With Strings Attached: Philip Hamburger’s “Purchasing Submission”

Purchasing Submission: Conditions, Power, and Freedom. Philip Hamburger. Cambridge: Harvard University Press. 2021.

Philip Hamburger is Maurice and Hilda Friedman Professor of Law at Columbia Law School. His Is Administrative Law Unlawful? (University of Chicago Press, 2014) explored the administrative state’s history, unconstitutionality, and threat to American liberty and self-government. In Purchasing Submission, Hamburger takes up a related problem: the threat to the Constitution, American liberty, and self-government from the federal government’s widespread practice of attaching conditions to its spending, permit-issuing, and regulatory powers.

For example, prosecutors routinely engage in plea bargaining, which conditions the benefit of a lower sentence on a guilty plea. In a related example, the FCC has licensed radio and TV broadcasters on the condition that equal time be given when they broadcast political speech. More generally, in such circumstances the government ties a condition “to a nonspending privilege” and “one…must ask whether the condition and underlying privilege really has a foundation in an enumerated federal power.” (258) When the SEC secures a settlement with a firm it regulates by threatening prosecution, it “impose[s] restrictions beyond what is required by law—all without working through the legislative process.” (97) More generally, Congress cannot delegate its legislative power to any other body. The federal government has attempted to compel local law enforcement officers to administer federal gun control legislation. More generally, Congress cannot commandeer state power. The federal government threatens churches with a loss of their tax-free status if they engage in political speech and it threatens universities with a loss of their education funding unless they censor academic research by way of Institutional Review Board (IRB) restrictions. More generally the government cannot properly circumvent the First Amendment by threatening to withhold funds or some other benefit if the “wrong” speech is uttered. The FTC has threatened telecommunications firms with administrative proceedings unless the firms submit to a consent decree. More generally, the federal government cannot properly extort some desired result by threatening to apply regulations in a way unfavorable to the target of its ire.

It must be emphasized that these examples are just that: examples meant to illustrate general classes of offenses by the government. They are nothing like an exhaustive list of the federal government’s abuse of its powers by means of conditions. The federal government is now so very large, and its spending and regulatory powers so extensive, that the abuse of power that Hamburger discusses is deep and widespread, and affects many institutions, corporations, and individuals.

Indeed, Hamburger argues that power exercised through conditions is more dangerous to our constitutional order than the constitutional evasions practiced by the administrative state. Administrative agencies work very publicly, in that they seek public input, and make their rules and the application of those rules clear to all. Moreover, administrators make at least a pretense of due process (through the risible but not wholly empty “all the process that is due”). By contrast, the use of conditions permits the government to operate more quietly in private transactions, without public input or even knowledge, and without any due process. The result is greater federal control that “turn[s] state and private institutions into agents for the control of their personnel, including the wholesale suppression of their speech and other rights.” Hamburger concludes that “[t]he purchase of submission is thus even worse than administrative power.” (253)

Hamburger accounts for the rise of this illicit pathway for power by somewhat echoing the reasoning in his 2014 book on the administrative state: our elites are motivated by the belief that they are members of a superior class (265-66). He tells us that “government agencies are run by, and more generally are aligned with, the knowledge class—the class of Americans who are more attached to the authority of their academic-style knowledge than to their localities and the authority of local representative choices.” (265) This account should cause him to place ultimate blame on our universities, which educate those cognitive elites in their “academic-style knowledge.” Instead, his view is that “[u]nderlying the threat from conditions are the failures of Americans and their judges.” (263) He is doubtless correct that both the American people and federal judges have failed adequately to understand and respond to the abuses he describes. But here too, just as is the case with government agencies, the ultimate blame must be laid at the feet of our universities, which educate both the high school teachers who teach civics to the American people, and the lawyers (and other elites) who are complicit in ignoring, misunderstanding, or even advancing the abuses he describes.

Hamburger prompts judges to attend to their duty to stop this ongoing assault on our constitution and liberties. (263-65) A sympathetic reader can only hope that judges will read this book and respond accordingly. Perhaps Prof. Hamburger can give them the education that they should have received in law school, not to say high school. As he did in Is Administrative Law Unlawful?, he also encourages Congress to take up its responsibilities and legislate directly, rather than unconstitutionally delegate its legislative power and with that delegation permit both administrative state and conditions-based abuses. Here, sympathetic readers can look to efforts such as the Federalist Society’s Article I Initiative.

Hamburger’s book leaves the reader grasping for a fix for civic education and the failures of our elites, including those who run our government agencies. One is left wondering whether these abuses are nearly inevitable in light of the tremendous growth and reach of the federal government since the 1930s. Perhaps restricting the occasion for constitutional sin would help resolve these problems. We might wonder, for example, whether we really need a federal Department of Education, or Health and Human Services, or Commerce, or Labor, or Transportation, or Energy. Perhaps the federal government would find it more difficult to force South Dakota to raise the state drinking age as a condition of receiving its share of federal highway funds if there were no federal Department of Transportation, and no federal highway funds for it to disburse. Hamburger denies that there is a general federal spending power, and argues that the federal government should be restricted to spending aimed at the exercise of its enumerated powers. But he does not vigorously pursue this angle of attack. Indeed, such a reform is predicated on a massive change in political culture. All the same, some changes are urgently needed. Dramatically effective action needs to be taken to stop the Department of Education from using Title IX to intimidate universities into adopting speech codes and kangaroo courts, and from using research funds to control speech and press freedoms through IRBs. As we try to look ahead, we might wonder whether the spread of Critical Race Theory (CRT) will enable a further round of conditions-based restrictions on academic freedom, particularly if the Department of Education comes to believe that CRT is necessarily implied by an allegedly evolving meaning of the 1964 Civil Rights Act’s provisions against racial discrimination in education. It is an irony that our universities are the ultimate source of these ongoing and potential educational abuses. This irony implies that our universities must be reformed to save them from themselves.

