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

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 13-1516
___________
LODGE NO. 5 OF THE FRATERNAL ORDER OF
POLICE,
BY JOHN MCNESBY, TRUSTEE AD LITEM;
COPPAC, BY MICHAEL LUTZ, TRUSTEE AD LITEM;
DAVID BYRNE; SHAWN CAREY; JEFFREY SEAMON;
LES BAKER,
Appellants
v.
CITY OF PHILADELPHIA;
MAYOR OF THE CITY OF PHILADELPHIA;
BOARD OF ETHICS OF THE CITY OF PHILADELPHIA;
J. SHANE CREAMER,
EXECUTIVE DIRECTOR OF THE CITY OF
PHILADELPHIA BOARD OF ETHICS;
WILLIAM H. BROWN; RICHARD GLAZER;
SANJUANITA GONZALEZ; PHYLLIS BECK;
MICHAEL H. REED, MEMBERS OF THE CITY OF
PHILADELPHIA BOARD OF ETHICS
__________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 11-cv-03256)
District Judge: Honorable Juan R. Sanchez
___________
Argued November 12, 2013
Before: HARDIMAN, SCIRICA
and NYGAARD , Circuit Judges.
(Filed: August 18, 2014)
Thomas W. Jennings [Argued]
Marc L. Gelman
Jennings Sigmond
510 Walnut Street
The Penn Mutual Towers, 16th Floor
Philadelphia, PA 19106
Attorneys for Plaintiffs-Appellants
Eleanor N. Ewing [Argued]
Robert D. Aversa
Mark Maguire
City of Philadelphia
Law Department
1515 Arch Street
One Parkway
Philadelphia, PA 19102
Attorneys for Defendants-Appellees
____________
OPINION
____________
2
HARDIMAN, Circuit Judge.
In 1951, the Philadelphia City Council enacted a Home
Rule Charter which, informed by Philadelphia’s history of
political patronage, restricted certain political activities by
city employees. In this appeal we must decide whether one
such restriction, which prevents members of the Philadelphia
Police Department from making contributions to their union’s
political action committee, violates the First Amendment. We
hold that it does.
I
A
Appellant Lodge No. 5 of the Fraternal Order of Police
(FOP) is an incorporated collective bargaining organization
that represents the approximately 6,600 active police officers
employed by the City of Philadelphia. FOP operates a
political action committee, Appellant COPPAC, for the
purpose of distributing contributions to candidates for local
and state office. According to FOP’s leadership, COPPAC
affords police officers an opportunity to speak on issues of
concern with a “collective voice,” which include
departmental interests in “better equipment, manpower, [and]
livable conditions.” A132. COPPAC funds information
campaigns that educate the public about issues important to
the police, and contributes to political candidates who support
the department’s positions on these issues. To date, COPPAC
has donated to city, state, and judicial campaigns.
3
In this case, FOP, COPPAC, and four police officers
(collectively, the FOP Plaintiffs)1 challenge the
constitutionality of section 10-107(3) of the Philadelphia
Home Rule Charter, which prohibits employees of the
Philadelphia Police Department from making contributions
“for any political purpose.”2 351 Pa. Code § 10.10-107(3). As
interpreted by its implementing regulation, the Charter
1
The individual officers are David Byrne, Shawn
Carey, Jeffrey Seamon, and Les Baker. The FOP Plaintiffs
sued the City of Philadelphia, Philadelphia Mayor Michael A.
Nutter, the Philadelphia Board of Ethics (Ethics Board), and
individual members of the Ethics Board (collectively, the
City). The individual Ethics Board members are J. Shane
Creamer, William H. Brown, Richard Glazer, Sanjuanita
Gonzalez, Phyllis Beck, and Michael H. Reed.
The Ethics Board was established in 2006 to
“administer and enforce all provisions of [the] Charter and
ordinances pertaining to ethical matters,” including
“prohibited political activities.” Phila. Home Rule Charter §
4-1100. It promulgates rules and regulations that interpret
provisions of the Charter, and investigates and enforces
violations of the Charter. See Phila. Code § 20-606(1)(a).
2
The provision provides in full:
No officer or member of the Philadelphia Police
or of the Fire Department shall pay or give any
money or valuable thing or make any
subscription or contribution, whether voluntary
or involuntary, for any political purpose
whatever.
4
prohibits police officers from making donations “received by
a candidate . . . for use in advocating or influencing the
election of the candidate,” or providing donations “received
by a political committee, political party, or partisan political
group.” Bd. of Ethics Reg. No. 8, § 8.1(f); see id. § 8.8.3
Accordingly, employees of the Philadelphia Police
Department cannot donate to COPPAC because it uses some
of its funds for partisan political purposes. Notably, the
Charter ban applies only to the police, and does not proscribe
political donations made by Philadelphia’s other 20,000
employees, the vast majority of whom are represented by
organized interests.4
COPPAC presently operates out of an account that
contains approximately $25,000. FOP solicits funds for
COPPAC by mail and hosts regular fundraisers, at which
large donors receive so-called “courtesy cards” from the
3
Regulation 8, which interprets section 10-107,
reiterates the Charter’s prohibition on political contributions
by the police, providing that no “appointed officer or
employee of the Police Department . . . may make
contributions intended for a political purpose.” Bd. of Ethics
Reg. No. 8, § 8.8.
4
Of the city’s 27,000 employees, approximately
20,000 are represented by four unions: FOP, Fire Fighters
Local Union No. 22, and District Councils 33 and 47 of the
American Federation of State, County and Municipal
Employees. Each of the three unions that represent the
balance of the city’s unionized employees has established
political action committees that regularly contribute to
candidates for political office.
5
union that extend “all courtesies of [the] organization” to the
donor. A139. FOP also endorses candidates for local office
and regularly holds fundraisers for them. The City is
concerned that officers may have inadvertently violated the
contribution ban during these fundraisers, but has indicated
that it is willing to forego enforcement of past transgressions.5
The FOP Plaintiffs maintain that COPPAC’s current
funds cannot support the committee’s operational costs or
effectively advance the union’s political agenda. They claim
that COPPAC’s relatively meager account—which has
prevented the committee from purchasing expensive
television advertisements and from contributing to
candidates’ campaigns—has placed the police at a
competitive disadvantage, especially in labor negotiations
where they compete with other municipal workers. As recent
examples, the FOP Plaintiffs cite instances where FOP has
failed to convince legislators to increase officers’ pensions, to
prevent an interagency reorganization that reduced the police
department’s workload, and to improve officers’ working
conditions.
5
In a May 5, 2011, letter to FOP, Appellee J. Shane
Creamer, the Executive Director of the Ethics Board,
suggested that FOP “remind members who are current Police
Department employees that they cannot make political
contributions,” lest they be “subject to penalties . . . which
include a $300 fine and removal from office or immediate
dismissal.” A98. Creamer indicated that the Ethics Board
would not enforce violations if donors wrote to the candidate,
with a copy to Creamer, requesting reimbursement of their
contributions. The Ethics Board intends to enforce future
violations of the Charter ban, however.
6
The contribution ban prevents COPPAC from
accessing a potentially significant source of funds—FOP’s
own members. On May 4, 2006, the Philadelphia City
Council, under the administration of then-Mayor John F.
Street, passed City Bill No. 060181, an ordinance that
authorized payroll deductions for FOP members who elected
to contribute to COPPAC. If the ordinance were
implemented, COPPAC could receive funds that are
automatically deducted from officers’ paychecks on a
biweekly basis. COPPAC emphasizes that individual
contributors would have no ability to direct who receives their
donations because they are distributed at the discretion of
FOP’s executive board, which chooses whom to fund.
Although City Bill No. 060181 remains on the books,
the current administration, under Mayor Michael A. Nutter,
refuses to implement it as violative of the Charter ban. If the
ban is lifted, FOP intends to distribute forms to all recruits on
“the first day they would be in attendance” at the police
academy, so they may authorize paycheck deductions to
COPPAC. A135.
B
The Charter’s contribution ban is but one of many
prohibitions that aim to insulate the police from political
influence. In 2006, the Ethics Board issued Regulation 8,
which interprets the political restrictions on city employees in
the Charter. While only the police are subject to the
contribution ban, see Bd. of Ethics Reg. No. 8, § 8.8,
Regulation 8 bars all city employees from engaging in a wide
range of political activities—defined as “activity directed
toward the success or failure of a political party, candidate, or
7
partisan political group.” Id. § 8.1(n).6 The Ethics Board has
construed Regulation 8 to forbid all city employees from
engaging in political activity while on duty, in uniform, or
using city resources; using their authority for any political
purpose; serving on the national, state, or local committee of
a political party; serving as an officer of a partisan political
group; or taking part in the management or affairs of a
political party, campaign, or partisan political group. See id.
§§ 8.3–11.
These restrictions mirror those in the Hatch Act, 5
U.S.C. § 7324(a)(2), which prohibits federal employees from
taking “an active part in political management or in political
campaigns,” and has withstood multiple challenges to its
constitutionality. See, e.g., U.S. Civil Serv. Comm’n v. Nat’l
Ass’n of Letter Carriers, AFL-CIO (Letter Carriers), 413
U.S. 548, 566–67 (1973) (holding that Congress’s interest in
maintaining an apolitical bureaucracy justified the Hatch
Act’s restrictions on political activity); United Pub. Workers
of Am. (C.I.O.) v. Mitchell, 330 U.S. 75, 101 (1947) (same);
see also Broadrick v. Okla., 413 U.S. 601, 611–12 (1973)
(holding, in a companion case to Letter Carriers, that States
may enact Hatch Act-type restrictions on the political
activities of their civil servants). The FOP Plaintiffs do not
challenge these restrictions in this case.
6
A “partisan political group” is defined, tautologically,
as “[a]ny committee, club, or other organization that is
affiliated with a political party or candidate or whose primary
purpose is to engage in political activity.” Bd. of Ethics Reg.
No. 8, § 8.1(l).
