Can Maryland restrict its own legislative staff from campaigning or donating to political campaigns more strictly than other state employees?

Plain-English summary

Two members of the General Assembly asked the Attorney General to assess the constitutionality of Section 12 of the Personnel Guidelines for the Department of Legislative Reference and the Department of Fiscal Services, a rule that barred employees of those two nonpartisan legislative agencies from running for office and from any activity that could reasonably be seen as public support for or opposition to a partisan or nonpartisan political campaign, candidate, or ballot question. The opinion concluded that treating legislative staff more strictly than other state employees did not violate equal protection, because the two departments' unique nonpartisan role serving 188 elected legislators across the political spectrum gave the legislature a rational basis for tighter rules. It also concluded that the rule was not unconstitutionally vague or overbroad on its face, following the U.S. Supreme Court's approach in cases upholding similar restrictions on federal and state employees (the Hatch Act line of cases). The bulk of the opinion then worked through specific applications: a long list of clearly prohibited activities (managing campaigns, soliciting votes, serving as a party officer, and similar conduct) and a list of clearly protected activities (party membership, voting, private opinions) were both constitutional as applied. But the opinion flagged three categories of serious constitutional doubt: banning all political contributions outright (rather than a narrower rule aimed at contributions to sitting or aspiring legislators), banning broad participation in referenda and ballot-question campaigns (an area the Supreme Court had treated as especially protected), and banning low-key personal expression like a bumper sticker or a yard sign. The opinion recommended that the Legislative Policy Committee narrow the rule in those areas rather than leave the broader language in place.

Currency note

This opinion was issued in 1984. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

An editor's note on the official text states that the statutory provisions requiring adoption of the Personnel Guidelines were later recodified without substantial change, at what are now §§2-1207(c) and 2-1307(c) of the State Government Article, and that a later, unpublished 1986 opinion (No. 86-006) discussed other sections of the same Personnel Guidelines.

Common questions

Can Maryland restrict its own legislative staff from campaigning or donating to political campaigns more strictly than other state employees?
According to this 1984 opinion, yes, in general. The Attorney General concluded that the General Assembly could subject employees of the nonpartisan Department of Legislative Reference and Department of Fiscal Services to tighter political activity rules than other state employees, and that a ban on candidacy and on active campaign involvement, for both partisan and nonpartisan elections, was constitutional.

Could the rule ban legislative staff from ever donating money to a political campaign?
The opinion said an across-the-board ban on all political contributions would likely violate the First Amendment, since giving money to a campaign is itself a significant form of protected political expression. It suggested a narrower rule aimed specifically at contributions to sitting legislators or candidates for the General Assembly would be constitutionally sound instead.

Could the rule stop a legislative employee from putting a campaign sign in their yard or a bumper sticker on their car?
The opinion expressed serious doubt about applying the ban that broadly. It described low-key, off-duty personal expression like yard signs, off-the-job buttons, or bumper stickers in a general employee lot as likely too minor and too disconnected from an employee's official role to justify the restriction, and recommended the guidelines draw a clearer line between "active" political support and this kind of "passive" activity.

Background and statutory framework

Section 12 of the Personnel Guidelines was adopted under Chapter 818, Laws of Maryland 1982, which amended Article 40, §52(c) (Department of Legislative Reference) and Article 40, §59(d)(3) (Department of Fiscal Services) of the Maryland Code to direct the Legislative Policy Committee to adopt guidelines on political activity for the departments' employees, and which simultaneously amended Article 33, §28-2 to exempt those employees from the general permission other state employees have under Article 33, §28-1 to engage in partisan political activity. The opinion measured Section 12 against the U.S. Supreme Court's Hatch Act cases, United States Civil Service Comm'n v. National Ass'n of Letter Carriers and Broadrick v. Oklahoma, both of which upheld broad restrictions on federal and state employee political activity against vagueness, overbreadth, and equal protection challenges, and against a body of lower federal court decisions addressing narrower questions like nonpartisan candidacies (Wachsman v. City of Dallas, Magill v. Lynch), political contributions (Hobbs v. Thompson, Bruno v. Garsand), and ballot-question advocacy (First National Bank of Boston v. Bellotti, Citizens Against Rent Control v. City of Berkeley).

Citations

Statutes:

• Chapter 818, Laws of Maryland 1982 (directed adoption of the Personnel Guidelines and exempted legislative employees from the general state-employee political activity statute)
• Article 40, §52(c) of the Maryland Code (Department of Legislative Reference personnel guideline authority)
• Article 40, §59(d)(3) of the Maryland Code (Department of Fiscal Services personnel guideline authority)
• Article 40, §§50(b) and 58(a) of the Maryland Code (statutory requirement that the two departments operate on a nonpartisan basis)
• Article 33, §28-1 of the Maryland Code (general permission for state employees to engage in partisan political activity)
• Article 33, §28-2 of the Maryland Code (exempted Legislative Reference and Fiscal Services employees from §28-1's general permission)
• Article 33, §2-7(a) of the Maryland Code (election judges selected to represent majority and principal minority parties)
• Article 33, §32-2 of the Maryland Code (nonpartisan election of school board candidates)
• 5 U.S.C. §7324(a)(2) (federal Hatch Act ban on federal employees taking an active part in political management or campaigns)
• 5 C.F.R. §§733.111, 733.121, and 733.122 (federal regulations implementing the Hatch Act)
• 5 C.F.R. §733.122(b)(4) (regulation on fund-raising activity for a partisan candidate)
• 5 C.F.R. §733.122(b)(5) (regulation on managing a partisan candidate's campaign)
• 18 U.S.C. §603 (bars a federal employee from contributing to their own employing official)
• Article XVI, §65 of the Texas Constitution (resign-to-run provision upheld in Clements v. Fashing)
• §§2-1207(c) and 2-1307(c) of the State Government Article of the Maryland Code (later recodification, per editor's note)

Cases:

