Jim Boyle Aug. 20, 2014, 7:48am


The U.S. Court of Appeals for the Third Circuit has reversed a lower court's ruling and says

that Philadelphia police officers should be allowed to donate money to their union's political action committee.

The ruling strikes down a ban put in place by the city in its 1951 Home Rule Charter, saying that the need for the provision no longer outweighs the violation of the cops' First Amendment right to free speech. The opinion acknowledges that the City of Philadelphia has legitimate concerns about the harms of police officers possibly favoring one political group over another, but disagrees that the contribution ban is a proper method to combat corruption.

"Such restrictions significantly curtail the exercise of an individual’s right to participate in the electoral process through both political expression and political association," wrote Judge Thomas Hardiman in the opinion.

The original 1951 ban prohibited political activity by the police and fire department employees. It was enacted following decades of corruption that created a powerful one-party Republican machine that had officers in full uniform intimidate voters and harrass political opponents.

In 2003, the firefighters union successfully challenged the prohibition, making police officers the only members of Philadelphia's 20,000 unionized employees who cannot make donations "received by a candidate...for use in the advocating or influencing the election of the candidate,” or providing donations “received by a political committee, political party, or partisan political group.”

Four police officers, backed by the Fraternal Order of Police union lodge No. 5, said in the lawsuit filed in 2011 that the prohibition has unlawfully put a strain on the fundraising efforts of the political action committee (COPPAC). Donations are solicited through targeted mailings and fundraising events, but the FOP has been unable to tap into a source with the most potential to contribute significantly to COPPAC's coffers.

"[The plaintiffs] 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," Hardiman wrote.

As recent examples, the officers 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.

Lawyers for the city conceded that the ban placed a burden on the officers' First Amendment rights, but the need to keep the police force free from political influence outweighed the restrictions. The Third Circuit Court reversed the U.S. District Court for the Eastern District of Pennsylvania's summary judgement against the plaintiffs, saying that the ban no longer effectively addresses the possible harms of politically active officers.

The court accepted the city's evidence in the form of recent newspaper articles reporting about individual corrupt cops and politicians, but did not conclude that they proved the same kind of heavy political machine still existed.

"To suggest today that there is a Republican machine that controls Philadelphia politics would be viewed as absurd by even a casual political observer," Hardiman wrote. "Indeed, with that party having been reduced to a mere 12 percent of registered voters, it is now reasonable to conclude that the Democratic Party dominates the city’s politics. 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."

The threat of future systemic corruption may still exist, the court said, but the 1951 charter is not the right tool to prevent it. That's because in 2006 a city Ethics Committee enacted Regulation 8, which prohibits all city employees to advocate and campaign for political candidates while in uniform or using government resources, similar to the federal Hatch Act.

However, the regulation exempts “expression and activity that is not political and not directed toward the success or failure of a political party, candidate or partisan political group.” 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, but only as spectators. Police officers are permitted to contribute time and money to non-political organizations, such as the Sierra Club and the National Rifle Association.

The court held that the two regulations worked against each other and created a confusing ambiguity.

"Despite its valid concerns, the City has not explained how the Charter ban serves in a direct and material way to address these harms," Hardiman wrote. "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."

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