You Don't Have To, but It's in Your Best Interest: Requiring Express Ideological Statements as Conditions on Federal Funding

Publication year2013

You Don't Have to, but It's in Your Best Interest: Requiring Express Ideological Statements as Conditions on Federal Funding

Chase Ruffin

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Chase Ruffin*


Congress enjoys broad authority to enact laws and regulations by which the citizens of the United States must abide.1 Certain uses of that authority, however, are impermissible.2 Any legislation promulgated by the government must not exceed the limits created by the Constitution.3 The Constitution forbids Congress from directly exercising its legislative power to achieve certain goals.4 For example, Congress cannot directly remove a state official from office for engaging in political activity5 or ban an organization from speaking out about abortion.6 Through use of the spending power7

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and government subsidies, however, Congress can indirectly achieve legislative goals it would not otherwise be able to achieve.8 Although the government cannot simply prohibit an organization from lobbying,9 the government can provide subsidies to organizations that refrain from doing so.10 When exercising its spending power, the constitutional limitations on Congress "are less exacting than those on its authority to regulate directly."11

One of the most common methods of indirectly promoting legislative goals is to provide federal funding on the condition that the recipient must adhere to certain regulatory guidelines.12 For example, if the government believes abortion to be an unacceptable method of family planning, the government can provide funding to those organizations who agree not to use the funding to promote abortion.13 This practice is generally a permissible use of the

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spending power.14 Not all funding conditions, however, are constitutionally acceptable.15 Congress cannot, for example, "place a condition on the receipt of a benefit or subsidy that infringes upon [a] recipient's constitutionally protected rights."16

Among the rights a funding condition cannot infringe upon is, of course, the First Amendment right to engage in constitutionally protected speech.17 Although this limitation on conditions seems elementary on the surface, courts and legal professionals alike have had a difficult time determining when, if ever, a condition on the receipt of funds actually infringes a constitutional right.18 Recent legislation has further contributed to the confusion by presenting funding conditions not yet seen by the Supreme Court—conditions that require organizations to espouse a particular viewpoint on a controversial issue as a prerequisite to receiving funds.19

The United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (Leadership Act)20 requires a non-

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governmental organization (NGO), as a condition of receiving funds,21 to adopt a policy explicitly opposing prostitution and sex trafficking ("policy requirement").22 On two occasions, NGOs have challenged the policy requirement claiming that it violated their First Amendment rights.23 In DKT International v. USAID (DKT), the United States Court of Appeals for the D.C. Circuit upheld the policy requirement as a permissible condition on federal funding.24 In contrast, the United States Court of Appeals for the Second Circuit in Alliance for Open Society International v. USAID (Alliance) struck down the condition as an unconstitutional violation of free speech rights.25

This Note analyzes the constitutionality of the Leadership Act's policy requirement and proposes factors to consider in determining the constitutionality of a funding condition requiring an organization to affirmatively express a particular viewpoint on an issue. Part I discusses Congress's use of funding conditions and provides a brief

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background of the constitutional doctrines that have provided the basis for the Supreme Court's decisions as to the constitutionality of funding conditions.26 Part II evaluates the current tests and standards employed by the Supreme Court in considering the constitutionality of funding conditions.27 Part III proposes that the constitutionality of a condition—such as the one imposed by the Leadership Act—should depend on: (1) whether a particular viewpoint is being espoused; and (2) whether the public is aware that the statement is required by the government.28 If the organization is required to espouse the government's particular viewpoint and if there is no way to discern that the organization is simply adhering to a governmental regulation, strict scrutiny should apply.29

I. Constitutional Doctrine Of Funding Conditions

Congress and state legislatures alike have often used subsidies as a means of indirectly promoting government policy.30 Conditioning funding on compliance with regulatory guidelines is a common method of achieving legislative goals.31 Occasionally, however, certain conditions cross the line into unconstitutionality.32 In Speiser v. Randall, for example, the Supreme Court found that a tax exemption conditioned33 on a potential recipient agreeing not to

