Election Year Restrictions on Mass Mailings by Members of Congress: How H.R. 1614 / S. 936 / S. 1285 Would Change Current Law

Election Year Restrictions on Mass Mailings by Members of Congress: How H.R. 1614 / S. 936 / S. 1285 Would Change Current Law

Order Code RL34085
Election Year Restrictions on Mass Mailings by
Members of Congress: How H.R. 1614 / S. 936 / S.
1285 Would Change Current Law
July 11, 2007
Matthew E. Glassman
Analyst in American National Government
Government and Finance Division

Election Year Restrictions on Mass Mailings by
Members of Congress: How H.R. 1614 / S. 936 / S.
1285 Would Change Current Law
Summary
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.
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 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.

Contents
Legislative History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Overview of Legislative Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Amendment of Election Year Mass Mailing Restrictions . . . . . . . . . . . 1
Prohibition of Election Year Committee Mass Mailing . . . . . . . . . . . . 3
Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Increased Election Year Restricted Period . . . . . . . . . . . . . . . . . . . . . . . 3
Applicability to Jurisdictions Without Primary Elections . . . . . . . . . . . 5
Applicability to Candidates for Non-Federal Offices . . . . . . . . . . . . . . 6
List of Tables
Table 1. Comparison of Actual 2006 Mass Mailing Restrictions and
Hypothetical Restrictions Based On Proposed Legislation . . . . . . . . . . . . . . 7

Election Year Restrictions on Mass Mailings
by Members of Congress: How H.R. 1614/
S. 936/S. 1285 Would Change Current Law
Legislative History
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.
Overview of Legislative Provisions
Amendment of Election Year Mass Mailing Restrictions. Current law
and chamber rules provide that mass mailings2 may not be franked by a Senator fewer
1 For an overview of the Clean Money, Clean Elections Act, see CRS Report RL33814,
Public Financing of Congressional Elections, 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
(continued...)

CRS-2
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
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
2 (...continued)
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].
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.

CRS-3
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 federal office. However, Members would still be subject to further
restrictions found in House and Senate rules.
Prohibition of Election Year Committee Mass Mailing. 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 federal office.
Analysis
Increased Election Year Restricted Period. 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
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.

CRS-4
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 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.
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.

CRS-5
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.
Applicability to Jurisdictions Without Primary Elections. 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,
10 39 U.S.C. 3210(6)(A)(i).

CRS-6
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.
Applicability to Candidates for Non-Federal Offices. 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 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.
11 39 U.S.C. 3210(6)(A)(ii)(II).
12 39 U.S.C. 3210(6)(C).

CRS-7
Table 1. Comparison of Actual 2006 Mass Mailing Restrictions
and Hypothetical Restrictions Based On Proposed Legislation
Actual Mass
Hypothetical
Mailing
Mass Mailing
Change (days)
2006
Restricted Days
Restrictions
State / Territory
Primary
Date
Start
House
Senate
Datea
Days
House
Senate
Alabama
6/6/06
180
120
3/8/06
244
+64
+124
Alaska
8/22/06
167
120
5/24/06
167
0
+47
American Samoa
N/Ab
90
N/A
?
?
?
N/A
Arizona
9/12/06
146
116
6/14/06
146
0
+30
Arkansas
5/23/06
180
120
2/22/06
258
+78
+138
California
6/6/06
180
120
3/8/06
244
+64
+124
Colorado
8/8/06
180
120
5/10/06
181
+1
+61
Connecticut
8/8/06
180
120
5/10/06
181
+1
+61
Delaware
9/12/06
146
116
6/14/06
146
0
+30
District of Columbia
9/12/06
146
N/A
6/14/06
146
0
N/A
Florida
9/5/06
153
120
6/7/06
153
0
+33
Georgia
7/18/06
180
120
4/19/06
202
+22
+82
Guam
9/2/06
156
N/A
6/4/06
156
0
N/A
Hawaii
9/23/06
135
105
6/25/06
135
0
+30
Idaho
5/23/06
180
120
2/22/06
258
+78
+138
Illinois
3/21/06
180
120
12/21/05
321
+141
+201
Indiana
5/2/06
180
120
2/1/06
279
+99
+159
Iowa
6/6/06
180
120
3/8/06
244
+64
+124
Kansas
8/1/06
180
120
5/3/06
188
+8
+68
Kentucky
5/16/06
180
120
2/15/06
265
+85
+145
Louisiana
N/Ac
90
60
?
?
?
?
Maine
6/13/06
180
120
3/15/06
237
+57
+117
Maryland
9/12/06
146
116
6/14/06
146
0
+30
Massachusetts
9/19/06
140
110
6/21/06
140
0
+30
Michigan
8/8/06
180
120
5/10/06
181
+1
+61
Minnesota
9/12/06
146
116
6/14/06
146
0
+30
Mississippi
6/6/06
180
120
3/8/06
244
+64
+124

