The Open House Project from The Sunlight Foundation

7. Member Web-Use Restrictions

Modernizing Regulations Related to Member Web Sites and E-mail Use

Recommendation Summary

Regulations governing members’ use of Web sites and e-mail should be updated to reflect the current nature of Internet use, taking into account the differences between old and new forms of communication, not just their similarities. The Committee on House Administration should convene a special, bipartisan task force composed of members of Congress, congressional staff on the Committee on House Administration and citizens, to better identify the intent of rules and regulations that are effectively prohibiting smarter use of technology on Capitol Hill. They should establish a new process, specific rules and new standards governing members’ use of the Internet.

Background

“A new medium like this that makes it possible to send thousands of messages at virtually no additional cost should not be governed by the same rules as snail mail. I think there’s no reason we should not be able to communicate nationwide or even planetwide for that matter.�

– Rep. Vern Ehlers, July 1, 2000

In 1993, when only 15 million Americans were online 50 , Congress began to adapt to the emerging world of the Internet. The chairman of the House Administration Committee, Rep. Charlie Rose, inaugurated this technological leap when, in February of that year, he set up seven offices in the House to be connected to the Internet. 51 Later that year Sen. Ted Kennedy became the first member of Congress to have a Web site (hosted through MIT’s servers) and Sen. Chuck Robb became the first to have e-mail. These early steps, prior to wide public acceptance of the Internet, show that Congress was quick to recognize the Internet’s potential.

These first steps into the online world brought with them a need to govern members’ use of e-mail and Web sites. These rules have not kept up with the fast-paced advances of the Internet, and now impede members’ ability to effectively serve and communicate with their constituents. When Congress developed rules governing members’ use of the Internet, it viewed the new medium as an extension of telephones, mail, radio and television, putting e-mail and member Web sites under the purview of franking regulations. Franking regulations were developed to restrict members’ sending of unsolicited mailings to constituents, but today the differences between the old and new forms of communication are so great that a rethinking of franking policy over electronic communications is necessary. The rules governing members’ use of the Internet reflect a 1990s concept of the Internet—they must be modernized for today.

50 Moran, John M. “Computer links public to Congress; Computer speeds your thoughts to lawmaker,� Hartford Courant, August 14, 1993.
51 The first seven members were Jay Dickey, Sam Gejdenson, Newt Gingrich, George Miller, Charlie Rose, Pete Stark, and Mel Watt.

Members’ use of the frank for traditional methods of communication is subject to restrictions that set reasonable standards for utilizing a privilege. However, electronic communication differs from traditional methods. While franking privileges are only available to Congress, anyone can send an e-mail, set up a Web site, or publish a blog at virtually no cost—and many citizens do. Applying franking rules to members’ electronic communication restricts the participation of members of Congress in online discourse, preventing them from communicating with their constituents in what is presently the most widely available channel for communication.

Historical Context: 1994–The principles of representative government and of legislative accountability 2006

In 1994, the House Administration Committee established the Task Force on the Internet to study the potential for Internet use in Congress and to suggest recommendations for rules governing member’s use of the Internet and e-mail.

The task force viewed the Internet as a communications tool to keep in touch with constituents, and concluded that Internet use and e-mail were subject to the congressional franking rules.

When the House Administration Committee convened to adopt the task force’s recommendations on October 4, 1994, they chose to use congressional franking rules in the strictest sense to regulate members’ Internet and e-mail use, thus preventing abuse. (Some involved in the application of franking rules wanted to create a separate commission solely to police members’ use of the Web. 52 )

The franking policy was ultimately applied because it was well established and well understood. The policy required that all Internet use be conducted in a manner “that concerns the conduct of a Member’s official or representational duties or to otherwise support the conduct of official business of the House generally.� 53

