Purchasing Submission | Opinion

Our government rules us in many ways. Theoretically, by law. As a practical matter, by administrative edicts.

But that's not all. It also controls us by purchasing our submission.

The problem crosses party boundaries. All recent administrations have governed by purchase when they could not get what they wanted by law or administrative fiat.

Just since the start of this year, Congress has funded states on the condition that they maintain their tax rates—something it could never simply order the states to do. And the Environmental Protection Agency has revived its practice of reducing penalties for polluters who volunteer to adopt "Supplemental Environmental Projects"—environmental equivalents of community service. In the latter instance, the government offers not cash, but the privilege of relief from an otherwise-applicable penalty. Either way, federal money and other privileges allow the government to secure conditions imposing otherwise-unlawful regulation.

And taxation and the environment are not all. Also on the table have been plans for federal largesse to be conditioned on mask-wearing, taking vaccines and learning critical race theory.

Each regulatory policy provokes its own response, usually focusing on the substantive merits of the policy. But there's little recognition of the strange method of imposing such policies. The dangers of governing by purchase go almost unnoticed.

The risk most familiar to lawyers is that of unconstitutional conditions—conditions that violate constitutional rights. The Supreme Court generally says that government shouldn't be able to purchase your constitutional rights. But its doctrines are so vague and permissive so as to practically authorize the government to do precisely that. Under Title IX, for example, the Department of Education threatens to withdraw federal funding from educational institutions unless they impose federally required restrictions on speech about sex. Conditions thus become an avenue for otherwise-unconstitutional speech and due process restrictions.

Alas, the danger goes beyond the suppression of constitutional rights. Almost unrecognized at all is the growing role of conditions as an instrument of regulation.

The U.S. Supreme Court is seen on
The U.S. Supreme Court is seen on September 02, 2021 in Washington, DC. The Supreme Court voted 5-4 not to stop a Texas law that prohibits most abortions after six weeks of pregnancy. Kevin Dietsch/Getty Images

Most conditions are quite innocent; they merely define what the government is purchasing. But others are regulatory; they are substitutes for congressional, and even administrative, regulation.

You might take solace in the thought that carrots are better than sticks—that it is gentler to secure compliance by financial inducement than by punishment. But regulation by conditions is very dangerous.

The Supreme Court says the federal government can use conditions on its funding to regulate beyond Congress' legislative powers—even beyond modern judicially expanded versions of such powers. Thus, with conditions, the government can regulate almost without limit.

Conditions also let government privatize its regulatory power. The government now can avoid regulating through public debate and congressional statutes. It can even sidestep regulating through publicly adopted agency rules. Instead, it can regulate by securing the consent of private parties in private transactions. Private deals displace public enactments.

This means the government can buy off opposition. It can make a separate peace with a handful of potential opponents, leaving others deprived of the political allies with which they might have resisted the regulatory policy.

The government can also largely avoid the courts. Rather than enforce its policies in the courts, with their due process of law, or even in administrative tribunals, with their faux processes, the government can enforce its conditions by informally threatening to withdraw funding—in short, with scarcely any process at all.

The worst is when the federal government subsidizes private institutions on the condition that they regulate their personnel—Title IX again being a prime example. Such conditions reach deep into society to undermine the independence of private institutions and control individuals, even in the exercise of their constitutional rights.

Being private, the co-opted institutions claim they are not restricted by the Constitution. So the government can seemingly free itself from almost all constitutional limits, including elective self-governance, limited legislative powers, due process and even the freedom of speech. By means of conditions on private institutions, the government finds almost complete liberation from law.

It is time for the public and federal judges to recognize the realities of how we are now governed. Not merely by law, nor merely administratively, but even more insidiously, through the purchase of submission.

Philip Hamburger teaches at Columbia Law School, is president of the New Civil Liberties Alliance and is the author of Purchasing Submission: Conditions, Power, and Freedom (forthcoming from Harvard University Press).

The views expressed in this article are the writer's own.