8
Regulation 8 does not preclude city employees from
participating in all forms of political activity. The Ethics
Board has read the regulation as permitting the right to
register and vote in any election; to belong to a political party
or partisan group, but not to the group’s political committee;
and to engage in personal political expression “uncoordinated
with a party, candidate, or partisan group.” See Bd. of Ethics
Reg. No. 8, §§ 8.12–14.
Most notably, subpart G of the regulation specifically
exempts from restriction “expression and activity that is not
political and not directed toward the success or failure of a
political party, candidate or partisan political group.” Id. §
8.17. Accordingly, city employees may publicly express their
opinions on political matters or candidates; sign political
petitions; and attend political rallies, conventions, fundraisers,
and other political events, albeit only as spectators. Id. § 8.15.
Pursuant to this carve-out, police officers may contribute time
and money to nonpolitical organizations that promote causes
they care about. As the District Court found, they may donate
to groups such as the Sierra Club and the National Rifle
Association. Moreover, Regulation 8 does not prohibit city
employees from aggregating their voices in political groups,
such as FOP, which may endorse and fund political
candidates, and publicize the groups’ positions on legislative
and executive matters.
C
One cannot understand the prohibitions in the
Philadelphia Home Rule Charter without reference to its
origins and Philadelphia’s efforts to combat patronage. In the
century preceding the adoption of the 1951 Charter,
Philadelphia’s civic government was dominated by political
9
party organizations. The city’s then-powerful Republican
Party machine had a stranglehold on local government,
determining who was elected, who was hired, and who
received lucrative government contracts. Because it
controlled every level of government, the machine built a
“patronage army” of city employees, rewarding its own
members and subordinates with paid office positions. Phila.
Comm. of Seventy, The Charter: A History, at 1 (1980)
(hereinafter Charter History). The machine’s reach was so
pervasive that citizens’ access to basic services, such as street
cleaning or police protection, depended on their political
support for machine candidates. As one observer summarized,
Philadelphia was “a city of petty crimes, small-time gamblers,
and five-and-dime shakedowns, where too often a citizen’s
first protection [was] not the law, the courts or the police, but
his ward leader.” Id. (quoting Dickson Hartwell,
Philadelphia: Corrupt and Not Contented, Collier’s, Aug. 7,
1948, at 14).
According to an expert report submitted by the City,7
the Charter focused on the police because they were used by
machine politicians to control voting. Expert Report by Elliott
Shore, at 1 (hereinafter Shore Report). In the late 19th and
early 20th centuries, the police engaged in aggressive get-out-
the-vote efforts, voter fraud, and voter intimidation, often
resorting to brute force. For example, police officers turned a
blind eye when “professional repeaters” cast fraudulent votes,
7
The District Court found that the reports submitted
by the City were “well-researched and credible.” A5 n.3. The
FOP Plaintiffs have neither objected to the reports nor
questioned their veracity.
10
and in some instances, beat those who protested these
practices. Id. at 3.
Individual officers who took offense at these excesses
had “little choice but to comply with the wishes of the
party—they held their jobs as long as they toed the line.” Id.
In addition to distributing plum city jobs, the Republican
machine taxed “political assessments” against the police and
other city employees. These assessments—forced
contributions often collected directly from the wages of city
employees—were levied twice a year before general and
primary elections. Id. at 2. By the first decade of the 20th
century, approximately 94 percent of all city employees paid
assessments to the Republican machine.
The nefarious relationship between Philadelphia’s
Republican machine and its police force culminated in
September 1917 with the scandal of the “Bloody Fifth” Ward,
where officers beat an opposition candidate, terrorized his
supporters, and killed a detective who attempted to
intervene.8 The incident led to the arrest of the mayor and the
8
According to one description of the incident:
In the weeks leading up to the primary, police
had terrorized anyone in the ward who appeared
to support [outsider] James Carey over his
[machine-backed] opponent, Common
Councilman Isaac Deutsch. . . . During the
campaign, businesses owned by Carey
supporters were raided and closed down, and
their owners were beaten and arrested. A
reporter who tried to attend a Deutsch campaign
meeting was dragged outside by police,
11
conviction of six police officers, as well as public outcry for
the insulation of the civic bureaucracy from politics. Amidst
these calls for reform, in 1919 the Pennsylvania Assembly
granted Philadelphia a new Charter, which enacted a series of
reforms aimed at reducing corruption within government and
the police department.9 For example, one provision of the
1919 Charter forbade all police officers from coming within
50 feet of a polling place, except to vote or when needed to
make an arrest, after which the officers were required to “at
once withdraw.” 1919 P.L. 581, Art. XIX, § 23. Another
provision, targeted at the local machine’s practice of levying
political assessments, prohibited members of the Philadelphia
punched, and then arrested. Any “bluecoat,” as
policemen were called, who refused to
participate in the terror was transferred out of
the district.
Maximilian Potter, The Last Days of the Bloody Fifth, Phila.
Magazine, Aug. 2000, available at
http://www.phillymag.com/Archives/2000Aug/bloody1.html.
9
The 1919 Charter included several provisions that
were contained in the Shern Law, a civil service code enacted
by the Pennsylvania Assembly in 1905 that prohibited certain
political activities by city employees. Among other
restrictions, the Shern Law barred city employees from
making and soliciting political assessments. Shore Report at
5. Like the 1919 Charter, the Shern Law’s “effort to prohibit
political activity by city employees . . . proved to be an abject
failure.” Id. (quoting Clinton R. Woodruff, Some Permanent
Results of the Philadelphia Upheaval of 1905–06, 13 Am. J.
Soc. 252, 263 (1907)).
12
Police and Fire Departments from making any political
contributions—the predecessor of the contribution ban at
issue in this case. Id. One commentator described the purpose
of the 1919 Charter’s restrictions, as well as early attempts at
civil service regulations, this way:
The history of the urban police in the early part
of the twentieth century is closely entwined
with the political history of the city. . . .
Municipal and police corruption scandals
profoundly affected police departments as
reformers attempted to neutralize the police
from political patronage and to curb police
protection of rackets and organized criminal
activity. . . . The first step was to transform the
quasi-military bureaucracy of police
organizations into a legalistic and technocratic
bureaucracy. . . . It was a way to hold police
accountable to bureaucratic rather than political
authority. . . . Moreover, bureaucratization was
a means of insulating the appointment and
promotion of police officers from political
patronage by requiring standards of merit.
Shore Report at 5 (quoting Albert J. Reiss, Jr., Police
Organization in the Twentieth Century, 15 Crime & Just. 51,
57 (1992)) (emphases added and internal quotation marks
omitted).
These efforts in 1919 had only minimal effect, as the
patronage system persisted through the 1940s, and with it,
rampant corruption, including politically sanctioned criminal
enterprises facilitated by the police. Charter History at 4. “A
vast three-cornered and intimate alliance was set up [among]
13
police, the corrupt politician and the gangster. Tributes were
paid systematically by the privileged law-breaker to certain of
the police and divided with certain of the politicians.” Shore
Report at 7–8 (quoting David Harold Kurtzman, Methods of
Controlling Votes in Philadelphia, Ph.D. dissertation,
University of Pennsylvania, at 97–98 (1935)).
It appears from the City’s reports that the 1919 Charter
was ineffective not because it failed to place adequate
restrictions on municipal employees, but because it retained a
weak executive that was subject to political manipulation.
See, e.g., Charter History at 3. Management was shared by
the mayor, who was popularly elected, and members of the
City Council, who were overwhelmingly selected and
endorsed by the Republican machine. The City Council also
retained the authority to appoint the Civil Service
Commission; as a result, any civil service requirements that
should have insulated public employees from political
patronage were easily circumvented, and the restrictions in
the 1919 Charter—such as the prohibition on collecting
political assessments—were ignored.
Attempts at reform were unsuccessful until 1949,
when candidates endorsed by the Republican machine, who
had stymied attempts to overhaul the 1919 Charter, were
defeated in municipal elections. Charter History at 10. The
Committee responsible for drafting what would later become
the 1951 Home Rule Charter—the document at issue in this
case—was emphatic about the city’s need for a strong,
popularly elected executive. It also insisted that the reformed
Charter be approved by the electorate of Philadelphia, so “the
city could move away from the discredited 1919 Charter and
the depredations of machine politics in the city.” Id. In
addition to enacting structural changes to city government,
14
the 1951 Charter incorporated its predecessors’ controls on
public employees’ participation in political activities in an
attempt to move toward cleaner government.
One of the restrictions carried over from the 1919
Charter was section 10-107(3), the ban on political
contributions by police officers that is at issue in this case.
The annotation to that section elaborates the rationale for
retaining the ban: “Voluntary contributions for political
purposes are permitted to be made by civil service employees
except that, because of the nature of their duties, policemen . .
. may not under any circumstances make any contributions
for political purposes.” Ann. to 351 Pa. Code § 10.10-107(3)
(emphasis added). The annotation continues: “[m]erit
principles of government employment require the
divorcement of politics from such employment. They
presuppose employment upon merit and not because of
political connections, powers and pressures. They also
presuppose that governmental employment will not serve as a
means for political tribute to maintain political parties and
regimes.” Id.
In addition to the 1951 Home Rule Charter, the City of
Philadelphia and the Commonwealth of Pennsylvania have
instituted a number of other reforms to promote integrity and
professionalism within the police force. The Philadelphia
Civil Service Regulations, which were enacted in 1953,
contain detailed rules as to the hiring, transfer, layoff, and
discipline of city employees. Likewise, Pennsylvania Act 111
of 1968, 43 Pa. Cons. Stat. §§ 217.1–10, and the
Pennsylvania Labor Relations Act, 43 Pa. Cons. Stat. §§
211.1–13, have enabled police officers to organize in unions
for collective bargaining purposes, with the result of
insulating individual officers from the political pressure of
15
negotiating their own employment contracts. As the FOP
Plaintiffs observe in their appellate brief, “[n]ow, virtually
every aspect of the working conditions of police officers is
subjected to scrutiny by labor arbitrators, the judiciary, and
the Civil Service Commission.” FOP Br. at 6.
