The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)


STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5213

August 18, 1977

CONSTITUTIONAL LAW:

First Amendment

CONSTITUTION OF MICHIGAN:

Art 4, Sec. 16

LEGISLATURE:

Rule limiting mail sent at public expense prior to an election

A proposed Senate rule which would limit the number of pieces of mail which may be sent at public expense within 60 days preceding an election does not violate the constitutional right of freedom of speech.

Honorable William Faust

Senate Majority Leader

The Capitol

Lansing, Michigan 48901

You have requested my opinion as to whether a proposed amendment to Senate Rule 72 violates the freedom of speech of an individual legislator.

Senate Rule 72 currently states:

'The Secretary shall cause to be mailed to persons who make requests therefor, copies of Senate or House Bills and Journals and other official publications which have been printed; and upon request of any Senator, he shall cause to be mailed copies of such publications and also such other mail as shall be declared by any Senator to pertain to official business.' Michigan Legislative Handbook 1975-76 ed, p 50

The proposed amendment contains the following language:

'A Senator may mail no more than 3,000 pieces of mail at public expense within the sixty day period immediately preceding the August Primary or the November General Election or during a like period preceding any election for which the incumbent Senator has filed.'

Each house of the legislature has the power to prescribe its own rules of procedure except as limited by other constitutional provisions. Const 1963, art 4, Sec. 16. Senate Rule 72, adopted pursuant to Art 4, Sec. 16, extends a privilege to each Senator for the purpose of facilitating communication with constituents.

The essence of the First Amendment is that 'government has no power to restrict expression because of its message, its ideas, its subject matter or its content,' Police Dept of Chicago v Mosley, 408 US 92, 95; 92 S Ct 2286, 2290; 33 L Ed 2d 212, 216 (1972). And an elected public official's First Amendment rights are co-extensive with those enjoyed by private citizens, Wood v Georgia, 370 US 375; 82 S Ct 1364; 8 L Ed 2d 569 (1962). Further, it has been held that '[t]he manifest function of the First Amendment in a representative government requires that legislators be given the widest possible latitude to express their views on issues of policy,' Bond v Floyd, 385 US 116, 135-136; 87 S Ct 339, 349; 17 L Ed 2d 235, 247 (1966).

However, the purpose of the proposed amendment is to restrict senatorial use of free mailing for personal re-election purposes. The amendment does not restrict a Senator's right to communicate with the voters nor does it bar all mailings; it only limits the number of mailings that can be made at public expense within a given time period. Senators have an unlimited right to communicate with their constituent at their own expense.

I am aware that OAG, 1969-1970, No 4647, p 87 (September 29, 1969), held that members of the State Board of Education may not be denied their First Amendment rights to communicate with elected and appointed officials and citizens on matters of governmental concern and may use for such purpose stationary provided by the State. This opinion can be distinguished from the proposal. That opinion was issued in connection with an absolute bar on the use of State-owned stationery and therefore held that any potential abuse could not outweigh the constitutional infirmities of the total ban. Here, the proposed amendment is narrowly drawn and is aimed specifically at potential abuse of the electoral process.

Therefore, it is my opinion that the proposed amendment to Senate Rule 72 does not violate the freedom of speech of an individual legislator.

Frank J. Kelley

Attorney General