Legislative Options After Citizens United v. FEC: Constitutional and Legal Issues
in fact, within the confines of that program (as in Rust), the activity and speech involved, that is, lobbying the legislature on behalf of a client, could not be considered “government speech,” and thus was not subject to regulation under the “government speech” doctrine. 118
Along a somewhat similar line as the “government speech” concept may be situations where private organizations serve as what might be described as surrogates or stand-ins for government agencies, to perform “governmental functions” of administering and disbursing public funds. In some of these instances federal law has treated these private organizations, for purposes of restrictions on the partisan political activities of their employees, as “state or local” governmental agencies under the provisions of the Hatch Act.119 If a contract or a grant were thus given to perform what might be considered “governmental functions,” or to have private parties serve as surrogates for government officials in administering or managing certain public programs, then arguments could be made that the government could then limit political speech or activities of such private participants in the program under the “government speech” guidelines, or under a similar rationale as the Hatch Act, to protect the fair administration of government programs. The Supreme Court in Citizens United noted that there is “a narrow class of speech restrictions” which may be permissible, such as in the Hatch Act (citing the Letter Carriers case, 413 U.S. 548 (1973)), “based on an interest in allowing governmental entities to perform their functions.” Such rationale, however, would not appear to be strong in the case of private contractors who are merely providing goods or selling products to the government. 120
Governmental Interest Promoted by the Legislation; Least Restrictive Means of Accomplishing Objective
When a provision of law limits or interferes with First Amendment rights, the Supreme Court will engage in what it terms “strict scrutiny” to examine the law and its purposes to determine, initially, if there are significant, “overriding,” or “compelling” governmental interests in the restriction that outweigh the impositions on First Amendment rights.121 If there are such governmental interests in the suppression of speech, the Court will then examine whether the restriction is sufficiently tailored to promote those interests asserted as the law’s justification.
There are several governmental interests which might arguably be promoted by a prohibition on “independent expenditures” by government contractors or grantees, and such interests would need to be analyzed under the Supreme Court’s standards. The interests of the prevention of corruption of the electoral process and undue influences on candidates and officeholders, for example, have been found to be important governmental interests which may justify, in some cases, certain limitations or burdens on First Amendment activities.122 Even while such interests have been found to be significant, however, the Court has struck down restrictions on advocacy and political
Id. at 542-543.
119 5 U.S.C. §§ 1501 et seq. Note Community Services Block Grant Program 42 U.S.C. § 9918(b)(1), and the Head Start program, 42 U.S.C. § 9851(a).
Citizens United, slip op. at 24-25. Citizens United, slip op. at 23-25.
122 Buckley, 424 U.S. 1 (1976); McConnell v. Federal Election Commission, 540 U.S. 93, 143 (2003): “Our cases have made clear that the prevention of corruption or its appearance constitutes a sufficiently important interest to justify political contribution limits.”
Congressional Research Service