• Broadrick v. Oklahoma, 413 U.S. 601 (1973) (upheld state Hatch Act-style restriction against vagueness, overbreadth, and equal protection challenges)
• Clements v. Fashing, 457 U.S. 957, 971 (1982) (upheld resign-to-run law; broad candidacy restrictions do not significantly impair First Amendment interests)
• Eaton v. Payne, No. H81-2357 (D. Md. July 22, 1982) (rejected equal protection challenge to differential treatment of legislative employees)
• United States Civil Service Comm'n v. National Ass'n of Letter Carriers, 413 U.S. 548 (1973) (upheld federal Hatch Act against vagueness and overbreadth challenge)
• Connally v. General Construction Co., 269 U.S. 385, 391 (1926) (vagueness standard: law must not force people to guess at its meaning)
• United States v. Harriss, 347 U.S. 612, 618 (1954) (marginal vagueness cases do not invalidate a statute)
• Comptroller v. M.E. Rockhill, Inc., 205 Md. 226, 233 (1954) (regulations issued under a statute cannot be inconsistent with law)
• New York v. Ferber, 458 U.S. 747, 771 (1982) (overbreadth requires a substantial number of impermissible applications)
• Mancuso v. Taft, 476 F.2d 187, 200 (1st Cir. 1973) (early case distinguishing partisan from nonpartisan political activity of public employees)
• Magill v. Lynch, 560 F.2d 22 (1st Cir. 1977) (upheld restriction on fireman's candidacy in a nonpartisan election)
• Morial v. Judiciary Comm'n of Louisiana, 565 F.2d 295, 303 n. 8 (5th Cir. 1977) (en banc) (rejected reliance on formal nonpartisan label where party rivalry is the underlying reality)
• Smith v. Ehrlich, 430 F.Supp. 818 (D.D.C. 1976) (upheld federal law barring Legal Services attorneys from both partisan and nonpartisan political activity)
• Mortillaro v. State of Louisiana, 356 F.Supp. 521, 531-32 (E.D. La. 1972) (upheld ban on city employees running as delegates to a nonpartisan constitutional convention)
• Wachsman v. City of Dallas, 704 F.2d 160 (5th Cir. 1983) (most extensive discussion; rejected partisan/nonpartisan distinction, upheld broad restrictions, found doubt about across-the-board contribution bans)
• Stone v. City of Wichita Falls, 477 F.Supp. 581, 585 (N.D. Tex. 1979) (cited on candidacy restriction questions)
• Hickman v. City of Dallas, 475 F.Supp. 137, 141 (N.D. Tex. 1979) (cited on candidacy restriction questions)
• Cummings v. Godin, 377 A.2d 1071, 1079 (R.I. 1977) (cited on candidacy restriction questions)
• Swinney v. Untreiner, 272 So.2d 805 (Fla. 1973) (upheld broad candidacy restriction)
• Crain v. Washington Parish Democratic Executive Committee, 252 So.2d 752 (La.App. 1971) (upheld broad candidacy restriction)
• Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290, 299 (1981) (invalidated contribution limit in a referendum election; no significant state interest in limiting ballot measure debate)
• Buckley v. Valeo, 424 U.S. 1, 21 (1976) (political contributions involve substantial First Amendment interests)
• Ex parte Curtis, 106 U.S. 371 (1882) (upheld narrow federal ban on contributions from an employee to their own supervisor)
• Hobbs v. Thompson, 448 F.2d 456, 471 (5th Cir. 1971) (struck down municipality's across-the-board ban on firemen's political contributions)
• Lecci v. Cohn, 360 F.Supp. 759 (E.D. N.Y. 1973) (contribution ban on public employees held invalid)
• Mancuso v. Taft, 341 F.Supp. 574 (D. R.I. 1972), aff'd, 476 F.2d 187 (1st Cir. 1973) (contribution ban on public employees held invalid)
• Bruno v. Garsand, 594 F.2d 1062, 1064 (5th Cir. 1979) (expressed strong doubt about constitutionality of across-the-board contribution ban)
• First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978) (state could not bar corporate contributions advocating a position on a ballot question)
• Firestone v. Let's Help Florida, 454 U.S. 1130 (1982) (summarily affirmed decision striking down cap on contributions to a referendum committee)
• Connealy v. Walsh, 412 F.Supp. 146 (W.D. Mo. 1976) (upheld narrow bumper-sticker restriction tied to specific job duties)
• Maryland Commission on Human Relations v. Bethlehem Steel Corp., 295 Md. 586, 593 (1983) (courts give deference to an agency's construction of its own rule)
• United Public Workers v. Mitchell, 330 U.S. 75 (1947) (ban on active participation in political management or campaigns by government employees is constitutional)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1984/Volume69_1984.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

CONSTITUTIONAL LAW

Personnel-General Assembly-First Amendment-Equal Protection-Personnel Guidelines Banning Political Activity Of Legislative Employees Not Facially Unconstitutional-Some Applications May Violate First Amendment.

April 16, 1984

The Honorable Howard A. Denis
Senate of Maryland

The Honorable Nancy K. Kopp
Maryland House of Delegates

You have each requested our opinion on the constitutionality of Section 12 of the Personnel Guidelines for the Department of Legislative Reference/Department of Fiscal Services, adopted by the Legislative Policy Committee on June 28, 1983.1 Section 12 contains various restrictions on the political activities of the employees of these two departments. In responding to your inquiry, we have considered the following constitutional issues:

(1) Does Section 12, by treating legislative employees differently from other State employees, violate the Equal Protection Clause of the Fourteenth Amendment?

(2) Is Section 12, on its face, so vague or overbroad as to substantially deter constitutionally protected activity and thereby violate the First Amendment?

(3) Are there particular applications of Section 12 that would violate the First Amendment?

For the reasons given below, we conclude as follows:

(1) Section 12 does not violate the Equal Protection Clause of the Fourteenth Amendment.

