June 20, 2013

Congress's ill-starred effort to prescribe the orthodoxy of anti-prostitution.

Today, the Supreme Court found that it violated the First Amendment for Congress to grant anti-AIDS funds only to organizations that have "a policy explicitly opposing prostitution and sex trafficking." The case is Agency for International Development v. Alliance for Open Society International, Inc. (PDF).

Chief Justice Roberts, writing for the majority, ends his opinion with what is perhaps the most lofty expression in all of the Supreme Court Reports:
We cannot improve upon what Justice Jackson wrote for the Court 70 years ago: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." [West Virginia State Board of Education v. Barnette, 319 U. S. 624, 642 (1943).
Justice Scalia (who's joined by Thomas) does not appreciate the invocation of Jackson's famously fixed star. He said it was a distraction from "the elephant in the room: that the Government is not forcing anyone to say anything." Congress simply demanded that the recipients of federal funds have "an ideological commitment relevant" to the work that the government is funding. Barnette was about requiring American children to pledge allegiance to the flag. But the U.S. Constitution itself requires legislators to take an oath or affirmation of allegiance to the government, and that shows that the founders believed in "the wisdom of imposing affirmative ideological commitments prerequisite to assisting in the government’s work."

You may remember a 1991 case called Rust v. Sullivan, where the Supreme Court upheld HHS regulations that required recipients of federal health-care grants for family planning services to refrain from discussing abortion as an option. Congress was exercising its spending power, and:
That power includes the authority to impose limits on the use of such funds to ensure they are used in the manner Congress intends. Rust v. Sullivan, 500 U. S. 173, 195, n. 4 (1991) (“Congress’ power to allocate funds for public purposes includes an ancillary power to ensure that those funds are properly applied to the prescribed use.”)
In Rust, Roberts says, Congress was defining the program it funded, which was to "encourage only particular family planning methods." Even though Congress limited what they could say as they carried out the funded activity they agreed to do, it did not try to limit their speech outside of the program and it did not require them to espouse a government-prescribed anti-abortion policy.

Justice Scalia said that the government is entitled have its own viewpoints, and it can express that viewpoint by excluding recipients who believe things they don't want promoted.
If the organization Hamas—reputed to have an efficient system for delivering welfare—were excluded from a program for the distribution of U. S. food assistance, no one could reasonably object. And that would remain true if Hamas were an organization of United States citizens entitled to the protection of the Constitution. So long as the unfunded organization remains free to engage in its activities (including anti-American propaganda) “without federal assistance,” United States v. American Library Assn., Inc., 539 U. S. 194, 212 (2003) (plurality), refusing to make use of its assistance for an enterprise to which it is opposed does not abridge its speech. And the same is true when the rejected organization is not affirmatively opposed to, but merely unsupportive of, the object of the federal program, which appears to be the case here. (Respondents do not promote prostitution, but neither do they wish to oppose it.) A federal program to encourage healthy eating habits need not be administered by the American Gourmet Society, which has nothing against healthy food but does not insist upon it....
So how much do you worry about the government exploiting its immense power to channel money into controlling what people are able to say?  Just don't fall for the temptation of taking the money and you can say whatever you want — that's the Scaliaesque answer.

As the government rakes in more and more money and turns around and redistributes it with strings attached, I'd say we should worry a lot. I'm glad to see the free speech right strengthened here.

49 comments:

pduggie said...

He who pays the piper can't call the tune?

Michael K said...

My God ! More elephants in the room !

bagoh20 said...

I don't know what Justice Jackson was bloviating about, as desirable as it sounds, but such a nation has never existed anywhere anytime. My entire day is filled up with me complying with what officials both high and petty " prescribe... shall be orthodox in politics, nationalism, religion, or other matters of opinion. They just relabel it as "commerce" or "the public good".

Chip S. said...

Finally, pimps be gettin' some of that sweet, sweet SCOTUS love.

Ann Althouse said...

