Montgomery County v. Fraternal Order to Address Government’s Role at the Ballot Box
By Alan Sternstein*
In Montgomery County v. Fraternal Order of Police, No. 175 (Md. Ct. App. 2014), the Maryland appellate courts will confront for the first time the evolving doctrine of official speech. Official speech is any statement by a branch or entity of government or an individual acting in official capacity. It may be made in multiple forms, including oral, written, and electronic. Until more recent times, official speech has largely been an unquestioned prerogative of government. Governments need to communicate with their citizenry to exercise powers and effect programs, no less than individuals need to communicate with each other in order to achieve important or vital ends. The increase in partisanship at all levels of government, however, has turned an increasingly critical eye toward the lawful scope of official speech, with particular respect to its means of exercise and intended ends. The result has been judicial challenges regarding the reach of and external limits on official speech.
In Fraternal Order, which was set to be argued today, the Circuit Court for Montgomery County, Rubin, J., entered an order for declaratory judgment in favor of Plaintiff, Fraternal Order of Police, Lodge 35, declaring that Montgomery County and the county executive unlawfully used public funds and resources to campaign in the 2012 general election in favor of then-“Question B.” Through the referendum process, the plaintiff union placed Question B on the ballot in order to challenge Montgomery County Council Bill 18-11, which repealed the County’s longstanding obligation to bargain over management decisions that have a negative effect on police – so-called “effects bargaining” – beyond issues of salaries, benefits, and working conditions. Invoking this “statutory” right of labor, the union had, for example, challenged and forced changes in the deployment of advanced police equipment, requiring distribution of equipment according to seniority rather than operational need as determined by management. Voters approved the initiative by a vote of nearly 60 percent to 40 percent.
Official speech is perhaps best legally conceptualized as a privilege, as opposed to a right – that is, a prerogative of action (in this case, speech) that has no correlative in the nature of a duty imposed upon others, as is the case with a right. The source of this privilege (that is, the basis for the power or authority of government’s privilege to speak) is inherent in the nature of government but also finds support in positive law sources such as the Speech or Debate Clause of the U.S. Constitution, Art. I, Sec. 6, with respect to members of the U.S. Congress, and in federal, state, and local legislative enactments expressly or implicitly authorizing speech on various topics or for various purposes.
The lawful province of official speech has been defined by the case-law in two ways: as a lack of governmental power or authority to engage in certain speech, and as external limits on official speech that prohibit governments from speaking on certain matters or in certain ways. Cases in the first category include District of Columbia Common Cause v. District of Columbia, 885 F.2d 1 (D.C. Cir. 1988) (District of Columbia’s expenditure of funds to defeat ballot initiative ruled illegal for absence of statutory authority); Mountain States Legal Found. v. Denver Sch. Dist. No. 1, 459 F. Supp. 357 (D. Colo. 1978) (school district exceeded legislatively granted authority in allocating materials, funds, and employees to defeat proposed state constitutional amendment); Stanson v. Mott, 551 P.2d 1 (Cal. 1976) (state agency’s expenditure of public funds to promote passage of bond issue ruled unlawful absent specific statutory authority to do so).
These cases would seem to rest on a dubious premise: that government cannot speak unless it is specifically authorized to do so. To state the premise is virtually to refute it, for a government that does not have an inherent privilege of expressing itself cannot govern. These cases are, therefore, perhaps more sensibly viewed as at least tacitly acknowledging that, up to certain limits, government, categorically, may speak on any matter and that, beyond those limits, it may do so only if authorized to do so. Ultimately, however, this construct of the province of legitimate government speech has its own difficulty, for it still leaves undefined that speech that is categorically the government’s and because, within the construct, it is one branch or level of government that authorizes another branch or level to speak – still leaving open the question of what, if any, are the limits on the power of the branch or level of government that is authorizing the speech. Unavoidably, therefore, it would seem that the province of legitimate government speech is the same as it is for individuals, who, after all, ultimately constitute government; that is, anything goes, unless constrained by external and discrete limitations of law, such as prohibitions on fraudulent or pornographic speech.