(2) Section 12 is not, on its face, so vague or overbroad as to violate the First Amendment.

(3) The principal applications of Section 12 do not violate the First Amendment. However, certain potential applications of Section 12, to some political contributions, to some forms of involvement with ballot questions, and to some forms of off-duty political expression, raise serious constitutional doubts.

I
Background

Section 12 ("Political Activities") of the Personnel Guidelines for the Departments of Legislative Reference and Fiscal Services provides:

"The Departments are nonpartisan agencies designed to serve all members of the General Assembly efficiently, without favor or prejudice. The political neutrality of the staffs of the Departments must be maintained and protected, avoiding even the appearance of partiality. No employee shall receive favor or prejudice because of political consideration, [nor] shall any employee be subjected to pressure, express or implied, to support or oppose political candidates or positions. These guidelines are designed to achieve this necessary goal, while preserving the basic, inviolable rights of the employees as citizens.

A. No employee of the Department[s] may be a candidate for nomination or election to a national, state, or local (political) office, either public or party, partisan or nonpartisan.

B. No employee of the Department[s] may engage in any activity which reasonably may be construed as public support for or opposition to:

(1) Any partisan or nonpartisan political campaign, candidate, committee or party; or

(2) Any question on the ballot.

C. Paragraphs A. and B. do not in any way include:

(1) Affiliating with a political party by registration;

(2) Registering to vote: or

(3) Voting.

D. Subject to paragraphs A. and B., the following activities are permitted:

(1) Membership in a political club or any political organization;

(2) Participation, membership, or holding of office in nonpolitical organizations or activities, e.g., civil, social, athletic, etc."2

No penalties for violating Section 12 are specifically described, but presumably it can be enforced through employee disciplinary measures ranging from reprimand to dismissal. See Section 9 ("Discipline") of the Personnel Guidelines.

The Personnel Guidelines were adopted pursuant to Chapter 818, Laws of Maryland 1982. Among other things, this legislation amended Article 40, §52(c) of the Maryland Code (relating to the Department of Legislative Reference) and Article 40, §59(d)(3) of the Maryland Code (relating to the Department of Fiscal Services) to provide that:

"The Legislative Policy Committee shall adopt guidelines not inconsistent with law governing hiring, tenure, promotion, grievance procedures, and political activity for all professional and nonprofessional employees of the Department."

At the same time, Chapter 818 amended Article 33, §28-2 of the Maryland Code to effectively except Legislative Reference and Fiscal Services employees from the explicit permission to engage in partisan political activity that §28-1 grants to State employees generally.3 Thus, Chapter 818 authorizes stricter regulation of the political activities of legislative employees than of other State employees, so long as the restrictions are not "inconsistent with" the federal and State constitutions or other "law".4

II
Equal Protection

In our opinion, there is no question that, as a general rule, the General Assembly may subject its own employees to greater restrictions on political activity than those imposed on employees in the other branches of government. Such heightened regulation does not deny equal protection of law, in our view.

The Departments of Legislative Reference and Fiscal Services are perhaps the only State agencies expressly required by statute to be operated in a "nonpartisan" fashion. See Article 40, §§50(b) and 58(a). They are also the only agencies immediately responsible to 188 elected officeholders, legislators who represent practically all views on the political spectrum. Thus, the sensitive duties performed, and the potential pressures faced, by legislative employees differ significantly from the situation of other State employees.

We believe that these special circumstances afford substantial justification for regulating the political activity of legislative employees differently and, indeed, far more stringently. In Broadrick v. Oklahoma, 413 U.S. 601 (1973), the Supreme Court dismissed in a footnote the claim that the regulation of the political activity of some, but not all, governmental employees denied equal protection to the regulated employees:

"Appellants also claim that [the restriction in question] violates the Equal Protection Clause of the Fourteenth Amendment by singling out classified service employees for restrictions on partisan political expression while leaving unclassified personnel free from such restrictions .... [But] the legislature must have some leeway in determining which of its employment positions require restrictions on partisan political activities and which may be left unregulated .... And a State can hardly be faulted for attempting to limit the positions upon which such restrictions are placed." 413 U.S. at 607 n. 5.

See also Clements v. Fashing, 457 U.S. 957, 971 (1982).5

III
Vagueness and Overbreadth

In the companion cases of United States Civil Service Comm'n v. National Ass'n of Letter Carriers, 413 U.S. 548 (1973) and Broadrick v. Oklahoma, 413 U.S. 601 (1973), the Supreme Court rejected vagueness and overbreadth attacks on certain political activity restrictions imposed by both federal and state laws. The teaching of these cases suggests that Section 12 would likewise survive scrutiny.

A. Vagueness

Put succinctly, Section 12 would be unconstitutionally vague only if it were "so vague that 'men of common intelligence must necessarily guess at its meaning.'" Broadrick, 413 U.S. at 607 (quoting Connally v. General Construction Co., 269 U.S. 385, 391 (1926). Otherwise, it "'will not be struck down as vague, even though marginal cases could be put where doubts might arise.'" Letter Carriers, 413 U.S. at 579 (quoting United States v. Harriss, 347 U.S. 612, 618 (1954).

Much of Section 12 provides at least as clear notice of what is proscribed as did several provisions in the state law upheld in Broadrick. For example, it is entirely plain that, under Section 12, candidacy in any election is prohibited (§12.A); but political affiliation, registering, and voting, on the other hand, are permitted (§12.C). Cf. Broadrick, 413 U.S. at 607-08 ("In the plainest language, [the statute] prohibits any state classified employee from being ... a candidate for 'any paid public office.'").

If there is a potential vagueness problem in Section 12, it is in the prohibition in paragraph B against "any activity which reasonably may be construed as public support for or opposition to: (1) [a]ny partisan or nonpartisan political campaign, candidate, committee or party; or (2) [a]ny question on the ballot." Nevertheless, as discussed below, comparably inexact restrictions were sustained in Letter Carriers and Broadrick.

