In its first hundred plus days, the Trump administration has issued a torrent of executive orders with significant speech implications. Some orders purport to end funding and contracts to recipients—including universities, non-profits, and research entities—that espouse messages the government dislikes, particularly those related to what it terms “DEI” or “gender ideology.” The administration’s attempts to use, or abuse, federal funding discretion to compel private parties to conform to its ideology are extraordinary, not only because of their doubtful constitutionality, but also because they apparently anticipate no pushback from Congress, the actual body with the constitutional authority to decide how federal funds are spent.

Congress has so far shown no appetite for asserting this authority, and is currently embroiled in a budget reconciliation process that may further the administration’s unconstitutional efforts to quell speech it dislikes.

However, if Congress becomes more inclined to assert its power to defend the Constitution and its rightful role in the funding process—perhaps due to expected midterm election results, or the president’s declining popularity—there are several actions that it could take to impede the executive branch’s censorship efforts and hold the administration accountable. This short piece cannot encompass them all, but seeks to tease out a few key possibilities.

Provide Clarity in Authorizing Statutes When Possible

Congress must draft its funding conditions in a way that passes constitutional scrutiny and, to do so, clarity is essential. The United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (Leadership Act) provides an example. The Leadership Act contained two speech-related funding conditions. One prohibited the use of funds to “promote prostitution or sex trafficking.” The other said that no funds could be provided to any organization unless it had a policy “explicitly opposing prostitution and sex trafficking.” The first condition’s constitutionality was unchallenged, but the Supreme Court held that, as applied to U.S. based funding recipients, the second condition was unconstitutional. Chief Justice Roberts, writing for the Court, reasoned that the first condition passed constitutional muster because it controlled only speech within the scope of the program, whereas the second attempted to control speech a recipient might engage in outside of the bounds of the federally funded program and require it to adopt and espouse the view of the government.

Here the Court is clearly telling Congress that it must achieve its goals in a more tailored, less censorious way. In the Leadership Act, Congress could have avoided these problems by requiring the policy of opposing sex trafficking to be espoused only by United States government officials and government documents communicating about the program. Such a minimal change would have effectuated Congress’s policy without reaching speech properly outside the government’s control. It also would have limited the executive branch’s ability to use the requirement to cherry pick its preferred speakers by funding only those that espoused its viewpoint, regardless of qualification. In the future, Congress could avoid speech issues like the one in the Leadership Act’s original text by including clear language prohibiting funding conditions that compel or forbid the expression of any particular viewpoint.

Absolute precision in drafting isn’t always possible, however. For instance, there are circumstances—including funding for scientific and other research or for the fine arts—where granting discretion to the executive branch is necessary to effectively govern a program because there are more qualified applicants than there are funds to give out. But that does not mean there is nothing Congress can do to limit unconstitutional abuse of its guidance by the administration in power. Take the “DEI” Executive Order that led the National Science Foundation (NSF), the National Endowment for the Arts (NEA), and other agencies to terminate grants and contracts (arguably in contravention of existing law) that would have supported speech or speakers the administration disfavors. There are significant constitutional and legal questions for courts to parse about those terminations, but Congress could also step in. Previously, when the NEA funded art projects that some found offensive, including Piss Christ, Congress stepped in by adding language to the authorizing statutes requiring consideration of “standards of decency and respect for diverse beliefs and values” into funding decisions. Congress could step in again, but this time with protecting funding to more speech as its goal. New language addressing the Trump administration’s attacks on speech could advance existing policies supporting the development and use of scientific talents of “men and women, equally, or all ethnic, racial and economic backgrounds, including persons with disabilities” and “to honor and preserve [] multicultural artistic heritage as well as support new ideas” by requiring the consideration of diversity, equity, and inclusion in the award process not only to achieve diversity among awardees, but also to require funding to art and research about diversity (e.g. research into how sex and gender influence health). New language could also limit the circumstances in which an award can be canceled.

Clarification of funding conditions within authorizing statutes is possible not just for future programs, but also existing programs. Authorizing statutes (also called enabling statutes) are laws that create or renew federal programs and agencies. Authorizations of appropriations typically provide Congress with guidance for allocating the funds necessary to implement these authorizations. Authorization timeframes vary from defined periods of time to perpetuity. When these timeframes lapse, rules restrict the appropriation of more funds to the program. Even so, Congress has procedures that permit it to continue funding programs with lapsed authorizations, and this is in fact how a large number of programs continue to receive funding. Without renewal, Congress’s only power over these programs other than oversight is through the appropriations process and what little direction can be provided through report language. There are currently a large number of lapsed or expiring programs that continue to receive federal funding. Where these intersect with speech, they represent clear opportunities for legislative intervention to curb abuse.

To be sure, the president might refuse to sign any of these efforts into law, but without the power of the line-item veto, legislation can be designed in such a way, for instance, by building changes into must-pass legislation, that would make it difficult for the president to veto.

Build Legislative History

Building legislative history is also key. Courts reviewing the constitutionality of funding conditions often look to legislative histories to understand congressional intent, and in no place is congressional intent more important than the appropriations process. Each year, Congress passes thousands of pages of guidance in the form of “reports” that are intended to guide the implementation of its statutory appropriations. Robust legislative history, and accountability tied to congressional intent, can limit executive branch leeway to interpret funding conditions in ways Congress may not support.

