Exhibit 1

COMPLAINT IN COMMON CAUSE V. BAILAR (OCTOBER 5, 1973)

In the United States District Court

For the District of Columbia

(Civil Action No. 1887-73)

COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF

1. This is an action for judicial review of defendant Klassen's unlawful failure to enforce the United States postal laws as they relate to the statutory franking privilege of Members of Congress. Defendant Klassen's failure to enforce these statutes abridges the rights guaranteed to plaintiffs and the class they represent by Article I, Section 8 of the Constitution and by the First and Fifth Amendments of the Constitution. Defendant Klassen's lack of enforcement of these statutes violates his duties under Title 39 of the United States Code, as revised and reenacted by the Postal Reorganization Act of 1970, Public Law 91-375, 84 Stat. 719, to provide the fundamental service of collection and delivery of the mails on a fair and equitable basis and to assure that such mail complies with postal law and regulations. Defendant Shultz's authorization of disbursements of moneys from the United States Treasury to pay the costs of franked mail, in light of defendant Klassen's unlawful failure to enforce the franking statutes, is a violation of his statutory and constitutional duties. Plaintiffs seek to have this Court, (1) declare that defendant Klassen's failure to enforce the postal laws regarding the franking privilege are unconstitutional and in violation of Article I, Section 8 of the Constitution and of the First and Fifth Amendments to the Constitution, (2) declare that defendant Klassen's lack of enforcement, including his refusal to inspect franked mail to assure that the frank is only used for lawful purposes, and defendant Shultz's authorization of disbursements from the United States Treasury to pay the costs of said franked mail, are unlawful and in violation of defendants' statutory duties, and (3) issue preliminary and permanent injunctions compelling defendant Klassen's enforcement of the postal laws relating to the franking privilege as required by Title 39 of the United States Code and the Constitution, and compelling defendant Shultz to cease authorizing the disbursement of moneys to pay the costs of the franking privilege until defendant Klassen ceases to refuse to enforce the franking statutes in violation of his statutory duties and in a manner which violates the constitutional rights of plaintiffs.

2. Defendants' unlawful refusal to perform their statutory obligations have abridged and threaten to continue to abridge plaintiffs' constitutional right to participate in the electoral process, plaintiffs' statutory right to postal service provided on a fair, equitable, and lawful basis, and plaintiffs' constitutional right as taxpayers that moneys in the United States Treasury not be expended in a manner that is contrary to law and that unlawfully interferes with their right to participate in the electoral process.

JURISDICTION

3. This Court has jurisdiction of this action under 28 U.S.C. §§ 1331, 1339, 1361, 2201. 2202, 2282, and 2284, and 39 U.S.C. § 409. The amount in controversy exceeds $10,000.

PLAINTIFFS

4. Plaintiff Common Cause is a nonprofit District of Columbia corporation organized to promote, on a nonpartisan basis, social welfare, civic betterment, and social improvement in the United States. Among its major purposes is to facilitate achievement of these objectives by making government more responsive (191)

to public needs and demands through reform of the political process. It has approximately 250,000 dues-paying members throughout the several states and the District of Columbia. Its membership includes citizens of the United States who have been and intend to be: (a) registered voters for candidates for federal elective office, (b) candidates for election to federal office, (c) contributors of lawful amounts of money to candidates for elective federal office and to political committees and organization which support such candidates, (d) active participants in campaigns for election of candidates to federal office, and (e) regular and substantial users of the mails as a means of participation in the foregoing activities, and (f) taxpayers. Common Cause and its members have a direct interest in (1) the integrity of the elective process, (2) maintaining an equal opportunity for all candidates and an equal voice for all who would support them, (3) insuring that all candidates and other participants in the federal electoral process, including campaign workers and voters, receive equal, equitable, and lawful service from defendant postal service, especially where use of the services which defendant provides is an integral part of campaign activities, and (4) insuring compliance with laws which preserve and protect the foregoing interests, specifically laws defining and restricting the free use of the mails by elected federal officials for official business only. Plaintiff Common Cause has a further interest in the lawful, fair, and equitable operation of defendant postal service, in that plaintiff Common Cause is a frequent and heavy user of the mails, both as a concomitant to its foregoing activities in pursuit of its objectives stated below, and, in addition, as an essential means by which plaintiff Common Cause and its members communiIcate with each other, and, finally, as the essential means by which plaintiff Common Cause expands its membership. Owing to the substantial use of the mails for the foregoing purposes, plaintiff Common Cause in 1972 expended the sum of $428,469.84 in postage.

