Purchasing Submission: Conditions, Power, and Freedom

by Philip Hamburger

From a leading constitutional scholar, an important study of a powerful mode of government control: the offer of money and other privileges to secure submission to unconstitutional power.

The federal government increasingly regulates by using money and other benefits to induce private parties and states to submit to its conditions. It thereby enjoys a formidable power, which sidesteps a wide range of constitutional and political limits.

Conditions are conventionally understood as a somewhat technical problem of “unconstitutional conditions”—those that threaten constitutional rights—but at stake is something much broader and more interesting. With a growing ability to offer vast sums of money and invaluable privileges such as licenses and reduced sentences, the federal government increasingly regulates by placing conditions on its generosity. In this way, it departs not only from the Constitution’s rights but also from its avenues of binding power, thereby securing submission to conditions that regulate, that defeat state laws, that commandeer and reconfigure state governments, that extort, and even that turn private and state institutions into regulatory agents.

The problem is expansive, including almost the full range of governance. Conditions need to be recognized as a new mode of power—an irregular pathway—by which government induces Americans to submit to a wide range of unconstitutional arrangements.

Purchasing Submission is the first book to recognize this problem. It explores the danger in depth and suggests how it can be redressed with familiar and practicable legal tools.

Genres: Law, Nonfiction

336 pages, Hardcover

First published September 7, 2021

About the author

Dr. Philip Hamburger is a scholar of constitutional law and its history at Columbia Law School. He received his bachelor’s degree from Princeton University and his J.D. from Yale Law School. Before coming to Columbia, he was the John P. Wilson Professor at the University of Chicago Law School. He also taught at George Washington University Law School, Northwestern Law School, University of Virginia Law School, and the University of Connecticut Law School. His work on administrative power has been celebrated by organizations like the Manhattan Institute and the Bradley Foundation.

Reviews

[Amy]

If you type "Purchasing Submission" into the Goodreads search box, this book is squashed between two trashy romance novels and I am quite tickled by that.

[David Wineberg · Rating 5 out of 5]

It seems that for years, Americans have noticed and been a little uncomfortable with some of the tactics of the federal government. Yet they have consistently dismissed those concerns, because surely some authority had blessed them, right? Philip Hamburger, Columbia Law Professor, is here to call the bluff: this is not merely not all right, it combines to be a massive violation of the Constitution. It is altering the very fabric of the United States. Illegally.

His book, Purchasing Submission, describes in fine detail exactly how government suppresses free speech, implements policy without going through Congress, and even extorts what it wants, at will. To have come this far without anyone putting the pieces together is flabbergasting, even to him.

It starts with Congress, which has abandoned its constitutional duty to make laws, and manage the purse strings of the nation. It has instead chosen to offload its powers and its duties to government agencies. Which it does not have the power to do. Americans have seen skimpy laws handed over to agencies to write the actual rules, the parameters and even the penalties. This wolf-in-sheep’s clothing scenario has puzzled many Americans, but no one seems to have recognized it is in direct violation of the constitution and tried to stop it. But this is nothing.

Agencies actively buy off constitutional rights with their (taxpayer) money. In exchange for research grants, they will require recipients not to criticize the government, publish papers questioning its acts or authority, or speak out against it. In other words, it requires them to consent to give up freedom of speech, something no government body can do under the constitution.

For human research, such as psych studies by the thousands, the health department requires schools to install an IRB, an Institutional Review Board, charged with ensuring no one at the university breaks these free speech restrictions. It doesn’t apply to just the grant recipients, either. It applies to the whole institution. Anyone caught exercising those rights could cause the government to demand a return of all the money, even though it has already been spent. It could result in no more grants. It could result in massive reputational damage. So the school polices itself and everyone in it on behalf of the government, and it doesn’t cost the government a thing. Sweet deal.

The result is a powerful if neurotic parallel management system, watching everyone and everything for the slightest blooming of free speech. Everyone and everything must be controlled and disciplined, for fear of jeopardizing government largess. This is the very opposite of the founders’ vision, and goes directly against the constitution they so laboriously hacked together. They didn’t want government interfering in operations, and they didn’t want speech to be an issue anywhere. Today, America has both problems, nationwide.

It’s an impossible situation for the university, because in a campus of say 50,000, it simply isn’t possible that absolutely no one has ever broken those rules, if they even knew about them. So the agency has them in an illegal chokehold. They hold these breaches as nuclear weapons. They can shut down the schools at any time, for the slightest disagreement. A personal animosity could do it. “HHS thus no longer needs to make such threats overt. All it has to do is have a conversation with university officers, and the university will grovel,” he says. No one authorized these superpowers, but worse, no one is reining them in either.