Not only is there an elephant in the room, per Scalia, but also, per Scalia, the Court "pussyfoots."

cubanbob said...

This is one singularly stupid decision. Now it's no longer enough to prevent prior restraint but now government must subsidize as well. Congress should cut the funding for the Agency for International Development in it's entirety as an example to both the court and these advocacy groups.

Bob Ellison said...

I'm with Scalia. Roberts seems like a lightweight, losing weight by the year.

Bryan C said...

Roberts is right. The government can't require you to profess certain views. Handing out cash can't grant the government special extra-Constitutional powers.

So don't want people spending federal money on things that are unsavory, counterproductive, or morally questionable? Then stop handing out federal money. Problem solved. The government has used selective funding to skirt the law for much too long.

The oath bit in Scalia's opinion seems like a red herring to me. What the Constitution requires of elected officials has nothing to do with what the government can legally require of the rest of us.

Bob Ellison said...

Bryan C, are you saying that handing out money is no different from withholding rights? That would be a liberal (small l) view.

cubanbob said...

I started to read the opinion of the court and I'm shocked at the underlying stupidity of the reasoning it employed. Never mind that fact that prostitution is illegal in all of the United States but for one or two counties, never mind that prostitution is illegal where these funds yet under the guise of free speech the government can't withhold funding from advocacy groups because not getting funding (absent a contractual agreement) from the government is too burdensome.

cubanbob said...

So don't want people spending federal money on things that are unsavory, counterproductive, or morally questionable? Then stop handing out federal money. Problem solved. The government has used selective funding to skirt the law for much too long."

You just made the case to abolish nearly all government spending. And eliminating all tax deductions and credits since they to are forms of spending. As I said before this ruling is singularly stupid. Either the government funds all comers or none. The safe default now is no funding at all.

elkh1 said...

"...no official, high or petty, can ...force citizens to confess by word or act their faith therein."

How about the contents of the prayers of the members of your organization?

gerry said...

The government can't require you to profess certain views. Handing out cash can't grant the government special extra-Constitutional powers.

Might forcing anyone to pay for abortifacients be a form of government requiring profession of certain views?

ricpic said...

The word "forcing" does not apply to "We won't give you funding if you don't say certain magic words." Outfits are still free to rustle up funding from sources other than taxpayers.

Ignorance is Bliss said...

cubanbob said...

And eliminating all tax deductions and credits since they to are forms of spending

They are not a form of spending, and it corrupts the language to say otherwise. They do have a similar effect of the government micromanaging things that are not its business, and on those grounds should be entirely* done away with.

*except my mortgage deduction, because shut up.

Nathan Alexander said...

I agree with the arguments of both Roberts and Scalia, so I'm going to have to wait to see how this is used in cases going forward.

Meaning, if this ruling is used as precedent in future rulings to stop the the requirements that HHS is currently attempting to levy on the Catholic Church, or to allow defunding of Planned Parenthood, or to end Affirmative Action, or the way the Federal govt destroys federalism by attaching strings to the funding it sends to states, then I think it was the correct choice.

There are other ways to ensure gov spending doesn't go to things that are not "orthodox in politics, nationalism, religion, or other matters of opinion."

Responsibility in the budgeting process usually takes care of that.

cubanbob said...

Ignorance is Bliss said...
cubanbob said...

And eliminating all tax deductions and credits since they to are forms of spending

They are not a form of spending, and it corrupts the language to say otherwise. They do have a similar effect of the government micromanaging things that are not its business, and on those grounds should be entirely* done away with.

*except my mortgage deduction, because shut up.

6/20/13, 11:25 AM

Of course they are a way of spending. It's part of the off the books government spending just as are the charitable and tax exempt and non-profit status. It steers money that had there been none of these statuses been available back to government. The politicians love this because they do get to fund without the responsibility of held accountable for the spending. You really think that private colleges would be so expensive if not for their non-profit status, charitable status and 529 plans? Can you afford your home without the mortgage interest deduction? It's not for nothing that home builders and realtors among others will fight to the death to keep these deductions.

