With a general election less than two months away, the last thing anybody wants to talk about is politics, right?
Thankfully, the Bipartisan Campaign Reform Act of 2002, a.k.a. BCRA, a.k.a. McCain-Feingold, makes it infinitely more difficult for people to do just that.
One key element of the law–which is as beloved by its fans as Baby Suri's blue eyes are by People magazine–is a 60-day blackout period on "electioneering communications" by nonprofit groups if they mention specific candidates for federal offices.
After all, "electioneering communications"–you and I know and hate them as radio and TV commercials–can only get in the way of making an informed vote. Perhaps the only way to prevent them from hindering the election process is to makes sure they don't mention the candidate, right?
The case that most clearly highlights the stupidity of this law features bedfellows every bit as strange and repellant as those you might find at a Michael Jackson slumber party or a Kennedy Compound Easter weekend: a Wisconsin anti-abortion group and the American Civil Liberties Union.
Wisconsin Right To Life supports passage of The Child Custody Protection Act, which would make it a crime to transport a minor across state lines for abortions to avoid age or parental-consent restrictions in the minor's home state. A WRTL radio ad urging passage of the bill, currently stalled in the U.S. Senate, can't be aired, however, since it mentions both of Wisconsin's senators by name and one of them, Herb Kohl, is up for reelection this year. Here's some irony: Kohl voted for the bill in an earlier iteration, so there's no way the ad can be seen as slagging him. In any case, it has nothing to do with November's election, which Kohl, like virtually every other incumbent senator, will almost certainly win with a margin of victory comparable to Saddam Hussein's in 2002.
Last year, when WRTL first got around to challenging the law in federal court, the ACLU filed an amicus brief, noting that lots of important legislation gets voted on in the weeks leading up to elections and that the blackout would screw the "ACLU's ability to advocate in support of civil liberties during a period of time when many civil liberties issues are being prominently debated."
In 2003, the Supreme Court upheld the blackout provision of BCRA, though it did allow groups to petition for exceptions in specific cases, which is what WRTL has done in this case, so far to no avail (the group's lead counsel, James Bopp, Jr., says that the court won't even likely make a ruling until after Congress adjourns in October).
You can argue that being allowed to beg for an exception is better than nothing, but it's certainly a lot less than what seems to be guaranteed by the First Amendment of the Constitution, which goes a little something like this (sing along if you know the words!): "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
Then again, if the courts could guarantee that all political ads—even or especially those paid for by candidates themselves and the two major parties, would be banned—well that's a kind of freedom from speech we could get behind.
Nick Gillespie is editor-in-chief of reason. This story originally appearance in Time magazine and can be viewed in that format here .