This analysis, then, brings us to the second and, perhaps, only category of cases truly defining the province of legitimate official speech: decisions imposing external and discrete limitations on such speech. These courts hold that speech for government is, as it is for individuals, a privilege, bridled only by discrete limitations bottomed on authority external to the inherent privilege of speaking. Decisions in this category have invalidated government expression as constituting, in violation of the First Amendment, the establishment of religion, expenditures or allocations of resources that discriminate in the support of private expression according to the point of view expressed, and partisan speech effected through the use of public funds and resources by governmental entities to campaign for or against voter referenda or citizen initiatives.
There is also some judicial authority for the proposition that federal and state constitutional guarantees of a republican or democratic government preclude official speech that is in the nature of electioneering. That judicial authority relies on at least two rationales: (1) that government, with its large resources, has the ability to influence and distort the outcome of voting processes, such as elections and referenda, thereby subverting democratic processes, and (2) that, because government, in all its actions, should be accountable ultimately to its citizens, it should have no voice in any voting process – which, whether directly (through referenda or other voter initiative) or indirectly (through the election of officials), are the ultimate check of the citizenry on government action.
The Circuit Court’s decision in Fraternal Order rested, at least in part, on this limitation, the court observing that upholding Montgomery County’s expenditures as government speech “would turn democracy, as well as the doctrine [of official speech], on its head,” for “[i]n no case has the Supreme Court or any appellate court applied the ‘government speech’ doctrine to sanction . . . the unlimited spending of public funds by a governmental entity to influence a contested election.” Order, Opinion and Order of Court, Fraternal Order of Police, Lodge 35 v. Montgomery County, No. 370302V (entered Mar. 21, 2014). One of the better elaborated statements of the limitation, relying on both rationales, is set forth in Judge Martin’s dissent in Kidwell v. City of Union, 462 F.3d 620 (6th Cir. 2006). Judge Martin “concede[d] that government may ordinarily speak to advocate and defend its own policies.” Id. at 634. He cautioned, however, that “[t]he caveat . . . is always that the citizens’ remedy is at the ballot box in the next election.” Id. Thus, according to Judge Martin:
[T]he Constitution properly prohibits the government from having a horse in the race when it comes to elections. When government advocates on one side of an issue, the ultimate source of governing power is shifted away from the people and the threat of official doctrine exists. . . . There is no real evidence in any of these cases on point that the government as speaker crowded out private speech. . . . The absence of this evidence, however, does not in my opinion cure the underlying evil – that is, ordinary democratic controls are insufficient as a remedy in situations where governmental influence threatens to undermine the independent political process. Governmental advocacy and campaign expenditures could arguably threaten to undermine free and fair elections, could coerce, and could reasonably undermine the reliability and outcome of elections where government acts as a participant.
Id. at 635-36. In short, in Judge Martin’s view, the mere threat to the electoral process of the government’s participation is unacceptable.
Just where in the text of U.S. or state constitutions language embodying Judge Martin’s principles may be found is open to question. In the U.S. Constitution and with respect to the federal government, Judge Martin, plausibly, would rely on the Guarantee Clause. See id. at 635-36 n.5. The availability of a textual home for the limitation on government speech proposed by Judge Martin and the Montgomery County Circuit Court’s decision in Fraternal Order would not conclude the matter, however, for, at least under current constitutional doctrine, much of the underpinning of the proposed limitation – the potential for distortion of the electoral process – is actually subject to doubt. In particular, in Citizens United v. FEC, 558 U.S. 310 (2010), the Supreme Court invalidated limitations on independent expenditures by corporations and unions in elections, rejecting arguments that financial resources would permit unacceptable distortion of the electoral process. “The First Amendment’s protections do not depend on the speaker’s ‘financial ability to engage in public discussion.’” Id. at 350. As a practical matter, the financial resources of some corporations, unions, and individuals surely approach, if not exceed, the resources available to many units of government, if not the national government itself. It would seem, therefore, that the government’s resources cannot, by themselves, be a sufficient basis for excluding official speech from the electoral process.
