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Wednesday, June 19, 2013

Franking Privilege: Mass Mailings and Mass Communications in the House, 1997-2012



Matthew Eric Glassman
Analyst on the Congress

Despite significant reductions in congressional mail postage costs over the past 25 years, critics continue to raise concerns that the franking privilege is both financially wasteful and gives an unfair advantage to incumbents in congressional elections. In particular, mass mailings have come under increased scrutiny as critics argue that the vast majority of franked mail is unsolicited and, in effect, publicly funded campaign literature.

This report provides an analysis of House Member mass mailings (1997-2008, 2012) and mass communications (2009-2012). A mass mailing is defined by statute as a franked mailing of 500 or more substantially similar pieces of unsolicited mail sent in the same session of Congress. Mass communications include all unsolicited mailings or communications of substantially identical content distributed to 500 or more persons, regardless of media. Examples of mass communications include radio, television, newspaper, and Internet advertisements; automated phone calls; mass facsimiles; and mass emails distributed to a non-subscriber e-mailing list.

Between 1997 and 2008, House Members sent 1.34 billion pieces of mass mail at a total postage cost of $224.5 million, producing a calendar-year average of 111.6 million pieces of mass mail costing an average of $18.7 million (Table 1). Most Representatives sent mass mailings. During each calendar year 1997-2008, an average of 84% of House Members sent at least one mass mailing. Among Members who sent at least one mass mailing, the average annual number of pieces of mail sent by a Member was 303,270 at a postage cost of $50,834.

Although the annual number of pieces of mail sent remained relatively constant between 1997 and 2008, significant quarterly variations occurred within each Congress (Figure 1). These expenditures continue a historical pattern of Congress spending less on official mail costs during non-election years than during election years (Table 3). However, analysis of quarterly data on Member mass mailing costs indicates that, due to the structure of the fiscal year calendar, comparisons of election-year and non-election-year mailing data tend to overstate the effect of pre-election increases in mail costs, since they also capture the effect of a large spike in mass mailings from the fourth quarter of the previous calendar year.

At the direction of the Committee on House Administration, in January 2009, the House began reporting the volume and cost of individual mass communications instead of only mass mailings. Between 2009 and 2011, House Members sent 1.27 billion pieces of mass communication at a total cost of $131.5 million, producing a calendar-year average of 573.1 million pieces of mass communication costing an average of $43.8 million (Table 2). During 2009 and 2010, an annual average of 92% of House Members sent at least one mass communication.

Beginning with the second quarter of calendar year 2011, the House began separately reporting the volume and cost of both mass mailings and mass communications. House Members sent 1.11 billion pieces of mass communication in 2012, at a total cost of $7.4 million, and 61.4 million pieces of mass mail, at a cost of $22.9 million.

See also CRS Report RL34188, Congressional Official Mail Costs; CRS Report RS22771, Congressional Franking Privilege: Background and Recent Legislation; and CRS Report RL34274, Franking Privilege: Historical Development and Options for Change.


Date of Report: June 11, 2013
Number of Pages: 13
Order Number: RL34458
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Recess Appointments Made by President Barack Obama



Henry B. Hogue
Specialist in American National Government

Maureen Bearden
Information Research Specialist


Under the Constitution, the President and the Senate share the power to make appointments to the highest-level politically appointed positions in the federal government. The Constitution also empowers the President unilaterally to make a temporary appointment to such a position if it is vacant and the Senate is in recess. Such an appointment, termed a recess appointment, expires at the end of the following session of the Senate. This report identifies recess appointments by President Barack Obama, from the beginning of his presidency, on January 20, 2009, until June 3, 2013. The report discusses these appointments in the context of recess appointment authorities and practices generally, and it provides related statistics. Congressional efforts to prevent further recess appointments are also discussed.

As of June 3, 2013, President Obama had made 32 recess appointments, all to full-time positions. By the same point in his presidency, President William J. Clinton had made 36 recess appointments, 22 to full-time positions and 14 to part-time positions. President George W. Bush had made 120 recess appointments, 67 to full-time positions and 53 to part-time positions. Six of President Obama’s recess appointments had been made during recesses between Congresses or between sessions of Congress (intersession recess appointments). The remaining 26 had been made during recesses within sessions of Congress (intrasession recess appointments).

In each of the 32 instances in which President Obama had made a recess appointment, the individual had also been nominated to the position to which he or she was appointed. In all of these cases, a related nomination to the position preceded the recess appointment. In 19 of the 32 cases, as of June 3, 2013, the Senate had later confirmed the nominee to the position to which he or she had been recess appointed. With regard to the 13 remaining individuals, nominations of 3 were pending; nominations for the other 10 were not.