The Hatch Act, attacked as unconstitutionally vague in Letter Carriers, provides that no federal employee may "take an active part in political management or in political campaigns". 5 U.S.C. §7324(a)(2). This phrase is given more specific content by regulation. 5 C.F.R. §§733.111, 733.121, and 733.122. However, even the regulations are themselves somewhat imprecise, e.g., as worded when Letter Carriers was decided, "actively participating in a fund-raising activity of a partisan candidate" [5 C.F.R §733.122(b)(4)] or "[t]aking an active part in managing the political campaign of a partisan candidate" [5 C.F.R. §733.122(b)(5)]. As to the meaning of these, the Supreme Court observed, "[t]here might be quibbles":

"[B]ut there are limitations in the English language with respect to being both specific and manageably brief, and it seems to us that although the prohibitions may not satisfy those intent on finding fault at any cost, they are set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest." Letter Carriers, 413 U.S. at 578-79.

Similarly, in Broadrick, the potential for dispute over the meaning of such terms as "partisan", "take part in", or "affairs of" political parties did not invalidate the statute on vagueness grounds. 413 U.S. at 608. The language of Section 12.B does not, in our view, pose a more serious vagueness problem.

Moreover, one avenue of clarification that was approved by the Supreme Court in Letter Carriers and Broadrick is available here: administrative interpretation at the request of individual employees. We construe Section 10 ("Grievance Procedure") of the Personnel Guidelines, generally designed to resolve disputes, as permitting any employee who intends to engage in an activity that is arguably within the scope of Section 12's prohibition to obtain an advance, binding "interpretation" of Section 12.6 Cf. Letter Carriers, 413 U.S. at 580 ("It is also important in this respect [i.e., as to vagueness] that the [Civil Service] Commission has established a procedure by which an employee in doubt about the validity of a proposed course of conduct may seek and obtain advice from the Commission and thereby remove any doubt there may be as to the meaning of the law, at least insofar as the Commission itself is concerned."). See also Broadrick, 413 U.S. at 608 n. 7.

B. Overbreadth

In general, "[a] plausible challenge to a law as void for overbreadth can be made only when (1) the protected activity is a significant part of the law's target, and (2) there exists no satisfactory way of severing the law's constitutional from its unconstitutional applications so as to excise the latter clearly in a single step from the law's reach." L. Tribe, American Constitutional Law §12-24, at 711 (1978) (emphasis in original). We think that neither condition is met here.

1. Principal Applications of Section 12

It is well-settled that a "ban on [government employees'] taking an active part in political management or political campaigns" is constitutional. Letter Carriers, 413 U.S. at 554. See also United Public Workers v. Mitchell, 330 U.S. 75 (1947). And it is equally clear that, to paraphrase Professor Tribe, exactly such manifestations of active political involvement are "a significant part" of Section 12's "target". That is, the following activities quite clearly, and constitutionally, fall within the prohibition of Section 12:7

(1) Engaging in political activity of any kind while on the job during working hours.

(2) Managing a partisan political campaign.

(3) Serving as an officer of a political party, central committee, or partisan political club.

(4) Organizing or reorganizing a political party or partisan political club.

(5) Soliciting, receiving, collecting, handling, disbursing, or accounting for assessments, contributions, or other funds for a partisan political purpose.

(6) Promoting or actively participating in a fundraising activity of a partisan candidate or political party.

(7) Soliciting votes in support of or in opposition to a partisan candidate.

(8) Acting as a poll watcher or challenger on behalf of a political party or partisan candidate.

(9) Driving voters to the polls on behalf of a political party or partisan candidate.

(10) Addressing or taking an active part in partisan political rallies or meetings.

(11) Serving as delegate or alternate in a caucus or convention of a political party.

(12) Participating in the distribution of partisan campaign literature.

(13) Initiating or circulating partisan nominating petitions.

(14) Riding in caravans for any political party or partisan political candidates.

(15) Becoming a candidate for partisan political office.

(16) Serving as an election judge.8

(17) Endorsing or opposing a candidate for public or party office in a political advertisement, broadcast, or campaign literature.9

(18) Attending a political fundraising function, even on a free ticket.10

We think it likewise apparent that some constitutionally protected activity falls well outside the prohibition of Section 12, as drafted:11

(1) Being a member of a political party, political club, or political organization.

(2) Paying dues to a political club or organization.

(3) Voting or registering to vote.

(4) Participating in nonpolitical organizations.

(5) Privately expressing individual opinions on political subjects and candidates.12

Finally, it should be noted, Section 12 imposes no restrictions whatever on the political activity of the spouse or other relatives of a legislative employee.

2. Identification of Unconstitutional Applications

As more fully discussed in Part IV below, there are some gray areas in which the constitutionality of Section 12, as applied, is less clear. Indeed, one can identify potential applications of Section 12 that would be unconstitutional. However, it is precisely the purpose of Part IV, again paraphrasing Professor Tribe, to sever Section 12's constitutional applications from its unconstitutional ones. That is, in Part IV A and B, we identify applications of Section 12 that, while subject to some question, are in our view constitutional; in Part IV C, D, and E, we identify applications of Section 12 that present substantial constitutional doubt. Such a construction in an Attorney General's opinion helped save the state statute considered in Broadrick from overbreadth. Broadrick, 413 U.S. at 617-18.

But even if these gray areas are taken into account, Section 12 does not extend to "a substantial number of impermissible applications". New York v. Ferber, 458 U.S. 747, 771 (1982). Any overbreadth that might exist in Section 12 is not "substantial . . . judged in relation to [its] plainly legitimate sweep". Broadrick, 413 U.S. at 615. Thus, Section 12 cannot be "discarded in toto because some persons' arguably protected conduct may or may not be caught or chilled" by its prohibitions. Broadrick, 413 U.S. at 618.

