Congress funds a variety of causes to the exclusion of others. That is permissible and necessary. Congress cannot, however, condition its spending on the abandonment of recipients’ constitutional rights. Legislation that steps over this line implicates the Unconstitutional Conditions Doctrine. The Supreme Court will soon consider this doctrine in connection with a congressional statute requiring an organization to have a policy explicitly condemning prostitution and sex trafficking in order to receive federal funding.
Case History
When the government expressly compels speech, it treads on the thinnest of constitutional ice. The Founding Fathers enacted the First Amendment, in large part, to prevent such governmental coercion. For this reason, the Supreme Court has emphasized that, while Congress has almost limitless power to condition funding under the spending clause, "The government may not deny a benefit to a person on a basis that infringes his constitutionally protected … freedom of speech even if he has no entitlement to that benefit," as ruled in Rumsfeld v. Forum for Academic and Institutional Rights, 547 U.S. 47, 59 (2006).
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