Back in February, tens of thousands of constituents in California’s 41st Congressional District received large color postcards in the mail from Rep. Ken Calvert.
One of these mailings, sent to the home of an Independent employee, featured two photos of Calvert on the front—touring the Fender guitar factory in Corona, and receiving an honor from the U.S. Chamber of Commerce. The back had a message from Calvert, headlined “Making Washington Work for You,” regarding a vote he made in the wake of “troubling reports of foreign companies, especially those with ties to the Chinese Community Party (CCP), Russia, North Korea, and Iran, purchasing controlling interests in large swaths of agricultural land in the United States.”
It’s not unusual for members of Congress to send taxpayer-funded mailings and other communications to constituents; according to the House of Representatives’ mass-communications disclosure website, Calvert sent 78 mailers, emails, handouts and other messages in 2023, while District 25 Rep. Raul Ruiz sent 11. All members of Congress have “franking privileges”—the ability to send mail without paying for postage, as long as the mail deals with matters of public concern or service.
The timing, however, was curious: It’s against House of Representatives rules to send unsolicited mass communications in the 60 days “immediately before the date of any primary or general election (whether regular, special or runoff) in which the member is a candidate for public office.” Since California’s primary was on March 5, the blackout period started Jan. 5.
But there’s a way to get around the rule—specifically, a loophole Calvert, who has been in Congress since 1993, has used in a big way before previous elections. It’s often called the “499 loophole,” because House rules define “mass mailings/communications” as 500 or more pieces of substantially identical content. Members of Congress can use the loophole to send as many mailings as they want, as long as they’re “substantially dissimilar” (as determined by the House Communications Standards Commission) and sent in batches of 499 pieces or less.
When the Independent asked Jason Gagnon, a spokesman for Rep. Calvert’s office, about the aforementioned mailer, he said via email that the mailer “was sent (to) fewer than 500 constituents and therefore is not considered a mass communication by the House Communications Standards Commission.” When asked in a follow-up email if multiple batches of mailers were sent around the same time, Gangon confirmed there were—and volunteered that in 2014, Calvert’s opponent at the time, Tim Sheridan, “filed a complaint with the House Administration Committee about similar mailings during the blackout period. However, the committee looked into the matter and in a bipartisan 6-0 decision … found that no violation of the House Communications Standards had occurred.”
We then asked for details on the mailings Calvert’s office had sent; Gagnon referred us to the House of Representatives’ mass-communications disclosure website. However, the mailings were not listed there, because they aren’t considered mass communications, since they were sent in batches of 499 or less. So we asked Gagnon again for details—specifically, “a list of all of the mailings Rep. Calvert has sent (in the pre-primary blackout period), including dates sent, and the number of each mailing.” Gagnon responded: “We sent out postcards on approximately 120 various topics (during the blackout period)—each to fewer than 500 recipients in accordance with House of Representatives communications rules.”
If Calvert’s office sent out 120 mailings during the pre-primary blackout period, each in batches of 499, that’s 59,880 pieces of mail.
We asked Gagnon for copies of these mailings, and he responded: “Your request is one of the first we’ve received to disclose communications that are not considered mass communications under the House Communications Standards Manual. We have and will continue to disclose required communications disclosures with the House of Representatives. Like most congressional offices, our office sends out hundreds of thousands of communications via postal mail, email and text messages every year and for every communication we follow the rules set by the House of Representatives.”
In other words, even though these mailings were all taxpayer-funded, Calvert’s office would not share them with the Independent. The Independent asked the Office of the Clerk of the U.S. House of Representatives for these mailings, and we were referred back to Calvert’s office. We would have filed a Freedom of Information Act request, but Congress exempts itself from the law.
Calvert’s office admits that the congressman has a history of using the “499 loophole” to send taxpayer-funded mailings during pre-election blackout periods. While the practice is not against the rules, is it ethical?
“No, it’s not ethical,” said John Pelissero, the director of government ethics at the Markkula Center for Applied Ethics at Santa Clara University, and a professor emeritus of political science at Loyola University Chicago. “The real ethical problem is one of the optics of this. He’s clearly following the letter of the law, but in a way that says he’s going to find a way around the intent of the law.”
The 60-day blackout on mass communications before elections is in place to keep members of Congress from unfairly using taxpayer-funded mailings for what would effectively be campaigning.
“The real ethical problem is one of the optics of this. He’s clearly following the letter of the law, but in a way that says he’s going to find a way around the intent of the law.”
John Pelissero, director of government ethics at the Markkula Center for Applied Ethics at Santa Clara University
“Anyone who’s looking and sees this is being done intentionally can see it injects a level of unfairness,” Pelissero said. “Fairness is an important criterion in ethics, and this is clearly unfair, because he is using the tools of his office (which are paid for by) the taxpayers.”
A Google News search of “499 loophole” brings up a small handful of articles regarding Calvert and other members of Congress using the loophole. I asked Pelissero if the use of the loophole by members of Congress is common.
“This is actually very uncommon,” he said. “It’s clearly an attempt to ignore the law by using legal means to get around the law. The intent of the law is to create a level playing field. Most (members of Congress) are attentive to the law, and try to be good stewards. The thing about being in Congress is you get a lot more attention from media for the things you do. For the most part, Congress would like to avoid that (bad press).”
Ariana Orne, the communications director for Rep. Raul Ruiz, said his office didn’t send any mailers in batches of 499 or less during the pre-primary blackout period.
The Independent asked Coby Eiss, the campaign manager for Will Rollins, Calvert’s Democratic opponent this year, if Rollins would commit to not using the “499 loophole” if elected. In response, Rollins’ campaign issued a statement: “Taxpayer dollars should never be exploited by career politicians like Ken Calvert to boost their own campaigns. … When I have the honor of serving the 41st District in Congress, I’ll support reforms to franked communications to ensure that they can’t be used for campaign purposes. We need to prioritize public service over personal gain.”
Pelissero said actions like the use of the “499 loophole” erode confidence in the system as a whole.
“Both you and I know the public has a low confidence level and low trust levels in Congress, according to multiple polls,” he said.
For the upcoming general election, the 60-day blackout period will begin on Sept. 6.
Ken Calvert has known how to cut corners for decades. This is neither shocking nor surprising.
For all his claims of constituent service, his Washington office is a stone wall.
Change is coming.