Lodge No. 5 of the Fraternal Order of Police v. City of Philadelphia
763 F.3d 358
3rd Cir.2014Background
- Philadelphia Home Rule Charter §10-107(3) (and Ethics Reg. No. 8) bars Philadelphia Police Department officers from making political contributions “for any political purpose,” which the Board interprets to forbid contributions to partisan political committees including the FOP’s PAC (COPPAC). Firefighters are no longer subject to the ban after a prior district-court decision.
- Lodge No. 5 of the Fraternal Order of Police (FOP), COPPAC, and four officers sued under 42 U.S.C. § 1983 seeking to compel the City to permit payroll deductions and contributions to COPPAC; the district court granted summary judgment to the City.
- FOP argues the ban substantially burdens officers’ First Amendment rights to speak and associate by preventing contributions to a union PAC that advocates on wages, pensions, staffing and related public-safety matters.
- The City defends the ban as necessary to prevent politicization of police, patronage-based hiring/promotions, coercive fundraising (especially via payroll deductions), and to preserve public confidence in impartial law enforcement; it relies on Philadelphia’s history of machine-era corruption.
- The Third Circuit applied the NTEU/Pickering balancing framework for generally applicable, preemptive restrictions on public-employee speech, accepting the City has shown historical and some ongoing interests but holding the contribution ban is not sufficiently tailored and is under-inclusive.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Charter ban on contributions to a union PAC violates the First Amendment | Ban substantially burdens officers’ political speech and association by preventing contribution to COPPAC, an independent PAC that amplifies officers’ voices | Ban serves important interests in neutrality, merit-based employment, preventing coercion, and preserving public confidence in police | Ban is unconstitutional as applied: substantial burden shown and City failed NTEU fit/tailoring requirement |
| Proper standard of review for an ex ante, generally applicable restriction on public-employee political expression | NTEU/ Pickering balancing (heightened showing when a broad prophylactic rule chills a broad class of speech) | City urged deference analogous to Letter Carriers / Hatch Act | NTEU controls; Letter Carriers is an application of Pickering but does not displace NTEU’s fit analysis |
| Whether contributions to an independent union PAC raise quid pro quo corruption concerns justifying the ban | Even PAC contributions can influence politics and judicial elections where police interact with the system | Independent PAC contributions are less likely to create quid pro quo corruption than direct candidate donations | Independent PAC contributions are less tied to quid pro quo corruption; City failed to show the ban materially alleviates corruption risk |
| Whether under-inclusiveness (applying ban only to police while allowing collective union political activity) undermines justification | Ban is arbitrary and prevents members from supporting the union’s political activity while the union itself can endorse and contribute | Police are uniquely situated; distinct role in law enforcement justifies singling them out | Under-inclusiveness and the allowance of union political activity fatally weaken City’s tailoring; selective application undermines the ban’s constitutionality |
Key Cases Cited
- United States v. Nat’l Treasury Emps. Union, 513 U.S. 454 (1995) (ex ante, broadly applicable restrictions on employee speech require showing harms are real and the regulation will directly and materially alleviate them)
- Buckley v. Valeo, 424 U.S. 1 (1976) (contributions implicate First Amendment rights though subject to lesser scrutiny than expenditures)
- U.S. Civil Serv. Comm’n v. Nat’l Ass’n of Letter Carriers, AFL-CIO, 413 U.S. 548 (1973) (Hatch Act restrictions on partisan activities upheld as an application of Pickering balancing)
- McCutcheon v. FEC, 572 U.S. 185 (2014) (anticorruption rationale for contribution limits must be closely tailored; appearance of influence is not a sufficient basis absent quid pro quo risk)
- Citizens United v. FEC, 558 U.S. 310 (2010) (aggregate role of money in political speech and protections for collective funding mechanisms)
- Pickering v. Board of Education, 391 U.S. 563 (1968) (balance employee’s public-concern speech interests against government employer’s interest in efficient public service)