III. Constitutional Standards: Federalism - South Dakota v. Dole 33

In order to avoid being overturned by the courts, congressional legislation must pass constitutional muster.34 Legislation will be overturned if it conflicts with any constitutional provision.35 The applicable standard when analyzing whether a federally funded program implemented among the many states passes constitutional muster can be found in South Dakota v. Dole.36 Dole articulates a five-part test to be applied to a constitutional analysis of congressional legislation enacted under the spending clause of the Constitution.37 The five-part test is as follows: (1) for the general welfare, (2) requirements are clearly stated, (3) not in violation of any other constitutional provision, (4) not unrelated to the federal interest in the spending program, and (5) not impermissibly coercive of state power.38

A. South Dakota v. Dole Five-Part Test:

The Court found that the piece of congressional legislation at issue in Dole met the first consideration in that it was ultimately for the general welfare.39 Under the federal statute,40 the Secretary of Transportation was authorized to “withhold a percentage of federal highway funds otherwise allocable” to the State41 if the drinking age was not raised to twenty-one.42 The Court found that the statute's condition on the federal allocation of highway funds was for the general welfare because Congress had an interest in protecting the public by deterring young people from drinking and then driving on interstate highway systems.43 This problem, the Court stated, required a “national solution,” and Congress had the inherent power to shape matters pertaining to general welfare.44 Ultimately, the Supreme Court held that the statute in Dole passed constitutional muster under each of the five considerations of the articulated test.45

B. Application of the Dole test to S.A. 2314

If S.A. 2314 was added as an amendment to the CCRA, there was enough public resistance to the original form of the amendment to reasonably believe that litigation would soon follow.46 There was immediate public frustration and resistance to the original form of the amendment being added to the bill.47 If a court analyzed the bill under Dole, it would have good reason to reject this amendment as it was originally drafted.48 S.A. 2314 would not have passed constitutional muster and would have failed under at least two of the five parts of the Dole test.49

Under the first part, the proposed legislation must be for the general welfare.50 The courts rarely invalidate congressional legislation under this part of the test.51 The federal government's purposes for the CCRA and for the Higher Education Act are to make college more affordable and maintain high standards of education.52 These requirements would almost certainly be considered in the best interests of the general welfare, especially with the regularity with which students enter college after completing high school.

Education and copyright protection not only foster creation and innovation, but also promote a richer and fuller society for everyone. It would be difficult to contest the government's interest in encouraging student access to institutions of higher education and ensuring a high standard of education within those institutions. It would be equally difficult to argue that protecting creative works and encouraging the free flow of ideas does not ensure continual growth and innovation for society.53 These interests seem to be more for the general welfare and are more closely tied to the spirit of the Constitution than the interest the government has in ensuring safe interstate highway travel, which the Supreme Court ultimately found to satisfy the general welfare part of the Dole test.54 Thus, S.A. 2314 is very likely to satisfy the first prong of the test by promoting the general welfare.

The second part under Dole is to analyze whether the financial incentives and consequences of the statute at issue are clearly stated.55 The plans and steps for implementing the CCRA, and the purposes for the act, are clearly stated and laid out in detail.56 The text of the act is lengthy and specifically details every proposed action and the function each action would fulfill in order to achieve the purpose of making college more affordable.57 Colleges and universities participating in this program would be well aware of the assistance and incentives available to them. These institutions would also know the assistance and incentives they would forego if they decided not to participate in the program. The text of S.A. 2314 explicitly detailed the methods by which the Secretary would identify institutions and the information that these institutions would then have to provide to the federal government.58 The legislation would have a low probability of failing under this part of the Dole test.59

The third part of the Dole analysis determines whether the bill violates any other constitutional provisions.60 This is the underlying foundation for much of the public distaste that resulted after Senator Reid proposed S.A. 2314.61 There was much debate about whether, if passed, S.A. 2314 would violate the First Amendment.62 There is often conflict between an individual's rights in his copyright protected works and another individual's First Amendment right to freedom of expression and speech,63 and as a result, there is often litigation surrounding these two concepts.64 Since the Constitution already has “built-in First Amendment accommodations” within its text, copyright protection often takes precedence over First Amendment rights.65

However, courts often have articulated the importance of First Amendment rights to freedom of expression and freedom of speech in the university and college setting.66 The ability to freely exchange ideas and thoughts in institutes of higher learning is of great importance and requires heightened attention.67 The importance of the First Amendment in the college setting had an effect on the public and would also have an effect on a constitutional analysis of S.A. 2314. By increasing the importance of First Amendment rights, the proposed amendment would become more suspicious under this part of the Dole test because it would inhibit the free flow of ideas through the means of peer-to-peer sharing and digital downloading.