CRS-8
Actual Mass
Hypothetical
Mailing
Mass Mailing
Change (days)
2006
Restricted Days
Restrictions
State / Territory
Primary
Date
Start
House
Senate
Datea
Days
House
Senate
Missouri
8/8/06
180
120
5/10/06
181
+1
+61
Montana
6/6/06
180
120
3/8/06
244
+64
+124
Nebraska
5/9/06
180
120
2/8/06
272
+92
+152
Nevada
8/15/06
174
120
5/17/06
174
0
+54
New Hampshire
9/12/06
146
116
6/14/06
146
0
+30
New Jersey
6/6/06
180
120
3/8/06
244
+64
+124
New Mexico
6/6/06
180
120
3/8/06
244
+64
+124
New York
9/12/06
146
116
6/14/06
146
0
+30
North Carolina
5/2/06
180
120
2/1/06
279
+99
+159
North Dakota
6/13/06
180
120
3/15/06
237
+57
+117
Ohio
5/2/06
180
120
2/1/06
279
+99
+159
Oklahoma
7/25/06
180
120
4/26/06
195
+35
+95
Oregon
5/16/06
180
120
2/15/06
265
+85
+145
Pennsylvania
5/16/06
180
120
2/15/06
265
+85
+145
Puerto Rico
N/Ad
N/A
N/A
N/A
N/A
N/A
N/A
Rhode Island
9/12/06
146
116
6/14/06
146
0
+30
South Carolina
6/13/06
180
120
3/15/06
237
+57
+117
South Dakota
6/6/06
180
120
3/8/06
244
+64
+124
Tennessee
8/3/06
180
120
5/5/06
186
+6
+66
Texas
3/7/06
180
120
12/7/05
335
+155
+215
Utah
6/27/06
180
120
3/29/06
223
+53
+113
Vermont
9/12/06
146
116
6/14/06
146
0
+30
Virgin Islands
9/9/06
149
N/A
6/11/06
149
0
N/A
Virginia
6/13/06
180
120
3/15/06
237
+57
+117
Washington
9/19/06
139
109
6/21/06
139
0
+30
West Virginia
5/9/06
180
120
2/8/06
272
+92
+152
Wisconsin
9/12/06
146
116
6/14/06
146
0
+30
Wyoming
8/22/06
167
120
5/24/06
167
0
+47

CRS-9
Source: Data on primary dates are from the Federal Election Commission [http://www.fec.gov/pubrec/
fe2006/2006pdates.pdf], viewed 7/5/2007.
a. The Senate Ethics Committee Interpretive Ruling 149 states that the “60-day limitation is computed
by excluding the actual day of the election, whether it is a primary, general, regular, special, or
runoff.” For example, if a primary election is scheduled for May 1, the moratoria restrictions
would begin at 11:59.59PM on March 2. The date listed in the Table would be March 2.
b. American Samoa holds an open election on the date of the general election, and a runoff election
(if necessary) two weeks later.
c. Louisiana holds an open election on the date of the general election, and a runoff election (if
necessary) four weeks later.
d. Puerto Rico holds an election for its Resident Commissioner every four years, concurrent with the
U.S. Presidential election. For the 2004 election, the primary was held on November 9, 2003,
making a total of 180 restricted days under current law and 359 days under the hypothetical
restrictions.