Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGO 1994 No. 13 - Sep 12 1994
Attorney General Christine Gregoire

LEGISLATORS-STATE LEGISLATURE-PUBLIC FUNDS-Mailings by legislators at public expense

1.         Neither house of the Washington State Legislature has authority to adopt a rule or a policy on mailings by legislators at public expense which would supersede the provisions of RCW 42.17.132, a statute on the same subject.

2.         The language in RCW 42.17.132 generally limiting legislators at certain times to mailings to constituents "in direct response to . . . [a] request" does not require that the request be explicit, but requires some evidence that the addressees of a legislative communication had shown an interest in the legislator's view on the subject, or in obtaining other relevant information.

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                                                              September 12, 1994

Melissa A. Warheit
Executive Director
Public Disclosure Commission
711 Capitol Way, MS 40908
Olympia, WA  98504-0908                

                                                                                                Cite as:  AGO 1994 No. 13

Dear Ms. Warheit:

            By letter previously acknowledged, you have asked for our opinion on a question which we paraphrase as follows:

            1.         Would either house of the Washington State Legislature have authority to adopt a rule governing mailings by members to constituents at public expense which would supersede the provisions of RCW 42.17.132, a statute which limits mailings by members of the legislature?

            2.         When a legislator receives a communication from a person, whether in the form of a letter, a telephone call, a personal visit, or otherwise, and the communication does not include an explicit request for a response from the legislator, may the legislator mail or deliver to the person a response without violating RCW 42.17.132?

                                                              BRIEF ANSWERS

            Neither house of the Washington State Legislature has authority to adopt rules or policies concerning legislative mailings to constituents which would supersede the provisions of RCW 42.17.132, a duly enacted statute.  Although each house does have limited power to establish procedures for its internal organization, including the management of its budget, and may use that power to decide when and how the house will pay for expenses incurred by members, compliance with house rules and policies would not excuse noncompliance with RCW 42.17.132.  RCW 42.17.132 does not require a legislator to receive an express request for a response from a constituent or other person to justify replying at public expense.  Ordinarily, a communication from a citizen expressing views or requesting information on a particular subject implies a request for a reply addressed to that same citizen concerning the same subject.  The Public Disclosure Commission has authority through administrative rules or case law interpretation to decide the circumstances under which a communication from a citizen to a legislator implies a "request for a response" as mentioned in RCW 42.17.132.

            Our reasoning for reaching these opinions is detailed in the analysis below.


            The legal background for your question is the enactment of what is codified as RCW 42.17.132, adopted by the people as an initiative in November of 1992.  Laws of 1993, ch. 2, § 25, p. 16 (Initiative Measure 134), approved November 3, 1992.  The relevant portion of this statute provides as follows:

                        During the twelve-month period preceding the expiration of a state legislator's term in office, no incumbent to that office may mail to a constituent at public expense a letter, newsletter, brochure, or other piece of literature that is not in direct response to that constituent's request for a response or for information.  However, one mailing mailed within thirty days after the start of a regular legislative session and one mailing mailed within sixty days after the end of a regular legislative session of identical newsletters to constituents are permitted.

            According to materials submitted with your request, both houses of the Washington State Legislature have adopted either rules or policies and procedures governing constituent mailings by their respective members.[1]  In part, the rules and policies adopted by the two houses respond to the instructions contained in the last sentence of RCW 42.17.132 that "[t]he house of representatives and senate shall specifically limit expenditures per member for the total cost of mailings, including but not limited to production costs, printing costs, and postage".  However, the rules and policies of both houses go somewhat further, and contain directions and restrictions concerning constituent mailings which, though generally consistent with RCW 42.17.132, appear in some cases to authorize mailings under circumstances in which RCW 42.17.132 would prohibit them.  This apparent inconsistency between the rules and policies adopted by the individual houses and the statute itself gives rise to your questions.[2]

            Question 1:

            Would either house of the Washington State Legislature have authority to adopt a rule governing mailings by members to constituents at public expense which would supersede the provisions of RCW 42.17.132, a statute which limits mailings by members of the legislature?

