Reeder v. Kansas City Bd. of Police Com'rs, s. 83-1353

• Decision Date: 31 May 1984
• Docket Number: 83-1849,Nos. 83-1353,s. 83-1353
• Citation: 733 F.2d 543
• Parties: Mark REEDER, Appellee, v. KANSAS CITY BOARD OF POLICE COMMISSIONERS, Norman A. Caron, Edward S. Biggar, Gwendolyn M. Wells, Beverly Parks Barker, Richard L. Berkley, and William Birt, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 543

733 F.2d 543

Mark REEDER, Appellee, v. KANSAS CITY BOARD OF POLICE COMMISSIONERS, Norman A. Caron Edward S. Biggar, Gwendolyn M. Wells, Beverly Parks Barker, Richard L. Berkley, and William Birt, Appellants.

Nos. 83-1353, 83-1849.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 9, 1984.

Decided May 3, 1984.

Rehearing and Rehearing En Banc Denied May 31, 1984.

Karl F. Schmidt, J. Emmett Logan, Morrison, Hecker, Curtis, Kuder & Parrish, Manfred Maier, Kansas City, Mo., for appellants.

Paden, Welch, Martin, Albano & Graeff, P.C., Michael W. Manners, C. Robert Buckley, Independence, Mo., for appellee.

Before ROSS and ARNOLD, Circuit Judges, and HARRIS, ^* Senior District Judge.

ARNOLD, Circuit Judge.

The law of Missouri, Mo.Rev.Stat. Sec. 84.830(1), forbids officers or employees of the Kansas City Police Department to make any political contribution. ¹ Mark Reeder, a Kansas City Police Sergeant, gave $500.00 to the campaign of John Carnes, a candidate for the Democratic nomination for Representative in Congress from Missouri's Fifth District. As a result, he was dismissed from the police force. In a suit filed by Reeder, the District Court held the state statute invalid on two grounds: that it was preempted by Section 301 of the Federal Election Campaign Act Amendments of 1974, Pub.L. No. 93-443, 88 Stat. 1263, 1289, 2 U.S.C. Sec. 453, and that it abridged Reeder's freedom of speech in violation of that portion of the Fourteenth Amendment that applies the First Amendment to the states. We reverse on both these points, but remand for further proceedings on Reeder's claim that the statute deprives him of the equal protection of the laws because it applies to Kansas City police officers but no others in Missouri.

I.

After the oral argument in this Court, the Supreme Court of Missouri decided Pollard v. Board of Police Comm'rs, 665 S.W.2d 333 (Mo.1984) (en banc). Pollard holds that Section 84.830 is neither preempted nor inconsistent with the First Amendment as construed by the Supreme Court of the United States. We are of course not bound by holdings of the Supreme Court of Missouri, just as it is not bound by our holdings. The filing of the Pollard opinion leaves our obligation to consider the issues on this appeal undiminished. We nevertheless find Judge Blackmar's opinion for the Supreme Court of Missouri thorough and persuasive. We agree with it both as to preemption and the First Amendment, and there is no point in repeating an analysis already so well set out. We add a brief discussion to address some points particularly urged in Reeder's brief.

A.

Title 2 U.S.C. Sec. 453 provides:

The provisions of this Act [the Federal Election Campaign Act of 1971, as amended], and of rules prescribed under this Act, supersede and preempt any provision of State law with respect to election to Federal office.

Certainly a law prohibiting certain people from contributing to campaigns for federal office can be considered a "law with respect to election to Federal office." But that is not the end of the matter. The statute can also be read to refer primarily to the behavior of candidates--including, for example, the filing of reports disclosing the names and occupations of campaign contributors--and to supersede state laws on permissible contributions only to the extent that federal law expressly forbids certain kinds of contributions--those, for example, made by unions, corporations, or foreign nationals. Even Reeder seems to concede that some state laws that could be characterized as coming within the preemption provision, if read literally and broadly, remain valid. See Brief for Appellee 11 (States retain the right to prohibit false registration, voting fraud, and theft of ballots, even with respect to federal elections). The preemption statute, then, is not so clear (if any statute ever is) as to preclude us from consulting the legislative history.

The conference report on the bill that became the 1974 amendment leaves little room for doubt on this question. The report says:

It is the intent of the conferees that any State law regulating the political activities of State and local officers and employees is not preempted or superseded by the amendments to title 5, United States Code, made by this legislation.