Still, there is something unsettling about the notion that an incumbent government could use its resources to support political candidates it favors or strengthen or perpetuate its hold on government – for example, as Judge Martin mused, that a city council could expend funds in favor of a council resolution extending the term length of current offices holders or that former California Governor Gray Davis could have expended public funds to campaign against his recall. 462 F.3d at 635. Putting aside the legal justification for the distinction, some comfort might be gained by precluding official speech in connection with campaigning for an express candidate or on issues that concern the incidents of office, such as term limits or recalls, but allowing campaigning on other issues placed before voters. The distinction, however, may prove unmanageable, given the degree to which issue advocacy has proven an effective substitute for direct support of candidates. Ultimately, it may be the notion of the electoral process being the ultimate check of citizens on their governments that should be the controlling principle, with the bottom line necessarily being that government should have no role, directly (by campaigning and electioneering) or indirectly (by informing), in the electoral process.
In deciding Fraternal Order, the Court of Special Appeals will not be writing on a clean slate – but it will nonetheless be writing on a slate, prescribing or proscribing, in fundamental respects, the role of democratic government in democracy itself.
 See generally W.N. Hohfeld, Fundamental Legal Conceptions (1919).
 “The government, as a general rule, may support valid programs and policies by taxes or other exactions binding on protesting parties. Within this broader principle it seems inevitable that funds raised by the government will be spent for speech and other expression to defend its own policies.” Board of Regents of Univ. of Wis., 529 U.S. 217, 229 (2000). In general, “when the government appropriates public funds to promote a particular policy of its own it is entitled to say what it wishes.” Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 833 (1995).
 United States v. Brewster, 408 U.S. 501, 537-38 (1972).
 More precisely, this would be true for government (such as federal, state, county, and municipal government) that has what might be termed territorial authority, that is, the power, within some expressly denominated geographic area, to create or modify legal relationships among residents and rights or privileges in land. In contrast, for example, the Montgomery County Department of Health and Human Resources and its officials have no authority, explicit or implicit, to speak about the curriculum content of the county’s schools or, for that matter, much, if anything, beyond the subject of health and human services.
 See, e.g., Lee v. Weisman, 505 U.S. 577 (1992) (prohibiting school-sponsored and content-controlled prayer by clergy); Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573 (1989) (prohibiting prominent display of crèche in courthouse); Engel v. Vitale, 370 U.S.421 (1962) (prohibiting compulsory school prayer).
 See NAACP v. Hunt, 891 F.2d 1555, 1565-66 (11th Cir. 1990) (citing cases). These cases do not so much involve official speech as they do content-based discrimination by government toward private speech, effected through discriminatory allocation of government resources such as discriminatory access to public forums.
 See, e.g., Alabama Libertarian Party v. City of Birmingham, 694 F. Supp. 814 (N.D. Ala. 1988) (observing that government spending in election for “political” or “ideological” purposes would violate First Amendment); Mountain States Legal Found. v. Denver Sch. Dist. No. 1, 459 F. Supp. 357 (D. Colo. 1978) (holding that school district’s campaign opposition to state constitutional amendment affecting the spending of public funds exceeded school district’s authority and, alternatively, the “partisan use of public funds” violated the First Amendment).
 See also Citizens to Protect Public Funds v. Board of Ed., 98 A.2d 673, 677 (N.J. 1953) (Brennan, J.) (“use of [public] funds to finance not the presentation of facts merely but also arguments to persuade the voters . . . is not within the implied power”); Burl v. Blumenauer, 699 P.2d 168, 175 (Or. 1985) (“The principles of representative government enshrined in our constitutions would limit government intervention on behalf of its own candidates or against their opponents even if the First Amendment and its state equivalents had never been adopted.”).
 The distinction suggested by the Montgomery County Circuit Court between informing the public (which the court would permit) and campaigning politically, considering the subjectivity to which the distinction is vulnerable, may also prove unmanageable – if not simply ineffective, given the ability of well-publicized government information (or misinformation) to affect voter decision-making.
 See Page v. Lexington County Sch. Dist. One, 531 F.3d 275, 281 (4th Cir. 2008) (rejecting challenge to official speech in the nature of school district’s use of email, website, and other means of communication to urge opposition to state legislation but noting that “[g]overnment speech ‘is, in the end, accountable to the electorate and the political process for its advocacy.’ . . . Thus, ‘[i]f the citizenry objects [to the viewpoint expressed by the government], newly elected officials later could espouse some different or contrary position.’”) (quoting Board of Regents v. Southworth, 529 U.S. 217, 235 (2000)).
* Karen Federman Henry, a division chief in the Office of County Attorney for Montgomery County and an editor of this blog, did not participate in the creation, consideration, or revision of this article.