For its part, the City maintains that police corruption
remains a serious concern. As support for this position, the
City entered into the record newspaper articles about police
and official misconduct, which describe, inter alia, police
officers disciplined for committing crimes, engaging in drug
dealing, and abusing citizens. One article notes that
“corruption on the force has always been a problem,” and
details the Philadelphia Police Department’s ongoing
attempts to address the “public’s confidence in the
department’s ability to rid itself of bad cops.” A333–34.
Another article reports that the department’s reputation for
integrity was significantly undermined when twenty-nine
officers were convicted of corruption. The record is replete
with articles about the recent trials and convictions of judges
and public employees for fraud, kickbacks, and extortion.
D
It is important to note that the Charter ban applied
originally not only to the police, but also to the fire
department. This changed in 2003, however, when the
Philadelphia firefighters’ union, in a case remarkably similar
to this one, successfully challenged the ban as an
unconstitutional infringement on its members’ First
Amendment rights. Phila. Fire Fighters’ Union Local 22,
AFL-CIO v. City of Phila., 286 F. Supp. 2d 476, 482 (E.D. Pa.
2003). As a result, the union obtained a permanent injunction
preventing the City from disciplining uniformed firefighters
16
who contributed to the union’s political action committee,
FIREPAC. The City did not appeal the decision and no longer
enforces the ban against Philadelphia firefighters.
On April 28, 2011, FOP, relying on the Fire Fighters
decision and the City Council’s enactment of Bill No.
060181, demanded that the City initiate payroll deductions to
COPPAC for FOP members. The City responded that the
Charter ban remained in effect against the police despite the
Fire Fighters decision, which it considered distinguishable.
The City continues to maintain that the Charter ban is
justified against the police in light of the “unique and
critically important nature of the duties of the Police
Department and its status in the community.” A92. It notes
that “[p]olice, because of their position as guardians of the
public safety and impartial enforcers of the law, must be, and
must be perceived to be, above reproach and shielded from
politically-influenced decision making.” Id. According to the
City, “[s]uch public entanglement in politics, potentially
damaging to public trust in police impartiality, is legitimately
sought to be avoided by the complete divorcement of the
police from financial support of particular candidates.” A93.
E
On May 18, 2011, after learning that the City intended
to enforce violations of the Charter ban, the FOP Plaintiffs
commenced this action under 42 U.S.C. § 1983 in the United
States District Court for the Eastern District of Pennsylvania,
claiming, inter alia, that the ban violated their First
Amendment rights to political expression and association.
The District Court granted the City’s motion for summary
judgment and dismissed the case. Lodge No. 5 of the
17
Fraternal Order of Police v. City of Phila., No. cv-11-3256,
2013 WL 638615 (E.D. Pa. Feb. 21, 2013).
The District Court determined that the standard set
forth in the Supreme Court’s decision in United States v.
National Treasury Employees Union (NTEU), 513 U.S. 454
(1995), controlled, and required the City to establish that “the
interests of [police department] members, and of the public,
in [police department] members’ political contributions are
outweighed by the City’s interest in preventing those
contributions’ necessary impact on the actual operation of
city government.” 2013 WL 638615, at *4 (citing NTEU, 513
U.S. at 468).
The District Court noted that the ban’s impact on
speech regarding issues of public concern was mitigated by
the fact that police officers, pursuant to the Charter’s
implementing regulation, could still express their views about
city government in a nonpartisan way. Id. at *7. Moreover,
“Philadelphia’s history of government corruption reveals [the
City’s concerns] are real and the need for the ban is
compelling.” Id. at *8. The Court found that while the precise
impact of the ban was unclear, it was a part of comprehensive
reforms that played a role in dismantling the old Republican
political machine, curtailing unchecked political patronage,
and rebuilding public confidence in the police department and
city government. Id. at *9. Further, “the record . . . does not
demonstrate that the threat of political corruption has been
eliminated,” and “corruption within city government,
including within the [police department], remains a major
concern.” Id.
Having determined that the City established real
harms, the Court ruled that the ban “alleviate[d] these harms
18
in a direct and material way,” and constituted a “reasonable
response to the posited harms.” Id. at *10 (quoting NTEU,
513 U.S. at 475–76). It found the ban was narrowly tailored
because the City identified a “means through which the
corrupt patronage was sustained—compelled political
contributions from [police department] members—and cut off
that source of party control.” Id. The Court also ruled that the
fact that donations to political candidates would be made by
COPPAC did not insulate members of the police department
from political pressure. Id. Accordingly, it concluded that the
Charter ban and its implementing regulation did not violate
the First Amendment rights of the union and its members.
This timely appeal followed.
II
The District Court had jurisdiction over this action
pursuant to 28 U.S.C. § 1331. We have jurisdiction under 28
U.S.C. § 1291.
We exercise plenary review over the District Court’s
summary judgment, Horvath v. Keystone Health Plan E.,
Inc., 333 F.3d 450, 454 (3d Cir. 2003), and will affirm if the
moving party establishes that there is no genuine dispute as to
any material fact and that it is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56(a).
III
This case presents a narrow question: whether the
Charter ban and its implementing regulation, as applied to the
FOP Plaintiffs, violate the First Amendment. We do not
consider the full sweep of activities potentially restricted by
19
the ban—for instance, whether police officers may be
prohibited from contributing directly to political candidates.
Instead, we review whether the Charter ban, in the context of
the other political activities permitted and prohibited by
Regulation 8, may constitutionally bar Philadelphia police
officers from making voluntary contributions to a political
action committee.
A
As the City rightly concedes, the Charter ban on
political contributions constitutes a substantial burden on the
FOP Plaintiffs’ First Amendment rights. See Buckley v.
Valeo, 424 U.S. 1, 21 (1976); see also McCutcheon v. Fed.
Election Comm’n, 134 S. Ct. 1434, 1440–41 (2014) (plurality
opinion) (“There is no right more basic in our democracy than
the right to participate in electing our political leaders.”).
Indeed, “the First Amendment ‘has its fullest and most urgent
application precisely to the conduct of campaigns for political
office.’” McCutcheon, 134 S. Ct. at 1441 (quoting Monitor
Patriot Co. v. Roy, 401 U.S. 265, 272 (1971)). Limitations on
campaign contributions, such as the Charter ban at issue here,
prevent the “symbolic expression of support” evidenced by
that donation. Buckley, 424 U.S. at 21. Therefore, such
restrictions significantly curtail the exercise of an individual’s
right to participate in the electoral process through both
political expression and political association. See id. at 44–45.
There is no question that “money amassed from the
economic marketplace” has a significant role in funding
political speech. Citizens United v. Fed. Election Comm’n,
558 U.S. 310, 314 (2010). The amount an individual or group
spends on political communication during a campaign
necessarily affects “the number of issues discussed, the depth
20
of their exploration, and the size of the audience reached.”
Buckley, 424 U.S. at 19. For this reason, political action
committees, such as COPPAC, play an increasingly dominant
role in politics: by pooling funds and voices, they present an
opportunity for individuals to participate effectively in the
political process. Cf. Fed. Election Comm’n v. Nat’l
Conservative Action Comm., 470 U.S. 480, 495 (1985) (“To
say that [plaintiffs’] collective action in pooling their
resources to amplify their voices is not entitled to First
Amendment protection would subordinate the voices of those
with modest means as opposed to those sufficiently wealthy
to be able to buy expensive media ads with their own
resources.”).
Here, the FOP Plaintiffs claim that their inability to
contribute to COPPAC has prevented the police from
advocating effectively on issues of concern. They have
presented compelling evidence that the Charter ban has hurt
the interests of the police, and that FOP, with its depleted
accounts, has been unable to disseminate information or
convince legislators of police officers’ needs and concerns
regarding wages, pension benefits, and working conditions.
B
Because the Charter ban restricts officers’ rights to
speak on matters of public concern, see Connick v. Myers,
461 U.S. 138, 146 (1983), we review the ban using the
framework of Pickering v. Board of Education, 391 U.S. 563
(1968), and balance “the interests of the [public employee], as
a citizen, in commenting upon matters of public concern and
the interest of the [government], as an employer, in promoting
the efficiency of the public services it performs through its
employees.” Id. at 568.
21
In NTEU, the Supreme Court clarified how courts
should apply Pickering when a restriction operated as an ex
ante prohibition on speech. 513 U.S. at 467. NTEU involved a
provision of the Ethics in Government Act, 5 U.S.C. § 501(b),
that prohibited government employees from accepting
honoraria for making speeches or writing articles, without
regard to whether the speech or article was related to the
official’s duties. See 513 U.S. at 457. In striking down the
honoraria ban, the Court noted that, unlike in Pickering and
its progeny, the statute did “not involve a post hoc analysis of
one employee’s speech and its impact on that employee’s
public responsibilities,” but rather resulted in a “wholesale
deterrent to a broad category of expression by a massive
number of potential speakers.” Id. at 466–67. Because the ban
chilled speech before it occurred, the Court stated “the
Government’s burden is greater with respect to this statutory
restriction on expression than with respect to an isolated
disciplinary decision.” Id. at 468. “The Government must
show that the interests of both potential audiences and a vast
group of present and future employees in a broad range of
present and future expression are outweighed by the
expression’s ‘necessary impact on the actual operation’ of the
Government.” Id. (quoting Pickering, 391 U.S. at 571).
Accordingly,
[w]hen the Government defends a regulation on
speech as a means to redress past harms or
prevent anticipated harms, it must do more than
simply “posit the existence of the disease
sought to be cured.” It must demonstrate that
the recited harms are real, not merely
conjectural, and that the regulation will in fact
22
alleviate these harms in a direct and material
way.
Id. at 475 (quoting Turner Broad. Sys., Inc. v. Fed. Commc’ns
Comm’n, 512 U.S. 622, 664 (1994)) (emphases added).
While the Court in NTEU recognized that Congress
had an “undeniably powerful” interest in maintaining its
employees’ administrative integrity, it deemed the ban
“crudely crafted” to serve this interest. Id. at 477. For
example, although payment of honoraria to higher-ranking
officials could create an appearance of impropriety, the same
could not be said of the “vast group of present and future
employees” “with negligible power to confer favor on those
who might pay to hear them speak or to read their articles.”