            Your first question asks us to resolve a potential conflict between the rules and procedures adopted by the individual houses of the legislature, on the one hand, and RCW 42.17.132, on the other hand.  Having already noted that RCW 42.17.132 itself does not authorize individual houses of the legislature to interpret or enforce the statute through their internal processes, we examine other possible sources of authority for the legislative rules and policies in question.

            While the material you sent us does not contain specific citations to authority, the primary source of authority for each house to adopt rules, policies, and other standards of conduct for its members is constitutional, and is found in the text of article 2, section 9 of the state constitution, which reads as follows:

                        Each house may determine the rules of its own proceedings, punish for contempt and disorderly behavior, and, with the concurrence of two-thirds of all members elected, expel a member, but no member shall be expelled a second time for the same offense.

Except insofar as a rule concerning constituent mailings by an individual legislator is a "rule of its own proceeding" as defined in article 2, section 9, we apply the familiar constitutional rule that the legislative authority in the state is vested in the legislature acting as a whole, except to the extent it is vested in the people acting through direct legislation, and is not assigned to either house acting alone.  This basic principle has been laid down quite explicitly in the opening language of article 2, section 1 of the state constitution.  While the state appellate courts have not had occasion to construe the power of the legislature in enacting a statute, as opposed to the power of an individual house adopting rules and procedures, the implication of numerous cases on the subject is that the broad sovereign legislative power is reserved to the legislature as a whole acting through the passage of statutes.  See, for instance,Moses Lake Sch. Dist. 161 v. Big Bend Comm'ty College, 81 Wn.2d 551, 503 P.2d 86 (1972);Hoppe v. State, 78 Wn.2d 164, 469 P.2d 909 (1970);Pacific Am. Realty Trust v. Lonctot, 62 Wn.2d 91, 381 P.2d 123 (1963); State ex rel. O'Connell v. Meyers, 51 Wn.2d 454, 319 P.2d 828 (1957).  Furthermore, the courts have held that the power of the people enacting an initiative is essentially the same as the legislative power of the legislature passing statutes.  See, e.g.,Fritz v. Gorton, 83 Wn.2d 275, 517 P.2d 911 (1974);Love v. King Cy., 181 Wash. 462, 44 P.2d 175 (1935).

            Given this constitutional background, it is clear that an individual house of the legislature has only limited authority to enact "rules of its own proceedings" and discipline its members for violating those rules.  The question then becomes:  Is a rule defining the circumstances under which an individual legislator may mail material to constituents or other citizens at public expense a "rule of its own proceedings" authorized by article 2, section 9 of the state constitution?

            In reaching an answer to this question, we are largely guided by the reasoning of a California appellate decision on almost precisely the same issue.  Although a decision in another state is not controlling on the courts of this state, the case in question is well reasoned and seems consistent with the principles laid down by our own appellate courts in related areas.

            The case in question isWatson v. California Fair Political Practices Comm'n, 217 Cal. App. 3d 1059, 266 Cal. Rptr. 408 (1990), and concerned a portion of an initiative measure adopted by the people of California at the 1988 election, which provided that "[n]o newsletter or other mass mailing shall be sent at public expense".  Watson, at 1064.  (The context of the amendment made it clear that the "mass mailings" in question were mailings by elected officials including legislators.)  Several state senators and other parties brought a lawsuit challenging the constitutionality of the provision in question claiming, among other things, that the prohibition on mass mailings at public expense usurped the authority granted in the California state constitution for each house of the legislature to "choose its officers and adopt rules for its proceedings".  Watson, at 1069, quoting Cal. Const. art. 4, § 7, subd. (a).

