Incumbency is an advantage in any election and comes with certain privileges.

But a deluge of mailers from Rep. Carolyn Maloney’s government office leading up to Tuesday’s primary has election watchers questioning whether she has crossed an ethical boundary. 

In the fierce battle for Manhattan’s 12th congressional district, Maloney — who is facing off against Rep. Jerrold Nadler and attorney Suraj Patel — sent nearly 26,000 letters to constituents that some voters say read like campaign ads. Those letters, sent on her official House of Representatives stationery, tout her achievements on various legislation or issues, and were paid in full by taxpayers, not her campaign.

House rules prohibit all members from sending mass communications to 500 or more constituents 60 days before a primary election, to limit the advantage of an incumbent. In New York, the blackout period began on June 24th. The way around that, known in Congress as the “499 rule,” is to send different form letters to batches of 499 or fewer addresses at a time.

WNYC Senior Political Reporter Brigid Bergin breaks down the "franking" loophole:

Maloney’s office confirmed that since the start of the blackout period, she has sent unsolicited letters to constituents on 53 different topics, including support for affordable housing, the Child Tax Credit, and the COVID-19 Hate Crimes Act combating violence against the Asian American and Pacific Islander community. The office said each letter was sent to no more than 499 recipients. But that means batches of nearly 500 letters were going out nearly every day leading up to a competitive primary election. 

That strategy has raised serious concerns with ethics experts, voters, and Maloney’s opponents, who accuse her of violating the spirit, if not the letter of the law, by using the taxpayer’s dime to help spread her campaign’s message. Maloney’s own campaign has raised more $4 million, including a $900,000 loan. The campaign has $1.2 million in cash on hand as of August 3rd.

Three of the 53 different form letters Rep. Carolyn Maloney's office sent to constituents since the blackout period began on June 24th.

“This clearly is an attempt to get around the law,” said Richard Painter, former chief White House ethics lawyer for President George W. Bush, a law professor at the University of Minnesota, and a frequent critic of the way former President Donald Trump abused taxpayer resources. 

Painter criticized Maloney’s use of the 499 rule to avoid the official House policy on communication and likened it to a practice in tax law known as “avoision” — a term that combines tax evasion and tax avoidance. He noted that Democrats have been very critical of Trump’s “tax avoision” strategies. 

“But now, for members of Congress when they are spending our money —taxpayer money — to engage in a similar practice, trying to circumvent the law with such a cute trick? I think it’s outrageous,” said Painter.

A spokesperson from Maloney’s congressional office did not reply to a request for comment on the matter, nor did they respond when asked if the letters were also sent to the portions of the current district outside of Manhattan who cannot vote in the newly drawn 12th district. Bob Liff, a spokesperson for Maloney’s campaign, however, defended her conduct. 

“Carolyn Maloney has always communicated with her constituents about her work on issues of interest to them and the district more widely. As you note, the letters are fully in compliance with House rules,” said Liff. 

“While this is not a campaign matter, it is worth noting that Carolyn has always believed that accomplishments speak louder than mere words,” he added.

‘Franking’

These types of letters are known as “franked” communications, which comes from the French word for free, according to Etymology Online. The historical origin dates back to the colonial era when they were intended to facilitate free and open communication between public officials and the people they represent, without the need to pay for postage. Over the years, Congress has adopted a series of reforms to restrict the use of franking privileges, particularly around election season.

“The genesis of the restrictions on franked mail are not intended to interfere with offices responding to constituent communications,” said Matt Glassman, a senior fellow at Georgetown University's Government Affairs Institute. Glassman previously spent a decade at the Congressional Research Service, and has testified before the House Select Committee on the Modernization of Congress about, “how to bring congressional mail standards into the 21st century.” 

In that testimony, Glassman noted that it is difficult to calculate the total cost of franked mail, including postage, printing and reproduction. His analysis in 2019 found that it could be approximately 35 cents per letter. Speaking to Gothamist earlier this month, he said it could be approximately 50 cents per letter. That would put the cost of the letters Maloney sent between $9,000 to $13,000. 

Glassman said the House has a series of rules that limit what can go in a franked mailer to prevent it from being used as a campaign tool, limiting the topics to issues related to what the representative has worked on that may be of interest in an official capacity to the constituent. But he also noted that members have abused this tool in the past. 

“People aren’t stupid, right? Franked mail historically has skyrocketed in the fourth quarter before an election,” Glassman noted.

A spokesperson for Nadler’s office and campaign declined to comment for this story, but noted that his office did not send any franked 499 mailers after the blackout period. The Franking Commission, which reviews and tracks mailers sent out by House members during the blackout period, shows Nadler sent seven and Maloney sent eight official mass communications so far this year, according to their database. Last year, Nadler sent 10, and Maloney sent 49.

Franking recipients

Patel, who’s once again challenging Maloney, was among the recipients of the 26,000 franked letters Maloney sent since June 24th. As a resident who lives near Stuyvesant Town, he received a letter that talked about Maloney’s support for affordable housing. Patel said the abuse of the taxpayer-funded, franked mail system underscores the reason why he is challenging two 30-year incumbents. He said they both are abusing their incumbency to the detriment of voters.

“The thesis of my run is being proven by my opponent’s behavior,” Patel told Gothamist. “When my sister-in-law receives a piece of mail that says Carolyn Maloney cares about Asian hate crimes, and my sister-in-law happens to be Asian American, you see right through it three weeks out before an election.”

Was it really worth it politically to get attention for something when, in the end, it is probably not gonna be all that decisive?
Meredith McGehee, a longtime expert in ethics issues and government

Rod Aminian, 36, is a voter living in the Murray Hill neighborhood in the 12th congressional district. He said his mailbox has been jammed with the candidates' glossy fliers, most of which end up in the trash before he ever looks at them. 

But when he received a letter on official House of Representatives stationery from Maloney, he opened it. Her signature was in the upper right-hand corner of the envelope, where postage normally is placed. Inside, it highlighted her proposed legislation dubbed the “Armenian Genocide Education Act,” which is intended to help educate Americans about the Ottoman Turkish slaughter of millions of Armenians in the early 20th century. 

While Aminian said his name sounds Armenian, it is actually Persian. But if someone were making a list of people with Armenian-sounding names that were Democratic voters in the district, his name would likely be on it. His sister, who also lives in the district and has the same surname, also received the letter. 

Aminian, who sent the letter to Gothamist asking about whether it was abiding by House rules, said he was not persuaded by its content to support Maloney.

“This is like a very low-level way to remind people who might be likely to vote that, ‘Hey, you know, I’ve been with you on these issues,” Aminian told Gothamist. “It seems a little silly.”

Meredith McGehee, a longtime expert in ethics issues and government, said misuse of the franking privilege is less an ethical question and more a political miscalculation.

“Franking can be a real political grenade that can blow up in your face if it starts to become an issue in a campaign,” McGehee told Gothamist. “Was it really worth it politically to get attention for something when, in the end, it is probably not gonna be all that decisive?”