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Tuesday, April 9, 2013

Restrictions on the Speech of Recipients of Federal Funds Under the Leadership Act of 2003: United States Agency for International Development v. Alliance for Open Society

Kathleen Ann Ruane
Legislative Attorney

Article 1, Section 8 of the United States Constitution provides Congress with the explicit power to collect taxes. Implicit in that power to collect revenue is also the power to spend that revenue. This clause is known as the Taxing and Spending Clause of the Constitution, and the Supreme Court has found that it grants Congress wide latitude to promote social policy that the federal government supports.

One way that Congress may exercise its spending power to encourage the implementation of policies that the federal government supports is through appropriations. One common example of Congress exercising spending power to impose its will is the National Minimum Drinking Age Act of 1984. That act conditioned the receipt of a percentage of federal highway funding on states agreeing to raise the minimum drinking age to 21. While states were not required by the act to raise the drinking age, they could not receive the funds if they did not.

Congress has wide discretion to provide subsidies to activities that it supports without incurring the constitutional obligation to also provide a subsidy to activities that it does not necessarily encourage. However, the power to spend money only on policies that Congress supports is not without limits. Congress may not place what have come to be known as “unconstitutional conditions” on the receipt of federal funds. Which conditions on the receipt of federal funds are and are not constitutional is a longstanding question with somewhat muddled and unclear answers, particularly when it comes to conditions placed upon the speech of the recipients of federal funds. To what extent may the federal government prevent recipients of federal funds from using that money to communicate a message that may not be supported by the federal government? To what extent may the federal government require fund recipients to espouse a particular point of view as a condition upon the receipt of funds? Courts have struggled with these issues time and again.

Most recently, the Supreme Court has agreed to hear a case challenging the constitutionality of a provision of the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (Leadership Act). The relevant provision prohibits the government from making funds available to grant recipients that do not have a policy of opposing prostitution. The question facing the Court in this case is whether the Leadership Act’s requirement that recipients affirmatively adopt a policy that applies to the entire organization, and not just to the federal funds received, violates the First Amendment. The outcome of this case may be important for Congress, because it could inform the design of future statutory funding conditions. Oral arguments are set for April 22, 2013.

Date of Report: April 2, 2013
Number of Pages: 17
Order Number: R43027
Price: $29.95

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