The proposed bill provides, among other things,
(g) WITHDRAWAL FROM CERTAIN ACTIONS. — The terms of any financial assistance under this Act shall prohibit the eligible automobile manufacturer from participating in, pursuing, funding, or supporting in any way, any legal challenge (existing or contemplated) to State laws concerning greenhouse gas emission standards.
My friend, Notre Dame lawprof Rick Garnett, asks: Does this violate the First Amendment? Here are a few tentative thoughts:
1. The Petition Clause: To begin with, filing nonfrivolous lawsuits is generally protected by the First Amendment, which protects "the right of the people ... to petition the Government for a redress of grievances." This is solidly established First Amendment law. I can't speak to any original meaning evidence on the subject (since I haven't investigated the matter), but the precedent is clear.
2. Conditioning Grants on Refraining from First Amendment-Protected Activity: It's also well established that the government generally may not condition a grant of money on the speaker's refraining from the use of the speaker's own unsubsidized money for First Amendment-protected activity. That's the holding of FCC v. League of Women Voters (1984). (League of Women Voters was a 5-4 decision, but one the Court has not retreated from, and has indeed cited favorably.) The government is free to attach certain strings (though not all strings) to the use of government-provided money. That's what justifies the decision in Rust v. Sullivan allowing the government to subsidize only speech about contraceptives and not speech about abortion, the limits on electioneering by nonprofits that benefit from the charitable tax exemption, and the like. But the government generally can't limit what subsidy recipients do with money they get from nongovernmental sources.
To be sure, because money is fungible, this League of Women Voters principle in effect does stop the government from making sure that its subsidies aren't indirectly used for certain speech. If the government gives someone $1 million, and the speaker continues speaking using what is ostensibly its own money, that speech will still be much facilitated by the government grant — the $1 million will free up money that the recipient would otherwise have had to spend, and will let the recipient use that freed-up money for its own speech. But the Court considered that argument in League of Women Voters and rejected it.
3. Ban on Viewpoint Discriminatory Conditions Attached Even to Government-Provided Money (So Long as The Money Is Used for Private Speech): It's also possible that the government may not attach viewpoint-discriminatory conditions to the use of its own money, so long as the money is used for private speech — which would here include petitioning the government via the court system — rather than the government's own speech. That's suggested by Legal Services Corp. v. Velazquez (another 5-4 opinion). But Locke v. Davey concludes that this principle is limited to programs that are intended to "encourage a diversity of views from private speakers." Given that the funding program here is aimed not at encouraging a diversity of views, but rather at funding GM's general operation (incidentally including a wide range of GM litigation and speech that would normally happen in the course of GM's general operation, except for this one particular kind of litigation position on GM's part), perhaps Locke v. Davey governs instead of Velazquez.
In any case, those are my tentative thoughts on the subject. Some of the cases I cite were controversial when decided, and may remain controversial now; nor do I vouch for their correctness as a matter of sound constitutional logic. Moreover, while there are structural similarities between this situation and some of the past cases, it's pretty clear that they were decided in contexts vastly different from this one, and it's not clear how far the Court would take those cases' logic here. Finally, it's odd that the government would be free to constrain GM's speech if it simply nationalized it — or, if you prefer, bought all its stock — but not if it took the less intrusive step of offering it various financial benefits (though that might be an oddity that is an inherent part of unconstitutional conditions doctrine in this area).
So I don't know what should be the right result as a matter of deep constitutional principles, or even what is doctrinally mandated here. But I hope that the cases I cite above provide something of a starting point for analysis.
But no worries, with the unemployment rate going up, people will be driving less, causing fewer emissions.
It's a win-win for everyone.
How would this provision be any different than what the government did with families of 9/11 victims? If I remember correctly, if they accepted any money they had to agree to not sue any of the airlines.
What's that? There is no such right? Oh, never mind.
The provision in the auto case is different in that it introduces prior restraint of not just civil cases but of free speech totally. In this case there is no injured party/civil liability to settle -- no one has done anything actionable and therefore no settlement type quid pro quo is possible. Further the prior restraint has nothing to do with keeping the nations transportation systems moving and in fact would arguably lead to a greater crisis as US automakers are forced to spend the money to comply with the new regulations they are forbidden to speak against.
One could of course argue that greenhouse gases are a compelling threat equal to transportation crises. That would give the government the power to enforce any regulation it saw fit, which would actually make the clause in question redundant. I doubt however that we are willing to or can find justification sufficient to give that much power to the federal government on environment grounds.
I think you're taking too narrow a view of the taxpayers' rights. The bailout bill should be so formulated as to protect the public interest. One aspect of the public interest is indeed getting the companies back on their feet economically and not losing on the public's investment. Protecting the environment is another aspect of the public interest. Exactly what the right balance is in this case is something reasonable people can debate, but it is wrong to think that the public interest is purely short-term economic. Nor would I accept too readily the claims of the auto industry. You may remember a previous episode in which auto industry executives testified that the environmental standards Congress had set were technologically impossible to meet in the short term, only to have their Japanese counterparts come out with cars that met those standards.
