Government Funding Brings Government Control; G. McGath

On that day, in the case of Rust v. Sullivan,the Supreme Court ruled that the government could restrict not just what subsidizedfamily 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 ser vicesor recommendingabortion,is validunder the Constitution. Many people on both sides saw this case as an "abortion issue."Opponents of abortion cheered; advocatesof the right to chooseprotested against the restrictionon abortion rights.In his dissenting opinion,Justice Blackmunwrote that HHS regu lation "has both the purpose and the effect of manipulating[a woman's]decisionas to the con tinuanceof her pregnancy." But in fact, the issue is not abortion but speech -specifically, speechby those who acceptgovern mentsubsidies.TheSupremeCourt'srulingupheld the principle that when the government offers funds,it mayincludeas a conditionof fundingthat thosewho receivethe moneyrefrainfrom dissemMr. McGath is a software consultant in Penacook, New Hampshire.

inatingcertain kindsof information,or expressing certainpointsof view.If the regulationshad stated that the clinicscouldn'trecommendevenbirthcon trol pills-or if they had specifiedthat only clinics that made abortionreferralscouldreceivefunds the legallogicwouldhavebeen the same. Manyof the criticshavefocusedon the effectof the decisionon womenseekinghelpfrom the clin ics,particularlywomenwho are too poor or isolat ed to seek alternatives. Certainly these women have a vital interest in the case, and their options are diminishedby the Court's decision.But there is no such thing as a right to be providedwith in formation, except by the agreement of the provider.Rustv. Sullivancuts into not the right to receiveinformation,but the right to give it. The centralissueof rightsappliesto the owners of the clinicsand the professionalswho practice there. In givingthem 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 involvedonlyincidentally.

As in manyissuesof this type, the main debate containsa falsealternative. Recipientsof govern mental funding assume that they have an un conditional right to the money. Opponents of abortion regard tying strings to the money as a legitimateway to implement their policy.Both of these views are seriously flawed. One seeks to ignore, the other to exploit, the negative conse quences of tax subsidies. When the governmentfunds an activity,it will exercisecontroloverit. Asthe "WizardofId" com ic striponceput it: "Rememberthe goldenrule.He 432 THE FREEMAN • NOVEMBER 1991 who has the gold makes the rules." The govern ment must judge the qualificationsof 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 activitybears upon mat ters of strong personal concern, the more obvious the value preferences in the funding willbe.

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 opin ion in Rust v. Sullivan, Chief Justice Rehnquist wrote: "To hold that the Government unconstitu tionally 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 Endow ment for Democracy to encourage other coun tries to adopt democratic principles, it was not constitutionally required to fund a program to encourage competing lines of political philoso phy such as Communism and Fascism." The implicit smear is uglyenough in itself, com ing 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 commu nistic or fascisticby any stretch of the imagination. But leavingthis aside,his statement showshow the logic of power feeds on itself. Rather than err on the side of endangering current programs that per mit the expression only of the official philosophy, the Court endorsed a further expansion of the gov ernment's power to specify the content of the activities it subsidizes. The impact of this decision is potentially devas tating. Foes of abortion see only the immediate impact of the decision, and applaud it; but the power that the Court has granted the federal gov ernment can be used equally by the Left and the Right. The HHS restrictions, and the Court's approval of them, tremendously increase the gov ernment's power to control any kind of activity that it funds. As Justice Blackmun noted in his dis sent: "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 acknowl edges that the government may call on recipients of subsidies to relinquish some of their constitu tional rights. (For example, recipients of govern ment money often are required to implement affir mative 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 sufficientlyimportant to the "public inter est." After Rust v. Sullivan, though, the qualifica tions 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 virtu ally all of them. Neither liberals nor conservatives have a monopoly on the desire to exercise con trol. Whether we see attempts to ban "racist" and GOVERNMENT FUNDING BRINGS GOVERNMENT CONTROL 433 "homophobic" courses and textbooks, or "blas phemous" and "obscene" ones, depends only on whether the politically correct Left or the funda mentalist Right acts first. Neither side is likely to have much successin 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 establish ment 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 reg ulation 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 consti tutionallimitations. As Chief Justice Rehnquist argues, people still have a choice; they can de cide 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 restric tions on what they may say. This moves the issue to the disparaged category of economic free dom. 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 peopIe's money and expend it for its own purposes.

Any successful challenge to the expansion of governmental power resulting from Rust v. Sulli van must challenge both the controls and the sub sidies that make them possible. It must challenge the legitimacyof 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 lob bied for government funding, they invited govern ment control. If they now want freedom, they should call for an end to Federal subsidies. The owners of the clinicsprobably would argue that they would be even less free without govern mental money. They would have to call on private donations to provide low-costservices;and private donors might call for similar restrictions, or even more stringent ones, before donating any money.

But private donors are making a choice con cerning 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 sub sidies 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. D 434 A REVIEWER'S NOTEBOOK China Misperceived by John Chamberlain S teven W. Mosher begins his study of China Misperceived: American Illusions and Chi nese Reality (New York: A New Republic Book, 260 pages, $19.95cloth) by plunging us into Nixon's dilemma of 1972. President Nixon, after dispatching Henry Kissinger to mainland China to get the feel of things, faced up to a geopolitical fact that if Moscow and Beijing were ever to make active common cause against the West, America would have a two-front struggle on its hands. To avert this possibilityalmost any mendacity wasjus tified. But what Mosher calls the "cruelty and vio lence of the Cultural Revolution" precluded easy acceptance by Americans that Chairman Mao and Premier Zhou Enlai were anything other than monsters. Nixon's problem was, first, to convince score~ of print and TV journalists that Mao and Zhou were not devils. He could then try to change the image of mainland China in the average Amer ican's eyes.