Id. at 468, 473. Nor had Congress provided any “evidence of
misconduct related to honoraria in the vast rank and file of
federal employees.” Id. at 472. The Court also questioned
Congress’s rationale for applying the honoraria ban to
speeches and articles that had nothing to do with employees’
official duties, as well as its justification for limiting the ban
to “expressive activities” when other extracurricular activities
had similar opportunity for abuse. Id. at 472–74, 475. These
inconsistencies, among others, “diminish[ed] the credibility
of the Government’s rationale.” Id. at 476.
C
We had occasion to review the Supreme Court’s
decision in NTEU in Swartzwelder v. McNeilly, 297 F.3d 228
(3d Cir. 2002). In that case, we held that the NTEU rubric
applied whenever a “‘generally applicable statute or
regulation, as opposed to a particular disciplinary action,’
restricts a government employee’s expression on a matter of
23
public concern.” Id. at 237 (quoting Latino Officers Ass’n v.
City of New York, 196 F.3d 458, 464 (2d Cir. 1999)). We
clarified that the NTEU standard governed even when a law
regulated only a narrow category of speech of employees of a
single city department—in Swartzwelder, a municipal order
that required employees of the Pittsburgh Police Bureau to
obtain permission before testifying as an expert witness in
court. See id.
The Charter ban at issue in this appeal is similarly a
“generally applicable statute” that applies to employees of the
Philadelphia Police Department. Consistent with
Swartzwelder, we agree with the District Court that NTEU
provides the standard applicable to this case.10
10
Perhaps anticipating it has not made a sufficient
showing under NTEU, the City urges us to eschew that case
and instead follow an alternative framework purportedly set
forth in U.S. Civil Service Commission v. National
Association of Letter Carriers, AFL-CIO (Letter Carriers),
413 U.S. 548 (1973). There, the Supreme Court found that
Congress’s concerns about bureaucratic efficiency and
political influence justified certain restrictions on employees’
overt political participation. Id. at 564. The City asks us to
extend Letter Carriers’s holding to restrictions on political
contributions, contending that “restrictions on government
employee political activity are accorded greater deference
than other restrictions on employee speech.” City Br. at 20
(emphasis added).
However, as we discuss in section V.A, infra, Letter
Carriers did not set forth a different standard for reviewing
restrictions on political activity, but instead represents an
24
Accordingly, to prevail, the City must make two
showings: first, that it has “real, not merely conjectural”
harms; and second, that the ban as applied to the FOP
Plaintiffs addresses these harms in a “direct and material
way.” NTEU, 513 U.S. at 475. As we shall explain, we agree
with the District Court that the City has established real
harms, but we disagree with its conclusion that the Charter
ban is an appropriately tailored means of addressing those
concerns.
instance where the Supreme Court applied Pickering’s case-
by-case balancing test and found that the government’s
interests prevailed. Nor did the NTEU Court, in distinguishing
Letter Carriers, suggest that political restrictions should be
reviewed under a more deferential framework. Rather, it
found that the Hatch Act’s “employee-protective rationale”
was more compelling than the honoraria ban’s “general
interest in workplace efficiency,” and that, unlike its efforts
with the honoraria ban, “Congress effectively designed the
Hatch Act to combat demonstrated ill effects” of its interests.
513 U.S. at 471. Indeed, the NTEU Court explicitly cast
Letter Carriers as a specific application of the Pickering test,
clarifying: “Because the discussion in [Letter Carriers]
essentially restated in balancing terms our approval of the
Hatch Act in Public Workers v. Mitchell, we did not
determine how the components of the Pickering balance
should be analyzed in the context of a sweeping statutory
impediment to speech.” Id. at 467 (citation omitted). Absent a
more persuasive argument, we decline to read Letter Carriers
as creating a separate framework for review, and apply NTEU
in accordance with our prior opinion in Swartzwelder.
25
IV
To demonstrate “real, not merely conjectural” harms, a
government must not only identify legitimate interests, but
also provide evidence that those concerns exist. Id. at 472
(finding that Congress had failed to show “real” harms
because, while its “interest [was] undeniably powerful,” it
failed to cite evidence of misconduct); cf. Nixon v. Shrink Mo.
Gov’t PAC, 528 U.S. 377, 392 (2000) (“We have never
accepted mere conjecture as adequate to carry a First
Amendment burden.”).
Here, the City has articulated four legitimate interests
drawn from its experience with machine politics. First, the
City must ensure that the police enforce the law without bias
or favoritism, which includes even the appearance of
“practicing political justice.” City Br. at 26. Second, it seeks
to enable employment and advancement within the
Philadelphia Police Department based on merit, not political
affiliation or performance. Third, the City wishes to protect
subordinate employees from having to support candidates
favored by their superiors. And finally, the City has an
interest in maintaining the efficiency and quality of the
services provided by the police.
The interests identified by the City have longstanding
pedigree and have been repeatedly recognized by the
Supreme Court as justifying the curtailment of public
employee speech. See, e.g., Letter Carriers, 413 U.S. at 564;
see also Citizens United, 558 U.S. at 341 (emphasizing the
continued validity of Letter Carriers and its proposition that
“there are certain governmental functions that cannot operate
without some restrictions on particular kinds of speech”);
Broadrick, 413 U.S. at 611–12; Mitchell, 330 U.S. at 101.
26
In Letter Carriers, for example, the Supreme Court
upheld the constitutionality of a section of the Hatch Act that
prohibited federal employees from taking “an active part in
political management or in political campaigns.” 413 U.S. at
550 (quoting 5 U.S.C. § 7324(A)(2)). Under that law, federal
employees were precluded from, inter alia, running for
political office, organizing a partisan political campaign, and
actively soliciting votes and funds for a candidate.11 Id. at
556.
11
The provision of the Hatch Act at issue in Letter
Carriers, 5 U.S.C. § 7324(A)(2), provides in part:
(a) An employee in an Executive agency or an
individual employee employed by the
government of the District of Columbia may
not—
(1) use his official authority or influence for the
purpose of interfering with or affecting the
result of an election; or
(2) take an active part in political management
or in political campaigns.
For the purpose of this subsection, the phrase
“an active part in political management or in
political campaigns” means those acts of
political management or political campaigning
which were prohibited on the part of employees
in the competitive service before July 19, 1940,
by determinations of the Civil Service
27
The Supreme Court’s decision turned on Congress’s
legitimate interest in regulating the conduct of its employees:
it reasoned that such restrictions were necessary if
government were “to operate effectively and fairly, elections
are to play their proper part in representative government, and
employees themselves are to be sufficiently free from
improper influences.” Id. at 564. Four interests—which the
City echoes in this case—were particularly pertinent. First,
Congress had a generalized interest in ensuring that federal
employees administered the “impartial execution of the laws”
in accordance with congressional, not partisan, will. Id. at
565. The Hatch Act’s mandate against partisan political
activities “reduce[d] [such] hazards to fair and effective
government.” Id.
Second, it was important for Congress to maintain a
civil service that was politically neutral in fact and in
appearance, “if confidence in the system of representative
Commission under the rules prescribed by the
President.
(b) An employee or individual to whom
subsection (a) of this section applies retains the
right to vote as he chooses and to express his
opinion on political subjects and candidates.
The Hatch Act included a specific exemption for political
contributions, providing that “[a]n employee may make
political contributions to any committee, organization, or
person not employed by the United States.” Id.; see also 5
C.F.R. pt. 733 (allowing employees to “[m]ake a financial
contribution to a political party or organization”).
28
Government is not to be eroded to a disastrous extent.” Id.
Relatedly, Congress expressed a legitimate interest in
preventing “the rapidly expanding Government work force
[from being] employed to build a powerful, invincible and
perhaps corrupt political machine.” Id. The Hatch Act, by
barring federal employees from formal positions in partisan
political groups, addressed these concerns because it
precluded parties from “using . . . federal employees . . . to
man [their] political structure and political campaigns.” Id. at
565–66.
Finally, the Court highlighted Congress’s interest in
ensuring that federal employees did not feel pressured or
coerced, either expressly or implicitly, to vote or perform
political chores “to curry favor with their superiors rather than
act out of their own beliefs.” Id. at 566. These, the Court held,
were “obviously important interests sought to be served by
the limitations on partisan political activities.” Id. at 564
(emphasis added).
The Supreme Court’s recognition of these interests in
Letter Carriers adhered to almost a century of consistent
precedent. In Mitchell, a case whose holding Letter Carriers
“unhesitatingly reaffirm[ed],” id. at 556, the Supreme Court
upheld the Hatch Act’s restrictions against an employee who
had neither policymaking authority nor contact with the
public, reasoning that Congress had a legitimate fear of “the
cumulative effect on employee morale of political activity by
all employees who could be induced to participate actively.”
330 U.S. at 101. Mitchell, in turn, relied on Ex parte Curtis,
106 U.S. 371 (1882), which permitted Congress to prohibit
political contributions between government employees.
There, the Supreme Court validated Congress’s concern that
government favor could be channeled through political
29
connections: “If contributions . . . may be solicited by others
in official authority, it is easy to see that what begins as a
request may end as a demand.” Id. at 374. The Curtis Court
noted that such contributions would “quite as likely be made .
. . to avoid a discharge from service, not to exercise a political
privilege.” Id.
In light of the City’s “obviously important interests,”
Letter Carriers, 413 U.S. at 564, our inquiry turns to whether
the City has presented adequate evidence of harm connecting
political contributions with systemic corruption by the police.
As we summarized in section I.C, supra, the City has entered
into the record over a century of “concrete experience with
the evils of the political spoils system.” NTEU, 513 U.S. at
483 (O’Connor, J., concurring in part and dissenting in part).
The City has shown, and the FOP Plaintiffs concede, that the
City’s concerns about the connection between police abuse
and machine politics were justified when the Home Rule
Charter was enacted in 1951.
Over sixty years later, however, the record is
essentially devoid of the harms that motivated the Charter’s
passage. To suggest today that there is a Republican machine
that controls Philadelphia politics would be viewed as absurd
by even a casual political observer. Indeed, with that party
having been reduced to a mere 12 percent of registered
voters,12 it is now reasonable to conclude that the Democratic
12
As of June 30, 2014, of the 1,031,913 registered
voters in Philadelphia County, 78 percent identified as
Democrats and 12 percent registered as Republicans. See Pa.
