Readers of a certain age will recall the Schoolhouse Rock cartoon shorts, which regularly interrupted networks’ kid-oriented Saturday-morning programming and served up pithy tutorials in grammar (“Conjunction Junction”), multiplication (“Three Is a Magic Number”), and—most important for present purposes—the text and structure of the Constitution of the United States. As we learned from “I’m Just a Bill,” it is a “long, long journey” from a citizen’s or official’s policy goal or regulatory impulse to the lofty status of “supreme law of the land.”
Those who designed, proposed, and ratified our Constitution had (among others) two aims: first, to facilitate coordinated, effective, national responses to challenges that urgently and obviously required them; and second, to make sure that the required process for federal lawmaking was not too easy and therefore included various checks and balances, voices and vetoes. The Constitution created—that is, it constituted—a new, powerful government and a “more perfect union,” but it was deliberate and cautious with respect to what Philip Hamburger calls the “pathways” of that power. The national government’s functions are divided among the Congress, the Court, and the President. Its regulatory authority is both limited and shared with the states’. Its purpose, therefore, is not to maximize efficiency but to promote self-government and protect political and other freedoms.
That, at least, was the idea.
In a recent, compact, accessible, and hard-hitting book, Purchasing Submission: Conditions, Power, and Freedom (Harvard Univ. Press, 2021), Professor Hamburger—a distinguished scholar and historian of American public law—contends that the national government regularly and increasingly employs “pathways of power,” “methods of control,” and “modes of governance” other than those set out in the Constitution. More and more, it gets what it wants using carrots (incentives), and in ways that are often harder to resist than if it were using sticks (force). “Governance through spending,” Hamburger explains, is supplementing, and perhaps displacing, “governance through law.”
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Start from the beginning: “It is widely recognized that government exercises influence through its distribution of money and other privileges.” Yes, the national government regulates, requires, prohibits, and prescribes; it also makes deals. It spends lots of money, but conditions follow the funds; it dispenses benefits, but with strings attached; it grants privileges, but extracts compliance. “He who pays the piper calls the tune” is, as we all know, a fact of life. And, as The Godfather teaches, there are offers that can’t—not really—be refused. Hamburger reminds us that purchased submission is more difficult to see (let alone to challenge or resist) than are edicts that emerge from the Constitution’s prescribed processes for lawmaking.
Of course, many of the conditions attached to federal spending are unremarkable: if the Department of Defense contracts for the construction of an airplane, it can withhold or claw back payment if Raytheon delivers a ship. If the Post Office deposits a paycheck in your account, in can insist that you show up for work. If the Department of Education sends grants to a school district to support special-education programs, it can require that they not be diverted to construct a stadium. And so on.
How should we think, though, about, say, highway spending that compels states to change their legal drinking age, or employment contracts that limit citizens’ political activities, or plea bargains that include waivers of the right to appeal, or public-housing benefits that come with reduced constitutional protections against suspicionless searches? Or, to borrow one Hamburger’s examples, telling Jimi Hendrix that he can avoid going to prison for joyriding if he enlists in the Army’s 101st Airborne Division? It is not much of a reach for the government to tell a university that receives federal research grants it may not discriminate on the basis of race, but what about demanding that it abolish single-sex residence halls or dispense with cross-examination and counsel in sexual-harassment investigations?
The constitutional decisions and doctrines dealing with these matters are complicated and contested. For better or worse, it is settled that the federal government’s authorization to spend is broader, and reaches further, than its (also broad and far-reaching!) power to regulate directly. And the power to attach conditions to this spending means that the national government can regulate indirectly what it cannot constitutionally regulate directly. The Court’s lingering concerns about federalism and the states’ reserved powers are reflected in precedents requiring that conditions on funds be clear, relevant, and non-coercive, but these rules have not been strictly enforced and only rarely intrude on national projects or policies.
Questions about the constitutionality of the conditions the government attaches to the money it provides—or, of what Professor Randy Kozel has called government “leverage”—also arise in the individual-rights context. The applicable doctrine here is, as one scholar put it, a “quagmire,” but it reflects, and aspires to capture, the intuition that there must be some limits, somewhere, on the government’s ability to use benefits to extract waivers or to repackage rights as privileges. Making a deal, in other words, is one thing; violating a right, though, should be another. Many scholars have attempted to ground, and cash out this intuition, and Hamburger examines and evaluates these efforts thoroughly.
