Bowie v. Williams

• Decision Date: 20 October 1972
• Docket Number: Civ. A. No. 72-1605.
• Citation: 351 F. Supp. 628
• Parties: Stuart S. BOWIE, Individually and as candidate of the Democratic Party for the office of Representative from the 7th Congressional District of Pennsylvania in the Congress of the United States et al. v. Lawrence G. WILLIAMS et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

351 F. Supp. 628

Stuart S. BOWIE, Individually and as candidate of the Democratic Party for the office of Representative from the 7th Congressional District of Pennsylvania in the Congress of the United States et al. v. Lawrence G. WILLIAMS et al.

Civ. A. No. 72-1605.

United States District Court, E. D. Pennsylvania.

October 20, 1972.

John M. Gallagher, Jr., Upper Darby, Pa., for plaintiffs.

Arthur Levy, Chester, Pa., for Williams.

Anthony R. Semeraro, Media, Pa., for Committee.

Barton A. Hertzbach, Asst. U. S. Atty., Philadelphia, Pa., for Klassen.

OPINION

DITTER, District Judge.

This case concerns the extent of a Congressman's privilege to use free or "franked"¹ mail to send a newsletter to his constituents.

In 1966, the Seventh Congressional District of Pennsylvania elected Lawrence G. Williams to be its representative in Congress. He has served in this capacity to date and is presently running for reelection. Since 1967, Congressman Williams has mailed a "Washington Report" to the residents of his district. This newsletter contains the Congressman's views, positions, and comments about legislative and governmental affairs as well as discussions of the issues of the day. Normally it is sent every other month, although eight editions were published and delivered in 1970. Over the years, 35 "Reports" have been distributed through the mails using the Congressional franking privilege² and a simplified form of address, "Postal Patron Local,³ 7th Congressional District, Pennsylvania." This type of address is authorized by the postal regulations, 32 C.F.R. 122.4(d)(2), promulgated under the authority granted in 39 U.S.C. § 401(2).

Asserting federal jurisdiction under 28 U.S.C. § 1339, which allows district courts to hear all civil actions under United States statutes involving the Postal Service, Stuart S. Bowie, Congressman Williams' opponent in this year's election, has attacked the use of the frank to mail the "Washington Report." Candidate Bowie alleges that the newsletter is campaign material and as such cannot be a Congressman's correspondence on official business for which free mailing privileges are allowed by 39 U.S.C. § 3210. Moreover, the plaintiffs contend that, even though the report was printed in the Congressional Record as the result of a speech by Representative Williams, such publication is in "bad faith." Thus, plaintiffs claim that distribution cannot be made within the terms of 39 U.S.C. § 3212, which allows a member of Congress to mail any portion of the Congressional Record under his frank. Representative Williams is also accused of lending the franking privilege to his reelection committee and its campaign treasurer, John Fielding, in violation of 39 U.S.C. § 3215. Postmaster Elmer T. Klassen was joined as a defendant because the Postal Service delivered the report, sent as first class mail,⁴ and because Bowie was denied the privilege of using the "Postal Customer Local" type of address.

On this basis the plaintiffs ask the court to issue a declaratory judgment that Congressman Williams has abused the franking privilege. Furthermore, they ask for an injunction prohibiting the use of the frank for:

(1) further mailing of the "Washington Report" by the Congressman or his campaign organization;

(2) the mailing of any documents for distribution to the voters of the Seventh Congressional District of Pennsylvania, except responses to questions soliciting views;

(3) the mailing of any campaign literature; and

(4) any correspondence not on official business. At the same time Bowie demands an order allowing him to use the simplified form of address for his campaign material. In addition, the plaintiffs contend that, since the "Report" is campaign literature, it was published in violation of a criminal statute, 18 U.S.C. § 612, because the names of those responsible for its issuance were not disclosed. Therefore, relief in the form of an injunction requiring this disclosure and damages is requested. These damages are claimed to be $297,000. for the taxpayers of the United States, $300,000. in punitive damages for the government, and $297,000. for Candidate Bowie and his organization. The figure, $297,000., is alleged to be the cost of mailing all 35 issues of the newsletter.