            Interpreting this California language, which is essentially the same as article 2, section 9 of the Washington Constitution, the California court of appeals found that "[t]he rulemaking authority is limited to the internal workings of the Senate and Assembly and does not encompass matters which are addressed to the world outside the Legislature".  Watson, at 1070.  In upholding the initiative provision against constitutional challenge, the California court took the view that a phrase like "its proceedings" limited the constitutional power granted to each house to internal matters such as organization, election of officers, choice of staff, rules of procedure, etc.  All of these concern the way in which the members of a house interact with one another as they conduct their common business.  By contrast, the subject of mass mailings to constituents does not concern the internal organization or the internal relationships within an individual house, but rather the relationship of a legislator or other public official to the general public.  These matters, the California court found, were properly the subject of statutes passed by the whole legislature, or of initiatives adopted by the people.[3]

            Because the California opinion is well reasoned, and because article 2, section 9 of the Washington Constitution in stating that "[e]ach house may determine the rules of its own proceedings" is substantially the same as its counterpart in the California constitution, we would apply the California court's reasoning and would conclude that the subject of mailings to constituents, at least as a general matter, does not fit within the definition of "its own proceedings" as set forth in article 2, section 9 of the state constitution.  Indeed, the subject of mailings to constituents contrasts quite vividly with the other subjects typically treated in the rules of each house of the Washington State Legislature—quorum, order of business, rules of debate, committee organization, and introduction of bills, for instance.  All of these subjects clearly relate to the internal proceedings of each house.

            Although, as we noted earlier, the Washington State appellate courts have never had occasion to construe article 2, section 9, the leading case on the authority of the people to impose requirements on legislators and other public officials through an initiative resulted in an upholding of the initiative language on reasoning broadly similar to that employed in the California case.  Fritz v. Gorton, 83 Wn.2d 275, involved a constitutional challenge to Initiative 276, a comprehensive initiative adopted at the 1972 General Election covering a number of related subjects, including financial disclosure by candidates for public office.[4]  Although those challenging the validity of Initiative 276 did not argue that it intruded upon the authority of each house to govern its internal proceedings, the challengers did argue that the financial disclosure provisions intruded upon the private affairs of public officers, or otherwise placed burdens on public officers which made it difficult or impossible for them to conduct their constitutional business.  The Washington State Supreme Court rejected all of these challenges and upheld the authority of the people to require lobbyist registration, financial reporting by candidates, and related enforcement mechanisms.

            Accordingly, we reach the opinion that article 2, section 9 does not confer any authority on either house of the legislature, acting alone, to regulate the conduct of individual legislators as they deal with their constituents, as in the subject of mailings and other communications.  Certainly, neither house would have the authority through rules of procedures to authorize its members to violate a duly enacted statute on the subject, such as RCW 42.17.132.

            We recognize that legislative mailings at public expense necessarily involve some procedure for payment of the expenses involved out of the state treasury.  The Senate and the House of Representatives may choose to adopt rules or policies detailing the procedures by which such payments will be made, and perhaps indicating the standards by which the body will decide how to spend the money budgeted for that purpose.[5]  However, the authority of either house would be limited to the implementation of relevant statutes and constitutional provisions concerning the business at hand.  Nothing in article 2, section 9, or any other language we could find in the constitution or relevant case law, indicates that either house of the legislature would have the power to supersede or override the provisions of a statute.

            Thus, even if one house of the legislature adopted a rule which in theory would allow for payment at public expense for mailings which would otherwise be prohibited by RCW 42.17.132, the existence of such a rule would not excuse the member for noncompliance with the statute, nor would it insulate the officers of the house from liability for violating the statute, if they processed payment for a mailing made contrary to law.  Accordingly, we conclude that RCW 42.17.132 is fully enforceable, any internal rules adopted by either house notwithstanding.

            Question 2:

            When a legislator receives a communication from a person, whether in the form of a letter, a telephone call, a personal visit, or otherwise, and the communication does not include an explicit request for a response from the legislator, may the legislator mail or deliver to the person a response without violating RCW 42.17.132?