Indeed, Purchasing Submission, goes beyond the standard and familiar debates about federalism, enumerated powers, and waivers of constitutional rights. As he shows, the regulatory-conditions problem is not merely about policing public contracts for coercive terms. It is bigger than that: the national government is using largesse, rather than law, and is purchasing “submission” rather than merely securing compliance. “Americans,” he warns, are being “induce[d] … to submit to a new path of governance, which displaces the Constitution’s avenues of power and its rights.” It is not only that the national government’s regulatory reach is expanding. It is that the Constitution’s carefully designed processes for democratic self-governance, and the means and mechanisms for ensuring accountability, are evaded and eroded.
Hamburger sets out, then, to reveal the many hidden ways this evasion occurs—through spending conditions and contractual terms, yes, but also through “dangerously benevolent” nudges, incentives, intermediaries, accreditation, licensing, permits, and permissions. One instance of this “mode of governance” that Hamburger illuminates is the way not only Congress, but also agencies and officials, outsource and privatize power by requiring government’s beneficiaries to regulate and control the behavior of others. A university, say, will enact and impose rules on students to secure and safeguard the favor of administrators who have the ability to turn off funding faucets; or an employer eager to retain contractor status will adopt workplace regulations desired by bureaucrats (though not enacted by Congress); or a religious institution concerned to protect its tax-exempt status will instruct its ministers to avoid prophetic witness or inspired activism on controversial political matters; or a local school district might submit to a detailed, decades-long consent decree that effectively puts litigators, not lawmakers, in control of education policy. Especially in the context of higher education, this dynamic tends to homogenize a sector that should be pluralistic. Furthermore, it shrinks the crucial “third sector” of civil society that mediates between the state and individuals.
Think back to “Schoolhouse Rock.” Our Constitution uses “avenues for binding power” to secure our freedoms, which are endangered by regulators’ “off-road driving.” “Precisely because government can work through the subterranean conduits offered by regulatory conditions,” Hamburger notes, “it can impose policies that, if pursued through the Constitution’s regular political processes, might not have survived the light of day.” As he reminds us repeatedly, the fact that “consent” is secured in any particular case, or to any particular condition, does not cure the structural problem or avoid the threat to democracy. Political opposition, state and local resistance and experimentation, and citizen criticism can all be bought off. And since some are more exposed to the new mode of governance—because of their dependence on particular benefits, or by virtue of their profession—the equal status of citizens as participants in our constitutional democracy is undermined.
Hamburger’s study reveals the extent to which regulatory authority increases not only through the number of regulations and regulators but also, and even more troublingly, through expanding the amount of life that is regulated. That is, the “purchasing submission” problem is worsening not only because lots of conditions are being attached to government benefits, but also because more and more things are declared to be things to which conditions may be attached.
Again, it is relatively easy to understand why a government contract might, say, prohibit contractors from sourcing their supplies from an enemy nation. But why does the government get to require licenses for a particular occupation, and then to use that licensing as another “pathway of power” for controlling the “beneficiaries”? Anything the government characterizes as within its power to gift or withhold becomes something to which a condition can be attached.
When our working premise shifts from “that which is not prohibited is permitted” to “only that which is permitted is permitted,” and conditions can attach to permissions, the submission that results is dramatic. Hamburger has provided a valuable guide for navigating—and, perhaps, resisting—this shift.
In some places, Hamburger characterizes certain practices and submission-purchases as “unconstitutional” when courts have not yet so held, and are not likely to. He calls in the book’s latter sections for courts to take better account of the extent to which the new “pathways of power” are in tension with basic constitutional principles. However, as he knows, courts cannot simply identify practices and policies as unlawful; they do so only in the context of litigation between parties about real-world injuries.
Unfortunately, it will very often be the case that no parties with standing have any incentive to complain about regulatory conditions’ regrettable effects on accountability, transparency, equality, and freedom. The responsibility for policing and restraining the new modes of governance is on “We the People.”