Ignorance is Bliss said...

Nathan Alexander said...

Responsibility in the budgeting process usually takes care of that

I think that statement can be parsed in several ways, not all of which are true.

If you mean When there is responsibility in the budgeting process, it usually takes care of that then I would certainly agree.

If you mean that there is usually responsibility in the budgeting process, which takes care of that then I would certainly disagree.

In recent years, there usually hasn't even been a budgeting process.

cubanbob said...

The government can't require you to profess certain views. Handing out cash can't grant the government special extra-Constitutional powers.

Like overpaying for public works projects thanks to Davis-Bacon?

Ignorance is Bliss said...

cubanbob said...

Of course they are a way of spending

If I normally earn a salary of $1000 per week, and I choose to take a week off unpaid in order to have some extra vacation time, would you say that I spent $1000? I certainly wouldn't, even though I have $1000 less in my pocket and got something I wanted in return.

David-2 said...

Not so far from:

"The government is not forcing anyone to do anything. It's just that if you don't stop smoking/get your BMI below 20/eat your broccoli we won't subsidize your health insurance (that we're taxing you extra for if you don't buy)."

Ann Althouse said...

"The government can't require you to profess certain views. Handing out cash can't grant the government special extra-Constitutional powers."

What Scalia would say there is you're not coerced to take the grant. Take it or leave it, but if you take it, you've got to follow the rules.

(Think about how the govt uses taxing and spending to nudge us into all manner of things that we're only affected by because we care about money.)

Ann Althouse said...

"My entire day is filled up with me complying with what officials both high and petty " prescribe... shall be orthodox in politics, nationalism, religion, or other matters of opinion."

Yes but you can still bitch about it all you want. That's your free speech right.

Paul Zrimsek said...

I'm a big fan of the doctrine of unconstitutional conditions, but it sounds to me, based on my limited familiarity with the case, like the required nexus exists between the purpose for which the money is granted and the strings attached to it.

Peter said...

Bryan C said, "Handing out cash can't grant the government special extra-Constitutional powers."

Someone should have reminded the government of that when it threatened to withhold highway funds from states that did not lower their speed limits to 55mph.

The power of the purse is awesome because the purse is so damn big- since the power can't be elimintated, the cure is to shrink the purse.

Andy Freeman said...

> You really think that private colleges would be so expensive if not for their non-profit status, charitable status and 529 plans?

Charitable status and 529 plans apply as well to public colleges.

Profit-vs-non-profit has almost no effect on price wrt colleges because expenses are almost as big as the revenue. (That's also true of grocery stores, so whenever you run into someone who says that corporate taxes should be on revenue, ask why she wants food prices to go up by that amount.)

Nathan Alexander said...

@IiBliss,
If you mean When there is responsibility in the budgeting process, it usually takes care of that then I would certainly agree.

This is what I meant.

It was a bit snarky, because I agree that most of the time, and certainly since 2006, there has been a distinct lack of responsibility in the budgeting process.

The point being, if you don't want federal dollars to go to support HIV prevention by groups that work with prostitutes, you have to get involved in the political process and put pressure on the legislators.

Calypso Facto said...

So can we start getting things like the "equal opportunity employer" clause and other useless affirmations struck from government contracts?

Nomennovum said...

My entire day is filled up with me complying with what officials both high and petty.

Well stated. As is a large chunk of mine. In my industry, the most sought-after personnel are compliance officers.

In any event, my initial inclination is to side with Scalia on this, although I think the government's position was terrible and I like the result of the case, if not the legal reasoning that arrived at it.

Achilles said...

It seems big government conservatives want the government to be able to dictate speech so that way when they are forced to pay for abortion and advocate for gay marriage they have something to whine about. That way everyone wins. People get free abortions payed for by taxpayers, gay marriage is pushed in public schools, and lawyers get to sue anyone who fires a gay person.

