Free Speech, Free Finance, and the Anti-Entrenchment Principle

I examine how governments use their “power of the purse” to limit speech critical of their policies. An increasingly popular justification is that since government represents the people, and its policies are chosen by “the people,” it is under no obligation to finance such views. Current free speech doctrine does not address such arguments successfully, despite developing doctrines that limit the government’s discretion in the use of its allocative power. I propose an anti-entrenchment principle, according to which democracies should be suspicious of governments which try to entrench their power beyond their elected term. Used mostly in the context of election law, I argue that it be extended to all facets of governance, in this case speech. On my view, the prohibition on government entrenchment should lead to a constitutional principle that requires the government to allocate funds precisely to speech that is critical of the government’s values, policies, and preferences.