            Your second question asks for interpretation of the phrase "not in direct response to [a] constituent's request for a response or for information" (RCW 42.17.132) which restricts mailings, by state legislators during the final year before the expiration of their term, of letters, newsletters, brochures, and other pieces of literature.  You ask whether a constituent must include an express request for a response to justify a reply from the legislator in question.

            Our answer to your second question is informed by our understanding of the policies underlying Initiative 134.  Most of the initiative relates to campaign practices, and what is codified as RCW 42.17.132 appears to be grounded in the notion that incumbent legislators (particularly those who are seeking reelection or are working for the election of friends and associates) can potentially abuse their ability to communicate with the public at public expense by utilizing unsolicited distribution of material to increase their name recognition, or to inspire positive feelings about the incumbent's public service record.  In an effort to curb what was perceived as an abuse of a legislative prerogative, the initiative limits mailings at public expense to (1) communications in direct response to a request for a response or for information, or (2) to one mailing within 30 days after the start of a session, and one mailing within 60 days after the end of a session of "identical newsletters to constituents".  The focus of the statute is on unsolicited mailings, and not on the circumstances under which a legislator may legitimately respond to correspondence, telephone calls, or other communications received from constituents or from other citizens.

            Since RCW 42.17.132 does not include the words "express" or "explicit" or other language indicating that a person communicating with a legislator spell out a request for a reply in so many words, we will not read such a requirement into the statute.  A letter, telephone call, or personal visit can be understood to include a request for a response, even though such a request is not always clear and explicit.  The subject matter of the discussion and the context in which the communication occurs might lead a reasonable legislator to believe that a reply of some kind is warranted.  Since a request for information can be implicit as well as explicit, and can depend on the context, and since the context is often not a matter of public record or easily discernible by third parties, we can also imagine the need to give legislators a certain amount of leeway in deciding when a communication from a constituent or other member of the public was intended to elicit a response.

            Beyond that, we cannot attempt to define the precise circumstances under which the language in question would apply.  We do note that the primary authority for enforcement of RCW 42.17.132 has been assigned to your agency, the Public Disclosure Commission.  RCW 42.17.360.  The Commission is also granted the authority to adopt "suitable administrative rules to carry out the policies and purposes of [chapter 42.17 RCW]".  RCW 42.17.370(1).  The Commission may choose to develop rules defining its enforcement standards for the "not in direct response to a request" language of RCW 42.17.132.  As an alternative, the Commission may choose to review the factual circumstances of each case as it arises and develop a gloss of interpretation over time on this matter.

            We trust this opinion will be of assistance to you.

                                                                        Very truly yours,


                                                                        JAMES K. PHARRIS
                                                                        Senior Assistant Attorney General


    [1]In order to answer your questions, it is not necessary for us to comment on or interpret the specific language adopted by either house, and we refrain from doing so.  We limit our discussion to the theoretical extent of the authority of each house, rather than the extent to which either house has chosen to exercise such authority.

    [2]Neither RCW 42.17.132 nor the remaining language of Initiative 134, of which the statute is a part, directs or authorizes either house of the legislature to adopt or enforce rules or policies interpreting the statutory limitation on constituent mailings, except on the narrow subject of "per member" expenditure limitations on the total cost of mailings, as noted earlier.

    [3]The California court also rejected a challenge to the California initiative on the ground that it violated the free speech rights of legislators to their constituents.  The court found that there was no constitutional right for a legislator to communicate with his or her constituents at public expense.  Watson, 217 Cal. App. 3d at 1072, citing Regan v. Taxation with Representation of Wash., 461 U.S. 540, 76 L. Ed. 2d 129, 103 S. Ct. 1997 (1983).

    [4]Most of Initiative 276 was codified as chapter 42.17 RCW (Laws of 1973, ch. 1) and Initiative 134, including what is now RCW 42.17.132, was adopted as an amendment to the 1972 initiative (Laws of 1993, ch. 2, § 25, p. 16).

    [5]RCW 44.04.060 and .070 describe how the incidental expenses of the legislature will be paid by the state treasurer.