The Bipartisan Campaign Reform Act of 2002 (known as the McCain-Feingold law) was designed to regulate the financing of political campaigns, especially presidential campaigns. Conservatives have viewed the law as an affront to the free speech provision of the 1st Amendment as it prohibits broadcast advertising by many incorporated entities when such ads refer to a candidate for federal election within 60 days of a that election.

Apparently we foolish voters are too easily persuaded by sophisticated corporate or union advertising, so in order to assure a “fair” election such groups need to be silenced for a few weeks beforehand.

The law has failed spectacularly, of course. The 2004 election was dominated on both sides by “527” organizations whose advertising was exempted by the legislation. George Soros and other wealthy individuals on the political left each invested tens of millions in MoveOn.org and other 527s, while conservatives also invested in their own 527 groups such as the Swift Boat Veterans for Truth. The net effect of McCain-Feingold has been only to make the legal practices for campaign financing and advertising more arcane, more difficult to follow, and more difficult to enforce.

One of the fundamental arrogances of McCain-Feingold is that it presumes that the creation and distribution of video political advertising requires large resources, and thus is restricted to large corporate entities and lobbying organizations. The framers of this bill assumed that by regulating the behavior of these organizations, they could control the distribution and public consumption of video political advertising. They also assumed that this advertising was a substantially different form of political speech than the kind you and I might have over coffee on a Saturday morning. In 2007, just 5 years after the bill became law, both these assumptions have become laughable.

This month the 2 most talked-about political ads were both created by anonymous individuals and uploaded to YouTube. They will be seen millions of times in their first month online. These are attack ads (one an attack on Senator Hillary Clinton, the other a retaliation against Senator Barack Obama). Both are mash-ups of Apple’s famous 1984 Super Bowl commercial. These ads would be now illegal to broadcast on television near an election, but they’ll undoubtedly be seen and talked about ad nauseum by TV’s many nodding heads.