Permission to Speak Freely


Wisconsin Right to Life wants to run a TV radio spot asking people to contact the state's senators, Herb Kohl and Russell Feingold (both Democrats), and urge them to help pass an anti-abortion bill, the Child Custody Protection Act. The group is barred from doing so by the Bipartisan Campaign Reform Act, which prohibits political groups organized as nonprofit corporations from airing ads mentioning candidates for federal office within 60 days of the general election. (The blackout period begins a week from Friday.) So Wisconsin Right to Life is seeking a federal injunction against the law, in essence asking the government for permission to speak.

The rationale for the restrictions on political ads is that much issue advocacy is electioneering in disguise. (And the rationale for restrictions on electioneering? Don't get me started.) But Wisconsin Right to Life insists it really is interested in passing the Child Custody Protection Act, which makes it a crime to take a minor from one state to another for an abortion. The bill has been passed by both houses of Congress, but Democrats in the Senate are blocking a motion to reconcile the two versions in conference committee. Wisconsin Right to Life notes that one of the senators mentioned in its ad, Kohl, voted for the bill, so the spot cannot reasonably be construed as an attack on him.

As for Feingold, the ad could be seen as implicitly critical, but so what? People have been known to vote for or against candidates because of their positions on issues, so it's impossible to urge action on a particular piece of legislation without the possibility that voters will draw inferences about the desirability of retaining a legislator who supports or opposes it. Whatever the merits of the Child Custody Protection Act, and whether or not Wisconsin Right to Life manages to air its ad, this whole episode is a rebuke to Feingold for co-sponsoring an unconstitutional, incumbent-protecting monstrosity that censors the sort of core political speech that even Robert Bork thinks is protected by the First Amendment at precisely the times when it is most useful to the public.