[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 7.  The Members]
[B. Compensation and Allowances]
[Â§ 7. Franking]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 725-731]
 
                               CHAPTER 7
 
                              The Members
 
                     B. COMPENSATION AND ALLOWANCES
 
Sec. 7. Franking

    The franking privilege is the statutory right of Representatives to 
send certain material through the United States' mails without postage 
cost to themselves,(12) the cost being paid from public 
revenues.(13) Members, along with

[[Page 726]]

other federal officials, have enjoyed the privilege almost continuously 
from the founding of the Republic.(14) Although the scope 
and applicability of franking has varied through the history of 
Congress, only during a brief period in the 19th century was the 
privilege totally abolished.(15)
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12. For a statutory synopsis, see House Rules and Manual Sec. 984 
        (1973). See also ``Law and Regulations Regarding Use of the 
        Congressional Frank,'' Subcommittee on Postal Service, 
        Committee on Post Office and Civil Service, 92d Cong. 1st Sess. 
        (1971).
            Case decisions on the franking privilege are summarized in 
        ``The Franking Privilege of Members of Congress,'' special 
        report of the Joint Committee on Congressional Operations, 92d 
        Cong. 2d Sess. (Oct. 16, 1972).
13. Postage on franked correspondence is paid by a lump-sum 
        appropriation to the legislative branch, which revenue is then 
        paid to the postal service. 39 USC Sec. 3216(a).
14. See 1 Stat. 237, Feb. 20, 1792, an act which codified the 
        entitlement of Representatives to use the frank. The passage of 
        the act continued the practice which was established by the 
        Continental Congress (see XXIII Journals of the Continental 
        Congress, pp. 670-679).
15. The Act of Jan. 31, 1873, 17 Stat. 421, effective July 1, 1873, 
        abolished the franking privilege. Limited use of the frank was 
        reinstated in 1875 by 18 Stat. 343, Sec. Sec. 5, 7, Mar. 30, 
        1875.
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    Members, Members-elect, House officers, and others entitled to the 
franking privilege may, until the first day of April following the 
expiration of their term of office, send free through the mails, under 
their frank, any matter relating to their ``official business, 
activities, and duties, as intended'' under the guidelines set out in 
title 39 of the United States Code.(16) The controlling 
statute prohibits franked mail containing certain material that is 
``purely personal or political'' and prohibits ``mass mailings'' less 
than 28 days before elections in which the Member is a 
candidate.(17) It allows franked mailing ``with a simplified 
form of address for delivery'' (patron or occupant mail, for example) 
within certain limits.(18) Another provision (Sec. 3211)

[[Page 727]]

permits the officers as well as Members of the House to send and 
receive public documents through the mail until the first day of April 
following the expiration of their terms of office. And the 
Congressional Record, or any part or reprint of any part thereof, 
including speeches and reports contained therein, may be sent as 
franked mail, if consistent with the guidelines for such mail set out 
in section 3210. Seeds from the Department of Agriculture may be sent 
under the frank pursuant to section 3213.
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16. Prior to the enactment of Pub. L. No. 93-191, 39 USC Sec. 3210 
        permitted franked mailing of certain matter on official or 
        departmental business by a government official. That language 
        resulted in uncertainty as to the scope of the privilege, and 
        up until 1968 the Post Office Department, now the United States 
        Postal Service, inquired on occasion into the proper use of the 
        frank (see Sec. 7.2, infra). For interpretation by the House 
        Committee on Post Office and Civil Service prior to the 
        enactment of Pub. L. No. 93-191, see Committee Print, Law and 
        Regulations Regarding Use of the Congressional Frank, 
        Subcommittee on Postal Service, Committee on Post Office and 
        Civil Service, 92d Cong. 1st Sess. (1971).
            For two notable judicial decisions on the scope of the 
        franking privilege (decided prior to the passage of Pub. L. No. 
        93-191, clarifying the use of the frank), see Hoellen v 
        Annunzi, 468 F2d 522 (7th Cir. 1972), cert. denied, 412 U.S. 
        953 (1973) and Schiaffo v Helstoski, 350 F Supp 1076 (D.N.J. 
        1972), rev'd 492 F2d 413 (1974).
17. 39 USC Sec. 3210(a) (5).
18. 39 USC Sec. 3210(d). Such mailings, within certain requirements, 
        are also allowed to Members-elect, Delegates and Delegates-
        elect, and Resident Commissioners and Resident Commissioners-
        elect.
            For judicial decisions, prior to the enactment of Pub. L. 
        No. 93-191, relating to the area within which a Member of 
        Congress could send such franked mail, see Hoellen v Annunzio, 
        468 F2d 522 (7th Cir. 1972), cert. denied, 412 U.S. 953 (1973); 
        Rising v Brown, 313 F Supp 824 (D.C. Calif. 1970).
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    In the event a Member, Delegate, or Resident Commissioner dies in 
office, the surviving spouse may send under the frank nonpolitical 
correspondence relating to the death for a period of 180 days 
thereafter under section 3218. In preparing material to be sent out 
under his frank, a Member is entitled to the services of the Public 
Printer.(19) The person entitled to the use of a frank may 
not loan it to another (Sec. 3215).
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19. Under 44 USC Sec. 733, the Public Printer furnishes printed blank 
        franks for mailing of public documents, and prints on official 
        envelopes the Member's name, date, and topic, not to exceed 12 
        words.
            Under 44 USC Sec. 907, the Public Printer furnishes Members 
        with envelopes for mailing the Congressional Record or parts 
        thereof.
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                            Cross References
Postage stamp allowance, Sec. 8, infra.
Application of constitutional immunity to material mailed under the 
    frank, Sec. Sec. 15-17, infra.