During the 110
th, 111th, and 112th Congresses, the Senate periodically used pro forma sessions to prevent the occurrence of a recess of more than three days. There appears to have been an expectation that this scheduling would block the President from making recess appointments, based on an argument that an absence of the Senate of three days or less would not constitute a “recess” long enough to permit the use of this authority. However, consistent with a January 2012 opinion of the Office of Legal Counsel at the Department of Justice, the President reached a different conclusion as to the effect of this scheduling practice. On January 4, 2012, during a three-day period of adjournment between two pro forma sessions of the Senate, the White House announced President Obama’s intent to make four recess appointments.

As of June 3, 2013, two federal courts of appeals had issued decisions related to the 2012 appointments and had found the appointments at issue in each case to be unconstitutional. For further information on these cases and the issues involved, see CRS Report RL33009, Recess Appointments: A Legal Overview, by Vivian S. Chu; CRS Report R43030, The Recess Appointment Power After Noel Canning v. NLRB: Constitutional Implications, by Todd Garvey and David H. Carpenter; CRS Report R43032, Practical Implications of Noel Canning on the NLRB and CFPB, by David H. Carpenter and Todd Garvey; and CRS Report WSLG521, 3
rd Circuit: President’s Recess Appointment Power Only Extends to Intersession Recesses, by David H. Carpenter.

Additional information on recess appointments may be found in other CRS reports: CRS Report RS21308, Recess Appointments: Frequently Asked Questions, by Henry B. Hogue; CRS Report

RL33310, Recess Appointments Made by President George W. Bush, by Henry B. Hogue and Maureen Bearden; and CRS Report RL32971, Judicial Recess Appointments: A Legal Overview, by T. J. Halstead.

Date of Report: June 11, 2013
Number of Pages: 20
Order Number: R42329
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Legislative Branch Agency Appointments: History, Processes, and Recent Proposals



Ida A. Brudnick Specialist on the Congress

The leaders of the legislative branch agencies and entities—the Government Accountability Office, the Library of Congress, the Congressional Research Service, the Government Printing Office, the Office of the Architect of the Capitol, the U.S. Capitol Police, the Congressional Budget Office, and the Office of Compliance—are appointed in a variety of manners.

Four agencies are led by a person appointed by the President, with the advice and consent of the Senate; two are appointed by Congress; one is appointed by the Librarian of Congress; one is appointed by a board of directors.

Congress has periodically examined the procedures used to appoint these officers with the aim of protecting the prerogatives of, and ensuring accountability to, Congress within the framework of the advice and consent appointment process established in Article II, Section 2 of the Constitution.

This report contains information on the legislative branch agency heads’ appointment processes, length of tenures (if terms are set), reappointment or removal provisions (if any), salaries and benefits, and most recent appointments.



Date of Report: June 12, 2013
Number of Pages: 12
Order Number: R42070
Price: $29.95

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FBI Director: Appointment and Tenure



Vivian S. Chu
Legislative Attorney

Henry B. Hogue
Specialist in American National Government


The Director of the Federal Bureau of Investigation (FBI) is appointed by the President by and with the advice and consent of the Senate. The statutory basis for the present nomination and confirmation process was developed in 1968 and 1976, and has been used since the death of J. Edgar Hoover in 1972. Over this time, six nominations have been confirmed and two have been withdrawn by the President before confirmation. The position of FBI Director has a fixed 10-year term, and the officeholder cannot be reappointed, unless Congress acts to allow a second appointment of the incumbent. There are no statutory conditions on the President’s authority to remove the FBI Director. One Director has been removed by the President since 1972.

FBI Director Robert S. Mueller III was first confirmed by the Senate on August 2, 2001, with a term of office that expired in September 2011. In May 2011, President Barack Obama announced his intention to seek legislation that would extend Mueller’s term of office for two years. On May 26, 2011, Senator Patrick Leahy introduced S. 1103, a bill that would extend the term of the incumbent Director of the FBI. This bill was amended and passed by the Senate with unanimous consent on July 21, 2011. On July 25, the House considered the bill under suspension of the rules, and it was approved by voice vote. President Obama signed the bill into law (P.L. 112-24) the following day. Director Mueller’s term is due to end in September 2013.

It has been reported that President Obama intends to nominate James Comey, a former Deputy Attorney General, to succeed Director Muller.

This report first reviews the legislative history surrounding the enactment of the 1968 and 1976 amendments to the appointment of the FBI Director, as well as information on the nominees to the FBI Directorship since 1972. The report then provides a legal overview of the extension of a Director’s tenure.