IV
Particular First Amendment Issues

A. Restriction on Nonpartisan Activity

Section 12 specifically prohibits both "partisan" and "nonpartisan" candidacies and political support. We must therefore consider whether such a prohibition may constitutionally extend to nonpartisan activities, that is, to political activity undertaken without regard to party affiliation.13

Both the Letter Carriers and Broadrick cases dealt with, and upheld, prohibitions on what were described as "partisan" activities of public employees. In the past, some courts have focused on the distinction between employee participation in partisan politics, on the one hand, and employee participation in political activities not directed toward party success, on the other, as the key to whether a restriction is constitutional or not. See, e.g., Mancuso v. Taft, 476 F.2d 187, 200 (1st Cir. 1973). See generally Annot., 28 A.L.R.3d 717 (1969, 1983 supp.). However, increasingly, courts are rejecting that distinction.

In Magill v. Lynch, 560 F.2d 22 (1st Cir. 1977), the United States Court of Appeals upheld a restriction in a city charter that kept a fireman from running for office in an election that, by law, was nonpartisan. In doing so, the court took account of the political reality of the situation:

"The appearance (or reality) of favoritism that the charter's authors evidently feared is not exorcised by the nonpartisan character of the formal election process. Where, as here, party support is a key to successful campaigning, and party rivalry is the norm, the city might reasonably fear that politically active bureaucrats would use their official power to help political friends and hurt political foes." 560 F.2d at 28.

As the appeals court put it in Morial v. Judiciary Comm'n of Louisiana, 565 F.2d 295, 303 n. 8 (5th Cir. 1977) (en banc):

"We do not believe ... that the restrictive language of Letter Carriers requires courts to ignore the reality of partisanship if the formality of party affiliation is absent .... A faction may form around a man as much as around a party label[.]"

Similarly, in Smith v. Ehrlich, 430 F.Supp. 818 (D.D.C. 1976), which upheld a federal law prohibiting staff attorneys of the Legal Services Corporation from engaging in both partisan and nonpartisan political activity, the court said:

"Apparently, it was the judgment of Congress that the distinction between partisan and nonpartisan politics is often one without a difference. Furthermore, our representatives concluded that staff attorneys, who are on the firing line of a demanding profession, should not be diverted from their task by the influence of politics. We see nothing in the Constitution which prevents the Congress from making these policy determinations." 430 F.Supp. at 822.

See also Mortillaro v. State of Louisiana, 356 F.Supp. 521, 531-32 (E.D. La. 1972) (New Orleans could constitutionally prevent its employees from running as delegates to a nonpartisan state constitutional convention because "[t]he facts here show that the [employees] intend to or would engage in just about every campaign and political activity of which one desiring to successfully seek election to public office might conceive").

The most elaborate discussion of this question is contained in a recent opinion of the Fifth Circuit in Wachsman v. City of Dallas, 704 F.2d 160 (5th Cir. 1983). The city charter prohibited various forms of involvement by city employees in non-partisan elections. The court rejected the argument that only "the problems raised by party involvement are what make such infringement constitutionally permissible":

"While Letter Carriers indisputably contains frequent references to partisan politics and political parties, it also contains several crucial passages, identifying the harms to important societal interests attendant on the politicization of governmental service. The discussion in these passages is in terms of politics generally rather than simply party or partisan politics." 704 F.2d at 165.

Indeed, the court expressly held that "[w]e decline to adopt as the touchstone for decision in this area an across-the-board distinction based purely on whether the elections are partisan or nonpartisan." 704 F.2d at 169.

We think that the reasoning of these cases supports the constitutionality of the Legislative Policy Committee's decision to include, within Section 12's prohibitions, nonpartisan as well as partisan activities.14

B. Prohibition of All Candidacies

Some courts in the past have questioned the constitutionality of a ban on public employee candidacies for all offices, or, as Section 12.A phrases it, a ban on candidacies for any "national, state or local (political) office, either public or party".15 See Mancuso v. Taft, 476 F.2d 187, 199-200 (1st Cir. 1973); Stone v. City of Wichita Falls, 477 F.Supp. 581, 585 (N.D. Tex. 1979); Hickman v. City of Dallas, 475 F.Supp. 137, 141 (N.D. Tex. 1979); Cummings v. Godin, 377 A.2d 1071, 1079 (R.I. 1977).

However, both the Supreme Court's more recent decision in Clements v. Fashing, 457 U.S. 957 (1982), and its previous decision in Broadrick suggest that the Legislative Policy Committee's action in banning legislative employee candidacies for all offices is constitutional.

In Fashing, the Court upheld the constitutionality of a provision requiring certain state and county officers to resign if they became a candidate "for any office of profit under the laws of [Texas] or the United States". Article XVI, §65 of the Texas Constitution. In the Supreme Court's view, this provision did not "significantly impai[r] interests protected by the First Amendment". 457 U.S. at 963. And, in Broadrick, the Court said that state employees could be prohibited from running for "any" paid public office. 413 U.S. at 617.

Lower courts have also upheld similarly broad candidacy restrictions. See Morial v. Judiciary Commission, 565 F.2d 295 (5th Cir. 1977); Magill v. Lynch, 560 F.2d 22 (1st Cir. 1977); Smith v. Ehrlich, 430 F.Supp. 818 (D.D.C. 1976); Swinney v. Untreiner, 272 So.2d 805 (Fla. 1973); Crain v. Washington Parish Democratic Executive Committee, 252 So.2d 752 (La.App. 1971).

As the court observed in Wachsman v. City of Dallas, 704 F.2d 160, 171 (5th Cir. 1983):

"We believe it unrealistic to assume that politics within the geographical boundaries of a city are divided into completely unrelated watertight compartments of city and noncity politics. On the candidate and officeholder level, it is certainly not unheard of for a person prominent in local partisan politics, as a former officeholder or otherwise, to become a city councilperson in a nonpartisan election, or for a member of the nonpartisan city council to thereafter become a local, state, or even federal elective officeholder through the partisan political process. Moreover, significant operating relationships frequently exist within the geographical area of a city, between the city government, whether partisan or not, and the county, state, and federal governments. City politics, then, whether or not 'partisan,' cannot be viewed as wholly divorced from the politics, within the area of the city, of the local, state, and federal governments."

