This morning I attended the oral arguments in Wisconsin Right to Life v. Federal Elections Commission at the Supreme Court.  Wisconsin Right to Life challenged a provision prohibiting grassroots advocacy groups from running ads mentioning candidates for federal office during a “blackout

I was encouraged by the active and insightful questions posed by the Justices.  For example:

·        Justice Alito recognized the massive breadth of this provision during a presidential election year – namely a rolling ban from coast to coast during the year.  Grassroots groups could never run a nationwide ad on CNN or ESPN as it would violate the law in at least one state.

·        Justice Scalia stated the time when ads are most persuasive to Members is during the blackout period before elections.  This is when the First Amendment right to petition the government is the most powerful.  These ads are about changing the minds of Members, not changing the minds of voters.

It was a very interesting session and there was substantial skepticism as to the constitutionality of the law as applied to these issue ads.   As Justice Kennedy asked, “isn’t that democracy?