est-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 Members 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 legislative 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 incumbents-and incumbents only-to the enormous financial and political disadvantage of their challengers. This one-sided subsidy subverts the fairness of competition between incumbents and challengers in congressional elections, and compromises the integrity of the political process. It indisputably violates the government's constitutional 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 constitutionsl 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 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 per-cent 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 protec

tion.

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 offi

cial 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. Status-The case is pending before a three-judge court in the U.S. District Court for the District of Columbia. There has been no docketed activity since the proceedings of September 30, 1981; the court has not yet issued its decision on the summary judgment motions.

The complete text of the February 10, 1975 memorandum and order of the three-judge court is printed in the "Decisions" section of Court Proceedings and Actions of Vital Interest to the Congress, April 15, 1975.

The complete text of the July 30, 1975 memorandum and order of the three-judge court is printed in the "Decisions" section of Court Proceedings and Actions of Vital Interest to the Congress, April 15, 1976.

The complete text of the December 11, 1980 memorandum opinion of the three-judge court is printed in the "Decisions" section of Court Proceedings and Actions of Vital Interest to the Congress, March 1, 1981.

Laxalt v. Kimmitt

Nos. 78-1437 and 78-1438 (D.C. Cir.)

On July 14, 1977, Senators Paul Laxalt, Barry Goldwater, Carl Curtis, S. I. Hayakawa and Lowell Weicker filed suit in the U.S. District Court for the District of Columbia seeking to have Rule XLIV of the Senate Ethics Code, and, if necessary, the entire Ethics Code declared null and void as violative of the Constitution. The Senators, who asked that a three-judge court be convened to hear the case, were joined in the suit by the Committee for the Survival of a Free Congress ("CSFC"), an unincorporated political committee which contributes to campaigns of candidates for public office.

Named as defendants were the Chairman of the Senate Select Committee on Ethics, Senator Adlai E. Stevenson III, and the Secretary of the Senate, J. S. Kimmitt, who, as the chief administrative officer of the Senate, the plaintiffs asserted, caused "the Ethics Code and all reports, resolutions, and other actions of the Select