Mr. McGath is a software consultant in Penacook, New Hampshire.
One way for a government to control people is to threaten them with punishment for disobedience, Such a direct approach, though, often provokes strong opposition. A second, subtler way is to tax them, then allow them to have some money back only if they do as the government wishes. The federal government’s power to exercise the second kind of control grew alarmingly on May 23, 1991.
On that day, in the case of Rust v. Sullivan, the Supreme Court ruled that the government could restrict not just what subsidized family planning clinics may do, but what they may say to their clients. According to the ruling, a regulation by the Department of Health and Human Services (HHS), which prohibits Federally funded clinics from providing information about abortion services or recommending abortion, is valid under the Constitution.
Many people on both sides saw this case as an “abortion issue.” Opponents of abortion cheered; advocates of the right to choose protested against the restriction on abortion rights. In his dissenting opinion, Justice Blackmun wrote that HHS regulation “has both the purpose and the effect of manipulating [a woman's] decision as to the continuance of her pregnancy.”
But in fact, the issue is not abortion but speech—specifically, speech by those who accept government subsidies. The Supreme Court’s ruling upheld the principle that when the government offers funds, it may include as a condition of funding that those who receive the money refrain from disseminating certain kinds of information, or expressing certain points of view. If the regulations had stated that the clinics couldn’t recommend even birth control pills—or if they had specified that only clinics that made abortion referrals could receive funds—the legal logic would have been the same.
Many of the critics have focused on the effect of the decision on women seeking help from the clinics, particularly women who are too poor or isolated to seek alternatives. Certainly these women have a vital interest in the case, and their options are diminished by the Court’s decision. But there is no such thing as a right to be provided with information, except by the agreement of the provider. Rust v. Sullivan cuts into not the right to receive information, but the right to give it.
The central issue of rights applies to the owners of the clinics and the professionals who practice there. In giving them money, may the government properly restrict the information that they are allowed to provide? The two focal points in the issue are funding and information; abortion is involved only incidentally.
As in many issues of this type, the main debate contains a false alternative. Recipients of governmental funding assume that they have an unconditional right to the money. Opponents of abortion regard tying strings to the money as a legitimate way to implement their policy. Both of these views are seriously flawed. One seeks to ignore, the other to exploit, the negative consequences of tax subsidies.
When the government funds an activity, it will exercise control over it. As the “Wizard of Id” comic strip once put it: “Remember the golden rule. He who has the gold makes the rules.” The government must judge the qualifications of applicants on the basis of what they do, and choose to fund some and not others. The “right” to funding depends on how closely the applicant’s activities coincide with the goals and criteria of the government agency giving out the money. Value-neutral funding is impossible. The more the activity bears upon matters of strong personal concern, the more obvious the value preferences in the funding will be.
We can see the same phenomenon in other areas of governmental funding. The National Endowment for the Arts provides money for works that are deemed sufficiently “artistic,” according to the judgment of the officials in control of the money. The question of whether Congress or NEA officials should control that decision is merely a dispute between different branches of the government.
The more such precedents the government sets, the more it becomes protective of its power to control the beneficiaries. In the majority opinion in Rust v. Sullivan, Chief Justice Rehnquist wrote: “To hold that the Government unconstitutionally discriminates on the basis of viewpoint when it chooses to fund a program dedicated to advance certain permissible goals, because the program in advancing those goals necessarily dis courages alternate goals, would render numerous government programs constitutionally suspect. When Congress established a National Endowment for Democracy to encourage other countries to adopt democratic principles, it was not constitutionally required to fund a program to encourage competing lines of political philosophy such as Communism and Fascism.”
The implicit smear is ugly enough in itself, coming in an official statement by the Chief Justice. When the government permits those whom it funds to express only the official point of view, it excludes many philosophies that are not communistic or fascistic by any stretch of the imagination. But leaving this aside, his statement shows how the logic of power feeds on itself. Rather than err on the side of endangering current programs that permit the expression only of the official philosophy, the Court endorsed a further expansion of the government’s power to specify the content of the activities it subsidizes.
The impact of this decision is potentially devastating. Foes of abortion see only the immediate impact of the decision, and applaud it; but the power that the Court has granted the federal government can be used equally by the Left and the Right. The HHS restrictions, and the Court’s approval of them, tremendously increase the government’s power to control any kind of activity that it funds. As Justice Blackmun noted in his dissent: “Until today the Court never had upheld viewpoint-based suppression of speech simply because that suppression was a condition upon the acceptance of public funds. Whatever may be the Government’s power to condition the receipt of its largess upon the relinquishment of constitutional rights, it surely does not extend to a condition that suppresses the recipient’s cherished freedom of speech based solely upon the content or viewpoint of that speech.”
