U.S. court lifts ban on campaign donations by Phila. police officers

Posted: August 22, 2014

Philadelphia's 95-year ban on political contributions by police officers has been overturned by a federal appeals court, which found that the prohibition violated the officers' First Amendment rights.

The ruling Monday by a three-judge panel of the U.S. Court of Appeals for the Third Circuit came in response to an appeal by the Fraternal Order of Police Lodge 5, which argued that the ban emasculated the union politically by greatly reducing the funds available to its political action committee, known as COPPAC.

The opinion, written by Pittsburgh-based Judge Thomas M. Hardiman, said the city had failed to show that the prohibition, which applies to no other city employees, was effective in stemming political influence and corruption within the department, which was its original intent.

"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," Hardiman wrote, noting that a similar ban for the city's firefighters was ruled unconstitutional in 2003.

John McNesby, president of the local FOP, said the ruling means the union will now have a full voice when lobbying for its officers both locally and statewide.

"We are thrilled to death by this," he said Wednesday. "This finally puts us on a level playing field."

Mark McDonald, spokesman for Mayor Nutter, said the administration was reviewing the decision and would not have a comment at this time.

The administration's options in court are limited. The city's lawyers could ask the Third Circuit to reconsider its own judges' decision, or could ask the U.S. Supreme Court to review the matter. The high court rarely grants such reviews.

The ruling voids a section of the city's Home Rule Charter that was designed to end political influence within the Police Department, which in the late 19th and early 20th centuries was often an extension of an entrenched Republican Party.

The prohibition itself has been in existence since 1919, when it was enacted in response to the city's "Bloody Fifth Ward" scandal of 1917.

Police officers, in league with the Republican Party, "beat an opposition candidate, terrorized his supporters, and killed a detective who attempted to intervene," Hardiman wrote. "The incident led to the arrest of the mayor and the convictions of six police officers."

The opinion noted that in the years leading up to the 1951 adoption of the Home Rule Charter, Philadelphia's "powerful Republican Party machine had a stranglehold on local government . . . a 'patronage army' of city employees, rewarding its own members and subordinates with paid office positions. ...

"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.' "

The Nutter administration contended in its brief that the ban on political contributions was still needed to curb departmental corruption. To support its case, it "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," Hardiman wrote.

The judges - Hardiman, Anthony M. Scirica, and Richard L. Nygaard - were not persuaded, finding there was no evidence that the deep-seated political influence that existed in the department before 1951 is still prevalent.

The panel also noted that although Republicans now account for just 12 percent of Philadelphia's registered voters and Democrats win nearly all of its elections, 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 20th century."

"Unlike the systemic corruption that led to the charter ban," Hardiman wrote in his 57-page opinion, "the city's episodic and individualized evidence shows only that human frailty affects police officers, just as it affects all walks of life."

Rather, he expressed concern that the ban itself was creating an unhealthy situation within the department.

Hardiman noted that the FOP, unable to solicit from its own members, now seeks political funds from outsiders - who are given, in return, "courtesy cards" signed by FOP officers that extend "all courtesies of the organization" to the donor.

The judges feared that the cards "may become an improper ticket to preferential treatment."

McNesby, a longtime Philadelphia police officer before he was elected to head the union, scoffed at that notion.

"That is ridiculous. The days of courtesy cards is long, long, long ago," he said. "We still have them, but all they do is get you into our building if you want to come in and check out the place. Our officers on the street are professionals. They are not influenced by that kind of thing."



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