On The Front Lines
Rutherford Institute Sounds Warning Against Free Speech Double Standard in U.S. Supreme Court Rulings that Favor Rights for Wealthy Over Working Class
WASHINGTON, DC — Expressing grave concerns over the U.S. Supreme Court’s recent 5-4 decision in McCutcheon v. FEC, which does away with established limits on aggregate campaign contributions under the guise of protecting free speech, John W. Whitehead, president of The Rutherford Institute, warned against a troubling trend in which the constitutional rights of the wealthy are recognized and affirmed by the courts, while the rights of average, working class Americans are routinely dismissed as secondary to corporate and governmental concerns.
“What we are witnessing is the emergence of a disconcerting mindset in the courts that interprets the Constitution one way for corporations, government entities and the wealthy, and uses a second measure altogether for average Americans,” said John W. Whitehead, president of The Rutherford Institute and author of A Government of Wolves: The Emerging American Police State. “This legal double standard is coming to bear in all aspects of our lives, not just in the realm of campaign finance law. It allows lobbyists intimate access to our elected officials, while prohibiting Americans from even standing silently in protest near a government building; it grants immunity to police officers who shoot unarmed citizens, while harshly punishing Americans who attempt to defend themselves, mistaking a SWAT team raid for a home invasion; and it gives government agents carte blanche access to Americans’ communications and activities, while allowing the government to operate in secret, with secret hearings, secret budgets and secret agendas. This is a far cry from how a representative government is supposed to operate.”
In Buckley v. Valeo (1974), the U.S. Supreme Court upheld the constitutionality of the 1974 FECA Amendment, which capped individual contributions to any political candidate at $1,000 per year. With the passage of the Bipartisan Campaign Reform Act of 2002 (BCRA), Congress changed the contribution limit system to a new two-tiered one, which limits: 1) individuals from contributing more than $2,600 per election year to any given candidate (along with comparable party and PAC limits) and 2) an aggregate contribution limit of $48,600 to all candidates in a two-year election cycle.
In handing down its 5-4 ruling in McCutcheon v. FEC, which challenged the constitutionality of the aggregate contribution limits set up by BCRA, the U.S. Supreme Court held that the government’s stated justification for the second-tier aggregate contribution limits—namely, concerns about “quid pro quo corruption” and the “passing on” of contributions between candidates in order to avoid the limits—were not sufficiently compelling to justify the restriction on First Amendment speech, and were thus invalid. Thus, while the Court’s ruling lets stand the individual contribution limits per candidate put in place by FECA and validated by Buckley, it removes the restriction on the number of candidates an individual can support with campaign contributions. McCutcheon expands on the Court’s landmark 2010 ruling in Citizens United v. FEC, which not only gave unfettered free speech rights to corporations but paved the way for corporations to spend unlimited amounts of money promoting candidates, especially presidential candidates.
In weighing in on the case, constitutional attorney John W. Whitehead contrasted the court’s affirmation of the “free speech” rights of corporations and wealthy donors in McCutcheon and Citizens United with its tendency to deny those same for average Americans when government interests abound. For example, in its 2012 decision in Reichle v. Howards, a unanimous Supreme Court allowed immunity protections for Secret Service agents to trump the free speech rights of Americans.