S.Conf.Rep. No. 93-1237, 93d Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Ad.News 5587, 5618, 5669. Furthermore, right before the conference report was agreed to by the Senate, a colloquy took place between Senator Stevens and Senator Cannon that covers this very point. Senator Cannon was Chairman of the Committee on Rules and Administration, from which the bill was reported, senior conferee on the part of the Senate, and manager of the bill on the Senate floor, so his remarks must be given special weight in determining what Congress meant to say. Mr. Cannon stated that "any State law regulating the political activity of State or local officers or employees is not preempted [or] ... superseded." 120 Cong.Rec. 34386 (Oct. 8, 1974). "It [would be] ... up to the State to determine the extent to which they may participate in Federal elections[.]" Ibid. (remarks of Senator Stevens).

Sergeant Reeder seeks to avoid the force of this passage by emphasizing the word "activity." It was only active campaigning, such as speechmaking or service on a campaign committee, that was to be left to State regulation, he says. Contributions by state employees were to be governed entirely by federal law, and since no federal law prohibits such contributions, they cannot be forbidden by a State, either. The argument is that "activity" is a term of art, intended to include only those political activities that had previously been prohibited by federal law if engaged in by state employees whose jobs or programs received federal funds. Our attention is called to the Supreme Court's opinion in United States Civil Serv. Comm'n v. National Ass'n of Letter Carriers, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973), in which, in two footnotes, id. at 572-74 n. 18, 576-78 n. 21, 93 S.Ct. at 2893-95 n. 18, 2896-97 n. 21, certain activities forbidden by regulation are listed. It is said that this list of prohibited activities did not include contributions. Therefore, we are told, Senators Cannon and Stevens, when using the term "activity," could not have intended to include contributions.

We are not persuaded by this line of argument. In the first place, the single word "activity" is too weak a reed to bear the weight plaintiff asks us to load upon it. We readily acknowledge that the two Senators involved were well versed in their field. But to attribute to them detailed knowledge of two footnotes in a Supreme court opinion decided the previous year, an opinion their colloquy does not even mention, and to infer from that an intention to distinguish between contributions and other types of political "activity," is fanciful. In addition, the two footnotes relied on are not so clear as plaintiff makes out. In general, the Civil Service Commission rules set out in note 18 did allow "[v]oluntary contributions to campaign committees and organizations." 413 U.S. at 574 n. 18, 93 S.Ct. at 2894 n. 18. But they also provided: "Contributions by persons receiving remuneration from funds appropriated for relief purposes are not permitted." Ibid. And the rules quoted in note 21, while allowing political contributions in general terms, also authorized agency heads to prohibit any "activity permitted by paragraph (a) of this section, ² if participation in the activity would interfere with the efficient performance of official duties, or create a conflict or apparent conflict of interests." 413 U.S. at 577 n. 21, 93 S.Ct. at 2896 n. 21.

The attempted distinction between "activities" and contributions is too artificial to carry the day here. When the Senators used the word "activity," there was, we think, no reason to suppose that they harbored an unspoken intention to exclude from that category political contributions by State employees. They intended instead to leave the States free, so far as any claim of preemption was concerned, to allow or forbid political activities, including contributions, by their own employees.

B.

In support of his argument that the statute violates the First Amendment, Reeder stresses that the campaign to which he contributed was a campaign for federal office, that the candidate he supported was actually a member of the City Council of Independence, Missouri, not of Kansas City, and that a member of Congress has no power to influence for good or ill the career of a city police officer. We are not persuaded that these considerations diminish the state's interest enough to require a decision in favor of the plaintiff. Politics, like law, is in many respects a seamless web. Candidates for public office often make, or appear to make, alliances among themselves. "The legislature would have good reason to think that a prohibition which did not extend to federal candidates and federal elections would be futile. The major parties operate on a national basis and function in federal, state and local contests .... A contribution to a congressional candidate well might benefit the local politicians who have made common cause with that candidate." Pollard v. Board of Police Comm'rs, supra, 340. Certainly the dangers posed by a direct contribution to a candidate for Mayor or Governor are more obvious, since the Mayor is a member of the Kansas City Board of Police Commissioners, and the Governor appoints the remaining members. But the difference between this kind of contribution and a contribution like the one Reeder made here is not sufficiently pronounced to require a holding that the latter may not be validly prohibited, even if the former may.

The fact is that public employees are subject to more severe restrictions than the public at large. No one would contend, for example, that Congress or a...