(dissenting).
I believe the majority in this case has undertaken an impermissible judicial intrusion into the motivation of members of Congress in performing their legislative functions.
The question to be resolved in this appeal is whether the courts can enjoin the mailing of a questionnaire by a congressman asking for the responses of nonconstituent citizens as not being “official business.” The majority holds that the courts can do so if there is “extrinsic evidence which reveals that an appearance of official business is nothing more than a mask for a private purpose.” I agree.
The majority also holds that it is necessary to look at evidence other than the contents of the mailing in order to determine whether the use of the frank .was proper. Again I agree. The mailing of a questionnaire, such as presented here, can be an ambiguous act, so that it is not possible to tell solely from the contents of the document whether the mailing is “upon official business.” For example, if the defendant had mailed the questionnaire to a political public relations firm as a sample questionnaire, such mailing would not be “official business.” The identity of the recipient would clearly reveal the nonofficial character of the mailing.
In the case before us the questionnaire was sent to both constituent and nonconstituent citizens of Illinois. Ostensibly, the contents of the questionnaire and the identity of the recipients reveal an “official business” purpose. On that point I am in accord with the district judge’s observation when he wrote:
There is no doubt of a Congressman’s right to solicit by questionnaire the opinions of citizens outside his own district, if that is in fact what he is doing. He represents the interests of all citizens, not merely his constituents, and he may properly inform himself of the views of citizens outside his district.
The basis of my disagreement with the ultimate holding of the district court (sustained by the majority) that the mailings of the questionnaire to citizens in the Eleventh District were not “upon official business” lies in the district court’s findings that “Congressman Annunzio’s mailing outside his district cannot reasonably be viewed as an effort to inform himself” and that “[t]he only reasonable- inference that can be drawn is that the mailing into the Eleventh District was for the purpose of advancing his candidacy.”
Both the district court and the majority seem to limit the purpose of a franked mailing under the statute to a single motivational factor — either official business or a private objective. I reject such a dichotomous approach. A legislator’s activity may legitimately have a dual purpose — to carry out his official duties and at the same time enhance his political stature. He may *529publish news releases and answer citizens’ letters in order to inform and educate citizens while at the same time increasing his name recognition among voters and potential voters. Many other activities of legislators may have duál purposes, such as the convening of hearings on school desegregation and police abuse during an election year. That being the ease, I would fashion a broad test in interpreting the statute: Unless it can be said that the purpose in using the franking privilege by a member of Congress is solely for personal reasons, including his political enhancement, the statute is not offended; or, stated differently, if a reasonable inference can be drawn that particular mailing falls within a legitimate legislative activity, the privilege is not abused regardless of the existence of personal political motives. The test that I propose is not a balancing test but a test to determine whether the questioned conduct was official business ; once that is determined, there can be no further inquiry into a legislator’s motive.
Applying this test to the facts in the instant case, I do not believe that those facts warrant a finding that the only reason for the defendant’s mailing of the questionnaire to residents of the Eleventh District was to enhance the chances for his election to Congress from that district. The content of the questionnaire and the recipients clearly discloses that the document deals with official business. The franking privilege of a congressman is not confined by the statute or postal guidelines to his constituents.1 The right to solicit information and views on public questions from citizens regardless of their residency is plainly authorized by the language of the statute when it speaks of mailings “upon official business to any person.” If a document relating to the official activity of a member of Congress is addressed to a citizen qua citizen, be he a constituent or nonconstituent, no inquiry can be made into the motives for the mailing. A contrary holding would require the courts to inquire into the motives of a congressman for his franked mailing even to his own constituents of a document ostensibly dealing with public business since the statute does not differentiate between constituents and noneonstituents.
Accordingly, even though the dominant motive for the mailing to residents in the Eleventh District may have been for personal political reasons, it was error for the district court to find that it was the only reasonably inferred motive.
. 39 U.S.C. § 3210 provides in pertinent part:
. . . Members ... of Congress . . . may send as franked mail . . . correspondence . upon official business to any person.
The postal guidelines for franking mail provide in pertinent part:
Correspondence on “Official Business” is that in which the member deals with the addressee as a citizen of the United States or constituent as opposed to the relationship of personal friend, the relationship of candidate or prospective candidate and voter or when the member writes in the capacity of a member of a political party or faction.
* * * *
Questionnaires and the tabulation of results of questionnaires are within “official business” when they cover subjects which are official business. Post Office Department, The Congressional Franking Privilege, at 1-2 (Pub. 126 April, 1968).