Since there is a heightened awareness of First Amendment rights in the college setting,68 and colleges and universities are a forum for the free exchange of ideas and expressions, S.A. 2314 likely would have been invalidated under this part of the Dole test. A piece of legislation will be subject to heightened scrutiny if it facially appears to burden First Amendment freedoms in order to comply with a specific governmental viewpoint:

The government viewpoint favored in the context of S.A. 2314 is that copyright owners' rights are more important than the public's interest in the free exchange of ideas.70 However, there is a strong countervailing interest in protecting the limited number of works available in the public domain.71 With the increasingly shrinking public domain72 and with the powerful lobbying that large copyright licensing conglomerates leverage against the public's interest in artistic works,73 it seems that legislators' interests in protecting copyright owners is not without bias. It also seems clear that these legislators were attempting to “do indirectly what [they] may not properly do directly,”74 by attempting to add a copyright infringement amendment to a federal spending program whose purpose was completely unrelated to copyright infringement or copyright monitoring.75

The next, but closely related, part of the Dole test is whether the act was unrelated to the federal interest in spending program. A constitutional analysis of the CCRA under this part of the Dole test proves to be troublesome in relation to the possible First Amendment problem,76 because “the lesser the degree of relatedness the greater the level of scrutiny accorded to the enactment.”77 As mentioned above, the purpose of the CCRA is to reduce the cost of college for students and to ensure a tradition of academic excellence in this country.78 However, the stated purpose for S.A. 2314 is to ensure that participating colleges and universities implement policies and procedures for detecting, compiling, and reporting information regarding students who have allegedly infringed a valid copyright.79 This amendment was proposed as a deterrent to copyright infringement via technology-based media, or other forms of P2P communication, at colleges and universities nationwide.80

This inevitably leads to the next question: is the purpose for S.A. 2314 rationally related to Congress' legitimate interest in making college more affordable? Is the condition that requires these colleges to detect, compile, and report information about students engaging in copyright infringement reasonably related to making college more affordable?

From a copyright standpoint, the purpose could be rationally related, in general, to higher learning because copyright protection was created to foster in fostering creativity by providing financial incentives and compensation to authors.81 If the purpose of the CCRA is defined more broadly, such as to encourage more students to attend college or to ensure that students get a better education while attending college, then there could be a rational relationship. Congress has an interest in ensuring that more students have access to colleges and universities and receive the best education possible. Part of that education will foster creativity and innovation.82 If these students understand that an author's copyright interest in his protected works is an important and enforceable right, then these students may be more likely to feel an incentive to continue to create and innovate. They will see the Constitutional copyright clause at work and will appreciate the value of creativity and the author's well-earned economic return for his contribution to society.

However, this is a bit of a stretch, especially if a court were to take the purpose of S.A. 2314 at face value. As stated in the text of the CCRA, its purpose is to make college more affordable. On the other hand, as was stated in the text of the amendment,83 the purpose of S.A. 2314 was to implement deterrent systems for copyright infringement. These purposes are completely unrelated. The only connection between making college more affordable and monitoring copyright infringement is that both take place in a college setting. The relationship is tenuous as best. Thus, under the third and fourth parts of the Dole test, the CCRA would be subject to heightened scrutiny and would not be necessary to achieve a compelling state interest.84

The final consideration under Dole is that the statute not be impermissibly coercive of state power. A court might find the requirement for colleges to implement the proposed infringement deterrent system to be an overly coercive condition.85 This condition could be found impermissibly coercive in that it forces the states to enact deterrent systems if they want federal funding for their colleges and universities.86 If the court found that the CCRA did not pass heightened scrutiny and, therefore, failed the third and fourth parts of the Dole test, it would probably find the Act to be impermissibly coercive of state power, in violation of the Tenth Amendment, and would then strike the legislation down as unconstitutional.87

Ultimately, when considered in light of Dole, S.A. 2314 would probably have been struck down under a heightened scrutiny standard of constitutional analysis if allowed as an amendment to the CCRA in original form. However, S.A. 2314 no longer exists in its original form and has now taken a more diluted form under S.A. 1642.88 Although no one besides Senator Reid will ever know why he withdrew his original amendment and submitted a diluted version, the prevalent and outspoken public resistance to S.A. 2314 may have contributed to this change.