2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-18-2014

Lodge No. 5 of the Fraternal O v. City of

Philadelphia

Precedential or Non-Precedential: Precedential

Docket No. 13-1516

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"Lodge No. 5 of the Fraternal O v. City of Philadelphia" (2014). 2014 Decisions. Paper 854.

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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
2

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 

____________
3

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. 
4

In this case, FOP, COPPAC, and four police officers 

(collectively, the FOP Plaintiffs)1challenge 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.”2351 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. 
5

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. 
6

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.
7

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 
8

partisan political group.” Id. § 8.1(n).6The 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). 
9

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 
10

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-outthe-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.
11

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.8The 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, 
12

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.9For 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)). 
13

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] 
14

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, 
15

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 
16

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 
17

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 
18

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 
19

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 
20

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 
21

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.
22

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 
23

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 
24

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 
25

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 caseby-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.
26

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.
27

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 
28

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”).
29

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 
30

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, 
31

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/prioryear-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. 
32

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-councilmanpolitical-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. 
33

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.
34

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.
35

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 
36

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. 
37

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 
38

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 
39

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 
40

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 
41

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 wellestablished 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 . 
42

. . 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 
43

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 
44

“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 “candidatefunding 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. 
45

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).
46

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 
47

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.
48

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 SecondClass 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 
49

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 
50

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 
51

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 
52

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 
53

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 
54

“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 
55

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. 
56

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 
57

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.