Montgomery County v. Fraternal Order of Police – Government’s Role at the Ballot Box: Round II
In an article here in January, I wrote about the doctrine of official or government speech. The post was prompted by the appeal pending in Montgomery County v. Fraternal Order of Police, Md. Ct. Spec. App., No. 175, which was decided by the Court of Special Appeals in April. Slip Op. (decided Apr. 3, 2015). The court’s decision reversed, among other things, the Circuit Court’s ruling that the Appellants, Montgomery County and certain of its officials, had acted beyond their power and authority by making substantial use of public funds and resources to campaign in a general-election referendum in favor of legislation that the County Council had passed and that the County Executive had signed into law. According to the Circuit Court’s “Findings of Fact,” Appellants had unlawfully “engaged in electioneering and conducted a political campaign.” Id. at 11.
Through the referendum process, Appellee, the Fraternal Order of Police, had succeeded in placing on the ballot “Question B,” which challenged the County’s repeal of its obligation under the County Code to negotiate management decisions with a perceived negative effect on police performance – so‑called “effects bargaining,” involving matters other than salaries, benefits, and working conditions. Invoking this statutory right in the past, 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. In a campaign where both political parties had supported the legislation, voters ultimately approved the legislation by a vote of nearly 58 percent to 42 percent.
The Court of Special Appeals overruled what the court termed the Circuit Court’s “ruling that that the County’s campaign on Question B was ultra vires and illegal,” clearly leaving undisturbed the Circuit Court’s finding that Appellants’ conduct went beyond the merely informational and had become electioneering or campaigning. Slip Op. at 15. The issue before the court, therefore, was one primarily about whether the government was authorized to electioneer and politick, not whether there were limitations external to the source or sources of such authority, if any, that constrained its exercise. Slip Op. at 29. In particular, the court noted that it was not addressing any First Amendment challenge to Appellants’ conduct based on the view that the conduct amounted to forced private subsidization of speech. Slip Op. at 29-30.
In overruling the Circuit Court, the Court of Special Appeals characterized the County’s conduct as having “communicated to potential voters its view that effects bargaining was detrimental to the County’s efficient and productive management of its police force,” matters that were “directly related to [the County’s] governance and in an area in which it had expertise.” Slip Op. at 33. On this basis, the court determined that “[t]he County was engaged in government speech” that was authorized. Slip Op. at 34. Okay, but why does determining that conduct constitutes government speech also determine that the government is entitled to engage in and use public funds for activities that are clearly political campaigning, not merely informational?
The Court of Special Appeals never really answers this question. Instead, it seems to resort to the illogic that because the government speech before it was not “partisan” speech, Appellants’ political campaign conduct was within their authority. See Slip Op. at 34-35. This, however, is merely an observation that Appellants did not transgress some limitation external to the source of their authority to engage in government speech. It still does explain why the ability, or power, to govern, which plainly requires government’s ability to speak and advocate its policies, permits political campaigning. It tells us that some forms of campaigning by government, such as “partisan” electioneering, are impermissible, but still does not tell us why campaigning at the ballot box is otherwise authorized at all.
Indeed, later in its opinion, the court appears to recognize a similar, if not the same, point, stating, “Our holding that the County’s advocacy of Question B was government speech does not compel the conclusion that it had the power to use public funds for government speech.” Slip Op. at 36. Essaying an answer, the court still errs in its reasoning, again considering whether there are potential external limitations on government speech other than the prohibition on partisanship that would prohibit political speech, such as state-law prohibitions on the use of public funds in a political campaign. Slip Op. at 37-42. The court finds none, but, in the course of its discussion, commits an even greater leap than the distance from government’s privilege to speak to its privilege to politically campaign, asserting that “[t]he County’s authority to budget and appropriate money necessarily includes the authority to spend that money to advance a nonpartisan governmental purpose.” Slip Op. at 38. Okay, but, again, why does that authority extend beyond informational functions to political campaigning?
The insistence here on an answer that is not question-begging in its justification is not for trivial reasons or to be pedantic. Few would doubt government’s power, through its financial resources, to sway a political contest at the polls. Given this potential threat to democratic processes, is it asking too much for a justification for government’s direct involvement in the political process other than the offering by the Court of Special Appeals that, once it is recognized that government has the privilege of speech, nothing prohibits it from unlimited political speech in the form of nonpartisan electioneering? Bear in mind that the protections of the First Amendment, though surely offering guidance with respect to the treatment of speech and including political speech in its protections, does not protect per se the government. It protects citizens from the government.
