“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.
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 the Government Affairs Institute at Georgetown University. 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 ten, and Maloney sent 49.
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 thirty-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.”