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advocate the forcible overthrow of the government was an unconstitutional infringement of free speech.34 The courts, however, have generally experienced difficulty determining when exactly a condition crosses the line into unconstitutionality, which has led to inconsistency in funding conditions doctrine.35

When analyzing the constitutionality of a condition on a benefit's receipt, courts often consider, among other factors,36 whether the statute or regulation has a coercive effect on the recipient,37 whether the regulation is "aimed at the suppression of dangerous ideas,"38 and whether the expression at issue, in instances where speech is implicated, falls under the category of government speech.39 Members of the Supreme Court often have differing opinions on how

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certain staples of First Amendment doctrine apply in a government subsidy context.40 The manner in which these and other considerations are applied is often determinative of a regulation's constitutionality.41 If a condition is viewpoint-based or has a coercive effect on the recipient, it is more likely to be held unconstitutional.42

A. Coercive Effect

The Leadership Act requires funding recipients to adopt a policy explicitly opposing prostitution.43 Although the government enjoys broad discretion to condition the receipt of its funds, "[t]he government may not place a condition on the receipt of a benefit or subsidy that infringes upon the recipient's constitutionally protected rights."44 When a petitioner challenges a condition on free speech grounds, the court must determine whether the condition actually infringes the right to free speech.45 In analyzing whether a condition infringes upon a right, courts have attempted to determine whether a condition or regulation is so coercive that it can be equated to a direct regulation or law.46 When a coercive effect exists, strict scrutiny47

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often applies,48 frequently to the detriment of the condition or regulation.49 Whether a court finds that a statute has a coercive effect—and thus infringes a right—often depends on a condition's classification as either a penalty on the exercise of speech rights or a mere refusal to subsidize certain expression.50 If a condition is characterized as a "penalty," the regulation or statute likely will be found unconstitutional;51 however, if the court determines that a condition prohibiting certain speech is simply a refusal to subsidize that speech, the condition likely will be upheld.52 Scholars have

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criticized the penalty/nonsubsidy dichotomy as arbitrary, thus leading to inconsistent results even when the courts are presented with factually analogous scenarios.53 Additionally, scholars have argued that constitutional rights can be impermissibly burdened even if not necessarily "coerced" through the offer of a benefit.54 Despite these criticisms, courts continue to look to a condition's coercive effect in determining its constitutionality.

B. Viewpoint-Based Regulations

Congress cannot impose a condition on a benefit's receipt that acts as a coercive penalty on the exercise of free speech rights.55 Additionally, Congress cannot regulate speech based on the speech's message.56 "It is either as a coercive penalty or as viewpoint suppression . . . that the denial of a government benefit may 'infringe [a person's] constitutionally protected . . . freedom of speech . . . ,'"57 Typically, when the government attempts to regulate or burden certain speech specifically because of the speech's particular message or content, strict scrutiny applies.58 However, regulations that confer benefits or impose burdens on speech irrespective of its content are considered content-neutral and are subject only to intermediate scrutiny.59 Application of the normal standards for content-based and

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content-neutral regulations has varied in the government subsidy context.60 Despite the fact that certain funding conditions seemingly discriminate on the basis of content or viewpoint, the Court has, in certain opinions, neglected to apply strict or intermediate scrutiny.61 At times, the Court has instead applied minimal scrutiny, reasoning that refusing to subsidize one activity while simultaneously funding another is simply not discriminating on the basis of viewpoint.62 In Speiser, however, the Court chose to apply strict scrutiny.63 The Court found that the condition was "aimed at the suppression of dangerous ideas" and thus discriminated on the basis of viewpoint.64

The majority of case law on the conditioning of subsidies indicates that when the government selectively funds one activity to the exclusion of another, the government is not discriminating on the basis of viewpoint; therefore, First Amendment rights are not infringed.65 Similarly, courts...

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