A constituent filed a formal complaint last week with the House panel that regulates franked mail, alleging that Rep. John Sweeney (R-N.Y.) violated the franking privilege by mailing a batch of 500 letters less than 90 days before New York's Sept. 12 primary.
Lisa Scerbo of Mechanicsville, N.Y., filed the complaint with the Commission on Congressional Mailing Standards, saying that Sweeney would be a candidate for the Independence Party's nomination Sept. 12.
Whether Sweeney violated the rules hinges on New York's arcane election laws, which let candidates run for the nominations of more than one party.
Sweeney could face Democrat Kirsten GillibrandKirsten GillibrandSanders, not Trump, is the real working-class hero Dem senator predicts Gorsuch will be confirmed A guide to the committees: Senate MORE in the Independence Party primary. Both are contesting the other's right to appear on the ballot as a candidate for the party's nomination before the New York State Board of Elections.
Although the dispute could end up in court, Gillibrand's hopes of getting a line on the ballot were fading.
"Even if it's in court," said Tom Connolly, vice chairman of the Independence Party, "even with a valid petition, Sweeney won't be in a primary."
Should Gillibrand fail to win a spot on the ballot to challenge Sweeney for the Independence Party line, it would be a major setback for her campaign, since she has dedicated significant time and resources to derailing Sweeney before the November election.
Nevertheless, Democrats said Sweeney should have assumed that he could have faced a primary challenge because Gillibrand's campaign had let it be known June 1 that she had been given permission from the Saratoga County Independence Party to gather signatures to get on the ballot.
"Clearly, Sweeney must have ESP. He guessed that he would be unchallenged, and until this legal dispute is settled he still does not know. He used taxpayer funds to finance a franked piece of mail, utilizing a benefit of the House as a campaign resource," said Allison Price, Gillibrand's spokeswoman.
Federal law prohibits lawmakers from sending franked mass mailings, 500 or more similar letters, to constituents 90 days before his or her name will appear on a ballot. The franking commission, which reviews franked mass mailings to ensure the content is not overtly political, approved Sweeney's letter June 12.
On the form lawmakers are required to fill out for franked mass mailings, Sweeney attested that his name would not appear on a ballot within the next 90 days. On June 30, Sweeney sent a glossy letter on veterans' issues to 19,260 households at a cost of $9,685, said his deputy chief of staff, Melissa Carlson.
If Sweeney's name appears on the ballot, federal law requires him to repay the government for the cost of the mailing or withdraw from the ballot.
"The decision I made to send franked mail at that time was based on the endorsements from all five Independence Party county organizations and the information our office received unequivocally stating the congressman would not face a primary," said Carlson.
"With Gillibrand holding one half of one county's endorsement versus the endorsement of all five counties for the congressman, the weighted vote made clear that the information was solid that there would be no primary," she added.
If the franking commission, which is made up of four Republicans, including Sweeney, and three Democrats, determines that the letter's content is not at issue, it must investigate whether the 90-day ban was violated.
"It is the responsibility of the member. You sign and attest; you are swearing to the commission on the timing issue," said Rep. Zoe Lofgren (D-Calif.), who sits on the Administration Committee, adding that a lawmaker could not attest to the date knowing that a primary is possible.