5. Plaintiff John W. Gardner is a taxpaying citizen of the United States, and a resident and registered voter in the State of Maryland. He has been and plans to be a lawful voter for candidates for elective federal office, has been and plans to be a lawful contributor to candidates for elective federal office and to political committees and organizations which are participants in the Federal electoral process, and has been and plans to be a frequent user of the mails as a concomitant of the foregoing activities. As member and Chairman of Common Cause, and as a taxpaying citizen, voter, contributor to candidates, political committees, and organitions involved in the Federal electoral process, and as a frequent user of the mails as a concomitant to the foregoing activities, he shares the interests of Common Cause and its members set forth in paragraph 4 of this Complaint.

DEFENDANT

6. Defendant E. T. Klassen is the Postmaster General of the United States Postal Service which was created by the Postal Reorganization Act of 1970, Public Law 91-375, 84 Stat. 719, as an independent establishment of the Executive branch of the Federal government. 39 U.S.C. $201, to provide "a basic and fundamental service" to the people by the Government of the United States, and having "as its basic function the obligation to provide postal services to bind the nation together through the personal, educational, literary, and business correspondence of the people." 39 U.S.C. § 101 (a). Defendant E. T. Klassen is charged with the duty "to apportion the costs of all postal operations to all users of the mail on a fair and equitable basis." 39 U.S.C. § 101 (d). Defendant has the power "to sue and be sued in his official name." 39 U.S.C. § 401 (1), and is conferred "all other powers incidental, necessary, or appropriate to the carrying on of its functions or the exercise of its specific powers." Defendant is specifically empowered "to investigate postal offenses and civil matters relating to the Postal Service." 39 U.S.C. § 404 (7). Defendant is further empowered to "authorize any officer or employee of the Postal Service to make searches for mail matter transported in violation of law." 39 U.S.C. § 603. The Defendant is prohibited from making "any undue or unreasonable discrimination among users of the mails." and from granting "any undue or unreasonable preferences to any such user," except as authorized by other provisions of the Act. 39 U.S.C. § 403.

7. Defendant George P. Shultz is Secretary of the Treasury, and in that capacity, under 31 U.S.C. § 1002, has direct and immediate administrative

responsibility for the disbursement of funds to pay the costs of the use of the frank by Members of Congress.

THE HISTORY OF THE FRANK

8. On November 8, 1775 the Congress enacted the first franking privilege for Members of Congress and private soldiers whose mail was franked by officers in command. (The Franking Privilege of Members of Congress. Yadlosky, Congressional Research Service, January 11, 1971, updated December 27, 1972.)

9. The First Congress approved the franking privilege by extending the authority of the Post Office to operate under the same regulations as it had during the time of the Continental Congress. (1 Stat. 70) On February 20, 1792 the Second Congress granted the franking privilege specifically to the President, Vice President, Members of Congress and other government officials. (1 Stat. 237) Later the privilege was extended both to Congressional officials and to newspapers and allowed packages and letters to be sent to Members of Congress free of charge.

10. In the late 1800's the frank became a subject of great criticism. On January 31, 1873 in reaction to the excessive abuse of the privilege and a resulting incurrence of considerable and damaging costs to the Post Office, the franking privilege was abolished. (17 Stat. 421)

11. In 1893, a narrowly drawn statute, which was the early forerunner of the present franking statute, was enacted. This early provision eventually became part of an Act passed in 1895 (specifically the Act of June 12, 1895, ch. 23, § 85) which provided Members of Congress with the privilege of sending as franked mail "any mail to any government official or to any person, correspondence not exceeding one ounce in weight, upon official or departmental business." (28 Stat. 622)

12. When originally proposed on the floor of the House, the pertinent portion of Section 85 read:

"The Vice President, members and members-elect of and delegates and delegates-elect to the Congress shall have the privilege of sending free through the mails, and under the frank, any mail matter to any government officials." 13. On October 20, 1893, Congressman Hayes introduced a floor amendment, which was approved, adding the following: "Or to any person, correspondence not exceeding one once in weight, upon official or departmental business."