If the necessary fixes for higher education here indicated cannot be achieved by a federal funding cutoff, perhaps they can be compelled by legitimate conditions attached to federal spending. Hamburger makes it clear that conditions germane to the spending at issue can make good sense. After all, the federal government, no less than any other body or any American citizen, should get what it pays for. With that in mind, we might reflect on the possibility of attaching germane conditions to federal education spending (should we choose to continue that spending) that mandate open debate on controversial issues and that forbid universities from administering themselves along radically feminist, or CRT, or other ideological lines. To be sure, these ideologies must be taught to college students, just as we teach Marxism and Nazism, for we cannot permit future generations to be ignorant of destructive ideologies. But there is a difference between teaching about a destructive ideology, and running a university along destructively ideological and therefore anti-education lines. To the extent that a university is run on radically feminist or CRT lines, it is not properly a university, and could properly be deprived of federal funds. Perhaps if federal education funding were conditioned on full and open academic freedom to discuss controversial issues, and on administrative changes that purge it of ideologies, we would see the reform of those institutions, without any violation of the sort of restrictions on conditions to which Hamburger is properly sensitive.

While we consider possible responses to conditions-based abuses, we must face up to the grim reality of the present situation in America. The abuses Hamburger describes are so severe that they should cause us to question the justice of the contemporary American regime. Hamburger initially argues that the digressions from our constitution that produce such abuses as “regulation ‘by raised eyebrow’…constitute a form of government unanticipated by classical political theorists: not monarchy or aristocracy, nor republic or democracy, but thugocracy under color of law.” (232) Yet it is obvious by this point in the book that in crucial respects, our federal government has degenerated into a type identified by Plato and Aristotle. Toward the end of his book Hamburger appears to feel comfortable enough to state the conclusion that the evidence he presents has been pointing toward: the federal government’s resort to conditions is a form of tyranny. (253) He reprises Tocqueville’s warning against a government so large and extensive that it “can lull the people into acquiescence, leaving them enervated and no longer capable of political self-government. … [T]he overall tendency is to create what Max Weber called Ordnungsmenschen—individuals who feel the need for government direction.” (266) Hamburger here may be overestimating the capacity of the federal government to produce a herd of compliant Last Men over whom it can exercise arbitrary power. And he may be underestimating the reservoir of spirited rebels who in time will be formed in reaction to the decline of federal legitimacy. America might in time experience something dangerously beyond “widespread discontent” (266). But perhaps we can permit the sober Prof. Hamburger to understate the possible consequences and allow the reader to draw the obvious conclusion for himself.

Besides Hamburger’s reticence concerning the universities as the ultimate source of the problem of conditions, there are three respects in which the book could be improved. First, we have arrived at a point in our constitutional history where, sadly, we need to remind ourselves of why men should not be permitted to sell themselves into bondage. The book needs to be supplemented by a discussion of the philosophical arguments for inalienable rights. Second, at times Hamburger seems to adopt the view, popularized by FDR, that “necessitous men are not free men.” Is it the case that compulsion is present when the person allegedly being compelled can simply forego some government benefit to which an undesirable condition is attached? Tempted by the prospect of improved material circumstances, his free will may to some extent be compromised, but is that partial compromise equivalent to compulsion? Third, Hamburger never makes clear why the abusive federal practices he describes can continue almost unnoticed for year after year. In fact, the reason is fairly straightforward: in the case of almost every abuse, the federal government acts (or is believed by its defenders to be acting) on behalf of society’s weakest members, and thus the government morally disarms its opponents. Hamburger is correct to think that the elites who bring us the tyrannical actions that he describes are motivated by the belief that they are from a superior class. But precisely for that reason, they believe that they have the superior intellect necessary for the technocratic reordering of America in the service of the weak. That they sometimes scorn the weak for their failings has not prevented them from expanding the power of elites to act on their behalf.

We can see this relationship between America’s powerful and her weak by considering the ultimate ends of the illicit measures Hamburger critiques. The government thinks to protect vulnerable and weak coeds when it demands that men accused of sexual offenses on campus be held to a mere “preponderance of evidence” standard, and with perhaps no right to confront their accuser, in violation of their Due Process rights. The government thinks to protect economically weak individuals from exploitation by economically powerful actors when it uses the SEC to extort a settlement from the economically powerful by threatening them with prosecution. The government thinks to protect vulnerable and weak citizens from physical harm when it forces states to regulate pollution, in violation of state sovereignty. The government thinks to secure ordinary citizens’ necessary access to humanizing venues when it extorts a public access right-of-way to a beach or a park from a property developer as a condition for permitting the property developer to develop his own private property. The government thinks to protect weak, intellectually vulnerable voters from alleged propaganda by powerful public voices when it demands equal time as a condition of radio and TV broadcast licensing. The government thinks to protect weak, allegedly spiritually and politically vulnerable people from the power of alleged religious zealotry and political interference when it demands that churches silence their political speech as a condition for being tax-free. At the root of these abuses lies the error, committed again and again (and, incidentally, clearly visible in CRT), that the world can be divided up neatly into an oppressor class and an oppressed class. By taking the side of the (allegedly) oppressed in oppressive ways, the federal government has given lie to this simplistic worldview.

Let us in a generous spirit consider these limitations to be work for other researchers to resolve. Prof. Hamburger has given us a learned, incisive, timely, and deeply troubling book that should prick the conscience of every judge, legislator, regulator, college professor, college administrator, and citizen who reads it.

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