In an example of an early failure to foresee how the Internet would change everyday communication, the rules restricted members from sending e-mails to their family and friends, and from using the Internet to access Web sites that may be considered outside the realm of “official� business. As one House aide later complained, “Some Members say you should be able to e-mail your son, but you can’t send franked mail to your son.� 54

In May 1996 the first controversy over member Web sites erupted after an Associated Press report surfaced stating that more than two dozen members of Congress were linking to “overtly political Internet sites.�

Examples included: Rep. Tom Campbell including on his Web site links to his campaign re-election committee and to the presidential committee of Sen. Bob Dole; Rep. Joseph Moakley linking to the Democratic National Committee; and Rep. John Kasich linking to the National Right to Life Committee and the Christian Coalition. 55 No one seemed to know if such linking was against the rules, although when confronted by the Associated Press, Reps. Campbell and Moakley removed the links from their Web sites. A House Democratic technology aide posed a question that the House Oversight Committee was tasked with answering, “Is linking to something the same as posting the information yourself?� 56 The Oversight Committee soon decided the answer to this important question.

52 Love, Alice A. “GOP May Reverse Policy Set by Democrats And Allow Some Personal Use on Internet,� Roll Call, February 9, 1995.
53 Communications Daily, October 11, 1994.
54 Love, Alice A. “GOP May Reverse Policy Set by Democrats And Allow Some Personal Use on Internet,� Roll Call, February 9, 1995.

A leaked copy of the rules reached the pages of Roll Call on July 1, 1996, stating, “Official Web sites may not include personal, political, or campaign information.� Roll Call’s Juliet Eilperin noted at the time that “questions raised by the proposed rules underscore the difficulty in regulating an emerging technology.� The rules restricted members’ linking from their Web sites by stating that “Members must have ‘reasonable assurance’ that their official site does not link to any that includes personal, political, or campaign information.� The rules did, however, allow links to nonprofit organizations, though such links were open to debate as some non-profits were involved in political advocacy. A Senate staffer noted that “a limit on links could cripple Members’ ability to do what they do best—provide constituents with information.� 57

The official rules came down to members on July 31, 1996, in the form of a letter from Oversight Committee Chairman Bill Thomas and Ranking Member Vic Fazio. The letter read:

The creation and operation of Members’ official web sites must be in support of the Member’s official and representational duties to the district from which elected.

Office web sites may not: include personal, political, or campaign information; include advertisements or endorsements for private individuals or entities; and directly link to any web sites created or operated by campaign or partisan political organizations. 58

The letter initially placed responsibility for oversight in the hands of each individual member, but eventually set up a reviewing panel whereby oversight of member Web sites would be administered by both the Franking Commission and the House Committee on Standards of Official Conduct (the ethics committee). Committee member Vern Ehlers lamented Congress’ lack of knowledge about the newly created rules, saying, “This is a totally new field. I don’t think people are even beginning to understand what the Internet involves.� 59

55 Meckler, Laura. “Congress Stepping Through Mine Field on World Wide Web,� Associated Press, May 1, 1996.
56 Ibid.
57 Eilperin, Juliet. “House Oversight to Limit Members’ Internet Links,� Roll Call, June 6, 1996.
58 Thomas, Rep. Bill and Rep. Vic Fazio. “Dear Colleague Letter,� House Oversight Committee, July 31, 1996.
59 Eilperin, Juliet. “House Oversight to Limit Members’ Internet Links,� Roll Call, June 6, 1996.

By the turn of the millennium every member of Congress had finally created a Web site. 60 Some even began to challenge the franking rules that restricted their use of the Internet.

Republican Conference Chairman J.C. Watts denounced the franking rules as being “in line with the stagecoach and the Pony Express.� The ranking Democrat on the House Administration Committee, Rep. Steny Hoyer, agreed that e-mail needed to be governed differently than regular mail, “Allowing members to initiate correspondence via e-mail makes sense in an era of nearly instant communication.� 61

Moderate adjustments have been made to the rules governing e-mail. In 2003, the House Administration Committee lifted the 90-day pre-election ban on e-mails sent to constituents who had signed up for e-newsletters. The Committee’s chairman, Rep. Bob Ney, said at the time, “The unique nature of e-mail warrants different standards than would apply to the standard letter sent through the post office.� 62 But regulations restricting members’ interactions on their Web sites have not been updated.