Dep’t of State, Voter Registration Statistics, available at
http://www.dos.state.pa.us/portal/server.pt/community/voter_
registration_statistics/12725. Over the last decade alone,
30
Party dominates the city’s politics.13 Regardless of whether
such is the case, the City submitted no evidence to suggest
that the Democratic Party has corrupted, or is attempting to
corrupt, the Philadelphia Police as the Republican Party had
done during the first half of the twentieth century.14
Republicans have experienced a 30 percent decline in
registered voters. Id.
13
In the 2012 general election, Democrats won all 40
of the races on the ballot in Philadelphia County. In 2007,
they prevailed in 21 of 22 races in Philadelphia’s municipal
elections. See Office of Phila. City Comm’rs, Prior Year
Election Results, available at:
http://www.philadelphiavotes.com/en/resources-a-data/prior-
year-election-results.
14
Our observation that the City failed to offer evidence
of such harm should not be taken to mean that political
corruption writ large no longer exists. The relatively recent
convictions of local Democratic politicians suggest that
corruption remains an ongoing problem in Philadelphia. See,
e.g., Ex-City Official Is Convicted in Philadelphia Corruption
Case, N.Y. Times, May 10, 2005, available at
http://www.nytimes.com/2005/05/10/national/10philly.html?f
ta=y&_r= (conviction of Philadelphia City Treasurer in 2005
for, inter alia, fraud and extortion); Councilman Found Guilty
on 18 Counts, The Daily Pennsylvanian, Mar. 20, 2006,
available at
http://www.thedp.com/article/2006/03/councilman_found_gui
lty_on_18_counts (conviction of City Councilman Rick
Mariano in 2006 for bribery); see also George Anastasia,
George Schwartz, Abscam Figure, is Dead at 95, Phila.
31
Further, the statutory backdrop of the Charter ban has
changed significantly since it was first enacted in 1951. The
City now has in place a system of comprehensive civil service
regulations that detail requirements for civic employment,
advancement, and dismissal. Collective bargaining
arrangements further insulate individual officers from the
pressure of negotiating their own employment contracts.
Moreover, the City offered no evidence that FOP’s internal
mechanisms are linked with hiring and advancement within
the Philadelphia Police Department or that officers are
pressured to contribute to political causes supported by FOP.
In fact, the City’s only showing of present-day police
corruption consists of articles about “dirty cops” and corrupt
politicians. We recognize that such misconduct by officers
and politicians remains a significant concern. But these
problems are of a completely different nature than those that
gave rise to the 1951 Charter. Unlike the systemic corruption
that led to the Charter ban, the City’s episodic and
individualized evidence shows only that human frailty affects
police officers, just as it affects all walks of life. Cf.
Wachsman v. City of Dallas, 704 F.2d 160, 167 (5th Cir.
1983) (noting that similar contribution restrictions targeted
“such human traits as personal ambition, greed, fear, and the
like”). Thus, while the City has demonstrated historic harm in
Inquirer, Mar. 27, 2010, available at
http://articles.philly.com/2010-03-
27/news/25215897_1_council-president-councilman-
political-career (describing the role of several members of the
Philadelphia City Council in the 1980 Abscam scandal). We
emphasize that the City has provided no evidence that these
convictions are related to systemic police corruption.
32
spades, its evidence of recent politically-orchestrated harm is
non-existent.
This inadequacy does not, however, render incorrect
the District Court’s finding that the City satisfied the first
prong of NTEU. A legislature need not, in the absence of
concrete evidence to the contrary, rejustify past harms in light
of changed circumstances.15 See, e.g., Fed. Election Comm’n
v. Beaumont, 539 U.S. 146, 162 n.9 (2003), abrogated on
other grounds by Citizens United, 558 U.S. 310; Letter
Carriers, 413 U.S. at 567; United States v. Carolene Prods.
Co., 304 U.S. 144, 153 (1938). Courts have taken a cautious
approach when reviewing longstanding restrictions,
acknowledging that when regulation has succeeded, it is often
difficult to discover evidence that the targeted abuses
continue to exist. See Fed. Election Comm’n v. Colo.
Republican Fed. Campaign Comm., 533 U.S. 431, 457 (2001)
(recognizing the “difficulty of mustering evidence to support
long-enforced statutes” because there is no recent experience
absent the restriction) (citation and internal quotation marks
omitted); Letter Carriers, 413 U.S. at 567 (deferring to
Congress’s determination of harm, as the Court was “not now
in any position to dispute it”). This is true with corruption,
which, given its amorphous nature, is particularly hard to
quantify and prove. As a result, “judicial restraint is
particularly warranted where . . . we deal with a [legislative]
15
This rule does not, as the FOP Plaintiffs contend,
place an improper burden on the police to prove an absence
of harm. The City has already demonstrated harm through
historic data; its concerns are not “merely conjectural”
because they actually occurred. NTEU, 513 U.S. at 475.
33
judgment that has remained essentially unchanged.”
Beaumont, 539 U.S. at 162 n.9.
In our opinion, the Charter ban warrants such judicial
caution: it addressed real harms at the time of its enactment,
was the product of decades of legislative adjustment, and has
remained unchanged for more than six decades.16 Cf. Fed.
Commc’ns Comm’n v. League of Women Voters of Cal., 468
U.S. 364, 401 n.27 (1984) (noting that the Hatch Act
“evolved over a century of governmental experience with less
restrictive alternatives that proved to be inadequate to
maintain the effective operation of government”). This does
not mean that a government may indefinitely restrict its
employees’ First Amendment rights by referencing some
bygone harm. Cf. McCutcheon, 134 S. Ct. at 1456 (“The
absence of such a prospect today belies the Government’s
asserted objective of preventing corruption or its
appearance.”). But here, the FOP Plaintiffs have offered little
to dispel the City’s concerns. Although civil service reforms
and collective bargaining legislation have significantly altered
the regulatory environment, the FOP Plaintiffs have not
16
The FOP Plaintiffs contend that City Bill No.
060181—the ordinance that provides for payroll deductions
to COPPAC—constituted a legislative determination that the
contribution ban is no longer necessary. We disagree because
the ordinance itself has no legal significance, as there is no
evidence the City Council had the Charter ban in mind when
it enacted the ordinance, and the Charter may be amended
only through the submission of proposed changes to the
general electorate. See Pa. Cons. Stat. § 13106.
34
shown that the City’s concerns of police partiality and
politicized personnel practices are now unfounded.17
17
The FOP Plaintiffs cite Fire Fighters and Shelby
County, Alabama v. Holder, 133 S. Ct. 2612 (2013), as
requiring legislators to provide present-day evidence of harm.
These cases, however, are distinguishable because those
plaintiffs demonstrated an absence of harm.
In Fire Fighters, which struck down the Charter ban as
applied against Philadelphia’s firefighters, the district court
found that the City’s two proffered concerns were
unsubstantiated by the record. 286 F. Supp. 2d at 482. First,
the City contended—as it does in this appeal—that the ban on
political contributions was necessary to prevent politicized
hiring and promotion practices. However, the union presented
evidence that in spite of politician intervention, “the [Fire]
Commissioner relied on detailed protocols on making
personnel decisions.” Id. at 481. Philadelphia’s police, by
contrast, have not made such a demonstration. Second, the
City contended that firefighters’ donations would
compromise the integrity of fire code inspections. This, too,
the district court found illogical, as non-uniformed employees
of the fire department, who could contribute to FIREPAC (the
union’s political action committee), also conducted fire
inspections. Id. at 481–82.
Similarly, the Supreme Court’s decision in Shelby
County rested on conclusive evidence that the circumstances
motivating the enactment of section 4 of the Voting Rights
Act had changed “dramatically.” 133 S. Ct. at 2625. There,
the Shelby County Court, in assessing the validity of section 4
under the Fourteenth Amendment, found that the provision’s
35
Moreover, the City has demonstrated a real risk of
future harm. For example, COPPAC’s ability to fund
candidates for judicial office may prove to be a concern, as
the police frequently testify in court and interact with the
judicial system. FOP’s practice of distributing “courtesy
cards” to large donors also may threaten public confidence in
the police’s impartial enforcement of the law: because police
exercise significant discretion in their everyday work, a card
that extends the union’s “every courtesy” to its holder may
become an improper ticket to preferential treatment.
Similarly, the institution of paycheck deduction
mechanisms—here, City Bill No. 060181—may create
pressure on individual officers to donate to COPPAC,
because when contributions are “solicited by others in official
authority . . . what begins as a request may end as a demand.”
Curtis, 106 U.S. at 374.
In sum, the District Court did not err when it found
that the City identified legitimate interests in the efficiency
and integrity of its police. And while there is no recent
evidence of systemic political corruption of the police, the
FOP Plaintiffs have failed to dispel the City’s legitimate
historic concerns. Accordingly, we conclude that the City has
demonstrated “real, not merely conjectural” harms under
NTEU.
formula relied on decades-old data that captured
discriminatory literacy tests and poll taxes—practices that had
since been eliminated. See id. at 2621–22.
36
V
This showing of harm does not render the Charter ban
constitutional, however, as the City must also satisfy NTEU’s
second prong—namely, that the ban will “in fact alleviate [its
proposed] harms in a direct and material way.” 513 U.S. at
475 (citation omitted).
While NTEU did not explicitly establish a tailoring
requirement, we have noted that “such a requirement seems to
be implicit in the Court’s discussion.” Swartzwelder, 297 F.3d
at 236. Indeed, in holding unconstitutional the honoraria ban
at issue in that case, the NTEU Court found that the ban was
“crudely crafted” and not “a reasonable response to the
[government’s] posited harms.” 513 U.S. at 475–77; see also
McCutcheon, 134 S. Ct. at 1456 (“In the First Amendment
context, fit matters.”). Proper tailoring does not require the
regulation to redress the harm entirely. See Mariani v. United
States, 212 F.3d 761, 774 (3d Cir. 2000). But when “the
burden comes closer to impairing core first amendment
values, or impairs some given first amendment value more
substantially, the requisite closeness of fit of means and end
increases accordingly.” Morial v. Judiciary Comm’n of La.,
565 F.2d 295, 300 (5th Cir. 1977) (distilling Elrod v. Burns,
427 U.S. 347 (1976), Buckley, 424 U.S. 1, and Letter
Carriers, 413 U.S. 548); see also NTEU, 513 U.S. at 483–84
(O’Connor, J., concurring in part and dissenting in part)
(under Pickering, “[a]s the magnitude of intrusion on
employees’ interests rises, so does the Government’s burden
of justification”).