At least one answer to the basic question posed here may lie in the insights offered by the dean of the Yale Law School, Robert Post, in his recent book “Citizens Divided: Campaign Finance Reform and the Constitution,” Harv. Univ. Press, June 2014. In his book, Professor Post probes the rationale for the U.S. Supreme Court’s opinion in Citizens United v. FEC, 558 U.S. 310 (2010). In essence, according to Professor Post, the majority reasoned that self‑governance is a paramount interest that the First Amendment was intended to protect, that essential to self-governance is free speech, and, therefore, that limitations on the independent expenditure of money to generate speech in connection with elections, whether by an individual or any other entity, including large corporations, are antithetical to self-governance and the First Amendment, even when those limitations address concerns about the integrity of electoral processes.
According to this paradigm, self-governance is government responsive to the will of its citizens, and, according to the theory of self-governance immanent in the opinion of the Citizens United majority, government will be responsive only insofar as its constituents are free to shape public opinion and the public’s response at the polls through speech. Under this view, the electoral process is, in fundamental respects, a battleground in a contest for the implementation of thoughts and ideas waged through speech. Limitations on speech, therefore, through limitations on campaign expenditures, are at odds with the democratic objectives of the First Amendment.
Looking to the dissenting opinion in Citizens United, however, Professor Post argues that the majority theory of self-governance is skewed by an idealization of the notion of free speech. In the dissent, the theory of self-governance is one of genuine representation achieved through elections structured to assure results that are reflective of the predominant interests and desires of the electorate. By contrast, for the Citizens United majority, self-governance is achieved not through elections structured to assure the selection of officials most representative of those who will be governed, but by eliminating restraints on communicative interaction in the public sphere. Although both the majority and the dissent recognize self-governance as the ultimate objective, they differ on how it is best achieved: essentially unbridled speech versus elections structured such that the strength of competing views is not a function of the financial resources available to deliver those views but of the intrinsic appeal of those views to the electorate.
Both of these theories of self-governance would support the outcome in Fraternal Order. The Court of Special Appeals’ rationale in Fraternal Order, however, is essentially that of the majority in Citizens United. Once it is recognized that government has the privilege of speech, albeit based not on the First Amendment but on a need essential to the power to govern, the question becomes whether there are limitations on that speech external to it; a la Citizens United, with respect to legislative referenda, so long as its speech is confined to the support of its positions, there is no limit on government’s speech.
On the face of matters, however, the Court of Special Appeals’ rationale is troubling for the same reason that experience is beginning to at least suggest that the Citizens United decision was ill-considered, given both the increasing importance of money in elections and the capacity of organizations with huge financial resources to influence voting through the injection of ever‑larger sums of money into the electoral process. At bottom, the primary objection to Montgomery County’s electioneering on Question B was the financial resources that the County brought to bear on the question with regard to both their sources, public funds, and their magnitude.
Stepping back for a moment and considering a justification for government’s involvement in elections based on the dissent’s theory of self-government in Citizens United, we may see that concerns about the threat to self-government by government’s unlimited participation in referenda are unwarranted. Under the view that self-government is achieved through elections structured and held for the purpose of achieving a representative result rather than through elections that are the product of unbridled speech, then referenda are not about self-government, for their function really has a very attenuated relationship to achieving representative government at the ballot box.
Instead, referenda are a part of the process by which a government’s policies and initiatives are rejected or confirmed. For this reason, an elected government should be as free as its citizenry to influence referenda, for, with respect to referenda, it remains government’s prerogative to govern and, in turn, to seek to effect its policies and initiatives. The check on government speech in referenda is, as the Court of Special Appeals observed in Fraternal Order, “that the individuals elected to office whose views the government is then espousing may be voted out of office.” Slip Op. at 24. “If County voters disagreed with the County’s message on Question B or if they disagreed more generally with the County’s choice to engage in a political campaign, they were free to vote out of office those they deemed responsible.” Id.
In other words, government involvement in referenda, not just to provide information but also to campaign, is warranted. In the election of representatives, however, government campaigning is not warranted. More specifically, if we start with the premise that the government in place is entitled to use speech to effect and advance the policies and initiatives that brought it into office, then, because referenda are a challenge to those policies and initiatives, the government in place should, in referenda, be able to devote whatever resources it may to the success of those policies and initiatives. That is to say, the unlimited extension of government speech into politicking in referenda is legitimate.
At the same time, as the Court of Special Appeals noted in Fraternal Order, the check on government that departs from the those policies and initiatives it has been elected to further, or that is no longer in tune with the policies and interests of the citizenry that placed it in office, is elections for office – a process, with respect to the principles of representative government, that is distinct from referenda. Moreover, because this rationale for unrestrained government electioneering in referenda does not justify allowing government speech to be injected into all matters for decision at the ballot box, particularly elections to public office, it is the most prudent justification for that conduct, for it is the justification most consistent with preserving and protecting self-government.