In response to these broad and conclusionary accusations, hurled in the context of a political campaign, all the defendants have moved to dismiss or in the alternative for summary judgment. The motion of the Congressman and his organization (hereinafter referred to collectively as Williams) will be considered first, followed by the Postal Services' motion.

THE WILLIAMS MOTION

After considering oral argument, I find only the June, 1972, edition of "Washington Report" is specifically attacked. Seventeen out of its 95 lines are devoted to explaining the background of an organization which was purportedly opposing Congressman Williams' reelection. This is the only reference to the present campaign in this edition. Other elections are mentioned in three additional issues.⁵ The February, 1971, and December, 1970, "Reports" contain 12 and nine lines respectively discussing charges made during the previous election contest. The May, 1970, publication contains 19 lines of response to a newspaper editorial, published before the Congressman had filed for reelection in that year. These three responses to attacks concern different campaigns and are much too remote to have any bearing on this action. The remaining "Reports" are made up of information, explanations, views, positions, requests to hear from the constituents, offers of assistance, and photographs.⁶ Each edition was prepared by Representative Williams' staff and not by his campaign committee.⁷

Disregarding for the moment any technical requirements for the use of the frank or a simplified address form, it is clear that communication between a legislator and those who reside in his district is essential to the concept of representative government. Implicit in the very name itself, "representative government," is the thought that there will be an exchange of ideas and a free flow of information between Congressman and constituent. Every one of Mr. Williams' votes, all his expressions of opinion, and each aspect of his committee-work may please some voters and enrage others—providing they know what he has said and done. Part of a Congressman's responsibility to those he represents is to keep them informed: McGovern v. Martz, 182 F.Supp. 343, 348 (D.C.1960).

Broadly interpreted, all a Congressman reports to the people has partisan and political overtones. He must face the electorate every two years and he knows it. In this context, all he does could be called campaigning. The only way a Congressman might avoid the implication that he is constantly soliciting votes would be to do and say nothing—hardly the way to serve his district or adequately discharge the responsibilities of high office. The publication of a newsletter is a convenient way for a Congressman to fulfill the duty to keep his constituents apprised. Through this media, he may win some votes and lose others. The fact that a Congressman hopes the balance will tilt in his favor does not make the providing of information any the less a part of his overall responsibility.

The argument that a Congressman's sending information to his constituents amounts to a distribution of campaign literature per se is without merit. If it were valid, the use of the frank would be so severely limited that it would be useless. Nothing could be sent without the prepayment of postage, under plaintiffs' theory, except replies to letters received. Plaintiffs are really saying that a Congressman should be required to pay personally almost all the expenses of his legislative duty to keep his constituents informed because his opponent must pay personally the expenses of trying to unseat him. In essence, this argument proposes to muzzle all Members of Congress since plaintiffs themselves recognize the substantial expenses involved in volume-mailing. To limit the free flow of information between Congressmen and those they represent would have grave consequences on our form of government and the freedoms it is designed to protect. The restrictions plaintiffs would impose have far graver implications than any benefits which might be gained from equalizing certain opportunities for political adversaries. Of course, a newsletter could become blatantly political campaign literature. The line might be a fine one in some cases, but here it has not been crossed by Congressman Williams' "Washington Report."

I conclude "Washington Report" is "correspondence . . . upon official business." Correspondence is "communication by letters; also, the letters exchanged."⁸ Letters are "written or printed messages."⁹ The "Reports" fall within these definitions. The plaintiffs have seized on the words "letters exchanged" and argue that the newsletter cannot be correspondence unless sent in response to a specific request for information. This is the equivalent of saying that because automobiles move in both directions on some streets, a one-way street carries no traffic at all. Moreover, the "Reports" have repeatedly requested replys and responses so that the one-way analysis is completely unjustified.

Plaintiffs also suggest that correspondence in volume loses its identity and becomes something else. However, correspondence is not defined in numerical terms. Whether information to a constituent is imparted by an individually typed letter or by one of a hundred thousand printed letters, it is still information and the vehicle which carries information is correspondence.¹⁰ An examination of the "Reports" show they have been issued to keep the residents of Congressman Williams' district informed as to his activities and opinions. Thus, there has been no abuse of the frank. See Strauss v. Gilbert, 293 F. Supp. 214 (S.D.N.Y.1968).¹¹ See also Hoellen...