A recent federal appeals court decision begins with a blunt tale of Philadelphia politics: “In the century preceding the adoption of the 1951 Charter, Philadelphia’s civic government was dominated by political 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. 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.’”
In 1951, the Philadelphia City Council enacted a Home Rule Charter that attempted to remedy the problem of political patronage. As interpreted by its implementing regulation, the Charter 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.” 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 labor organizations.
Lodge 5 of the Fraternal Order of Police (FOP) is the collective bargaining organization that represents the approximately 6,600 active police officers employed by the City. FOP operates a political action committee known as 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.” 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.
The contribution ban in the Charter 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, current 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.
The FOP and COPPAC filed a federal court lawsuit challenging the political activities section of the Charter. The question for the federal Third Circuit Court of Appeals was whether the First Amendment permitted the City to bar its police officers from making voluntary contributions to a political action committee.
The Court held that 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 addresses these harms in a “direct and material way.” The Court found that the City could only meet the first of these tests, and struck down the ban on contributions.
The difficulty, the Court held, was that the City failed “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.
“Similarly, none of the City’s expert reports 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. 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.
“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. 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.
“We understand that in certain circumstances, the City may distinguish police officers from other public employees because of their unique role in law enforcement. 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. 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.
“Here, however, the City’s concern that the police remain above reproach 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 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. 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.”
Lodge No. 5 of the Fraternal Order of Police v. City of Philadelphia, 2014 WL 4056694 (3d Cir. 2014).