Date of Report: May 30, 2013
Number of Pages: 20
Order Number: R41850
Price: $29.95

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Tuesday, June 18, 2013

Filling U.S. Senate Vacancies: Perspectives and Contemporary Developments



Thomas H. Neale Specialist in American National Government

United States Senators serve a term of six years. Vacancies occur when an incumbent Senator leaves office prematurely for any reason; they may be caused by death or resignation of the incumbent, by expulsion or declination (refusal to serve), or by refusal of the Senate to seat a Senator-elect or -designate.

This report provides information on current vacancies in the Senate, the constitutional origins of the Senate vacancy clause, the appointment process by which most vacancies are filled, and related contemporary issues. It will be revised and updated to reflect current developments in vacancies, appointments, and special elections.

Since December, 2012 four vacancies have occurred in the Senate. Two resulted from the deaths of incumbent Senators, and in the other instances, two incumbent Senators resigned. Three of these vacancies have been filled by temporary appointed Senators who will serve until special elections are held. In the fourth instance, the appointment of a temporary Senator has been announced. The details of each instance are provided below in reverse chronological order.

Senator Frank R. Lautenberg, of New Jersey, died June 3, 2013. New Jersey Governor Chris Christie set a special primary election for August 13, and a general election for October 16. On June 6, the governor announced his appointment of New Jersey Attorney General Jeffrey S. Chiesa to fill the vacancy and serve until the special election. The winner of the special election will serve for the balance of the term, which expires in 2015.

On February 1, 2013, Senator John F. Kerry resigned from the Senate to assume the office of Secretary of State. On January 30, Massachusetts Governor Deval Patrick had announced the appointment of William (Mo) Cowan, to serve until the special election, which was scheduled for June 25. Senator Cowan was sworn in on February 7. The vacancy will be filled by expedited special election procedures enacted in connection with the 2009 death of Senator Edward M. Kennedy. The winner of the special election will serve for the balance of the term, which expires in 2015.

Senator Jim DeMint, of South Carolina, resigned on January 1, 2013, to assume the presidency of The Heritage Foundation. South Carolina Governor Nikki Haley appointed Representative Tim Scott to serve in his place until the vacancy is filled by a special election in 2014. Senator Scott was sworn in on January 3. The winner of the special election will serve until the term expires in 2016. Senator Daniel K. Inouye, of Hawaii, who was also President pro tempore of the Senate, died on December 17, 2012. Hawaii Governor Neil Abercrombie appointed Lieutenant Governor Brian E. Schatz to serve in his place until the vacancy is filled by a special election in 2014. Senator Schatz was sworn in on December 27, 2012. The winner of the special election will serve until the term expires in 2016.

The use of temporary appointments to fill Senate vacancies is an original provision of the U.S. Constitution, found in Article I, Section 3, clause 2. The practice was revised in 1913 by the 17
th Amendment, which substituted direct popular election in place of choice by state legislatures and specifically directed state governors to “issue writs of election to fill such vacancies.” The amendment, however, also preserved the appointment option by authorizing state legislatures to
“empower the [governor] to make temporary appointments until the people fill the vacancies by election.”

Since 1913, most states have empowered their governors to fill Senate vacancies by temporary appointments. Some, however, limit the governor’s power: appointed Senators in Arizona must be of the same political party as the prior incumbent, while in Hawaii, Utah, and Wyoming, the governor must choose a replacement from names submitted by the prior incumbent’s party. In Connecticut and Oklahoma, the governor may make a temporary appointment in limited circumstances, and Oregon, Rhode Island, and Wisconsin require vacancies to be filled only by special election.

Gubernatorial appointment power to fill vacancies was questioned following the 2008 presidential election, particularly with respect to circumstances surrounding the Illinois Senate vacancy. Two alternative federal reform approaches emerged in the 111
th Congress: by legislation and a constitutional amendment. In both instances, all Senate vacancies would have been required to be filled by special election. None of the measures introduced reached the floor of either chamber, however, and no comparable legislation has been introduced to date.

In the states, a number of legislative proposals have been introduced since 2009 to eliminate or curtail the governor’s power to fill Senate vacancies by appointment. Two states substantially modified their vacancy procedures during this period: Connecticut, which significantly restricted the governor’s appointment power in such instances, and Rhode Island, which eliminated it entirely, requiring that all future Senate vacancies be filled by special election.


Date of Report: June 7, 2013
Number of Pages: 20
Order Number: R40421
Price: $29.95

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