For instance, in 2000, Congress documented its First Amendment arguments in support of the Children’s Internet Protection Act (CIPA), which requires schools and libraries that receive federal funding to support internet access to use filtering software that blocks access to obscenity, child sexual abuse material, and other speech “harmful to minors.” Anticipating a First Amendment challenge, a Senate report detailed why the Senate Committee on Commerce, Science, and Transportation believed CIPA was constitutional, stating that libraries often restrict the content of their collections and do not usually collect pornography. The report characterized library internet access as a technological extension of the book stack, reasoning that restricting access to content on a library computer was not different from limitations placed on the physical collection.

When the American Library Association (ALA), an association of libraries, challenged CIPA, it argued that Congress’s characterization of libraries’ role was inaccurate and speech-limiting. The ALA said that unfettered internet access would complement librarians’ ability to fulfill their role of meeting patrons’ information needs where physical collections were limited. Yet it was Congress’s characterization of libraries in their legislative history that Justice Rehnquist, writing for the Court, looked to when concluding that in CIPA, Congress permissibly defined a program’s limits rather than impermissibly limited protected speech. While the ALA’s interpretation of libraries' role was the more speech-enabling characterization, this example demonstrates how Congress helped control the fate of legislation by including analysis in the legislative history. In the future, Congress could use this power to protect speech rather than restrict it. This might be accomplished by creating programs to support wider access to speech or by including explanations of limitations in the scope of a program to protect against discrimination against speech and speakers.

While courts can ignore legislative histories that don’t support their preferred reasoning, Congress can make this harder by establishing strong, clear evidence of legislative intent. Contrast the influence of the legislative history of CIPA with that of Section 1008 of the Public Health Service Act, which specifies that no federal funds under Title X of that act “shall be used in programs where abortion is a method of family planning.” The condition says nothing about speech, but instead refers only to the use of abortion as a method of family planning. Even so, when implementing the legislation, the executive branch initially found that “nondirective counseling and referral for abortion was permitted” only to change course and, after a new rulemaking, limit communications about abortion in Title X programs. The Supreme Court and lower reviewing courts found that the legislative history was ambiguous at least as applied to the counseling, referral, and advocacy provisions and also found that, even with the sharp change in policy, the agency decision still deserved deference.

The ambiguity did not doom the statute or the implementing regulations. According to the Court, the statute represented a valid exercise of Congress’s authority to fund family planning services, excluding abortion, and the implementing regulations related to communication about abortion services were a reasonable interpretation of an ambiguous statute. But the legislative ambiguity did mean the executive branch had more leeway to define what speech could and could not be accomplished through the program in ways that permitted diametrically opposed interpretations of the statute, with significant consequences for the speech of program recipients and without any input from Congress at all. Considering the current administration’s approach to ambiguous funding authority, Congress would be well advised to provide reviewing courts clear guidance about congressional intent related to funding conditions that may limit recipient speech.

Erect Roadblocks & Demand Accountability

Congress should be ready to oppose new censorious funding conditions, consider ways to limit the administration’s use of funding for its censorship campaigns, and consistently hold the administration accountable. Members of Congress have taken these kinds of actions before, and some are beginning to push for them now.

In the 116th Congress, the first bill the Senate considered included the Combating BDS Act, which would have supported states’ efforts to exclude anyone engaged in boycott, divestment, and sanctions against Israel (BDS) activities from government contracts among other things. The bill passed the Senate, but not without a fight. During the floor debate, some Senators raised significant concerns about the bill’s free expression impacts. Remarkably, Sen. Feinstein, Sen. Van Hollen, Sen. Paul, and other senators that opposed the legislation identified participation in BDS activities as speech with which they personally disagreed.In other words, they distinguished their personal opinions from the principle they were upholding with their votes. The legislation never got a vote in the House after members of that body also expressed constitutional concerns. Congress should be on high alert for similar situations calling for similar action in the coming years.

The oversight process provides further opportunities to bring visibility to unconstitutional censorship efforts and to pressure administration officials to change their behavior. For example, in a recent House Appropriations Committee oversight hearing of the Federal Communications Commission (FCC), members of the committee criticized the FCC’s targeting of broadcast networks for their speech and raised questions about FCC Chair Brendan Carr’s attempts to pressure regulated entities to cease their diversity, equity and inclusion efforts.

Additionally, Congress should use the appropriations process to demand accountability and further restrict speech-related abuses. Through appropriations reports, Congress could require agencies to provide information regarding program operations, including information about the impacts of executive order implementation on civil rights and civil liberties or information about legal challenges and the cost of litigation. Through an appropriations rider, Congress could simply prohibit the expenditure of funds for certain purposes. For instance, the NSF, NEA, and other agencies could be blocked from using any of their appropriated funds to implement the administration’s DEI or gender ideology executive orders, or any successive orders the administration might issue. Congress could also order funds to be withheld should certain conditions that would harm speech arise (e.g., should the FCC commence a proceeding to interpret Section 230).

The current budget reconciliation process does not inspire hope that Congress intends to take any of these actions to protect expression and prevent unconstitutional conditions on protected speech in the near term. But as voters become more concerned with this administration’s speech suppression, the tide may soon turn. At least some offices have indicated they are already paying attention to these possibilities and willing to act. When and if Congress decides to protect its constituents and defend the Constitution again, there will be much to do.