                         Collateral References
Committee Print, Law and Regulations Regarding Use of the Congressional 
    Frank, Subcommittee on Postal Service, Committee on Post Office and 
    Civil Service, 92d Cong. 1st Sess. (1971).
The Franking Privilege of Members of Congress, Special Report of the 
    Joint Committee on Congressional Operations, 92d Cong. 2d Sess. 
    (Oct. 16 1972).
The Franking Privilege of Members of Congress, Committee Print, Joint 
    Committee on Congressional Operations, 92d Cong. 2d Sess., 
    Identifying Court Proceedings and Actions of Vital Interest to the 
    Congress (Oct. 16, 
    1972).                          -------------------

Congressional Guidelines on Franking

Sec. 7.1 In the 93d Congress, the Congress passed into law a bill to 
    clarify the proper use

[[Page 728]]

    of the franking privilege, restricting judicial review of franking 
    practices, and creating an advisory and investigatory commission on 
    the use of the frank.

    Public Law No. 93-191 (87 Stat. 737), originally reported as H. R. 
3180 by the Committee on Post Office and Civil Service, amended title 
39 of the United States Code to clarify the proper use of the franking 
privilege by Members of Congress, and established a special commission 
of the House of Representatives entitled the ``House Commission on 
Congressional Mailing Standards.''
    The law amended title 39, section 3210 to define the scope of 
permissible use of the frank in assisting and expediting the conduct of 
the ``official business, activities, and duties of the Congress of the 
United States.'' (20) The commission provides guidance to 
Members, promulgates regulations, and renders decisions on the use of 
the frank. Under the controlling statute, the jurisdiction of courts to 
inquire into the permissible use of the frank is limited.
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20. Prior to the enactment of Pub. L. No. 93-191, a variety of federal 
        court decisions inquired into the permissible use of the 
        franking privilege and limited the scope of ``official 
        business'' in relation to the use of the frank. See, for 
        example, Hoellen v Annunzio, 468 F2( 522 (1972), cert. denied, 
        412 U.S. 953 (1973); Schiaffo v Helstoski, 350 F Supp 1076 
        (1972), rev'd 492 F2d 413 (1974).
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Postal Service Interpretation and Enforcement

Sec. 7.2 Beginning in 1968, the Post Office Department and its 
    successor, the U.S. Postal Service, discontinued the interpretation 
    and enforcement of statutes regulating the franking privilege.

    On Dec. 26, 1968, the General Counsel of the Post Office Department 
issued a memorandum (1) to Congress stating that the 
department would no longer interpret the laws on the use of the 
congressional frank,(2) and would no longer attempt to 
enforce the statutes and regulations by requesting payment of postage 
for material allegedly improperly franked.(3) The memorandum 
also

[[Page 729]]

stated that the department would continue to tender to individual 
Members, on their request, advisory opinions on particular material 
sought to be franked.
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 1. Reprinted in ``Law and Regulations Regarding Use of the 
        Congressional Frank,'' Subcommittee on Postal Service of the 
        Committee on Post Office and Civil Service, Committee print No. 
        14, 92d Cong. 1st Sess., p. 1 (1971).
 2. For an example of Post Office Department interpretations issued 
        prior to 1968, see ``The Congressional Franking Privilege,'' 
        publication No. 126, Post Office Department (Apr. 1968).
 3. See publication No. 126, id. at p. 1. According to a Comptroller 
        General decision, No. B128938, Aug. 16, 1956, the Post Office 
        Department had authority to collect postage which should have 
        been paid on material not properly franked.
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    After the Post Office Department was converted in 1971 to an 
independent U.S. Postal Service,(4) the General Counsel of 
the Postal Service informed the Chairman of the House Committee on Post 
Office and Civil Service that the new service would not only refrain 
from enforcement of statutes and regulations on the congressional 
frank, but would also cease rendering advisory opinions.(5)
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 4. See the Postal Reorganization Act, Pub. L. No. 91-375, 84 Stat. 
        719, Aug. 2, 1970 (effective July 1, 1971).
 5. Letter of Mr. David Nelson to Chairman Thaddeus Dulski (N.Y.) Aug. 
        12, 1971, reprinted in ``Law and Regulations Regarding Use of 
        the Frank,'' Subcommittee on Postal Service, Committee on Post 
        Office and Civil Service, Committee print No. 14, 921 Cong. 1st 
        Sess., p. 6 (1971).
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Franking ``Patron'' Mail