Current Jurisdiction over Members’ Web Sites and E-mail Use

Committee on House Administration: According to House Rule X, section J, 63 the Committee on House Administration has oversight on the following items relating to members’ use of e-mail and the Internet:

•(1) Appropriations from accounts for committee salaries and expenses (except for the Committee on Appropriations); House Information Resources; and allowance and expenses of Members, Delegates, the Resident Commissioner, officers, and administrative offices of the House

•(6) Expenditure of accounts described in subparagraph (1)

•(7) Franking Commission

Franking Commission: The House Administration Committee’s Franking Commission determines appropriate guidelines to help ensure that taxpayer dollars are not abused.

According to the committee’s Web site 64 :

“Pursuant to Public Law 93191, the bipartisan Commission on Congressional Mailing Standards or the “Franking Commission” has a three fold mandate: (1) to issue regulations governing the proper use of the franking privilege; (2) to provide guidance in connection with mailings; (3) to act as a quasi-judicial body for the disposition of formal complaints against Members of Congress who have allegedly violated franking laws or regulations.

60 In 2000, freshman Sen. Peter Fitzgerald became the last Senator to get a Web site and e-mail. In 2001, Rep. Joel Hefley became the last member of Congress to get a Web site and e-mail.
61 Kiely, Kathy. “House may ease e-mail limits. ‘Franking’ rules are outdated, lawmakers say,� USA Today, June 30, 2000.
62 McArdle, John. “Senate Eases Rules on Members’ Web Updates,� Roll Call, January 19, 2006.
63 Committee on House Administration Web site, accessed March 21, 2007
64 Committee on House Administration Web site, accessed March 21, 2007

As a result of the Legislative Branch Appropriations Act for FY 1991, Members are required to submit all mass mailings (unsolicited mailings of 500 or more pieces of the same matter) for an advisory opinion prior to mailing.

The issuance of an advisory opinion is a process; involving telephone and personal consultations with the Member’s staff prior to the dispersing of a written advisory. When proposed mailings are submitted to the Commission in draft form, often changes are needed in order to comply with franking standards. Staff members routinely point out any problems and suggest the revisions that are necessary for the issuance of a favorable opinion. All material submitted to the Commission is reviewed by both the majority and minority staff before an advisory is issued.â€?

Existing Rules Harm All and Help None

Citizens have a significant stake in knowing and understanding the views of those who serve them. According to a report issued by the Congressional Management Foundation in 2004, citizens use e-mail and other Internet applications as their primary vehicles for communicating with their members of Congress:

“The Internet and e-mail have made it easier and cheaper than ever before for citizens to communicate with their Members of Congress. In 2004, Congress received 200 million communications, four times more than in 1995—the direct result of Internet-based communications. This increased citizen participation in the legislative process has had both positive and negative effects. Nearly 80% of congressional staff surveyed believe that the Internet has made it easier for constituents to become involved in public policy. However, neither the senders nor the receivers of congressional communications have learned how to use the new tools that the Internet has provided truly effectively.� 65

Members of Congress have an obligation to communicate as effectively as possible with their constituents. Existing rules constrain members to a degree that prevents citizen participation:

•A citizen may not engage a member of Congress in a fluid online discussion because that discussion could be considered political or personal.

•Members of Congress cannot fulfill their representational duties to their fullest potential in the online world.

65 “Communicating with Congress: How Capitol Hill is Coping with the Surge in Citizen Advocacy,� Congressional Management Foundation, 2004, http://www.cmfweb.org/storage/cmfweb/documents/CMF_Pubs/communicatingwithcongress_report1.pdf

•Members of Congress are forced to break rules to use new technologies and services to do what their constituents ask of them: connect, listen and be held accountable.