Traditionally, contributions are not afforded the same
protections as direct forms of political expression—for
example, campaign expenditures—because “the
37
transformation of contributions into political debates involves
speech by someone other than the contributor.” Beaumont,
539 U.S. at 161–62 (citing Buckley, 424 U.S. at 20–21).
“[B]ecause contributions lie closer to the edges than to the
core of political expression,” restrictions on political
contributions are “merely ‘marginal,’” id. at 161, and are
permissible if the government can show they are “closely
drawn” to serve a “sufficiently important interest.” Buckley,
424 U.S. at 25; see also McCutcheon, 134 S. Ct. at 1437
(adhering to “Buckley’s distinction between contributions and
expenditures and the corresponding distinction in standards of
review”).
But “[e]ven when the Court is not applying strict
scrutiny,” it still requires “a fit that is not necessarily perfect,
but reasonable; that represents not necessarily the single best
disposition but one whose scope is in proportion to the
interest served, . . . that employs not necessarily the least
restrictive means but . . . a means narrowly tailored to achieve
the desired objective.” McCutcheon, 134 S. Ct. at 1456–57
(quoting Bd. of Trustees of State Univ. of N.Y. v. Fox, 492
U.S. 469, 480 (1989)) (internal quotation marks omitted). For
the reasons that follow, we find that the Charter ban, as
implemented and applied in this case, is poorly tailored to the
City’s articulated interests. Because the ban is not “closely
drawn to avoid unnecessary abridgment of associational
freedoms,” Buckley, 424 U.S. at 25, it unconstitutionally
restricts the FOP Plaintiffs’ participation in the political
process.
A
The City argues that Letter Carriers requires us to
defer to legislative judgment when determining whether a
38
restriction on political activity adequately balances the
interests of the government and its employees. As support for
this proposition, it emphasizes the following quotation from
Letter Carriers:
Although Congress is free to strike a different
balance than it has, if it so chooses, we think the
balance it has so far struck is sustainable by the
obviously important interests sought to be
served by the limitations on partisan political
activities now contained in the Hatch Act.
413 U.S. at 564. Several courts, including two other courts of
appeals, have relied on this language to uphold regulations
prohibiting public employees from contributing directly to
political campaigns. See, e.g., Int’l Ass’n of Fire Fighters v.
City of Ferguson, 283 F.3d 969, 971 (8th Cir. 2002)
(upholding a provision that prohibited employees from giving
money to any candidate for mayor or city council); Reeder v.
Bd. of Police Comm’rs, 733 F.2d 543, 547 (8th Cir. 1984)
(upholding a Missouri statute that prevented police officers
from contributing to political campaigns); Wachsman, 704
F.2d at 165 (upholding a provision in Dallas’s municipal
charter that banned public employees from donating to local
candidates).
We decline the City’s invitation to read Letter Carriers
as requiring us to abandon the NTEU fit analysis. The
Supreme Court in Letter Carriers did not simply defer to
legislative judgment as to what constituted appropriate
regulation. Instead, after a careful weighing of the relevant
interests, the Court held that Congress had satisfied the
Pickering analysis. 413 U.S. 564 (quoting Pickering, 391
U.S. at 568). Indeed, the Court devoted much of its analysis
39
to matching the Hatch Act’s restrictions to Congress’s
interests. It found that Congress had demonstrated how
federal employees’ public participation in political
campaigns—for example, as a candidate or the head of a
political group—had the direct effect of creating an
appearance of impropriety and of risking that federal service
could be used for political ends. See id. In essence, Congress
had found a proper solution—perhaps one among many—that
created a “sustainable” balance between its concerns and its
employees’ First Amendment interests. Id.; see also NTEU,
513 U.S. at 467 (characterizing the Letter Carriers decision
as an application of the Pickering balancing test).
Nor does the City’s invocation of Curtis and Kelley v.
Johnson, 425 U.S. 238 (1976), prove persuasive. In Curtis,
the Supreme Court upheld a statute that prohibited federal
employees from soliciting, receiving, and donating political
contributions to each other. 106 U.S. at 371. In sustaining the
ban, the Court was convinced by Congress’s rationales,
reminiscent of those offered here, that “government itself may
be made to furnish indirectly the money to defray the
expenses of keeping the [controlling] political party in
power,” and that “a refusal [to contribute] may lead to putting
good men out of the service, [and] liberal payments may be
made the ground for keeping poor ones in.” Id. at 375. In our
view, Curtis is of limited relevance to this appeal because it
was limited to contributions between employees. In fact, the
Curtis Court was explicit in clarifying that the statute at issue
did not “prohibit all contributions” by federal employees for
political purposes, but “simply forbids their receiving from or
giving to each other.” Id. at 371–72 (emphasis added). Curtis
thus left for another day the consideration of other types of
40
political contributions, such as those made directly to
candidates and to political action committees.
In Kelley, the Supreme Court upheld a county
regulation that limited the hair length of male police officers,
reasoning that the restriction was justified given the “overall
need for discipline, esprit de corps, and uniformity” in the
police force. 425 U.S. at 246. In doing so, the Court included
broad dicta regarding appropriate restrictions on the police:
[The county] has, in accordance with its well-
established duty to keep the peace, placed
myriad demands upon the members of the
police force, duties which have no counterpart
with respect to the public at large. Respondent
must wear a standard uniform, specific in each
detail. When in uniform he must salute the flag.
He may not take an active role in local political
affairs by way of being a party delegate or
contributing or soliciting political
contributions. He may not smoke in public.
Id. at 245–46 (emphasis added). The City views the expansive
language italicized above as a “fairly clear implication . . .
that a restriction on contributions would be upheld.” City Br.
at 29 (quoting Reeder, 733 F.2d at 548). We disagree,
because the dicta cited cannot bear the weight the City places
upon it. See Toucey v. N.Y. Life Ins. Co., 314 U.S. 118, 139–
40 (1941) (departing from “[l]oose language” when
considering a question “with our eyes open and in the light of
full consideration”); cf. McCutcheon, 134 S. Ct. at 1447
(declining to be bound by Buckley’s anticircumvention
holding because the discussion consisted of “three sentences .
41
. . that were written without the benefit of full briefing or
argument”).
The Eighth Circuit’s decision in Reeder, though it too
upheld a ban on contributions by police officers, is similarly
distinguishable. The plaintiff in Reeder, an officer of the
Kansas City Police Department, was fired for donating to the
campaign of a congressional candidate in Independence,
Missouri. 733 F.2d at 545. He claimed that the ban should not
apply to his donation because the candidate had no
connection with local politics or the city’s police department.
Id. The Eighth Circuit, citing a similar state court decision,
Pollard v. Board of Police Commissioners, 665 S.W.2d 333
(Mo. 1984) (en banc),18 rejected this argument, reasoning that
18
In Pollard, a Kansas City police officer was
dismissed after his superiors discovered he had contributed to
the campaign of a candidate for his congressional district, in
violation of the same Missouri statute. 665 S.W.2d at 335.
The Reeder court adopted the reasoning in Pollard in its
entirety. 733 F.2d at 545 (“[T]here is no point in repeating an
analysis already so well set out.”).
Like Philadelphia, Kansas City was beholden to a
patronage system of politics—there, the Democratic Party
controlled by “Boss Tom” Pendergast—which was sustained
in part by police brutality:
Policemen who belonged to the party out of
power were discharged. Those who remained,
and those newly hired, were obliged to profess
adherence to and to contribute a portion of their
salaries to the support of the dominant political
party. There followed substantial discoveries of
42
the ban was rational given the close connection between
local, state, and federal politics. See Pollard, 665 S.W.2d at
340. According to the Reeder court, a contribution to a
federal congressional campaign might well benefit a Kansas
City politician who had “made common cause” with a federal
candidate, 733 F.2d 547 (quoting Pollard, 665 S.W.2d at
340), raising the concern that a politician could “influence for
good or ill the career of a city police officer.” Id.
Unlike Reeder, this appeal does not involve officers’
direct contributions to political candidates, and thus does not
implicate the Eighth Circuit’s concerns about quid pro quo
corruption.19 The Supreme Court reiterated just last Term that
corruption touching not only the police
department but the entire governmental
structure of Kansas City.
Pollard, 665 S.W.2d at 335. Like the Charter ban in this case,
the Missouri statute aimed to protect the police from the
pressure to contribute to the party in power, to protect the
public from a politicized police force, and to guard against a
general rise in municipal corruption. Id.
19
It is also important to note that Reeder predates
NTEU, which imposed a higher burden on the government to
justify ex ante restrictions on employee speech, and
demanded that the government articulate a tighter fit between
its means and ends. Reeder’s reliance on Letter Carriers—the
most relevant case at the time—and its since-repudiated
characterization of public employment as a conditional
privilege, compare McAuliffe v. Mayor of New Bedford, 29
N.E. 517, 517–18 (Mass. 1892) (“[A policeman] may have a
constitutional right to talk politics, but he has no
43
“there is not the same risk of quid pro quo corruption or its
appearance when money flows through independent actors
[such as a political action committee] to a candidate, as when
a donor contributes to a candidate directly.” McCutcheon, 134
S. Ct. at 1452. “The risk of quid pro quo corruption is
generally applicable only to ‘the narrow category of money
gifts that are directed . . . to a candidate or officeholder.’” Id.