Yet in this formulation, Blackmun acknowledges that the government may call on recipients of subsidies to relinquish some of their constitutional rights. (For example, recipients of government money often are required to implement affirmative action programs, limiting their freedom to choose their employees.) Rust v. Sullivan expands this power disastrously; but the potential for the disaster existed from the day that governmental subsidies of private activity were first devised.
These subsidies, we must remember, come from taxation. To get one’s money back, one must meet the government’s qualifications for a subsidy. Thus, those who choose non-subsidized activities are, in effect, punished for their choices by having their money taken and not returned. Traditionally, the losers are people whose activities aren’t deemed sufficiently important to the “public interest.” After Rust v. Sullivan, though, the qualifications for activity in the “public interest” can include not only what one does but what one says. The government now can use the coercive power of taxation not just to benefit certain activities, but to promote certain ideas.
A New Threat
What is most frightening is the possibility of expanding Federal control of expression and information to private educational institutions that receive government money—meaning virtually all of them. Neither liberals nor conservatives have a monopoly on the desire to exercise control. Whether we see attempts to ban “racist” and “homophobic” courses and textbooks, or “blasphemous” and “obscene” ones, depends only on whether the politically correct Left or the fundamentalist Right acts first.
Neither side is likely to have much success in the immediate future. A major assault on our liberties always happens in stages. The first step is the establishment of a principle, and its application to one area where there is widespread support for the restriction. Next comes a period in which those who established the principle assure us that the disastrous consequences predicted by its critics won’t happen. Only after people get used to the principle, and after the critics have grown less vocal, does the government follow through in a major way. It was over 20 years after the establishment of governmental funding for the arts that the first explicit regulations concerning content were passed. And, ironically, the regulations requiring “decency” in art were quite different from any that the liberal advocates of artistic subsidies would have wanted.
By the time the principle of Rust v. Sullivan incubates and comes to maturity, there’s no telling what political fads will have arisen, and what kind of lobbies will be in a position to impose speech-based restrictions on funding.
The walls of academic freedom will take a long time to knock down. However, other recipients of governmental subsidies may be more vulnerable. The precedent set by the Supreme Court applies directly to the medical profession. It would be no great leap for a government agency to issue a regulation that forbids doctors who receive Medicaid or Medicare payments from discussing the option to withhold life-support with patients suffering from terminal diseases. A system of national health insurance would, of course, greatly increase the scope of this danger.
Control through funding bypasses all constitutional limitations. As Chief Justice Rehnquist argues, people still have a choice; they can decide not to accept governmental funding. The government doesn’t impose penalties on them for anything they might say; it merely takes their money and gives it to people who accept restrictions on what they may say. This moves the issue to the disparaged category of economic freedom. The principle of free speech is dangerous to challenge head-on; it’s much safer to act on the principle that the government may take people’s money and expend it for its own purposes.
Any successful challenge to the expansion of governmental power resulting from Rust v. Sullivan must challenge both the controls and the sub-sidles that make them possible. It must challenge the legitimacy of taking money by force from some people to promote the ends of other people. The owners of subsidized family planning clinics want freedom of choice, but they don’t want to grant freedom of choice to the people who are footing the bill—the taxpayers. They need to recognize that they can’t have it both ways. When they lobbied for government funding, they invited government control. If they now want freedom, they should call for an end to Federal subsidies.
The owners of the clinics probably would argue that they would be even less free without governmental money. They would have to call on private donations to provide low-cost services; and private donors might call for similar restrictions, or even more stringent ones, before donating any money.
But private donors are making a choice concerning their own money, not someone else’s. If a donor wants to give money only to organizations that meet his standards—however capricious they may seem to another person—that is his right. In the absence of governmental funding, the clinics still would be able to ask for money from anyone who wanted to give it, but they would not have the right to obtain money by compulsion.
To be free of governmental control, one must be independent of the government. Those who accept the idea that the government may take money from others to help them in promoting their goals are, whether they realize it or not, accepting the idea that the government can dictate their goals. Simply “reforming” the system by attempting to guarantee the independence of the recipients of the money isn’t a viable solution; the government will, in one way or another, control what it subsidizes.
Senator Strom Thurmond pointed this out in 1963, when he warned against governmental subsidies to the arts: “The Supreme Court has stated that the Federal Government has the power to control that which it subsidizes, and experience proves that when the Federal Government has the power, that power is eventually exercised.”
Government funding and government control of private activities go hand in hand. To keep private activity free, its financing must be kept private.