A Judicial Decision on Restricting Local Official Political Activity

Anonymous

Fri, 03/15/2013 - 05:29

City Related

There's a lot of food for thought in the February 21 decision of the
U.S. District Court for the Eastern District of Pennsylvania in the
case <a href="http://www.paed.uscourts.gov/documents/opinions/13D0150P.pdf" target="”_blank”">Lodge No. 5 of the Fraternal Order of Police v. City of Philadelphia</a>. 
 
The suit was brought in order to end the prohibition on police
officers making campaign contributions to local candidates directly
or through a party or PAC, including the police union's own PAC. The
suit was brought against the city and its ethics board, which had
promulgated <a href="http://www.phila.gov/ethicsboard/pdfs/Board_Ethics_Regulation_8_%28Poli…; target="”_blank”">regulations based on the 1951 ordinance</a> (see especially regulations 8.8
and 8.14). 
 
The suit was based on First Amendment free speech and free
association arguments, as well as a Fourteenth Amendment equal
protection argument.

A History of Corruption in Philadelphia 
The decision presents a short history of corruption in Philadelphia:<blockquote>

By controlling the highest levels of City government, the party in
power was able to build a “patronage army” of City employees, whose
duty was to serve the party above all else. City employees,
including members of the Police Department (PPD), were critical to
the party’s electoral success both by getting out the vote, which
included facilitating voter fraud, and by providing obligatory
political contributions referred to as “political assessments.” 
 
On some occasions, especially in the early part of the century,
police used brute force to secure election victories. One
particularly infamous incident, which resulted in the conviction of
six police officers, involved the beating of an opposition candidate
and murder of a detective.</blockquote>

Free Speech 
Often, campaign contributions are considered political speech, pure
and simple, The court in this case, however, quotes from Buckley v.
Valleo, the essential Supreme Court decision on campaign
contributions, as follows: “While contributions may result in
political expression if spent by a candidate or an association to
present views to the voters, the transformation of contributions
into political debate involves speech by someone other than the
contributor.” In other words, contributions are indirect political
speech, not quite so pure and simple. 
 
This is important, because the Philadelphia ban does not in any way
restrict direct political speech, or contributions to organizations
that take political positions. Police officers can even belong to
political parties and other political organizations (including their
PAC), and participate in them, but they cannot act in concert with a
candidate, party, or political group. The restrictions involve only
contributions, not speech, relating to candidates and parties, not
to issues. 
 
An important question that courts ask about restrictions on
government employees is what effect their activities actually have
on the operation of government. A similar case involving
Philadelphia firefighters found that the city had not shown that
firefighters' contributions necessarily impact the operation of
government. However, Supreme Court decisions have found that
contributions by officials do impact the operation of government.
They have done this in upholding the constitutionality of the Hatch
Act prohibition on contributions, saying, for example, "Congress
recognizes danger to the [civil] service in that political rather
than official effort may earn advancement, and to the public in that
governmental favor may be channeled through political connections." 
 
The Court in this case notes that the Supreme Court has recognized
both "the importance to the government of the impartial execution of
the laws, which can be disrupted if federal employees feel beholden
to their political party by virtue of their active participation in
the party" and the importance of "the appearance of impartial
administration of the laws, ... particularly for maintaining the
public’s confidence in our system of government." 
 
Another major concern of the Supreme Court, stated in U.S. Civil Serv. Comm’n v. Nat’l Ass’n of Letter Carriers AFL-CIO, 413 U.S. 548 (1973), has been that public
servants would “be employed to build a powerful, invincible, and
perhaps corrupt political machine.” This happens to have been a
principal stated reason for the Philadelphia ban, when it was first
passed. 
 
The Flip Side 
Another stated reason was to protect police officers from being
forced to make campaign contributions, or to feel they were obliged.
As the court said in the recent decision, " the contributions ban
sought to protect PPD employees’ rights to political expression and
association rather than to restrict those rights." 
 There is always a
flip side to every government ethics matter, and this is the flip side of this case.
Restrictions on contributions can be liberating. Many local
government officials have told me how much of a pain it is to have
to keep making campaign contributions when they would prefer not to.
First Amendment arguments always ignore this flip side. 
 
Weighing Considerations 
With respect to First Amendment arguments, the recent decision concludes as follows:<blockquote>

Considering the demonstrated ill effects of police political
contributions on the City, the public, and members of the PPD, the
City’s compelling interest in preventing these harms outweighs the
somewhat narrow First Amendment interests of current and future PPD
employees in making such contributions, and of the public in hearing
their messages as they are communicated through such contributions.</blockquote>

The police union argues that these ill effects no longer exist,
that the machine era is in the past. But how can this be proven,
especially if the ban itself was one of the reasons the
machine was eliminated? The court finds that the record of the
case "does not demonstrate that the threat of political corruption
has been eliminated. On the contrary, as the City points out, and
as anyone who has followed Philadelphia news over the last decade
knows, corruption within City government, including within the
PPD, remains a major concern." 
 
And then the court says something very important: "Whether
the current state of politics and government in Philadelphia
renders the ban unnecessary is a question best resolved by City
legislators and the voters." Ironically, it is a good sign that
the council leaves the ban intact. If there was a machine, it
would want to get rid of the ban. The fact that it wants to keep
the ban says that it recognizes that such laws, although not able
to end corruption, can prevent a certain kind of harmful institutional
corruption. 
 
Equal Protection 
The police union also makes the equal protection argument that
police officers have been treated differently than other local
officials. The court quotes from a Supreme Court case,
Broadrick v. Oklahoma, 413 U.S. 601 (1973), involving a political
activity law that applied to only certain state officials. First
the Supreme Court acknowledged that, after calling for fewer
restrictions on free speech, appellants were now calling
for a broader restriction. This is also true of the police union.
Then the Supreme Court said,<blockquote>

[T]he legislature must have some leeway in determining which of its
employment positions require restrictions on partisan political
activities and which may be left unregulated. ... And a State can
hardly be faulted for attempting to limit the positions upon which
such restrictions are placed.</blockquote>

The District Court added that, "there are obvious reasons for the
City to impose greater restrictions on its police officers than on
its other employees. Because police are vital to protecting the
public’s safety and are granted the power to make arrests and use
necessary force to carry out that duty, they must be held to a
higher standard of conduct than other City employees, which may
include broader restrictions on First Amendment activity. ... It
is equally necessary that police officers avoid the appearance of
having any motives other than protecting the public." 
 
Free Speech Rights and Government 
It is important to keep reminding people that First Amendment free speech rights are intended to protect the public from government abuse. Restrictions on the First Amendment free speech rights of government officials are necessary to prevent other kinds of abuse that are harmful to the public. Therefore, these rights must be treated differently, and citizens need to recognize that their free speech rights are restricted in many ways when they take a government job or run for a government office. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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A Judicial Decision on Restricting Local Official Political Activity

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