The language of the debate on Hayes' proposal reveals that it in no way was intended to reinstate the formerly broad franking privilege that had been entirely revoked for members of Congress. As was explained by Congressman Hayes, his Amendment was intended to merely extend the frank to allow a member of Congress to forward to constituents communications from the Executive departments received by members in response to an inquiry on behalf of a constituent.

14. Although subsequent amendments have extended the privilege to other officials and changed the weight allowance, the franking statute has remained basically unchanged to the present day.

15. The United States Postal Service was created by the Postal Reorganization Act of 1970, P.L. 91-375, 84 Stat. 719, as an independent service of the Executive branch of the Federal Government (39 U.S.C. 201). As part of its legislative mandate, it is directed to honor the frank. In particular, the franking statute, using the same language as the 1873 Act, allows individual correspondence of the Vice President and members of Congress with any person or government official on departmental or official business to be frank mailed, 39 U.S.C. § 3210, and permits the franked mailings of seeds and agriculture reports from the Department of Agriculture, (§ 3213) of "public documents printed by the order of Congress" (§ 3211), and of the "Congressional Record or any part thereof, or speeches or reports therein" (§ 3212).

OPERATIVE FACTS

16. Prior to 1968 the United States Post Office Department (POD) supervised the use of the franking privilege by members of Congress. Upon request by members of the public or Congress the General Counsel would offer advisory interpretations of the franking statutes. If, in his opinion, the frank had been misused, the offending member would be billed for the postage due, although

no effort was made to enforce payment. Inquiries did not originate with POD, which had no apparatus for the purpose.

17. In supervising the use of the franking privilege prior to 1968, POD defined correspondence on official business to be "that in which the member Ideals with the addressee as a citizen of the United States or constituent as opposed to the relationship of candidate or prospective candidate and voter or when the member writes in the capacity of a member of a political party or faction." POD Pub. 126, April 1968. This formerly excluded personal advertising, e.g., autobiographical data, excessive use of photographs, or news of the member's domestic life; matter of a poltical nature, e.g., announcements of candidacy, various sorts of partisan appeals, or reports of campaign speeches; and generally, any matter not of direct Federal concern.

18. On December 26, 1968, POD announced that it would no longer attempt to police the use of the privilege, but would continue to offer advisory opinions at the request of individual members. POD did not consider these opinions to be binding or necessarily authoritative, and members were free to disregard them, secure in the knowledge that POD would not press the issue. On August 12, 1971, the Postal Service discontinued its advisory opinions. Since that date members have been left largely to their own devices, and unchecked abuse of the privilege has become widespread.

19. Since POD's withdrawal in fiscal 1969, the volume of franked mail has increased at an alarming rate. After having remained constant at about 200 million pieces of mail since fiscal 1966, it began a steady rise, reaching 308.9 million pieces in fiscal 1972. It is estimated to have been 326.3 million pieces in fiscal 1973 and to reach 353.9 million pieces in 1974, at a cost of $35.7 million. 20. The pattern of use of the frank reveals that it is commonly used for politically motivated mail. Newsletters, which account for a substantial majority of Congressional mailings, are often printed with campaign contributions distributed by political campaign committees of both major parties. Use almost invariably accelerates during election years, reaching a climax just before election day, then dropping off sharply: this factor is responsible for a major portion of next year's projected increase. This use of the frank for political purposes will give incumbents an advantage over challengers in excess of $50,000 each in next year's elections.

21. The content of franked mail illustrates the unlawful purposes to which it is put. Much of it, particularly newsletters, is indistinguishable from campaign literature, and serves not to communicate on legislative or representative business, but as political propaganda for the sender. Included within the material that is franked is correspondence (1) which specifically endorses or solicits political support for the sender or other persons and political parties: (2) which refers to, or which makes a promise or states a policy with respect to any subject, problem, or thing which the sender expects to do, accomplish, or take action regarding, in a future Congress; (3) which is mailed into an area outside of the district from which the member of Congress or the state from which the Senator was elected; (4) which reports on how or when the sender, or the spouse or any member of the family of the sender, spends time other than in the performance of, or in connection with the legislative or representative functions of the sender; or (5) which constitutes or includes a biography or autobiography, a picture, sketch or other likeness, holiday or seasons' greetings, or condolences or congratulations, of a member of Congress. or of the spouse or other members of the sender's family, and is not mailed in response to one or more specific requests therefor by any organization or individual.