•The House Administration Committee and its Franking Commission are saddled with the responsibility of maintaining order and applying rules that are incompatible with emerging technologies.

Changing the rules for member Web use would greatly enhance members’ ability to fulfill their obligations. The online world provides a space for direct communication with constituents who have the same access to technology and communications pathways that the member has. Unlike telephones and snail mail, a member’s Web site provides a place for legislators and constituents to meet and exchange information and ideas without the member having to use a privilege such as a franked piece of mail. Liberating member Web use from an old rules structure would enable members and staff to communicate in a more efficient and beneficial manner.

Evidence that the rules have been too restrictive: According to staff on the Franking Commission, not a single complaint has ever been filed by a constituent against a member of Congress for inappropriate use of e-mail or the Internet within the member’s congressional district.

Recommendations

The changing nature of the Internet requires Congress to constantly reexamine its relationship with this technology. It has been over a decade since Congress has altered its concept of the Internet and since it established rules governing the content and use of member Web sites.

It’s time for Congress not only to re-evaluate the member Web site rules and restrictions on that prevent members from connecting with their constituents online, but also to revisit the entire structure with which the Committee on House Administration addresses members’ use of e-mail and the Internet.

Given that not a single complaint has ever been filed against a member of Congress with regard to Internet use, it’s clear that citizens see a member’s Web site more like a “bulletin board,� where they are free to come and go as they please, and, hopefully, take part in the discussion. In contrast, a member’s use of traditional forms of communication, including print and phone calls, require a tremendous amount of taxpayer dollars, and are perceived as a congressional privilege requiring deeper oversight.

It is therefore our recommendation that guidelines governing members’ use of Web sites and e-mail be updated to reflect the current nature of Internet use, taking into account the differences between old and new forms of communication, not just their similarities.

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4 Comments

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  • The Speech and Debate Clause: Can Congress Confidently Serve the Public Online? | The Open House Project // Sep 16, 2007 at 4:59 pm

    [...] The first of these potential consequences comes from the application of standards of the Franking Commission to the venues of digital information, as covered in detail by David All and Paul Blumenthal in the Open House Project report’s chapter on Member Web Use Restrictions. [...]

  • S.Pub 102-20 | The Open House Project // Dec 19, 2007 at 5:30 pm

    [...] This is clearly changing, as new staffers expect to represent their members of Congress online without encountering arcane restrictions, as citizens expect to encounter government information and services through the same search engines they use for research and shopping, and a new brand of journalism is springing up that depends not on cultivating trusted sources through personal relationships, but on careful consideration of primary sources–exactly those “archival sources” this document so comprehensively describes. [...]

  • The Foundry » Blog Archive » Congressional Earmark Reform Website Comes Under Fire // Feb 21, 2008 at 9:09 pm

    [...] Aside from the partisan fighting over earmark reform, the conflict also focuses attention once again on Congress’ outdated policies on technology. Last year The Heritage Foundation, as well as Pelosi and Boehner, supported the Open House Project, which noted in its report: Regulations governing members’ use of Web sites and e-mail should be updated to reflect the current nature of Internet use, taking into account the differences between old and new forms of communication, not just their similarities. The Committee on House Administration should convene a special, bipartisan task force composed of members of Congress, congressional staff on the Committee on House Administration and citizens, to better identify the intent of rules and regulations that are effectively prohibiting smarter use of technology on Capitol Hill. They should establish a new process, specific rules and new standards governing members’ use of the Internet. [...]

  • Member Web Use Reconsidered | The Open House Project // Jul 8, 2008 at 12:59 pm

    [...] Web use restrictions are among the main Open House Project priorities, and one of the chapters of the report is about the restrictions set by the Franking Commission, which operates under the [...]

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