenger's position. This is so whether the communication is part of an overt campaign effort or made simply in the normal course of a member's representative function.

Second, there is little doubt that the franking privilege is a valuable tool in facilitating the performance by individual Members of Congress of their constitutional duty to comunicate with and inform their constituents on public matters. As noted earlier, it is this particular duty which has justified the frank through its history. [Memorandum

Opinion, September 2, 1982, at 10) Turning to the plaintiffs' First Amendment argument, the court rejected the contention that the facts of the case required strict judicial scrutiny of the statute, ruling that such a standard need be employed only where restrictions on speech directly impacted on the content of the communication:

Although we endorse the principle that protection of the
fundamental fairness of the political process is necessary
to ensure the uninhibited competition of candidates and in
ideas which "is at the core of our electoral process,” Wil-
liams v. Rhodes, 393 U.S. 23, 32 (1968), and accept that
granting financial benefits to some interests may be under
some circumstances the same as restricting the First

Amendment rights of others, see Taxation with Represen-
tation of Washington, v. Rogers, 676 F. 2d 715, 744 (D.C.
Cir. 1982), we do not accept plaintiffs' contention that the
facts of this case require strict judicial scrutiny of the stat-
ute at issue.

It is clear from our reading of Supreme Court cases in-
volving governmental restrictions on the exercise of free
speech that the standard of strict scrutiny, which requires
that the government justify a particular regulation by
demonstrating that it "is necessary to serve a compelling
interest and that it is narrowly drawn to achieve that
end,” Widmar v. Vincent, 102 S. Ct. 269, 274 (1981), is re-
served for those instances where the restriction impacts
directly on the content of the restricted communication.

[Id. at 15 (emphasis in original)] The court concluded that because in this case the individuals affected-non-incombent Congressional candidates—had to be “presumed to represent the full spectrum of political ideology(Id. at 17), it could not hold that the franking privilege created any discrimination or restriction which was content related.

In sum, the court stated that the First Amendment had little impact on its analysis of the issues in the case: “Although the language of the First Amendment ensures that one's own speech be free, unfettered, and unabridged, it does not alone require that each individual be entitled to this particular privilege of incumbency that certain others may enjoy." (Id. (footnote omitted)]

Next addressing the plaintiffs' Fifth Amendment claims, the court pointed out that the franking statute furthered several concededly legitimate interests:

We cannot overlook the fact that, despite their broadside objections to the franking statute, plaintiffs concede that the frank serves an essential public purpose in facilitating communication with constituents and that some sort of franking privilege is necessary in the performance of official congressional business. They concede that the problem is merely one of drawing lines-striking a proper balance between legitimate and illegitimate uses of the frank. (Id.

at 18) The court then held that a sufficient level of interference with the electoral process had not been demonstrated to warrant invoking strict judicial scrutiny and overturning the statute, particularly in view of the legitimate interests the statute promoted. The court reasoned:

Were the frank shown to be available and widely used for reelection purposes and had plaintiffs demonstrated that such use has a substantial detrimental impact on opposing candidates or members of the voting public seeking to educate themselves on the candidates and the issues, plaintiffs' claims, particularly those based on the First Amendment, would have considerable merit. But such level of interference with the electoral process has not been shown in this case. We are hesitant to apply a stand

ard under the guise of strict judicial scrutiny to a situation
where there has been no demonstration of significant
harm to the plaintiffs' constitutional rights. The conceded
and undisputed legitimate interests promoted by the
franking statute are sufficient to justify the limited im-
pacts on the rights of the plaintiff class and to satisfy the
invocation of the rational basis test, which we apply in
this case. We cannot hold the franking statute unconstitu-
tional simply because it sets forth a standard to determine
"official" uses of the frank different from that proposed by

plaintiffs. [Id. at 19-20) The line Congress had drawn between “official” and “unofficial" mailings was a reasonable one, the court concluded.

