It is often said that we are living through a "revival" of federalism. Certainly, the Rehnquist Court has brought back to the public-law table the notion that the Constitution is a charter for a government of limited and enumerated powers, one that is constrained both by that charter's text and by the structure of the government it creates. This allegedly "revolutionary" Court seems little inclined, however, to revise or revisit its Spending Power doctrine, and it remains settled law that Congress may disburse funds in Pursuit of ends not authorized explicitly in Article I and may promote policy goals that might lie beyond the reach of its enumerated powers merely by attaching conditions to the money it spends. This Article considers whether and to what extent Congress may use its Spending Power-standing alone, or in conjunction with the Necessary and Proper, or "Sweeping," Clause-to create, prosecute, and punish federal crimes. Specifically, it examines the challenges to a particular federal anti-corruption statute, concluding that the expansion of federal criminal jurisdiction through spending is inconsistent with the structures explicitly created and reasonably implied by our Constitution, with the values these structures were designed to advance, and with the liberties they were intended to protect. This Article's doctrinal claims cohere well with leading themes in contemporary constitutional law. There are rich connections between the Article's arguments about conditional spending and criminalization, on the one hand, and contemporary debates in First Amendment law relating to government speech, forum analysis, and expressive association, on the other. In addition, the understanding of the Spending Power defended here serves not only as a complement to, but a crucial component of, the renewed emphasis on mediating institutions and civil society that will likely prove an enduring legacy of the Rehnquist Court.
