Hurst Files Formal Complaint Against Tom Davis (VA-11)

Yesterday Andrew Hurst candidate for Congress (VA-11) filed a formal complaint with both the FEC and the House Commission on Congressional Mailing Standards.

Andrew Hurst claims that his opponent Tom Davis used the Congressional Franking Privilege for campaign and partisan purposes, at the taxpayers expense.

Now let's remember that I haven't passed the bar yet, but I know a little bit, so excuse the basic analysis, if anyone wants to point out something in the comments, I'd be happy to update this post.

Let's get to part of the press release...

Democrat Andrew Hurst filed an official complaint with the House Commission on Congressional Mailing Standards yesterday against his opponent, Congressman Tom Davis (R-11).  The complaint was in reference to two franked mailings and an automated phone call sent on Davis's behalf to hundreds of thousands of 11th district residents. 

The mailings and phone calls cost taxpayers hundreds of thousands of dollars.  The exact number cannot be determined as Davis's office has refused to disclose the precise cost.

Among the phrases included in the mailings are:

*  +óGé¼+ôCongressman Tom Davis has worked to secure funding for important transportation projects in our community.+óGé¼-¥
*  +óGé¼+ôTom Davis also helped improve transportation in our communities by funding much needed projects. .
*  +óGé¼+ôCongressman Tom Davis passed legislation to make the South County a better place to raise a family.+óGé¼-¥

Now, every elected official does this, how is this different, well let+óGé¼Gäós take a look at what James Walkinshaw, Hurst+óGé¼Gäós campaign manager has to say about this.

"Our campaign has received hundreds of calls and emails from outraged taxpayers," said Hurst.  "Someone needed to stand up and say that taxpayer funds should not be used for political purposes.  Davis has clearly broken the rules and I'm calling on the Commission to hold him to account."

Davis's mailings and automated call were conveniently timed to coincide with the publication of a Washington Post expose which implicated him in an influence-peddling scandal involving the lobbying firm ICG Government ("Wife, Friend Tie Congressman to Consulting Firm," 7/28/06).

"The fact that these communications were made immediately after the Post story broke makes it starkly clear what he's trying to do here.  These were blatantly political communications meant to counteract the bad publicity brought about by the ICG scandal," said Walkinshaw.

Will this turn into something more serious, will any fines or sanctions be levied against Davis?  We will soon see.  But either way, I+óGé¼Gäóm excited to finally have a candidate in Northern Virginia who is not afraid to be a Democrat, and not afraid to stand up to +óGé¼+ôpower house+óGé¼-¥ in the House.

Let me know what you think

Below is the formal complaint, no need to read, just wanted to include full documentation

ANDREW L. HURST,

  Complainant,

v.

THOMAS R. DAVIS, III,

  Respondent.

  HOUSE COMMISSION ON CONGRESSIONAL MAILING STANDARDS

COMPLAINT

  Andrew L. Hurst, by way of Complaint against Thomas R. Davis, III, states as follows:
PARTIES
1. Andrew L. Hurst is the 2006 Democratic Party candidate for the United States House of Representatives for the 11th Congressional District in Virginia.
2. Thomas R. Davis, III (+óGé¼+ôDavis+óGé¼-¥) is the present Representative for the 11th Congressional District of Virginia, and a member of the Republican Party.
3. Davis for Congress is the principal campaign committee authorized to receive contributions or make expenditures for Davis, the 2006 Republican Party candidate for the United States House of Representatives for the 11th Congressional District in Virginia.
4. This action is brought to address recent mass-mailings and automated telephone calls made by Davis that violate not only the spirit, but specific provisions, regulating the making of such communications by Members of Congress.

FACTS
5. This matter is brought pursuant to Title 2, Section 501 of the United States Code, and the Rules promulgated by the House Commission on Congressional Mailing Standards (the +óGé¼+ôCommission+óGé¼-¥).  As the following facts will demonstrate, the acts complained of fall within the jurisdiction of the Commission.
6. Members of Congress enjoy a long-standing privilege of sending official mail at government expense.  This privilege is commonly known as +óGé¼+ôfranking.+óGé¼-¥  Congress pays the U.S. Postal service for franked mail through annual appropriations for the legislative branch 
7. On or about July 28, 2006, residents of the 11th District received a piece of mail from Davis.  Attached at Exhibit +óGé¼+ôA+óGé¼-¥ is one of the received mailings.  Upon information and belief, identical mail was sent to tens of thousands of households in the 11th District.
8. This mailing advocates for Davis in many respects.  Among the phrases included in the mailing are (by way of example only):
  * +óGé¼+ôCongress Tom Davis has worked to secure funding for important transportation  projects in our community.+óGé¼-¥

  * +óGé¼+ôTom Davis also helped improve transportation in our communities by funding  much needed projects. . .+óGé¼-¥

  * +óGé¼+ôCongressman Tom Davis passed legislation to make the South County a better  place to raise a family.+óGé¼-¥

9. On or about August 14, 2006, residents of the 11th District received another piece of mail from Davis.  Attached at Exhibit +óGé¼+ôB+óGé¼-¥ is one of those mailings.  Upon information and belief, identical mail was sent to tens of thousands of households in the 11th District.
10. This mailing also advocates for Davis in many respects.  Among the phrases included in the mailing are (by way of example only):
  * +óGé¼+ôTom Davis is making sure the federal government works for Northern Virginia  families by using his oversight powers to. . .+óGé¼-¥

  * +óGé¼+ôTom Davis is a leader in ensuring that federal civilian employees get the same  level of pay raise as military employees and that healthcare and retirement  benefits are protected.+óGé¼-¥