In closing its discussion of the Fifth Amendment issue, the court noted that many of the specific types of mailings to which the plaintiffs objected, while potentially subject to abuse, also served legitimate ends:

For similar reasons, we cannot hold that the particular types of mailings to which plaintiffs object are so prone to abuse that they should not be permitted. Just as plaintiffs have identified the suitability of mass mailings (targeted or general), newsletters, questionnaires and other materials for campaign purposes, there is not a type of mailing challenged which is not also suitable for legitimate “official” purposes. Targeted mailings, for example, may be a means of directing discussion or information on particular issues to those groups in a particular Member's constituency which might be most affected, at the same time saving the cost of preparing and mailing information to individuals who are less likely to be interested. And notwithstanding allegations that questionnaires are most often used to obtain demographic information beneficial to a candidacy, it goes without saying that any method of obtaining constituents' views and impressions on particular issues may be invaluable to a Member of Congress who truly considers himself responsible to the people. It does little, therefore, for the plaintiffs to emphasize the potential in these types of mailings for abuse, without also acknowledging the legitimate ends to which they are put. We are not convinced by any of plaintiffs' arguments that there exists no rational and legitimate basis for Congress' decision to retain these particular “middle area” uses of the frank within the stated category of "official use," and we defer to the judgment embodied in the statute. (Id. at

22-23 (footnote omitted)] Finally, turning to prudential considerations, the court asserted that "to grant the relief which plaintiffs seek would in effect require us to issue rules of behavior superseding those that Congress, a coordinate branch of government, has responsibly set for itself." (Id. at 23] The court decided that it was not its function to do so.

The court concluded:

We do not suggest that the franking privilege may never be shown to create such an imbalance in the campaign process as to constitute a cognizable interference with important rights. We hold only that the level of impact has not been shown to be sufficient in this case for us to assume the responsibility of redrafting a statute or promulgating regulations to govern the congressional use of the frank. Our rationale for rejecting plaintiffs' claims under the First and Fifth Amendments holds as well for the challenge raised under the General Welfare Clause of Article I, Section 8. We find no constitutional violation.

(Id. at 24] On November 8, 1982, the plaintiffs filed a notice of appeal of the decision of the three-judge court to the U.S. Supreme Court. [No. 82-1141]

On January 7, 1983, the plaintiffs-appellants filed their jurisdictional statement in the Supreme Court. They argued that the question presented by the appeal was important because it goes to the heart of representative democracy,” and noted that the district court, despite its adverse ruling, had detailed in its findings of fact that franked mailings frequently had no relation to official business and had the purpose and effect of promoting the political campaigns of Members of Congress. "The question thus involves the fairness of every congressional election at which an incumbent Senator or Representative is seeking reelection," the plaintiffs maintained. (Jurisdictional Statement, January 7, 1983, at 6)

Further, the plaintiffs asserted, the question presented by the appeal was substantial because: (1) the district court decision was "inconsistent with settled constitutional principles” (Id.] ; and (2) the “mixture of public and individual political functions served by some franked mail (did] not justify the district court's departure from those principles. [Id, at 12]

The plaintiffs challenged both the lower court's factual analysis and the legal underpinnings of its ruling on the First Amendment issue. In particular, the plaintiffs disputed the district court's holding that the franking statute was constitutional because it distinguished individuals, not ideas, and did not directly restrict the content of any communication:

Both the factual analysis and the legal premise are erroneous. In fact, the franking statute "creates ... discrimination" by subsidizing the circulation of one, and only one, set of ideas—the ideas of the incumbent candidate. That discrimination is not lessened by the breadth of the spectrum of competing ideas that his or her opponents pay to circulate. Furthermore, the decisions of this Court make plain that the First Amendment bars discrimination among speakers just as it prohibits discrimination among

ideas. (Id. at 8] Moreover, the plaintiffs asserted, it was equally erroneous as a matter of precedent for the district court to use the rational basis test-as opposed to strict judicial scrutiny-to decide the Fifth Amendment issue:

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