Most important conservatives get to be a permanent minority that wants to tell other people what to say and think but never win another national election. They get to whine incessantly about government funding of abortion and gay marriage. But they also get to hold on to a feeling of moral superiority which seems to be more important to them than actually making a difference.

Birkel said...

Oh, look! Achilles the Heel showed up to tell everybody how awful they are.

Pray, do tell.

cubanbob said...

Ignorance is Bliss said...
cubanbob said...

Of course they are a way of spending

If I normally earn a salary of $1000 per week, and I choose to take a week off unpaid in order to have some extra vacation time, would you say that I spent $1000? I certainly wouldn't, even though I have $1000 less in my pocket and got something I wanted in return.

6/20/13, 12:01 PM

A better analogy is you and I have the same gross income and have no other income adjustments other than the home mortgage deduction. You have a mortgage and I don't. I pay more than you.

Marty Keller said...

The bigger issue is the never-ceasing expansion of the legal bribery of taxpayers with our own money. Scalia is certainly correct to admonish people who don't want government strings to Just Say No, but for years Congress has stealthily undermined the IX amendment with tax money coercion. It will take a long time to dig out from the Boomers' love of the federal government as the substitute for personal responsibility.

cubanbob said...

Andy Freeman said...
> You really think that private colleges would be so expensive if not for their non-profit status, charitable status and 529 plans?

Charitable status and 529 plans apply as well to public colleges.

Profit-vs-non-profit has almost no effect on price wrt colleges because expenses are almost as big as the revenue. (That's also true of grocery stores, so whenever you run into someone who says that corporate taxes should be on revenue, ask why she wants food prices to go up by that amount.)

6/20/13, 12:33 PM

Their expenses are to large degree of choice. They don't have to give discounted tuitions to some and charge higher fees to others, they don't have to spend tax exempt money to overpay administrators among other things. If the 529 plans didn't exist and these institutions had to pay a gross receipts taxes on their revenue in lieu of an income tax or pay tax of the income of their endowments tuitions would be considerably lower. Incidentally which state university charges the average annual fee that a private top fifty university charges? Without the selective tax subsidy private colleges would have to lower their tuitions in order to attract enough students. Money is fungible.

cubanbob said...

Ann Althouse said...
"The government can't require you to profess certain views. Handing out cash can't grant the government special extra-Constitutional powers."

What Scalia would say there is you're not coerced to take the grant. Take it or leave it, but if you take it, you've got to follow the rules.

(Think about how the govt uses taxing and spending to nudge us into all manner of things that we're only affected by because we care about money.)

6/20/13, 12:18 PM

Scalia is blindingly right. With this decision every private school in America religious or otherwise is entitled to funding. Doctrine and philosophy are also free speech. I guess CJ Robert's still hasn't fully figured out his duck theory. Since virtually every the government funds has a speech element every interest group with an opposing view will start clamoring for funding as well without the strings.

Ignorance is Bliss said...

cubanbob said...

A better analogy is you and I have the same gross income and have no other income adjustments other than the home mortgage deduction. You have a mortgage and I don't. I pay more than you.

I don't see how that is better, in that it tells us nothing about whether the term "spending" applies to what the government is doing in allowing the mortgage deduction.

In what way is my example not equivalent to what the government is doing? Should my example be called spending, or not?

Note: I'm not saying your example is unrealistic, or that it doesn't point out an unfairness in the tax system. The point I thought we were debating is whether or not the term "spending" is an accurate description of what the government is doing.

Blair said...

Scalia is absolutely right. The Government discriminates all the time. The only limit on that is the Constitution. I don't see anything in the constitution which either forbids or permits government to fund something based on the political opinion of the organization.

Revenant said...

The government should not be in the business of handing out money to people or groups -- not unless we're talking about government employees or people the government owes money.

So long as the government has decided to be in that business, it damned well OUGHT to be viewpoint-neutral. It has no business using my money to promote a government-approved vision of the world.

