Legislative Options After Citizens United v. FEC: Constitutional and Legal Issues
Conditioning Government Contracts or Grants on Forgoing Right to Political Speech95
Efforts by the federal government to restrict private, nongovernmental entities from using their own (non-federal) resources to engage in independent political advocacy or other political communications as a condition to receiving, or because the entity receives, some federal funding by way of grants or contracts would raise significant First Amendment concerns. Congress may certainly limit, regulate, or condition the use of the funds it appropriates,96 and there are now under federal law and regulation several prohibitions and multiple restrictions on the use by private recipients of federal funds or federal subsidies for political or advocacy purposes.97 When the government goes beyond restrictions and conditions on the use of the funds it appropriates, however, (or goes beyond attempts to control or “define” the content of a government program98), and seeks to institute a direct suppression of independent political advocacy by private entities as a condition to receive (or as a consequence of receiving) federal funds, then such legislation must be examined under the heightened scrutiny of First Amendment principles. The Supreme Court has noted that restrictions on otherwise constitutionally protected activities could not be “justified simply because” persons were receiving federal funds, nor was “a lesser degree of judicial scrutiny ... required simply because Government funds were involved.” 99
“Unconstitutional Conditions” on the Receipt of Federal Funds
The Supreme Court has in the past ruled “that the government may not deny a benefit to a person because he exercises a constitutional right.”100 The principle has thus developed in a line of cases that the government may not condition the receipt of a public benefit upon the requirement of relinquishing one’s protected First Amendment rights.101 Although it is true that a private
prior permission to speak. These onerous restrictions thus function as the equivalent of prior restraint.”) (internal citations omitted).
95 This portion of the report discussing restrictions on government contractors and grantees was written by Jack Maskell, and was derived from and is a summary of CRS Report RL34725, “Political” Activities of Private Recipients of Federal Grants or Contracts, by Jack Maskell, at 21-33.
Cincinnati Soap Co. v. United States, 301 U.S. 308, 321-322 (1937).
97 OMB Circular A-122, Attachment B, para. 25, as added 49 F.R. 18276 (1984) (restrictions on non-profit grantees); Federal Acquisition Regulation for commercial contractors and nonprofit contractors of the federal government, 48 C.F.R. § 31.205-22 (commercial contractors); 48 C.F.R. § 31.701 et seq., (non-profit contractors); “Byrd Amendment,” 31 U.S.C. §§ 1352, see common rules by major agencies, 55 F.R. 6738, February 26, 1990 (and OMB government- wide guidance, 54 F.R.52306, December 20, 1989 upon which the rules were based); 18 U.S.C. § 1913, and various yearly appropriations law riders.
98 As to government program restrictions or limitations, however, the Supreme Court found: “Congress cannot recast a condition on funding as a mere definition of its program in every case, lest the First Amendment be reduced to a simple semantic exercise.” Legal Services Corporation v. Velazquez, 531 U.S. 533, 547 (2001).
99 FCC v. League of Women Voters, 468 U.S. 364, 401 n.27 (1984). Regan v. Taxation With Representation of Washington, 461 U.S. 540, 545 (1983). 100
101 Note “unconstitutional conditions” cases, including Perry v. Sinderman, 408 U.S. 593 (1972); Speiser v. Randall, 357 U.S. 513 (1956); Regan v. Taxation With Representation of Washington, 461 U.S. at 545, see also 461 U.S. at 552-553 (Blackman, J. concurring) (1983); FCC v. League of Women Voters, 468 U.S. 364, 381 (1984). Compare with Rust v. Sullivan, 500 U.S. 173, 196 (1991).
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