A similar scenario plays out for churches, which give up the right of free speech in exchange for donations being tax deductible. The church ensures parishioners don’t criticize the government or play party politics, on pain of losing their precious 501(3)c status as a charitable organization. Same goes for charities and NGOs.

The poor are, as usual, the most hard done by under this regime. In exchange for subsidized housing, they might be required to allow warrantless searches of their homes at any time, a direct violation of the constitution’s ban. Hamburger calls these acts “vesting of powers where the constitution does not.”

This creates a “hierarchy of rights”, he says, in which the rich can walk away without pleading guilty, and the innocent poor lose their constitutional rights precisely and only because they are poor.

Reaching out farther, agencies make up regulations and implement them themselves, without congressional approval. Regulations can make it easier or harder to carry on, but they serve the purpose of the agency to command and control. Think of all the agencies doing this: the Federal Trade Commission, the Federal Communications Commission, the Department of Agriculture, and Hamburger’s bête noir, the Department of Health and Human Services, HHS. He says: “The use of conditions to adopt such regulations can be more dangerous than the problems thereby addressed. Although administrative regulation raises its own constitutional difficulties, even that would often be better than the pecuniary mode of regulation that ends up privatizing regulatory decisions.”


Worse, agencies farm it out to agents. For example, the IRB at a school is essentially a government agent, unpaid by the government. The government authorizes agents to license permission for things that require none under the constitution. First they make whatever the victim seeks out of the question. Then, they offer portions of it magnanimously, as if they could legally, in exchange for massive payments that can go to totally unrelated uses. Victims give up the right to sue, and freedom of speech in the process. In Hamburger’s assessment, agencies actually license the degree of freedom of speech they want in a contract. This despite the fact the constitution permits no such thing, and no one can sign away anyone else’s freedoms. Having an agent working for an agency of a federal department does not shield the government from the constitution. It is an abusive nation within the nation supposedly of the free. Hamburger says:
“This system of wholesale control, including its system of using agents to do the licensing, was the most salient example of what the First amendment forbade. Nonetheless, the government is once again asking universities and other agents to license speech and the press, thereby allowing the government to suppress speech without the accountability of retail proceedings in court.
“This revival of wholesale suppression confirms the larger point here, that the use of regulatory agents multiplies the threat to rights. Through conditions, independent states and private institutions have become instruments for profoundly abridging the freedom of speech and other rights.”

It doesn’t stop there. Government can require victims to give up the right to jury trials. It might be through plea bargaining, where the government threatens the victim with three times the sentence if they insist on their rights. It might be through consent decrees, whereby bad actors confess without confessing, and pay enormous fines (though not personally) to avoid further investigation. Notably, they do not plead guilty to anything, and once the government has the money, it calls off its investigators. Major examples include the tobacco settlement where the companies submitted to giving up freedom of speech in advertising their products (plus huge fines) and the opioid crisis, where it appears drug companies will walk away with no lasting damage. No jail time for anyone at those firms.

But wait; there’s more. The federal government requires states to raise the drinking age to 21 if they want funding for their highways to continue. It also insisted on states expanding Medicaid in order to receive healthcare funding. Local governments extort millions from would-be investors, by, for example, demanding huge amounts of money to finance the local golf course or swimming pool in exchange for spot zoning a piece of property they want to build on. Counties add fees to traffic tickets for prison facility improvements or a private gym for judges. It seems like the whole country is on the take. And no one is calling them on it. This is the new America; get used to it.

That brings up the issue of avoiding the judicial branch altogether. It is supposed to be backstop to constitutional rights. But deals are negotiated without the influence of a judge. No precedents are set, no jurisprudence recorded or even cited. If they’re big enough, (alleged) criminals can buy their way out of trouble directly with the government. Just pay up and promise not to do it again. Off you go then.

Then Hamburger adds the legal niceties to the mix. When is illegal spending not actually spending? It is not necessarily illegal spending when it is in contract negotiations. Nor in plea bargaining, generally. Or procurement contracts or licensing. According to the constitution, the federal government has little, if any spending authority outside of defense. That things have gotten far more complicated has occurred without anyone bothering to update the constitution. His chapter on government spending is most enlightening. The fine points of constitutional arguing take up a great deal of this often sharply worded book. But the bottom line remains abuse of constitutional rights is endemic and not even controversial.

Of course, there are “good reasons” for all this. For one thing, the total shambles that Congress has become means regulations and conditions would rarely, if ever find their ways into actual laws, the way the constitution specifies it should work. So politicians offload that responsibility totally. It seems that if electeds can task departments and agencies with creating the laws they can’t get through congress, then that is how to run the country. Agencies find themselves with a combination of legislative, prosecutorial and judicial power they were never meant to have. Or allowed to have.