You say that: To be sure, because money is fungible, this League of Women Voters principle in effect does stop the government from making sure that its subsidies aren't indirectly used for certain speech. If the government gives someone $1 million, and the speaker continues speaking using what is ostensibly its own money, that speech will still be much facilitated by the government grant — the $1 million will free up money that the recipient would otherwise have had to spend, and will let the recipient use that freed-up money for its own speech. But the Court considered that argument in League of Women Voters and rejected it.
This is true, but isn't this limited by later cases? For example, the speech spectrum doctrine says that the closer speech is to the government's own, the greater the government's power to limit it. See, e.g., Rosenberger, NTEU and Umbehr. In Umbehr, the Court described the spectrum as including: "government employees, whose close relationship with the government requires a balancing of important free speech and government interests, to . . . . users of public facilities . . . and recipients of small government subsidies, who are much less dependent on the government but more like ordinary citizens whose viewpoints on matters of public concern the government has no legitimate interest in repressing."
And in Rosenberger, the Court used the speech spectrum analysis to cover not only directly subsidized speech but also speech which might "garble or distort" the governmental message: "The quoted language in Widmar was but a proper recognition of the principle that, when the State is the speaker, it may make content-based choices. When the University determines the content of the education it provides, it is the University speaking, and we have permitted the government to regulate the content of what is or is not expressed when it is the speaker or when it enlists private entities to convey its own message. In the same vein, in Rust v. Sullivan, supra, we upheld the government's prohibition on abortion-related advice applicable to recipients of federal funds for family planning counseling. There, the government did not create a program to encourage private speech, but instead used private speakers to transmit specific information pertaining to its own program. We recognized that when the government appropriates public funds to promote a particular policy of its own it is entitled to say what it wishes. 500 U.S. at 194. When the government disburses public funds to private entities to convey a governmental message, it may take legitimate and appropriate steps to ensure that its message is neither garbled nor distorted by the grantee. See id. at 196-200."
I recognize there are differences between these cases and the gigantic investment in the auto companies, but does your statement in point 2 above ("But the government generally can't limit what subsidy recipients do with money they get from nongovernmental sources.") take into account the post-LWV cases?
Although I don't necessarily agree with it, I could see a tenable position that the investment is, in part, to help develop green technologies (diminish greenhouse emissions), that the investment is touted as being essential for the survival of the recipient, that the investment is huge and not a "small government subsidy," and that the public perception of the car companies as continuing to oppose green technologies could be that taxpayer dollars were being used to oppose those technologies. Hence, a garble or distortion of the government's message.
1. About the only way this could come up is if the Big 3 essentially reneged on the deal five years hence, and filed a lawsuit challenging a state law, and argued this provision was unconstitutional. You can imagine the outrage that would ensue.
2. Why is Congress going this extremely strange route of prohibiting lawsuits challenging state emission standards? By my understanding, the main ground of challenge to state emission standards is that they violate the dormant commerce clause. Wouldn't it be far more direct, and with far fewer constitutional problems, for Congress to simply pass a law that stated: "States shall have the authority to legislate state emission standards?" Is this just a symptom of too much midnight oil in drafting legislation?
Congress can't waive DCC; it can't stop itself from preempting state law when it establishes a regulatory scheme.
See, e.g., Geier v. American Honda Motor Co., Inc.. Congress had enacted an automotive safety regulations scheme but explicitly saved to suitors state law remedies, which would have meant product liability under state law. Someone sued and said Hondas should have airbags and Honda cried preemption. SCOTUS said Honda was right: despite what Congress said, state law remedies are preempted and only the federal regulatory scheme applies. (That's one of the cases where Thomas lined up with the "liberals.")
Oh what a wonderful world it would be.
In the airbag cases which Geier concluded, the federal courts always found preemption but the state supreme courts generally didn't. If you were the defendant, you just had to find your way to federal court and win.
Anyway, I am unfamiliar with the legal issues the post raised. Here are some questions (I don't know the answers to them, like I said):
(a) Suppose Toyota sues a state for improper regulation. Would Toyota have standing here, on the grounds that the restriction prevents the company from joining GM as a plaintiff?
(b) Perhaps the government can argue that it is placing the restrictions on speech in order to safeguard its money. That is, the government might argue its restriction is content-neutral in that it does not want GM to waste money on lawsuits.
(c) Is this doctrinally related at all to the the ONDCP Reauthorization Act of 1998, authorizing the Office of National Drug Control Policy to take "such actions as necessary" against drug legalization (s. 704(b)(12))? That is, does the first amendment protect executive agencies, and, if so, is the doctrinal justification for 704(b)(12) usable to protect the bailout?
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