Sec. 7.3 Where a Senate amendment to a legislative appropriation act 
    prohibited the sending of ``patron'' mail under the frank of any 
    Member of Congress,(6) the House concurred in the Senate 
    amendment with an amendment prohibiting such mail under a Senator's 
    frank but permitting a House Member to use his frank for mail 
    addressed to patrons within his own congressional district.
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 6. ``Patron'' mail is mail identified with the Member's frank, with 
        neither a name or address but marked ``occupant'' or 
        ``patron,'' and distributed by postal carriers to every postal 
        patron on an established route. See the testimony of Postmaster 
        General Day, Hearings Before a Subcommittee of the Committee on 
        Appropriations, U.S. Senate, 88th Cong. 1st Sess., p. 256 
        (1963).
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    On Dec. 17, 1963,(7) the House was considering a Senate 
amendment to a legislative appropriation bill which prohibited the use 
of the franking privilege by any Member of Congress for delivery of 
mailings to postal patrons (``occupant'' mail). The House amended the 
Senate amendment by prohibiting that use of the franking privilege by 
Senators but not for Members of the House. The amendment limited such 
mailings to the Representative's immediate congressional district.
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 7.  109 Cong. Rec. 24831, 24832, 88th Cong. 1st Sess.
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    The Senate agreed to the amendment on the following day,

[[Page 730]]

and the provision became permanent law.(8)
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 8. 109 Cong. Rec. 25025, 25026, 88th Cong. 1st Sess.
            In the two preceding fiscal years, the Senate and House had 
        disagreed over the inclusion of patron mail within the franking 
        privilege (see Pub. L. No. 87-332, 75 Stat. 747, Sept. 30, 1961 
        and Pub. L. No. 87-730, 76 Stat. 694, Oct. 2, 1962). A Senate 
        report (S. Rept. No. 88-313), 88th Cong. 1st Sess. explained in 
        part the 1963 compromise as follows at p. 6: ``While in the 
        past the [Appropriations] Committee has voted to bar the use of 
        the simplified and occupant mailing privileges to all Members 
        of Congress and has not changed its opinion, it is believed in 
        the interest of comity and understanding that the committee 
        should make the prohibition applicable solely to the U.S. 
        Senate.'' The report added: ``The Constitution provides that 
        each House may determine the rules of its proceedings. While 
        the mailing privilege does not specifically come under the 
        rules of either body, in view of the past history of this 
        legislation the committee believes each House should make its 
        own determination in this regard.''
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Franking and the Congressional Record

Sec. 7.4 The Solicitor General informed a Member of Congress that the 
    franking privilege extended to any material printed in the 
    Congressional Record.(9)
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 9. See 39 USC Sec. 3212, as amended by Pub. L. No. 93-191, 87 Stat. 
        741, which allows the sending of the Record, or any part 
        thereof, or speeches or reports contained therein. See also 
        Straus v Gilbert, 193 F Supp 214 (S.D.N.Y. 1968) (under 39 USC 
        Sec. 3212, Congressmen could send as franked mail, within and 
        without his congressional district, material reprinted from the 
        Congressional Record, even if mailed for election campaign 
        purposes) .
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    On Jan. 28, 1944,(10) there was inserted in the Record a 
letter from the Solicitor General of the Post Office Department stating 
that all material in the Congressional Record, regardless of the place 
of printing or the style of type, could be sent out under the franking 
privilege. The latter added that extracts from the Congressional Record 
should bear identifying marks to clearly demonstrate that they appeared 
in the Congressional Record.
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10. 90 Cong. Rec. 879, 880, 78th Cong. 2d Sess.
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Abuse of Frank as Question of Privilege

Sec. 7.5 Public charges of misuse of the franking privilege give rise 
    to a question of personal privilege.

    On Jan. 28, 1944,(11) Speaker pro tempore John W. 
McCormack, of Massachusetts, ruled that a

[[Page 731]]

question of personal privilege had been stated when a Member presented 
a newspaper article quoting a book containing an accusation that a 
Member permitted the use of his frank by one of questionable 
character.(12)
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11. 90 Cong. Rec. 879, 78th Cong. 2d Sess.
12. 39 USC Sec. 3215, enacted into law by Pub. L. No. 91-375, 84 Stat. 
        754, Aug. 12, 1970, prohibits a Member from lending or 
        permitting another to use his frank.
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