In our opinion, the broad candidacy prohibition contained in Section 12 can be justified as a safeguard against the risk that campaigning employees would devote less than full time and energies to their responsibilities. See Clements v. Fashing, 457 U.S. at 968. Moreover, becoming a candidate for any office virtually ensures that the employee will be immersed in "just about every campaign and political activity", including the solicitation of contributions. Mortillaro v. State of Louisiana, 356 F.Supp. 521, 531 (E.D. La. 1972). This problem can arise at any level of politics. Wachsman v. City of Dallas, 704 F.2d at 171. In sum, the Legislative Policy Committee could validly conclude that such conduct should not be permitted for persons employed in sensitive, nonpartisan positions.

C. Political Contributions

Section 12.B(1) generally prohibits "any activity which reasonably may be construed as public support for . . . [a]ny . . . political campaign, candidate, committee or party". The Legislative Policy Committee is evidently of the view that this prohibition encompasses the giving of political contributions. In her letter to us, the chairman of the subcommittee that drafted Section 12 explains:

"Because campaign contributions are subject to public disclosure requirements, and the contributor cannot assure the privacy of any contribution, [Section 12] will not permit employees to contribute financially to political campaigns."16

The act of contributing money to a candidate or cause is a significant form of political expression that unquestionably involves substantial First Amendment rights. Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290, 299 (1981); Buckley v. Valeo, 424 U.S. 1, 21 (1976); Wachsman v. City of Dallas, 704 F.2d 160, 173 (5th Cir. 1983). To be sure, this form of expression is not absolutely protected, particularly as far as public employees are concerned. See Ex parte Curtis, 106 U.S. 371 (1882). Nevertheless, every court that has considered the point has found constitutional fault with an across-the-board ban on the making of political contributions by public employees.

For example, in Hobbs v. Thompson, 448 F.2d 456, 471 (5th Cir. 1971), the court struck down a municipality's across-the-board ban, observing that:

"[I]t seems patently obvious to us that the Macon charter and ordinance provisions sweep too broadly and proscribe a great deal of political activity which is unrelated to the effective workings of the fire department. [They] condemn political contributions of money ... by firemen in all campaigns, federal, state, and local."

See also Lecci v. Cohn, 360 F.Supp. 759 (E.D. N.Y. 1973) and Mancuso v. Taft, 341 F.Supp. 574 (D. R.I. 1972), aff'd, 476 F.2d 187 (1st Cir. 1973) (contribution bans imposed on public employees held invalid).

Similarly, in Bruno v. Garsand, 594 F.2d 1062, 1064 (5th Cir. 1979), the Fifth Circuit expressed "strong doubts" that Louisiana could constitutionally prohibit its classified employees, "at least when acting as private citizens without any fanfare or publicity from making contributions to a political candidate or party". And, most recently, another panel of the Fifth Circuit, quoting Bruno, said "[w]e share this doubt as applied to across-the-board bans". Wachsman v. City of Dallas, 704 F.2d at 174.17

Although, in our view, an across-the-board ban on employee contributions to all offices would thus violate the First Amendment, we believe that a more limited prohibition would be constitutionally permissible. In Ex parte Curtis, 106 U.S. 371 (1882), the Supreme Court upheld the constitutionality of a federal law that prohibited certain executive branch officers and employees from giving money to any other officer or employee of the government "for political purposes". See also 18 U.S.C. §603 (a federal employee may not make a political contribution to another federal officer, employee, or legislator "if the person receiving such contribution is the employer or employing authority of the person making the contribution").

Moreover, in Wachsman v. City of Dallas, the Fifth Circuit upheld the constitutionality of a provision that prohibited city employees from making political contributions to city council candidates. In a passage highly pertinent here, the court discussed the rationale supporting that more limited prohibition:

"[T]he City's prohibition on campaign contributions is designed to prevent 'quid pro quo corruption between a contributor and a candidate,' ... as well as the appearance of undue influence. It guards both against less qualified employees being given favored assignments based on either their political contributions or their roles in an employee organization making such contributions, and against discrimination directed at qualified employees because they do not make or bring about such contributions. More generally, it prevents city council members from pressuring city employees, and prevents employees and their organizations from excessively or improperly influencing city council members or candidates. The latter also helps ensure that it does not appear to the public that political 'insiders' have undue effect on council elections." 704 F.2d at 174.18

On the basis of this authority, we believe it would be constitutionally permissible for the Legislative Policy Committee, in applying Section 12, to prohibit legislative employees from contributing to (i) persons running for election or reelection to the General Assembly and (ii) incumbent members of the General Assembly running for election to some other office. This more tailored prohibition, while not completely treating the possible "ripple effect" of politics at all levels of government, would nevertheless substantially achieve two compelling goals: eliminating "employer" pressure on employees of the Departments of Legislative Reference and Fiscal Services to make contributions, and reducing to a minimum the appearance of quid pro quo favoritism. And it would do so without imposing a total ban on significant, albeit passive, political expression.19

D. Referenda and Ballot Questions

In Wachsman v. City of Dallas, the court, in the same breath in which it rejected a distinction between partisan and nonpartisan elections as the touchstone for regulation of public employee political activity, noted that:

"For purposes of judging the validity of restrictions on election-related activity in the light of first amendment considerations, we believe it more meaningful to distinguish between elections on the basis of whether they are candidate elections or noncandidate elections, such as referenda and constitutional amendment elections." 704 F.2d at 169.

Indeed, in upholding broad restrictions on the political activity of public employees, some courts have particularly noted that the specific regulations in question did not infringe on any employee's ability to be politically active in connection with ballot issues, such as constitutional amendments and referenda. See, e.g., Letter Carriers, 413 U.S. at 562, 568 n. 15, and 576; Wachsman v. City of Dallas, 704 F.2d at 169.