Judges are culpable in this conspiracy against the constitution as well. They routinely give congress and the agencies a pass, citing a judicial doctrine that somehow dictates it is permissible to delegate responsibility to the agencies, if congress provides an “intelligible principle.” This magically makes it a “nondelegation” of power. Because they all know it is unconstitutional. One less thing for electeds and judges to do. But that’s not how it works. The president recommends what is necessary and expedient. Congress enacts laws necessary and proper - is what it says.

The book is not without its faults. Hamburger uses the same examples repeatedly, because he can show a slightly different angle, make a slightly different point, or demonstrate a further violation of the constitution in going back to the same story. It makes it a slower read than it should be. So does his penchant for being, well, a lawyer. His language is specific but not economical. He can say in one paragraph what others can say in one sentence.

But the absolute horror of the degradation of the whole country overwhelms such criticisms. The facts are the country is being run not as prescribed in the founding documents, but by civil servants and their agencies, out of control, unsupervised, running amok trampling every American’s specific rights: freedom of speech, of religion, of the press, the right against self-incrimination, search and seizure and takings, and more. Traveling the country, one would have no way of knowing who had more rights and who lesser. Anarchy reigns in governing the USA. One size no longer fits all.

The book is a result of a 20 year old conversation Hamburger had with a fellow scholar. He asked why he did not publish his new paper, and was shocked by the answer: “It was not publishable under the rules of his university’s institutional review board. He explained that he had forgotten to obtain prior permission for his research from the IRB and if he published without its permission, he would probably have difficulty getting permission to publish his future scholarship; he might even lose his job. He therefore explained that he was circulating his work only in manuscript, like Russian samizdat.”

This is more than likely the most important book of the year for me. If there is any justice left, it will raise not just controversy but strong activism among judges, who should finally take official recognition of the obvious, and reverse. Reverse their own judgments, upend past mistaken judgments, and restore the country to what its founders intended. The same must happen in congress; it must admit it has no right to delegate its assigned powers and duties, and get down to work. Because what it is today is essentially the opposite of what Americans blithely assume from what it says in their constitution.

David Wineberg

[Frank Stein · Rating 3 out of 5]

This book is original, insightful, and necessary, and yet I struggled to finish it. It's not too long, at under 300 pages, and the writing is sprightly as is typical with Hamburger, yet much of it felt like filling.

Hamburger's basic insight is that the modern American fiscal state, which operates by spending significant amounts of national GDP, is a threat not just to economic prosperity but to civil liberties. While most courts today would blanch at the federal government forbidding freedom of speech by individuals, or setting up kangaroo courts for those who run afoul of federal regulations, or forcing states to pass new laws, today the federal government can do all of those things merely by conditioning federal funds on these restrictions. If you're one of the vast numbers of government employees, the Hatch Act restricts your speech; if you're a university, federal rules force you to set up Institutional Review Boards to evaluate research and Title IX tribunals to deal with sexual assault; if you're a state, the federal government's grants force you to do everything from change your state drinking age to change state laws on air pollution. The argument that "you don't have to take the money" becomes less convincing when the federal government has already taken the money and is spending it on every single facet of modern life. Those who want to avoid federal conditions by avoiding the federal government don't have many options.

This argument does not have necessary partisan implications. Hamburger is suspicious of the Wyman v. James (1971) case which allowed New York social workers to barge into welfare workers houses without a warrant because the welfare was conditioned, and he is suspicious of the rules in 501c3 and IRC 170 which limit nonprofit's ability to speak. His general rule is that any conditions should be limited to the precise purposes and spending of the grant and should not require relinquishment of any fundamental constitutional rights, and that would involve striking down a host of contemporary conditions. (He does note the the government can condition funds on abiding by general laws, and thus the four civil rights laws that are, surprisingly, just spending based, such as Title VI, Title IX, Section 504 of the Rehabilitation Act and Section 303 of the Age, Discrimination Act, would pass the test.) He believes courts should stop giving the government so much leeway to prohibit unrelated activities through spending even if it is not "forced."

Hamburger notes that the federal court rulings on "unconstitutional conditions" are limited and contradictory. So we hear a lot about 1988's Dole v. South Dakota, and 2010's Sebelius v. NFIB, the first of which allowed broach conditions on state grants, the second of which limited them, but we don't got into much detail about how the government does that elsewhere. A more in-depth look at all the myriad ways the government today makes conditions (Medicaid and Unemployment Insurance are ripe for this analysis, both for conditions on individuals and on states), would fill the book out with more substance and engage the reader more. Nonetheless, Hamburger has taken an essential first step here in investigating the way spending has upset our traditional constitutional structure, and how courts and the public can start to rein it in again.

[Philip · Rating 4 out of 5]

3.5