11. Both of these mailings appear to be franked mail.  Both contain the return address of Davis+óGé¼Gäó Congressional office, are signed by Davis, and bear the phrase +óGé¼+ôThis mailing was prepared, published and mailed at taxpayer expense.+óGé¼-¥  Exhibit B contains the additional phrase +óGé¼+ôThe cost of producing, preparing and printing this piece is less than a postage stamp.+óGé¼-¥
12. On or about August 9, 2006, an automated telephone call was made by Davis to constituents of the 11th District.  A transcript is attached as Exhibit +óGé¼+ôC+óGé¼-¥.  Upon information and belief, this call was made to numerous other 11th District constituents as well.
13. In this telephone call, Davis specifically identifies himself as the Representative from the congressional district, that he is the Chair of the House Government Reform Committee and pledges that he will fight for the citizens of the district to prevent the Army from +óGé¼+ôdestroy[ing] our neighborhoods or the quality of life that we enjoy.+óGé¼-¥
14. The telephone call does not state the identity of the person or entity that paid for or authorized the telephone call.
15. As of June 30, 2006, Davis for Congress had over $2 million in cash on hand. 

VIOLATIONS OF STANDARDS GOVERNING FRANKED COMMUNICATIONS
16. These two mailings, and this automated telephone call, violated the standards governing the privilege of franked mail. 
17. The privilege of franked mail is intended to +óGé¼+ôassist and expedite the conduct of the official business, activities, and duties of the Congress of the United States.+óGé¼-¥  2 U.S.C. +é-º3210(a)(1).
18. In passing various reforms to the standards governing franking over the last 30 years, Congress made clear that the privilege of franked mail is to assist Members in communicating information to their constituents, not to engage in electioneering.
19. Davis is engaged in a campaign for re-election to serve as the representative from the 11th Congressional District in Virginia.  The election is less than 90 days from the date of one of the mailings, and from the automated telephone call.
20. In addition to the circumstances cited above, it should also be noted that Davis was the recent subject of a multi-page expose by the Washington Post on July 28, 2006 (attached at Exhibit +óGé¼+ôD+óGé¼-¥) which called into question some of Davis+óGé¼Gäó practices.  Davis had advance notice, and was interviewed in connection with, the article.  The mailings and automated telephone call were issued contemporaneously and immediately subsequent to the publication of the article.
21. Any fair reading of these mailings and this telephone call reveal them to be presentations to 11th District residents that Davis should be re-elected to his seat in Congress.  Funds spent in such a manner are meant to be regulated by the Federal Election Commission via the Bipartisan Campaign Reform Act of 2002, and rules and regulations promulgated thereunder.  Federal candidates are not permitted under the Act to receive, direct or spend funds in connection with an election for Federal office for any Federal election activity unless those funds are subject to the limitations, prohibitions and reporting requirements of the Act.  Presumably, these funds were not.
22. In addition to Davis+óGé¼Gäó transparent disregard of the spirit and purpose of the standards governing the privilege of sending mail at government expense, Davis violated the governing rules in at least three specific ways.

1. Excessive Use of Personally Phrased References
23. The rules governing the privilege of franked mail specifically caution members on the +óGé¼+ôexcessive use of personally phrased references (Member+óGé¼Gäós name, +óGé¼-£I+óGé¼Gäó,+óGé¼Gäóme+óGé¼Gäó, +óGé¼-£the Congressman+óGé¼Gäó, +óGé¼-£the Representative+óGé¼Gäó) in mass mailings.
24. As a guideline, the rules state that personal references should number no more than eight per page.
25. In his August 14 mailing, Davis made reference to himself eighteen times on one page alone.  This constitutes more than double the number of references identified by the Commission as appropriate.
26. Both of Davis+óGé¼Gäó mailings, and the telephone call, make excessive reference to Davis and purported accomplishments and intention by him.  There is very little objective information in any of the communications.
2. Addition of Deceptive Language to Undermine Disclaimer Statement
27. The rules governing the privilege of franking require each mailing to contain the disclaimer +óGé¼+ôThis mailing was prepared, published and mailed at taxpayer expense.+óGé¼-¥  This language is required of mass mailings in order to ensure that the public is aware that public funds are being used for the mailing.
28. Davis+óGé¼Gäó August 14 mailing contains the additional phrase +óGé¼+ôThe cost of producing, preparing and printing this piece is less than a postage stamp.+óGé¼-¥  This language is in the identical typeface and size as the required disclaimer, and is positioned immediately below it.
29. This language is deceptive, in that it does not identify the actual cost of the mailing (per unit or as a whole), and leads the reader to believe that mailing is not an additional cost.
30. The clear intent of the language is to undermine the required disclaimer by making the mailing appear that it was done at little expense.  This effort is contrary to what was intended by the disclaimer, and certainly not suitable content for franked mail, which has specifically detailed the format of the address page in the rules.
3. Violation of the Prohibition on Franked Mail Less Than 90 Days Before an Election
31. The rules governing the privilege of franking contain an unambiguous prohibition on any mass mailings less than 90 days before the date of any general election in which the Member is a candidate for public office.
32. Both the August 9 telephone call, and the August 14 mailing, were made less than 90 days before the date of the general election (which is November 7, 2006). 

  WHEREFORE, for the foregoing reasons, Complainant respectfully requests that the Commission order Davis for Congress to reimburse the public fisc for the money expended for the franked mailings and calls, and award any other relief which it deems just and appropriate.

  Dated:  By: 
  Andrew L. Hurst

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