More important, in a growing number of cases the Supreme Court has appeared to regard activity with respect to ballot questions as virtually sacrosanct, not subject to the same type of regulation that has been held constitutional as applied to candidacy-related activity. In First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978), the Court held that a State could not prohibit a corporation from making contributions to advocate views on ballot questions. In so doing, the Court rejected the contention that such legislation was necessary to prevent corruption. The Court observed that such a concern was valid only in the "quite different context" of political campaigns for public office, not where the "right to speak on issues of general public interest" was at stake. 435 U.S. at 788 n. 26. In Firestone v. Let's Help Florida, 454 U.S. 1130 (1982), the Court summarily affirmed a decision striking down a Florida statute that had placed a $1,000 limit on contributions to a single political committee in a referendum election. Finally, in Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290 (1981), the Justices invalidated a similar restriction, noting that:

"Whatever may be the state interest or degree of that interest in regulating and limiting contributions to or expenditures of a candidate or a candidate's committees[,] there is no significant state or public interest in curtailing debate and discussion of a ballot measure." 454 U.S. at 299.

See generally 67 Opinions of the Attorney General 192 (1982) (limit in Election Code on contributions for ballot questions is unconstitutional).

None of these Supreme Court ballot question cases, however, involved restrictions that were applicable to public employees only. There is arguably a significant constitutional difference between Section 12's restriction and the provisions struck down in Bellotti, Firestone, and Citizens Against Rent Control. The governmental interest in preventing political corruption by imposing general limitations on ballot question contributions is, as the Supreme Court has said, highly attenuated at best and, therefore, cannot justify a restriction on First Amendment rights. But the governmental interest underlying Section 12 is different, and perhaps stronger: the Legislative Policy Committee desires to prevent the harm to the legislative process that would attend active political involvement by certain of the General Assembly's own employees. Hence, the very reason that justifies, under the First Amendment, the extension of political activity restrictions to nonpartisan elections, preventing "the politicization of governmental service" [Wachsman v. City of Dallas, 704 F.2d at 165], might also be viewed as sufficient to justify the extension of these restrictions to ballot questions generally.

Yet we acknowledge that Wachsman itself is to the contrary (albeit without substantive discussion). Thus, we can only advise that a broad application of Section 12 to employees' involvement in referenda and other ballot questions would be constitutionally suspect.

We think that Section 12 may safely be applied, for example, to prevent employees from engaging in ballot question activities while on the job; to prevent them from lobbying legislators on state ballot questions; and to prevent them from publicly advocating action on measures with which, as legislative employees, they are or have been directly involved (e.g., as drafter, researcher, or committee counsel). We caution, however, that any more expansive application of Section 12's ban in connection with ballot question activity raises serious questions of compliance with the First Amendment.20

E. Expression of Views

Section 12 prohibits "any activity which reasonably may be construed as public support or opposition to" candidates and ballot questions. The implied distinction between public and private expression of political views will require careful application to avoid constitutional difficulty.

In Broadrick v. Oklahoma, the Supreme Court strongly suggested that, if Oklahoma's restrictions on political activity by state employees were applied to restrict the wearing of political buttons or the use of bumper stickers, those applications would be improper. 413 U.S. at 618. In an earlier case, Hobbs v. Thompson, 448 F.2d 456 (5th Cir. 1971), a federal appeals court struck down an ordinance that prohibited firemen from displaying political bumper stickers on their cars. And, in Connealy v. Walsh, 412 F.Supp. 146 (W.D. Mo. 1976), the court upheld a political bumper sticker restriction for judicial employees, but only because the employee in question, a probation officer, used her car to visit her clients on official business and parked it in a lot reserved for court employees.

Absent unusual circumstances such as in Connealy, it would appear that the presence of a political bumper sticker on a legislative employee's car in a general State employee parking lot does not raise the evils of partisanship sought to be avoided by Section 12 and might even be considered to be of such a low-key and de minimis nature, and so divorced from the individual's identity as a legislative employee, as to amount to private expression. The same might be said of, for example, posting campaign signs in the front yard of an employee's home (particularly in light of the fact that a spouse or other family member is free to post the sign); wearing a candidate button off the job; signing a petition as an individual; and attending a political gathering (other than a fundraiser) strictly as an observer or member of the audience.21 It is difficult to discern how these activities would result in the harms that Section 12 is intended to avert.

Under the circumstances, the Legislative Policy Committee should seriously consider a further refinement of its distinction between "public" and "private" political support into, perhaps, categories of "active" political support and "passive", de minimis political activity.

V
Conclusion

In summary, it is our opinion that:

(1) Section 12 of the Personnel Guidelines for employees of the Departments of Legislative Reference and Fiscal Services does not violate the Equal Protection Clause of the Fourteenth Amendment.

(2) Section 12 is not, on its face, so vague or overbroad as to violate the First Amendment.

(3) The principal applications of Section 12 do not violate the First Amendment. However, certain potential applications of Section 12, to some political contributions, to some forms of involvement with ballot questions, and to some forms of off-duty political expression, raise serious constitutional doubts. We recommend that the Legislative Policy Committee consider a refinement of Section 12 to expressly exclude from its scope these constitutionally doubtful applications.

Stephen H. Sachs, Attorney General

Robert A. Zarnoch
Assistant Attorney General

Avery Aisenstark
Chief Counsel,
Opinions and Advice

Editor's Note: The statutory provisions requiring adoption of the Personnel Guidelines have been recodified, without substantial change. See §§2-1207(c) and 2-1307(c) of the State Government Article. Opinion No. 86-006 (February 10, 1986) (unpublished) discusses other sections of the Personnel Guidelines.