(quoting McConnell v. Fed. Election Comm’n, 540 U.S. 93,
310 (2003) (Kennedy, J., concurring in part and dissenting in
part)); see also Ariz. Free Enter. Club’s Freedom Club PAC
v. Bennett, 131 S. Ct. 2806, 2826 (2011) (finding that the
intervention of a political action committee that is
independent of a specific candidate breaks the “candidate-
funding circuit”).
Here, the individual Appellants wish to contribute to
COPPAC, a political action committee that serves as an
intermediary between donors and candidates. As the FOP
Plaintiffs emphasize, donors to COPPAC have no say in how
the funds are disbursed because FOP’s leadership determines
whether funds are used for information or for political
campaigns. In light of this separation, since Citizens United,
courts of appeals have consistently invalidated restrictions on
contributions to political action committees, even under
Buckley’s more relaxed standard for restrictions on
contributions. See N.Y. Progress & Protection PAC v. Walsh,
constitutional right to be a policeman.”), with Keyishian v.
Bd. of Regents, 385 U.S. 589, 603–04 (1967), suggest that the
Eighth Circuit may have given undue deference to the
government’s interests.
44
733 F.3d 483, 487 (2d Cir. 2013) (collecting cases).20 For this
reason, we are unpersuaded by the City’s reliance on the
Eighth Circuit’s 1984 Reeder decision—and its concern
regarding quid pro quo corruption—to justify the Charter
ban’s restriction on Appellants’ First Amendment rights.
B
As our preceding discussion demonstrates, we face a
unique regulatory scheme forged from Philadelphia’s
experience with political patronage, “at a different point in
the development of campaign finance regulation.”
McCutcheon, 134 S. Ct. at 1447 (reconsidering anew
Buckley’s anticircumvention holding in light of current
campaign finance decisions). The FOP Plaintiffs’ challenge
against the Charter ban, as implemented by the current
regulatory scheme, “thus merits our plenary consideration.”
Id.
The Supreme Court has expressed skepticism of
political speech restrictions based on broad anticorruption
rationales in recent campaign finance decisions. Last Term, in
McCutcheon, it reiterated that Congress may take action only
to address quid pro quo corruption and not “the appearance of
mere influence or access.” Id. at 1451. This development,
20
See, e.g., Texans for Free Enter. v. Tex. Ethics
Comm’n, 732 F.3d 535, 537 (5th Cir. 2013); Long Beach
Area Chamber of Commerce v. City of Long Beach, 603 F.3d
684, 696 (9th Cir. 2010); SpeechNow.org v. Fed. Election
Comm’n, 599 F.3d 686, 695 (D.C. Cir. 2010) (en banc); see
also N.C. Right to Life, Inc. v. Leake, 525 F.3d 274, 293 (4th
Cir. 2008) (pre-Citizens United).
45
coupled with the Court’s increased solicitude for the First
Amendment rights of government workers, see, e.g.,
Keyishian v. Bd. of Regents, 385 U.S. 589, 603–04 (1967),
requires us to take care in determining that the Charter ban is
closely tailored to the City’s aims. Contrary to the District
Court, we find that the lack of fit between the City’s
purported interests and the Charter ban renders the restriction
an unacceptable response to the posited harms.
The District Court held that the contribution ban was a
reasonable regulation, as it was enacted to end the practice of
compulsory political contributions that sustained
Philadelphia’s political machine. Despite this conclusion, the
City has failed, before both the District Court and this Court,
to cite a single explanation as to how the contribution ban has
directly mitigated its concerns. In fact, the record
demonstrates the exact opposite: the 1919 Charter contained
the same prohibition on political contributions by the police,
but did nothing to undermine the patronage system. Even
with the contribution ban in place, machine politics persisted,
as the 1919 Charter’s perpetuation of a weak executive
enabled the manipulation and circumvention of its edicts. For
that reason, the District Court expressed uncertainty about the
independent impact of the ban:
It is impossible to determine the degree to
which the contributions ban has reduced and
continues to ward off endemic corruption in
City Government and the [Philadelphia Police
Department], although the likely answer is that
Philadelphia’s era of machine politics ended as
a result of the combined effect of several
measures, including Civil Service reforms, laws
46
insulating government administration from
political forces, as well as the challenged ban.
Lodge No. 5, 2013 WL 638615, at *9 (emphasis added).
Similarly, none of the City’s expert reports, which discuss the
efficacy of the Home Rule Charter, attribute success to the
contribution ban. Rather, they point to the Charter’s
institution of a strong mayoral position—a reform made
possible only by the concurrent dismantling of the Republican
political machine—and the execution of comprehensive civil
service regulations as the strongest reasons for reform. See
Charter History at 3; Shore Report at 7. Thus, even if the
Charter ban had effect at the time of its enactment—a fact
belied by the record—the City now has in place a system of
statutory safeguards that more directly address its concerns.
In light of these more targeted measures, the Charter ban
appears “particularly heavy-handed.” Cf. McCutcheon, 134 S.
Ct. at 1446.
The City also fails to persuade us why the contribution
ban should apply only to the police, and not to the
approximately 20,000 other individuals in its employ. The
record shows that the Republican machine historically
extracted political assessments from all civic employees: the
practice was so pervasive that, in the early 20th century, the
machine collected contributions from 94 percent of the city’s
workforce. Shore Report at 2. If the Charter ban’s purpose
was to end such compulsory wage contributions, it is unclear
why the City would enforce the ban only against the police.
Moreover, the City has made no attempt to show that the
Democratic Party’s recent dominance in Philadelphia politics
was achieved through corruption.
47
We understand that in certain circumstances, the City
may distinguish police officers from other public employees
because of their unique role in law enforcement. Cf.
Broadrick, 413 U.S. at 607 n.5 (holding, in response to an
equal protection challenge, that the government may single
out certain classes of employees for restrictions on political
expression). No other public role is “charged with the duty to
protect life and property, prevent crime, and preserve the
public peace and enforce the laws,” and the police are the
only civic employees entrusted with the legitimate use of
lethal force. Note, The Policeman: Must He Be A Second-
Class Citizen With Regard to His First Amendment Rights?,
46 N.Y.U. L. Rev. 536, 538 (1971) (internal quotation marks
omitted). For this reason, we and other courts have allowed
legislatures to regulate the police to a greater degree than
other civic employees when the restriction serves a
meaningful end. See, e.g., Webb v. City of Phila., 562 F.3d
256, 261 (3d Cir. 2009) (prohibiting a policewoman from
wearing a headscarf, as it would threaten the perception of
neutrality); see also Kelley, 425 U.S. at 246; Reeder, 733 F.2d
at 547; Muller v. Conlisk, 429 F.2d 901, 904 (7th Cir. 1970)
(finding that the need for internal discipline and paramilitary
structure distinguishes policemen from other public servants).
Here, however, the City’s concern that the police
remain “above reproach,” A92, relates only to its general
interest in the impartial and apolitical provision of its
services—a concern that applies equally to all city employees.
The four interests the City has advanced in this case—
unbiased law enforcement, merit-based advancement,
employee protection, and departmental integrity—speak
generally to the efficient operation of civic bureaucracy.
Moreover, that the police are involved in public safety does
48
not salvage the City’s cause, as Philadelphia firefighters, who
also discharge a critical public safety duty, are not subject to
the Charter ban and can readily contribute to FIREPAC.
Although the City expresses strong interests in this case, its
general power to regulate political expression does not
automatically trigger the “lesser included authority” to ban
speech by certain groups; its “selectivity must itself pass
constitutional muster.” Latino Officers Ass’n, 196 F.3d at 468
(citing Schacht v. United States, 398 U.S. 58, 62–63 (1970)).
Because the City does not enforce the Charter ban against the
balance of its employees, it must explain why the ban has
special significance against the police. We find that its
invocation of historic police abuse—when the record shows
that the contribution ban in fact aimed to dismantle political
assessments levied against almost all of the city’s
employees—is insufficient to justify the second-class
treatment of the police.
In lieu of a more precise explanation, the City focuses
its appeal on an amorphous justification for the Charter ban,
claiming that the ban is an integral part of a carefully
calibrated, comprehensive scheme that insulates the police
from “all political activity.” A265 (emphasis added). The
City therefore contends that any change in this carefully
designed scheme—for example, striking down the
contribution ban—would lead to the parade of horribles
detailed in its brief.
The City’s argument in this respect is undermined
thoroughly by the under-inclusiveness of the current scheme.
As Regulation 8 makes clear, the police are hardly removed
from politics. Officers, for instance, may engage in political
expression so long as it is not coordinated with a partisan
political group, and they may, among other activities, belong
49
to a political party, sign political petitions, and attend political
events. They may also contribute time and money to
nonpartisan political causes, including to organizations that
advocate issues of concern to the police. See generally Bd. of
Ethics Reg. No. 8. Given these exceptions, the contribution
ban alone cannot insulate officers from having to curry
political favor with superiors who might demand that they do
so: although individual officers cannot contribute funds, they
can provide many other resources to advance their superiors’
preferred political causes. The premise of the City’s
justification, then, is false. Because police officers are
engaged in politics, the City cannot rest on the vague and
inaccurate notion of insulating them from “all political
activity” to justify the Charter ban. NTEU demands a more
concrete and credible connection between means and ends.
Philadelphia’s scheme also draws an arbitrary
distinction between associations of employees, who are not
subject to the Charter restrictions, and individuals. As the
District Court found, police officers may join groups and
associations that advance their political agendas. Some of
those groups, including FOP, endorse candidates for local
elections and contribute to their political campaigns. FOP also
holds fundraisers for these candidates, at which they hand out
“courtesy cards” to large donors—practices also permitted
under the regulations. These concerted acts, more than the
activities of any individual officer, implicate the City’s
interests in ensuring the impartial enforcement of the law and
in maintaining the public’s perception of police integrity. But
the City has not explained why it permits the police union (a
group perceived to be the collective voice of the police) to
engage in such expressive activities, while it precludes
individual police officers (whose involvement is not
50
necessarily representative) from doing the same. The current
scheme, therefore, fails to regulate a substantial part of the
activity that gives rise to the alleged harms. Cf. Florida Star
v. B.J.F., 491 U.S. 524, 540 (1989) (professing “serious
doubts about whether [the government] is, in fact, serving . . .
the significant interests which [it] invoke[d]” where the
statute was under-inclusive); Smith v. Daily Mail Publ’g Co.,
443 U.S. 97, 104–05 (1979) (striking down a statute that
prohibited the distribution of juvenile defendants’ names
because the law did not regulate similar dissemination via
electronic media).
