Powers of the Purse Strings

How far do the purse strings reach?

1. Compelled speech. May Congress withhold federal grants from people who decline to engage in federally-specified speech, where that speech is incidental to, or even antithetical to, achieving the stated purposes of the grants?

Context: Congress authorized funds for over-seas anti-AIDS/HIV programs, but specified that no funds may be given to a group or organization “that does not have a policy explicitly opposing prostitution….” Parties before the Supreme Court object that 1) the policy is counterproductive, in that it impedes their ability to work with prostitutes, and 2) the policy infringes on their freedom of speech.

2. Gag order. May Congress withhold federal grants from people who decline to refrain from engaging in federally-disapproved, but otherwise legal, speech? For example, may Congress withhold anti-AIDS/HIV funds from organizations that actively promote prostitution?

3. Compelled conduct. May Congress withhold federal grants from people who decline to engage in federally-specified conduct, where that conduct is incidental to, or even antithetical to, achieving the stated purposes of the grants? For example, may Congress withhold building contracts from firms that do not have an Affirmative Action policy?

4. Compelled restraint. May Congress withhold federal grants from people who decline to refrain from engaging in federally-disapproved, but otherwise legal, conduct? For example, may Congress withhold family planning funds from agencies that provide abortions?

5. Tax exemption in lieu of grants. May Congress withhold tax exemptions from people who decline to engage in federally-specified speech/conduct, where the speech/conduct is incidental to, or even antithetical to, achieving the stated purposes of the tax exemptions? May Congress withhold tax exemptions from people who decline to refrain from engaging in federally-disapproved, but otherwise legal, speech/conduct? For example, may Congress withhold a tax exemption from a not-for-profit university that engages in racial discrimination?

p.s. The Washington Post characterizes the government’s defense of its policy as follows:

Deputy Solicitor General Sri Srinivasan said that Congress decided to renounce prostitution and sex trafficking because they contribute to the spread of diseases.

Renounce? As in, Give up? Abandon? Discontinue support for?

Share this