Rule changes open door for lawmakers to rely further on ads funded by taxpayers

A recent television ad from Rep. Henry Cuellar (D-Texas), who is running in one of the most competitive House districts in the country, was paid for by taxpayer funds.  

The ad shows a montage that included Border Patrol vehicles, law enforcement activity and Cuellar’s own photo. Movie-score-like instrumental music plays in the background. 

“I continue to secure funding for Border Patrol and law enforcement for more boots on the ground, equipment and technology,” Cuellar says in the ad. “I’m fighting to keep your families safe. I’m Henry Cuellar, representing the best interests in South Texas.”  

The ad was paid for through the House’s “franked” communications, which allow members to use official funds for each of their offices on communications to constituents. 

Franked communications from members of Congress, which started as postal mail and then expanded to email, social media, and broadcast television and radio ads, are intended to keep constituents informed of what their representatives are doing in Congress. The practice stretches back to the country’s founding. 

Rules are in place to prevent abuse and blatant electioneering to keep the focus on policy and official House business, and all mass communications are approved by a bipartisan commission. 

But “franking” has long drawn criticism for potentially giving incumbent members an advantage in elections on the taxpayers’ dime and having the purpose of promoting an individual rather than being in the spirit of aiming to inform and serve the public. 

This election cycle, members of Congress may utilize franked communications funds closer to Election Day than they have been able to in decades.  

A 90-day blackout period barring members from sending such mass communications before a primary or general election, instituted in 1995, was lowered back down to 60 days at the end of the last Congress. 

That allowed members to take advantage of franked communications during the August recess. 

Rep. Dina Titus (D-Nev.), who is in a competitive race, ran a series of digital video ads on Facebook that ended on Sept. 7, ahead of the Sept. 9 general election blackout deadline. 

“Over the last two years, Dina Titus fought for Nevadans,” a narrator says in one ad. Another says she is working to “make sure women maintain the right to choose no matter what.” The ads feature bullet points and headlines of her achievements. Facebook ad data says Titus spent $37,500 to $45,000. 

Rep. Rodney Davis (R-Ill.), who lost a competitive member-on-member primary to Rep. Mary Miller (R-Ill.) over the summer, ran a digital ad series up until the day before the 60-day blackout point before his June 28 primary that focused on his support for gun rights. 

“I’m standing up to anti-gun politicians who want to limit our constitutional rights,” Davis says in an ad made for Facebook and YouTube that pictured him aiming a firearm. 

To some, such ads violate the spirit of franked communications. 

“They’re playing games here. They’re getting up close to the deadline, using our money,” said University of Minnesota law professor Richard Painter, who was chief ethics lawyer in the White House counsel’s office under former President George W. Bush.  

“This stuff on social media is so obviously targeted for political campaigns. This isn’t keeping your constituents informed about what’s going on in the district or in Washington that’s going to help the district.” 

Defenders of franked communications ads have noted the bipartisan commission that approves the ads. 

“Congresswoman Titus feels it is important to inform her constituents about what Congress is doing and how it impacts them. Transparency is key to maintaining democracy. The contents of her messages are approved by the bipartisan House Communications Standards Commission, comprised of an equal number of Democrats and Republicans,” a Titus spokesperson said. 

The offices for Davis and Cuellar did not respond to requests for comment.  

There is no rule requiring that official communications to constituents be boring or stuffy, and various members have used franking in different ways. 

Some do not send franked communications at all, while others use less flashy forms of mailers, such as letters sent on an official letterhead. Some use franked radio ads that include stating support for specific policies or publicizing phone-in town hall events. 

“Members of Congress see [franking] as part of a legislative strategy, as part of their official duties. But they also see it as a way, in theory, some free advertising for the campaign,” said Matthew Glassman, a senior fellow at the Government Affairs Institute at Georgetown University who has written extensively about and researched franking privileges in Congress. 

Franked mail “straddles this line between, sort of, official duties and campaigning,” Glassman said, adding that members’ ability to use public money to reach their constituents is both an “important piece of a democracy.”  

However, digital ads have “significantly dropped the cost of using the frank,” Glassman said.  

And the shift to digital has also made franked communications less of an advantage. 

“Challengers also have good access to relatively cheap electronic communications,” Glassman said.  

“Once upon a time, when mail was dominant in a lot of this stuff and all this free mail was coming from Congress, challengers were sort of just behind the eight ball,” Glassman said. “But now, you know, free communications and mass communications on the digital side are a lot more sort of relatively level playing field.” 

The system is also more transparent than ever before, with an online database that tracks members’ franked mass communications. 

Franked communications are paid for out of the Members’ Representation Allowance, the same pool of money also used for congressional staff salaries. 

“You want to spend $50,000, $60,0000 on franked mail, that’s another LC [legislative correspondent] that could be actually doing constituent work in your office for a year. And so there are definitely trade-offs to it now,” Glassman said.