Indeed, the need for government’s unfettered access to its resources for electioneering in non-recall referenda may be vital in the era of Citizen’s United. Suppose, for example that some state were to enact legislation considerably restrictive of access to gun possession. It is hardly fanciful to expect that the resulting statute, through the efforts of the gun lobby, would become the subject of a referendum and that the gun lobby would pour considerable financial resources into defeating it at the polls. What then of the need for government to be able freely to bring its financial resources to bear on the matter at the ballot box?
 The Fraternal Order of Police has filed a petition for a writ of certiorari with the Court of Appeals, but, as of this writing, there has been no disposition of that petition.
 As suggested in the earlier Blog article on this case, the analysis of the lawfulness of government speech involves a three-step process. First, is there a legitimate source of power from which the permissibility of the particular speech (with respect to, for example, subject, time or place) may be inferred, such as a state or the federal constitution? If not, is there a legitimate source of power expressly authorizing the particular speech, such as properly enacted legislation? Third, even if there is a source of power or authority from which the privilege to speak may be inferred or is granted, are there limitations external to the source that constrain the power’s exercise (such as, for example, the First Amendment prohibition on the compelled subsidization of speech)? Cf. H. Gerken, “Slipping the Bonds of Federalism,” 128 Harv. L. Rev. 85, 86-87 (2014) (discussing similar constructs for the analysis of the legitimacy of Congressional exercises of power under the Commerce Clause).
 Although, in principle, the distinction between partisan and non-partisan speech may be useful in determining appropriate limitations on government electioneering, the distinction may prove unmanageable given the degree to which issue advocacy has proven an effective substitute for direct support of candidates.
 This writer’s understanding of the thoughts and concepts in Professor Post’s book are derived not from a reading of the book but from Professor Post’s own characterizations in remarks made in a talk that the Brennan Center for Justice sponsored, as reported in “Democracy & Justice: Collected Writings” (Brennan Center for Justice, Vol. 8, 2015) (hereinafter “Post at __”).
 Undergirding this rationale is the somewhat simplistic view that, next to spoken or written speech itself, the spending of money to generate written or spoken speech is, essentially, equivalent to pure speech. See Citizens United, 558 U.S. at 20-32; Buckley v. Valeo, 424 U.S. 1, 39-59 (1976).
 Perhaps the most fundamental expression of this principle is the Supreme Court’s one‑person‑one-vote decision in Baker v. Carr, 369 U.S. 186 (1962). Professor Post seems to require that, for election results to be representative, they must both reflect the actual majority desire of the electorate and, as well, leave the electorate with the perception that the results are a reflection of that desire. See Post at 88-89. In other words, it is important to measuring self‑governance (and, in turn, the degree of respect for and abiding the results of elections) that the electorate’s will not just, in fact, be effected but that the electorate believes that its will is being effected. Whether or not this should be the case is, in general, an important consideration when assessing the role of money in elections in general, but, as shall be seen, the matter is of lesser importance to the point ultimately to be made here.
 The minority’s notion that speech or expressive conduct otherwise protected by the First Amendment, including the spending of money, may be curtailed for the sake of protecting political freedoms was not a novel proposition. In Elrod v. Burns, 427 U.S. 347 (1976), the Supreme Court, in order to protect the political freedoms of government employees, invalidated the equally political practice of patronage, by which victors in public office replaced government employees with those identified with the victors’ political affiliation. Thus the Court observed that “[p]atronage, to the extent it compels or restrains beliefs or associations, is inimical to the process which undergirds our system of government and is ‘at war with the deeper traditions of Democracy embodied in the First Amendment.’” Id. at 357 (quoting Illinois State Employees Union v. Lewis, 473 F. 2d 561, 576 (7th Cir. 1972)). “Preservation of the democratic process is certainly an interest protection of which may in some instances justify limitations on First Amendment freedom.” Id. at 368; see also Buckley, 424 U.S. at 15 (the “First Amendment protects political association as well as political expression”).
 There is one important caveat. Lest a government be empowered to use its financial resources to entrench itself in office, the subject of a referenda cannot be about a matter that bears on outcomes in the electoral process. Allowing government speech on such matters would be antithetical to the representational theory of self-government that the minority in Citizens United and Professor Post espouse. Thus, for example, there would be no place for government speech in referenda involving a recall from elected office or a legislative redistricting. Whether this limitation is to be viewed as inherent in the constitutional concept of the democratic power to govern, which is the authorization for government speech, or viewed as an external limitation on government speech derived from sources elsewhere in a state or the federal constitution, such as the First Amendment, is a topic for another day.