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

The same considerations in allowing an exception to First Amendment principles in prohibiting contractor “contributions” to candidates, therefore, may not necessarily be present to justify a similar government restriction on contractor “expenditures” for independent political speech.

Government Program Restrictions and “Government Speech”

It is obvious that Congress may and does institute various conditions and requirements on the receipt of federal funds. Although the cases discussed above were found to constitute an “unconstitutional condition” on the receipt of federal funds by private parties, the Supreme Court has permitted the government to require a restriction on the use of a recipient’s own funds for certain speech within a particular program when that program is even partially funded with federal funds. In Rust v. Sullivan,112 the Court explained that in prohibiting abortion counseling by private entities within certain federally supported programs the government did not place a “condition on the recipient of the subsidy,” but rather placed the restrictions on the “particular program or service” which “merely require that the grantee keep such activities separate and distinct from the” publicly funded activities.113 Chief Justice Rehnquist, writing for the Court, distinguished this situation from the “unconstitutional conditions” cases:

In contrast, our “unconstitutional conditions” cases involve situations in which the Government has placed a condition on the recipient of the subsidy rather than on a particular program or service, thus effectively prohibiting the recipient from engaging in the protected conduct outside the scope of the federally funded program. 114

More recently, the Supreme Court has noted that when the government funds activities it may limit, restrict, and fashion the speech of those speaking on its behalf either as “government speech,” or when the government uses “private speakers to transmit specific information

pertaining to its own programs.”

115

The Court explained that “[w]hen the government disburses

public funds to private entities to convey a governmental message, it may take legitimate and appropriate steps to ensure that its message is neither garbled nor distorted by the grantee.” 116

This “exception” to the First Amendment for “government speech,” or for certain private speech within the parameters of some government programs, would not, in any event, extend to all activities and programs of individuals or private entities which receive government funds. In Legal Services Corporation v. elazquez,117 the Court overturned a restriction on the Legal Services Corporation’s grantees “lobbying” for changes in welfare legislation as part of legal representation of indigent clients. The Court found that even though the legal services program was government funded, and thus the speech that the government wished to limit by statute was,

112

500 U.S. at 173 (1991).

113

Id. at 196.

114 Id. at 197. See also “voluntary” expenditure limitation on campaign expenses when a candidate agrees to accept federal funds. That provision was not directly challenged, and its constitutionality was not before the Court in Buckley. 424 U.S. at 87 n. 119. The Court, however, appeared to favor such provision since it believed that providing federal funds to private parties for political campaigning enhanced, rather than restricted, opportunities for public communication: “Subtitle H is a congressional effort, not to abridge, restrict or censor speech, but rather to use public money to facilitate and enlarge public discussion and participation....” 424 U.S. at 92-93.

115

Legal Services Corporation v. Velazquez, 531 U.S. 533, 541 (2001).

116 Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819, 833 (1995), citing Rust, supra at 196-200 (emphasis added).

117

531 U.S. 533 (2001).

Congressional Research Service

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