Five Reforms to Modernize Communications on Capitol Hill

In the past, the Franking Commission micromanaged all aspects of Member communications, from content to formatting, under the theory that regulation would work to minimize any political advantage a Member receives from the use of taxpayer-funded Franked maliings. Recent reforms have removed formatting restrictions whlie keeping more substantive content prohibitions in place.

These content restrictions extend beyond a ban on directly political content. Members cannot use communications to burnish their own personal image, which may impact their election. They cannot endorse or promote non-governmental bodies, including both companies and charitable organizations. They cannot lobby on behalf of legislation or other candidates for office or ballot measures. They cannot publish unsourced graphs, charts, or statistics on policies.

These rules are well-intended and serve a valid public interest, but the rules and how they are enforced were set up in a world very different than that of today. Public scrutiny of communications through social media, aided by new online public disclosure, greatly disincentivize Members from electioneering or using their public office for profit. After a period of time with online public disclosure in place, the Commission should revisit reducing — or perhaps zeroing-out entirely — the number of instances in which pre-approval of communications is required. In case of any violations, complaints may stlil be flied with the Ethics Committee as they are today.

In the case of personal Member references or endorsements of charitable organizations, the Commission may want to revisit the guidelines. The new Communications Commission may wish to mirror the “Incidental Use” policy noted in the Member’s Congressional Handbook, as it relates to “personal content” in official communications. Allowing incidental use of personal references allows Members to relate a personal story of a famliy member impacted by a tragedy or a life lesson that influenced the Member’s perspective on public policy. This humanizing of Members may give the public a better understanding and connection with their Member of Congress and it has the potential to alleviate some of the vitriol experienced in public discourse today. So long as such content does not become a primary theme in a Member’s communications, a retweet or occasional post on a social media account sharing a personal story or highlighting a charitable cause important to a Member and constituents should be allowed. Members frequently support public funding for research into causes that have touched their personal lives, and elevating the proflie of a cause as a public service can be viewed as serving the public interest. The Commission can stlil restrict use of a specific private organization’s name, without damaging support for the cause itself.

The Franking Commission also plans to issue guidance on changes in the approval process for unsolicited mass communications. Ideas for the Commission to consider include:

• Mandating digital submissions of all proposed communications, which would also lessen the burden of subsequent public disclosure.
• Continue broadening the number of categories for which templates can be used, allowing Member offices to send simliar versions of the same piece without getting pre-approval each time.
• Create a Franking app where offices can submit communications for approval and monitor their status as they move through the approval process.
• Eliminate advisory opinions for all emalis and paid digital advertising, as is currently the case for solicited emali newsletters.
• Adopt simplified language and guidelines, in addition to expanding the use of FAQs and laminated cards providing clear, proactive guidance to Member offices on what is and isn’t allowed.

Examining these areas may have the desired effect of simplifying processes for both the Member’s congressional office staff, as well as the staff at the Commission. The end result may free Congressional staff to focus on more important direct communications with constituents, versus spending time dealing with bureaucratic processes.

When the Committee on House Administration first adopted guidelines for Members’ use of social media, they simply applied the same content guidelines first adopted for websites in 1995. While their intent was to apply a consistent standard to all digital communications, the rules have had a much more limiting effect on Member social media because of differences in how the medium is most naturally used.

The current rules simply state that Members websites and social media should be used “for official business representational duties” and goes on to outline a series of content don’ts — no political or campaign content, no fundraising, no endorsement of outside organizations, no grassroots lobbying, and the like.