1 Your separate inquiries indicate that you have requested our opinion in your respective capacities as the chairman (Delegate Kopp) and a member (Senator Denis) of the Legislative Policy Committee's subcommittee that drafted these guidelines, as well as (in the case of Delegate Kopp) "[o]n behalf of the Speaker of the House, and the President of the Senate".

2 An earlier draft of Section 12 expressly permitted (i) "[m]aking a contribution to any candidate or political committee, in any amount which is less than that which is required to be reported", and (ii) "[a]ttending any gathering as an observer". These exemptions, however, were deleted from the guidelines finally approved by the Legislative Policy Committee.

3 Article 33, §28-1 is sometimes referred to as an "anti-Hatch Act", a play on the name of the federal statute that severely restricts partisan political activity by federal government workers.

4 Of course, whether or not a statute so provides, rules, regulations, and guidelines issued pursuant to it may not be inconsistent with law. See Comptroller v. M.E. Rockhill, Inc., 205 Md. 226, 233 (1954). We are aware of no inconsistency between Section 12 and any federal or State statute. The issue, then, is whether Section 12 is constitutional.

5 In Eaton v. Payne, No. H81-2357 (D. Md. July 22, 1982) (oral opinion), the court rejected an equal protection claim based on the General Assembly's decision to treat its own employees differently from other State employees:

"Plaintiff here claims that the failure to provide a grievance procedure for non-classified employees of the legislative branch while providing one for similar employees of the executive branch, lacks a rational basis. This Court would disagree. Such a distinction made by the Maryland law does indeed have a rational basis. The Legislature could reasonably have believed that the nature of the services performed by non-classified employees of the General Assembly did not warrant a formal grievance procedure." Transcript at 10.

6 "A grievance is a dispute between an employee and the Departments over the application, interpretation or violation of employee personnel rules, regulations or policies, whether prescribed in statute, guidelines, Department procedures or policies." §10.B.

Of course, the existence of the formal grievance procedure does not preclude the use of other, informal means to clarify, case-by-case, the exact meaning of Section 12. Indeed, we understand that the Directors of the Departments of Legislative Reference and Fiscal Services intend to refer to specific inquiries on the applicability of Section 12 to the Legislative Policy Committee for its interpretation.

7 Other permissible applications of Section 12, as to which some question exists but which we find constitutional, are discussed in Part IV A and B below.

8 Under Article 33, §2-7(a) of the Maryland Code, election judges are selected to "represent" the majority and principal minority parties in the State.

9 Although troubled by a like restriction in the Hatch Act, the Court in Letter Carriers nevertheless upheld its constitutionality. 413 U.S. at 580.

10 Because persons attending a political fundraiser ordinarily do not proclaim themselves as nonpaying guests, an employee who goes to such a function may be perceived by others in attendance (including legislators) to be partisan. In addition, receipt of a free ticket by an employee from a person who is a political supporter of the candidate raises questions of propriety that the General Assembly has a right to regulate.

11 Certain other activity that appears to be within the prohibition of Section 12 but that constitutionally may not be prohibited is discussed in Part IV C, D, and E below.

12 In Wachsman v. City of Dallas, 704 F.2d 160, 162 (5th Cir. 1983), the court referred to an unappealed finding below that municipal employees could not be constitutionally prohibited from endorsing City Council candidates at small, private gatherings. See also Part IV E below.

13 For example, candidates for elected boards of education run "on a nonpartisan basis", i.e., "without party designation and without regard to party affiliation". Article 33, §32-2 of the Maryland Code.

14 It is perhaps significant that the Supreme Court denied certiorari in Magill, Morial, and Wachsman.

15 We are not entirely certain about the significance of the parenthetical "political" in Section 12. Presumably, it is intended to indicate an office that exercises some function of government, as distinct from a nongovernmental office. Cf. §12.D(2). See 65 Opinions of the Attorney General 285, 290-93 (1980); 44 Opinions of the Attorney General 276 (1959).

16 See also note 2 above (deletion of proposed exception for contributions "in any amount which is less than that which is required to be reported").

Although a court would give deference to this construction of Section 12.B by the body that drafted and will implement it [see, e.g., Maryland Commission on Human Relations v. Bethlehem Steel Corp., 295 Md. 586, 593 (1983)], the specific reference to "public" support could well be construed more narrowly. Indeed, a court might seek to avoid the serious constitutional problems associated with a ban on contributions by holding that Section 12.B(1) does not extend to contributions at all. See note 17 below.

Given this uncertainty, and in light of the line-drawing that we believe is constitutionally required in this area, we recommend that the Legislative Policy Committee consider a reformulation of Section 12 so that it addresses the subject of political contributions explicitly.

17 In both Ex parte Curtis, 106 U.S. at 838, and Letter Carriers, 413 U.S. at 572 n. 18 and 576 n. 21, the Supreme Court noted that the challenged restrictions on federal employees, though broadly prohibiting one from "tak[ing] an active part" in political activity, including fund-raising activity, did not serve to prohibit employees from making contributions to any candidate.

18 The Wachsman opinion concluded that:

"One might argue that the City is protecting employees who do not wish to be protected. This simply overlooks the general public's interest in an independent and efficient civil service. Appellants argue that upholding the lower court will make 'political eunuchs' of city employees. However, this is simply not so, as the lower court's findings correctly demonstrate that the City leaves unregulated a considerable scope of city employee political activity. . . . Rather than being emasculated, city employees are limited only to an extent that furthers their ability to perform optimally." 704 F.2d at 175.

19 For the reasons stated in note 16 above, however, we recommend that this more tailored prohibition be incorporated explicitly in Section 12 itself.

20 See also 62 Opinions of the Attorney General 227 (1977) (prohibition on State employees' advocating passage or defeat of legislation unconstitutional, although some regulation might be permissible). Again, we recommend that the appropriate line(s) be drawn explicitly in Section 12.

21 As to this last form of passive political participation, however, the Legislative Policy Committee appears to have specifically intended to prohibit it. See note 2 above.