A Judicial Decision on Restricting Local Official Political Activity

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 Lodge No. 5 of the Fraternal Order of Police v. City of Philadelphia.

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 regulations based on the 1951 ordinance (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:

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.

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:

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.

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,

[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.

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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