Members can more easily run afoul of these as a retweet of a person or organization outside Congress could be construed as an endorsement. Social media is inherently a more personal medium. As opposed to text-based websites, content on photo-based platforms like Instagram performs best when it showcases the more personal side of a Member of Congress or Congressional office. Showing “day in the life” or “behind the scenes” content on social media can help constituents feel more connected to and better represented by Members. Social media is also used to show support for causes, as was the case with the Ice Bucket Challenge, which raised $115 million for a cure for ALS in 2014. The cause spread virally as public figures asked each other to take the challenge. But Members of Congress were discouraged from responding to constituent requests to take the challenges due to a ban on endorsing charitable organizations and fundraising. The Ice Bucket Challenge would only have had the impact it did thanks to social media. Given the immediacy of social media, and that much more content can be disseminated at less expense to the taxpayer, the House should adopt unique rules for social media that let Members be themselves and fully engage with the topics that their constituents are passionate about outside of politics.

The Modernization Committee has already taken steps towards lifting the current cap of 18 full-time staff per Member office by providing for a study of the issue in the ModCom Resolution. These efforts should be further pursued with a view towards raising this limit or eliminating it entirely, giving Member offices wider discretion over how to allocate funds for staffing purposes.

This issue is of particular relevance to constituent communications. The demands placed on Member offices in this arena are only increasing — with an ever-expanding volume of inbound correspondence and a growing array of new communications technologies. Some offices have experimented with innovative solutions like combining their constituent correspondence and communications staff into one team, or training lower-level staff to interact with constituents on a real-time basis via texting or other messaging platforms. Replicating such a “customer service”-oriented architecture more broadly may involve hiring a greater number of junior staff to manage constituent communications, perhaps based in district offices. The current staff cap means that Member offices are prevented from experimenting with such approaches without a one-for-one cut in essential legislative staff. Raising or removing the Member office staff cap would give Members the flexibility to design a staffing structure that works for their district and allows them to fully take advantage of new technology.

The rules governing communications with constituents have been overseen by three separate bodies — the Committee on House Administration, the Commission on Congressional Mailing Standards (or the Franking Commission), and Committee on Ethics.

The Ethics Committee governs the interplay between official communications and private resources and references, as well as campaign resources and content. The Franking Commission governs mail sent under the Congressional Frank, and the Committee on House Administration was responsible for communications not sent under the Frank, such as electronic communications and websites. Jurisdictional boundaries between these bodies have been murky, particularly as it relates to questions of what is and is not an “official” activity that taxpayer resources may be properly used to communicate about (a question for House Administration or Ethics depending on the aspect of the question being addressed). Members and staff report being perplexed by these jurisdictional boundaries and often lack clear guidance from the three different bodies. Regulatory complexity has increased with the rise of digital communications. Whereas any physical mail being sent out under the Frank falls squarely under the purview of the Franking Commission, House Administration has set the rules for Member websites and social media, and all three bodies have authority over different aspects of digital communications, depending on questions such as the official or unofficial content of a communication, when private entities are involved in official activities, and what information about the Member’s duties are viewed as “in the public domain” and can be utilized for both official and political purposes.
As a result of this confusion, Member offices are often times reluctant to engage in newer forms of communications when it is difficult to understand which set of rules even applies. This regulatory maze can hamper the effectiveness of Congressional offices, and the House may be able to remedy this with legislation consolidating the responsibilities of all of these bodies as they relate to communications into one body that would govern all official communications.

The recent steps to provide clarity by consolidating the jurisdiction of the Franking Commission and the Committee on House Administration are an important first step. The House should evaluate the possibility of consolidating any Ethics Committee jurisdiction over the new body. It should then pass legislation formally establishing the House Communications Standards Commission and consolidating these areas of jurisdiction under its authority.

While the Franking privilege is often thought of in terms of unsolicited mass mailings, it also covers individual letters sent to constituents. Both kinds of communications are paid for by individual Member offices out of the Members’ Representational Allowance.

Congress could create a clearer distinction between mass mailings and individual letters by having the House as an institution centrally pay for individualized postal correspondence with constituents. Under the status quo, offices that are more proactive about responding to constituents are penalized by having to pay more for the use of the Frank than offices that are not. Direct correspondence with individual constituents about issues of concern is a public good that should be encouraged by policy. A simple tweak to how this correspondence is paid for can spur more direct, authentic communication with constituents.