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Legislative Options After Citizens United v. FEC: Constitutional and Legal Issues

organization may simply choose to forgo participating in political or public policy advocacy to be eligible to receive a grant or a contract, and although no one has a “right” to participate in or receive funding, the Supreme Court under the so-called “unconstitutional conditions” cases has in the past established the principle that the receipt of a federal benefit may not be conditioned upon abdicating one’s constitutional rights, particularly one’s First Amendment freedom of speech:

For at least a quarter-century, this Court has made clear that even though a person has no “right” to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests—especially, his interest in freedom of speech. For if the Government could deny a benefit to a person because of his constitutionallyprotected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to “produce a result which [it] could not command directly.” Speiser v. Randall, 357 U.S. 513, 526. Such interference with constitutional rights is impermissible. 102

In 1996 the Court recognized “the right of independent contractors not to be terminated for exercising their First Amendment rights.”103 This principle, noted the Court, expressly applied to and derived from judicial decisions negating attempts to condition the receipt of government contract funds on the abdication of one’s First Amendment rights of speech and advocacy. 104

The Supreme Court under this line of cases invalidated a federal law which would have placed an advocacy restriction on any recipient of particular grants from a federally funded program (public broadcasting) in Federal Communications Commission v. League of Women Voters of California.105 Although broadcast stations might be required to follow certain fairness guidelines, the Court found that such broadcasters, merely because they receive some federal funding through the Corporation for Public Broadcasting, could not be prohibited from providing their own expression and opinions on matters of public interest, as the ban was not narrowly tailored to sufficiently address the government’s asserted justifications for such restrictions on speech. 106

In Citizens United, one of the arguments for maintaining the statutory restriction on independent corporate campaign expenditures was that the corporation had been granted by law certain benefits and privileges, and as a condition to receive such government-granted benefits, the corporations could be denied their First Amendment right to engage in political expression in making independent campaign expenditures.107 The Supreme Court, however, summarily dismissed such notion that government benefits could be given in this situation on the condition of forfeiting or forgoing First Amendment privileges:

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Perry v. Sinderman, 408 U.S. 593, 597 (1972). Board of Commissioners v. Umbehr, 518 U.S. 668, 686 (1996). See 518 U.S. at 680, and the Court’s explanation of “[o]ur unconstitutional conditions precedents .... 468 U.S. 364 (1984).

106 468 U.S. at 399-401. In Speiser v. Randall, 357 U.S. 513, 518 (1956), the Supreme Court found that the state may not place a condition on eligibility for a tax-exemption on a basis that violates one’s First Amendment freedoms of speech, expression, and association: “To deny an exemption to claimants who engage in certain forms of speech is in effect to penalize them for such speech.” See discussion in Regan v. Taxation With Representation of Washington, 461 U.S. at 545, specifically 461 U.S. at 552-553 (Blackman, J. concurring).

107

Citizens United, slip op. at 34-35.

Congressional Research Service

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