FIRST CAUSE OF ACTION

22. Defendant Klassen's action in continuing to refuse to inspect the franked mail for evidence of abuse of the frank, and in continuing to honor the frank for mass mailed newsletters and news releases after members of Congress have announced their candidacy for nomination or election, or after funds have begun to be raised to finance their candidacy, or after they have qualified as candidates for nomination or election, and Defendant Shultz's issuance of warrants for the disbursement of money from the U.S. Treasury for said franked mail: (1) abridge the First Amendment rights of plaintiffs freely to associate for the purposes of advancing political beliefs and supporting political parties and candidates for Federal elective office. by conferring a substantial political benefit upon members of Congress who are candidates for elective Federal office, while not conferring said benefits upon candidates for said offices who are not currently members of Congress;

(2) deny the Fifth Amendment rights of plaintiffs and the class they represent to due process of law by invidiously discriminating in favor of members of Congress who are candidates for elective Federal office by conferring a substantial political benefit upon said members of Congress, while not conferring said benefits upon candidates who are not currently members of Congress;

(3) are an unlawful appropriation of public moneys in violation of Article I, Section 8 of the Constitution which limits the power of Congress to expend public moneys "for the common defense and general welfare of the United States, by conferring a substantial political benefit upon members of Congress who are candidates for elective Federal office, while not conferring said benefits upon candidates for said offices who are not currently members of Congress.

SECOND CAUSE OF ACTION

23. Defendant Klassen's action in continuing to refuse to inspect franked mail for abuses of the frank, and in continuing to honor the frank for mail matter not exclusively related to the performance of official federal legislative and representative functions-including mail matter (a) the printing of which is paid for with political campaign contributions; (b) which specifically endorses or solicits political support for the sender or other persons and political parties; (c) which refers to, or which makes a promise or states a policy with respect to, any subject, problem, or thing which the sender expects to do, accomplish, or take action regarding, in a future Congress; (d) which is mailed into an area outside of the district from which the member of Congress or the state from which the Senator was elected; (e) which reports on how or when the sender, or the spouse or any member of the family of the sender, spends time other than in the performance of, or in connection with the legislative or representative functions of the sender; or (f) which constitutes or includes a biography or autobiography, a picture, sketch or other likeness, holiday or seasons' greetings, or condolences or congratulations, of a member of Congress, or of the spouse or other members of the sender's family, and is not mailed in response to one or more specific requests therefor by any organization or individual-and Defendant Shult'z issuance of warrants for disbursement of moneys from the U.S. Treasury for said franked mail:

(1) abridge the First Amendment rights of plaintiffs freely to associate for the purposes of advancing political beliefs and supporting political parties and candidates for Federal elective office, by conferring a substantial political benefit upon members of Congress who intend to be candidates for said offices, while not conferring said benefits upon those who intend to be candidates for said offices who are not currently members of Congress;

(2) deny the Fifth Amendment rights of plaintiffs and the class they represent to due process of law by invidiously discriminating in favor of members of Congress who intend to be candidates for elective Federal office by conferring a substantial political benefit upon said members of Congress, while not conferring said benefits upon those who intend to be and who are not currently members of Congress:

(3) are an unlawful appropriation of public moneys in violation of Article I. Section 8 of the Constitution which limits the power of Congress to expend public moneys "for the common Defence and general welfare of the United States," by conferring a substantial political benefit upon members of Congress who intend to be candidates for elective office, while not conferring said benefits upon those who intend to be candidates for said offices who are not currently members of Congress.

THIRD CAUSE OF ACTION

24. Defendant Klassen's action in continuing to refuse to inspect franked mail for evidence of abuse of the frank, and in continuing to honor the frank for mass mailed newsletters and news releases is (a) an abuse of discretion in violation of 5 U.S.C. 706; and (b) an unlawful interpretation of his statutory duties in that it violates Defendant Klassen's duties to "apportion the costs of all postal operations to all users of the mail on a fair and equitable basis." 39 U.S.C. § 101, not to make “any undue or unreasonable discriminations among users of the mails," 39 U.S.C. 403, and not to grant "any undue or unreasonable preferences to any such user of the mails, id.