Our analysis is informed by the D.C. Circuit’s decision
in Sanjour v. Environmental Protection Agency, 56 F.3d 85
(D.C. Cir. 1995), which held that an under-inclusive
regulation could not survive under NTEU even though the
government had presented a real interest. In that case, agency
employees challenged a regulation that prohibited expense
reimbursement from private sources only for “non-official
appearances”; employees could be reimbursed if their
appearance was approved by the agency. 56 F.3d at 88. The
D.C. Circuit found that this dichotomy between “official” and
“non-official” events undermined the agency’s rationale, as
the agency’s interest—to curtail the “threat to the integrity of
the government occasioned by employees using their public
office for private gain”—was implicated whether employees’
business was official or not. Id. at 94–95. First, an employee
would receive the same private benefit “whether the agency
‘approve[d]’ [the reimbursement] or not”; second, officially
sanctioned benefits “create[d] a greater appearance that
government employment systematically translates into social
advantage than would the unsanctioned perks of individual
51
bureaucrats.” Id. at 95–96. Thus, the regulation, at least based
on the agency’s articulated interest, could not stand.
Likewise, here FOP’s involvement in politics raises
the specter of three of the City’s four stated harms: ensuring
that the police enforce the law without bias or favoritism;
protecting subordinate employees from currying the political
favor of their superiors; and maintaining the efficiency and
quality, both actual and perceived, of the services provided by
the police force. As the strongest proof that the “politicization
of the police” remains a threat, City Br. at 51, the City
pointed not to instances of individual officer misconduct, but
to FOP’s practice of handing out courtesy cards and its
endorsement and financing of local candidates. Because the
Charter ban applies only to individual officers, it serves no
appreciable function in curbing these purportedly harmful
practices. Furthermore, because FOP’s actions are permitted,
the ban impedes the strength of its lawful message by
preventing COPPAC from collecting sufficient funds from
willing union members. This is a strange dichotomy: allowing
FOP to participate directly in partisan political campaigns,
while preventing officers from contributing to a political
action committee unaffiliated with any political candidate.
Regardless of whether more comprehensive
restrictions on FOP and officers would be permissible—a
question we need not determine here—the City’s inconsistent
treatment of the union and its members fatally erodes its
justifications for the Charter ban. In this respect, the ban
operates differently than those considered by the Fifth and
Eighth Circuits. The contribution ban upheld by the Fifth
Circuit in Wachsman was part of a larger scheme that
restricted almost all of city employees’ political expression,
either in individual or in collective form. There, the city not
52
only prohibited its employees from contributing to
campaigns, but also mandated that “[n]o employee of the city
or association of such employees may publicly endorse or
actively support candidates.” 704 F.2d at 162 (quoting City
Charter of the City of Dallas § 16(b)(1)) (emphasis added).
Similarly, the Missouri Supreme Court’s decision in
Pollard—which was adopted in its entirety by the Eighth
Circuit in Reeder—reasoned that the state’s ban on political
donations represented the legislature’s determination that a
contribution’s “public demonstration of support” was one “a
police officer should not make.” Pollard, 665 S.W.2d at 341.
Here, the City is of two minds: Regulation 8 expressly
permits a police officer to make public demonstrations of
support, either through his union or on his own time, while
prohibiting him from providing financial support. It is hard to
fathom how the latter is a more pernicious form of expression
than the former. Cf. NTEU, 513 U.S. at 475 (finding that
“[i]mposing a greater burden on speech than on other off-duty
activities assumed to pose the same threat to the efficiency of
the federal service is, at best, anomalous”). And while the
contribution ban may be directed generally at the problem of
money in politics, that rationale cannot save the day, for the
City has not relied upon it in this case. See Sanjour, 56 F.3d
at 96 (“The Pickering/NTEU question . . . is not whether
some conceivable ‘governmental’ interest might be
constitutionally advanced by the regulations; . . . we must
limit our inquiry to the ‘interests the State itself asserts.’”)
(quoting Edenfield v. Fane, 507 U.S. 761, 768 (1993)).
Based on the foregoing, only the City’s third rationale
for the ban—protecting officers from politically motivated
practices—has force. The City contends that officers may be
subject to subtle pressures to contribute to COPPAC, and thus
53
“an officer [may] make[] a contribution based on a desire to
please or avoid the displeasure of superior officers.” A290–
91; see also City Br. at 51–52. As discussed earlier, FOP
intends to encourage new recruits to consent to have funds
automatically deducted from their paychecks and sent to
COPPAC, raising the concern that officers would be forced to
donate out of professional obligation instead of personal
belief. If contributing to COPPAC becomes a mark of an
officer’s merit, it is possible that these donations could lead to
the City’s concern of politically motivated hiring and
advancement. See Wachsman, 704 F.2d at 175 (finding that
the contribution ban was “reasonably necessary” to protect
employees from “undue employee influence”). While the
FOP Plaintiffs insist that the ban is restrictive and not
protective, the City’s legitimate goal of shielding employees
may extend to “employees who do not wish to be protected.”
Id.
In our view, the City’s concern is not so much a
function of an officer’s ability to make contributions; rather,
it is a consequence of the method by which FOP seeks to
extract such donations. The FOP Plaintiffs brought this suit to
compel the City to implement City Bill No. 060181, a payroll
deduction procedure that would enable the union (and
potentially an officer’s superiors, who are members of the
union) to facilitate officers’ recruitment as COPPAC donors.
We understand why FOP would desire an automatic payroll
deduction insofar as it stands to reason that its inherently
coercive nature would probably maximize the amount of
funds it could raise. Cf. Ysursa v. Pocatello Educ. Ass’n, 555
U.S. 353, 355 (2009) (recognizing that “unions face
substantial difficulties in collecting funds for political speech
without using payroll deductions”). But if the City truly cares
54
about insulating its police from such subtle pressures, the
solution is within its power: it could repeal City Bill No.
060181. See id. (“The First Amendment . . . does not confer
an affirmative right to use government payroll mechanisms
for the purpose of obtaining funds for expression.”).
Furthermore, the City could enforce a more direct restriction
in Regulation 8, which prohibits employees from soliciting
contributions at the workplace.
The Supreme Court recently stated in McCutcheon that
a contribution restriction is not “closely drawn” if there are
more targeted alternatives that would serve the government’s
interests. 134 S. Ct. at 1458. There, the Court considered the
constitutionality of a provision in the Bipartisan Campaign
Reform Act of 2002 (BCRA), which capped the total amount
an individual could donate to political candidates and to
political action committees.21 Id. at 1442. The government
argued that the aggregate cap was necessary to prevent the
circumvention of contribution caps to individual candidates.
Id. The Court found that the aggregate cap was not adequately
tailored, given the existence of more targeted means to
accomplish the same objective. Id. at 1458. It placed
particular emphasis on three anticircumvention alternatives.
First, it found that restrictions on transfers between candidates
and political committees would more directly address
Congress’s concern about circumvention without the
“unnecessary abridgment” of First Amendment rights. Id.
21
BCRA imposed two separate limits on campaign
contributions. Base limits restricted the amount a donor could
contribute to a particular candidate or committee. Aggregate
limits, in turn, restricted how much a donor could give in total
to all candidates or committees. See 2 U.S.C. § 441a.
55
Second, tighter earmarking rules would accomplish the same
goal. Id. at 1458–59. And finally, the Court found that, in the
Internet age, disclosure of the identities of campaign donors
provided robust protections against corruption. Id. at 1459–
60. Likewise here, the possibility of multiple solutions for the
City’s stated concerns—for example, the prohibition of
automatic paycheck deductions, or greater enforcement of
existing anti-solicitation measures—bolster our conclusion
that the Charter’s ban on contributions to a political action
committee is unconstitutional under the First Amendment.
In sum, the City has not demonstrated that the Charter
ban as applied in this case is “closely drawn” to its interests,
Buckley, 424 U.S. at 25, such that it addresses those interests
in a “direct and material way.” NTEU, 513 U.S. at 475.
Several features of the current scheme demonstrate that the
City has not met these criteria. The ban prevents police
officers from donating to a political action committee
unaffiliated with any political candidate, an act that the
Supreme Court has stated does not implicate concerns of quid
pro quo corruption. Nor has the City shown how the ban has
any causal impact on its stated harms, and the ban is
illogically under-inclusive, permitting many of the harms that
the City purportedly seeks to address. These features,
especially given the availability of less restrictive alternatives,
compel us to invalidate the Charter ban.
* * *
We are loath to disturb a component of the Home Rule
Charter’s legislative scheme, particularly in light of
Philadelphia’s historic struggles with police and political
corruption and the Charter’s centrality to the City’s efforts to
foster good government. The City has satisfied its burden
56
under NTEU that it has veritable interests in maintaining the
integrity and impartiality of its police force, in promoting
merit-based hiring and advancement, in insulating officers
from political pressure, and in ensuring the efficiency and
quality of police services.
But as the NTEU Court reiterated: “Fear of serious
injury cannot alone justify suppression of free speech and
assembly. . . . To justify suppression of free speech there must
be reasonable ground to fear that serious evil will result if free
speech is practiced.” NTEU, 513 U.S. at 475 (quoting
Whitney v. California, 274 U.S. 357, 376 (1927) (Brandeis, J.,
concurring)). Despite its valid concerns, the City has not
explained how the Charter ban serves in a direct and material
way to address these harms. Most troubling, the City claims
that the ban is part and parcel of a larger scheme that insulates
police officers from all politics, while simultaneously
condoning political activities by the police that have similar,
if not more pernicious, implications. Given the lack of fit
between the City’s stated objectives and the means selected to
achieve it, we hold the Charter ban unconstitutional.
We will reverse the order of the District Court granting
summary judgment to the City and remand the case for
judgment to be entered in favor of the Appellants.
57