Public Confidence Laws Gone Awry: A Modern Circuit Split Reveals That Some Federal Courts Manipulate Standing Rules to Promulgate Severe First Amendment Restrictions on the Spouses and Children of Public Employees

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I. INTRODUCTION

Federal courts in the United States have consistently upheld the constitutional doctrine that "[t]he essential rights of the First Amendment in some instances are subject to the elemental need for order without which the guarantees of civil rights to others would be a mockery."1 Given the central role of government workers in maintaining that order, the First Amendment rights of public employees have been particularly susceptible to restriction.2 For example, in 1940, Congress enacted the Hatch Act, which declared unlawful certain political activities of federal employees.3 Specifically, section nine of the Act prohibited officers and employees in the executive branch from taking "any active part in political management or in political campaigns."4 The theory behind restrictions such as those found in the Hatch Act relied on the state's compelling interest in encouraging government impartiality and the public perception of impartiality in government.5 These restrictions, labeled "public confidence laws," prohibit not only financial political contributions, but also contributions of time and energy in an effort to influence an election.6

The idea that a politically active government staff threatens effective administration has filtered down to the state and local level since the passage of the Hatch Act. Currently, not only are federal employees subject to public confidence laws, but many state and even local employees have been prohibited from participating in politics.7 While the principles justifying public confidence laws may indeed have deep judicial and constitutional roots, these laws have expanded at an alarming rate. The level of restriction they currently impose cannot be supported by any constitutional theory.

The most disturbing element of modern public confidence laws is that courts have allowed them to extend so far as to prevent even spouses and family members of state and local employees from participating in politics.8 For example, in English v. Powell, the United States Court of Appeals for the Fourth Circuit dismissed a First Amendment claim by a city employee's wife who argued that her constitutional rights were violated when the public agency employing her husband threatened to fire him if she did not cease complaining about the agency.9 Similarly, both the Ninth and Tenth Circuits have recently dismissed claims in which the spouses and children of public employees contended that public confidence laws had been unconstitutionally extended to deprive them of their First Amendment rights to participate in local politics.10

Rather than expressly holding that public confidence laws can apply to spouses and children, the courts adopting the English approach have simply dismissed the suits claiming that the plaintiffs lacked standing.11 These courts have held that the claims of the spouse and children of a public employee are merely derivative of the employee's claim and that the employee's family does not suffer the injury-in-fact required to bring a primary case before the court.12 Because the doctrine allowing restriction of public employees' First Amendment rights prevents the employee from prevailing in court, the result of these decisions is that no party can challenge public confidence laws as they are applied to spouses and children. In light of the importance of the First Amendment to citizens of the United States, it is unacceptable that many courts have rendered the families of public employees helpless to challenge such blatant violations of their constitutional right to free speech.

The evolution of public confidence laws has not gone completely unchecked. Recently, the Eighth Circuit expressly rejected the holdings of English and its progeny, creating a circuit split regarding the standing of spouses of public employees to bring First Amendment challenges to public confidence laws. In International Association of Firefighters v. …