Revenant said...

What Scalia would say there is you're not coerced to take the grant. Take it or leave it, but if you take it, you've got to follow the rules.

Say you pay $10,000 a year in taxes. You can get a $500 grant from the government, but only if you swear to never advocate for, say, banning gay marriage. Scalia's argument is that there's no coercion because you can just opt to not take the money. My argument is "who are you to put conditions on giving me back MY money, mother fucker". :)

Rocco said...

@Revenant:
"Say you pay $10,000 a year in taxes. You can get a $500 grant from the government, but only if you swear to never advocate for, say, banning gay marriage. Scalia's argument is that there's no coercion because you can just opt to not take the money. My argument is "who are you to put conditions on giving me back MY money..."
True, but it's worse than that. This decision also covers giving outside the US to people who have not necessarily paid any US taxes.

ken in sc said...

I think prostitution is cool as long as the prices are not too high. In the Bible it says you can get one for the price of a loaf of bread. We have had too much inflation in this market. I blame Bush.

Revenant said...

True, but it's worse than that. This decision also covers giving outside the US to people who have not necessarily paid any US taxes.

The same general principle applies; Congress is giving away other peoples' money, not its own.

cubanbob said...

Ignorance is Bliss said...
cubanbob said...

A better analogy is you and I have the same gross income and have no other income adjustments other than the home mortgage deduction. You have a mortgage and I don't. I pay more than you.

I don't see how that is better, in that it tells us nothing about whether the term "spending" applies to what the government is doing in allowing the mortgage deduction.

In what way is my example not equivalent to what the government is doing? Should my example be called spending, or not?

Note: I'm not saying your example is unrealistic, or that it doesn't point out an unfairness in the tax system. The point I thought we were debating is whether or not the term "spending" is an accurate description of what the government is doing.

6/20/13, 3:36 PM

Lets not beat this horse to death. Essentially what I am saying is that tax deductions and tax credits are the functional equivalent of spending since it funnels money that would have otherwise gone to the government (and this forcing politicians to annually budget the spending) to areas it chooses to funnel the money to (on a semi permanent basis). It's the functional equivalent of arguing whether a discount is the same as a price reduction. In the end tax deductions and credits allocate government funding the same as formal government spending.

DEEBEE said...

For a person who impossibly contorted to justify ACA, this is rich. It might have been more palatable if the majority had constrained their enthusiasm by looking at the government's reasoning for "ancillary" restrictions

DEEBEE said...

For a person who impossibly contorted to justify ACA, this is rich. It might have been more palatable if the majority had constrained their enthusiasm by looking at the government's reasoning for "ancillary" restrictions

Ignorance is Bliss said...

cubanbob said...

Lets not beat this horse to death.

Lets not. I'll stop beating it as soon as you admit I'm right. :)

In the end tax deductions and credits allocate government funding the same as formal government spending.

Sure, in the same sense as if I work a week less in exchange for a week's less pay, I'm allocating that week's pay back to my employer. But of course, nobody would say that.

I don't approve of bastardizing the language just to make a point.

Achilles said...

Tax deductions are the governments way to incentivize certain behaviors. Or more often reward cronies like GE and Honeywell and Goldman Sachs.

Deductions such as this are one step away from system that gives all money to the government and let's them dole out what they think you should get based off your good deeds. If you are really good like GE instead of paying taxes the government will give you billions back instead. But home mortgage deductions are good kickbacks!

SukieTawdry said...

My rule of thumb is when in doubt, go with Thomas.

Nathan Alexander said...

Thinking about it more, if Scalia were right, then the IRS would have an argument they did nothing wrong in targeting Tea Partiers: it is perfectly fine to add in socio-political principles to the decision to provide a tax exemption.

Scalia would say: don't want to be told to swear an oath to not protest Planned Parenthood? Well, then don't apply for a tax exempt status!

That is clearly wrong, and clearly in violation of the Constitution.

Scalia is wrong.