Court grants request from Republican groups to pause ruling, for now, on political broadcasting rates
The Supreme Court on Friday cleared the way for political parties and joint fundraising committees, at least for now, to receive favorable advertising rates in the upcoming midterm elections. In a four-page, unsigned opinion, the justices temporarily paused a ruling by a federal appeals court in Richmond, Virginia, that limited the favorable rates to candidates for federal office.
Justice Ketanji Brown Jackson was the lone dissenter. She would have turned down the request by the National Republican Senatorial Committee and the National Republican Congressional Committee to freeze the ruling by the U.S. Court of Appeals for the 4th Circuit.
The dispute began this spring. Under federal election law, candidates for federal office can purchase advertising time at preferential rates during the run-up to elections: 45 days before the primary election and 60 days before the general. On March 30, the Federal Communications Commission’s Media Bureau issued a “public notice” indicating that political parties and joint fundraising committees would also be entitled to the more favorable rates.
Sen. Jon Ossoff of Georgia and three other Democrats who are candidates for the House or Senate went to the full FCC on April 29, asking it to review the public notice. Approximately six weeks later, before the agency had acted on their application for review, they went to federal court, where they argued that the public notice was inconsistent with federal election laws.
A divided panel of the 4th Circuit agreed. Writing for the majority, Judge Robert King held that federal law is “unambiguous”: it gives the preferential rates only to a “candidate” for his or her personal use, which does not extend to a candidate’s “mere authorization of someone else’s use.”
Judge J. Harvie Wilkinson dissented. In his view, it was too soon for the court of appeals to weigh in, because the FCC was still deliberating. And in his view, the text of the law is ambiguous: it can “accommodate[], and may indeed favor, the FCC’s view.” Moreover, he added, the court’s decision “restrict[s] political speech in the sensitive period leading up to an election.”
The NRSC and the NRCC, which had joined the case, came to the Supreme Court late last month, asking the justices to step in. Like Wilkinson, they argued that the court of appeals did not have the power to consider the candidates’ challenge in the first place because the public notice was merely a “staff-level” document “that is neither final nor an agency action” – an important distinction because the court only has the power to review “final orders of the Federal Communications Commission.” Instead, they contended, the notice “is at most an interpretive guidance document restating the FCC’s longstanding position regarding” the preferential rates.
The 4th Circuit’s decision was also wrong on the merits, the committees continued. Whether an entity is entitled to a preferential rate hinges on whether a candidate or “any authorized committee of the candidate” uses a broadcasting station before the election; who pays for the advertisements is irrelevant, they argued. “Indeed,” they suggested, “a candidate might ‘use’ a broadcasting station by appearing in an advertisement authorized by the candidate.”
The Trump administration filed a brief supporting the Republican groups in which it contended (among other things) that the challengers lacked a legal right to sue, known as standing. The public notice, U.S. Solicitor General D. John Sauer argued, “does not grant favored treatment to one side or the other; instead, the notice’s interpretation offers the same benefit to all sides, including the challengers themselves and the committees and parties supporting them.”
Ossoff and the other candidates on Thursday urged the justices to leave the 4th Circuit’s ruling in place. They emphasized that “[n]o court has ever held, or even hinted,” that the preferential rates should be available to anyone other than the candidates themselves. And until it issued the guidance at the center of this case, the challengers added, the FCC itself “had long agreed that ‘only candidates are entitled to’” the more favorable rates.
The candidates also contended that they have standing because of the negative effect that a ruling for the committees would have on them. They noted that “the Candidates’ rival party committees have promised that if the Public Notice stands, they will spend hundreds of millions of dollars ‘at the candidate rate’ to ‘obliterate’ Democratic candidates like” the challengers in this case, “characterizing it as ‘a complete game changer.’” The candidates also resisted any suggestion that they had asked the court of appeals to weigh in too soon. Federal law, they said, specifically envisions that federal courts of appeals can review agency actions like the public notice as long as the challenger has filed an application asking the FCC to review the action – precisely what the candidates have done here.
On Friday afternoon, the Supreme Court granted the committees’ request and put the 4th Circuit’s decision on hold to give the committees time to seek Supreme Court review. The committees were likely to prevail on their argument that the 4th Circuit did not have the power to review the public notice before the FCC had acted on the candidates’ petition for review, the Supreme Court emphasized. “The Communications Act … contemplates that an aggrieved party will file an application for review with the Commission, that the Commission will resolve that application by order, and that public notice of that order will issue before an aggrieved party may petition for further review in federal court. Because the candidates’ application for review was pending when they filed their petition for review,” the court explained, “the Fourth Circuit likely lacked statutory jurisdiction to address their challenge.”
The committees will also suffer permanent harm – another important factor in considering whether to award temporary relief – if the 4th Circuit’s decision remains in place, the Supreme Court said. The committees have indicated that, based on that ruling, “broadcasters are already rescinding favorable rates,” which “will require the party committees to pay more for advertising space, thereby hampering their efforts to reach the electorate in the critical weeks leading up to the midterms. That injury, which implicates their First Amendment rights to speak and coordinate their political activities freely, cannot be remedied after the fact through refunds or reimbursements.”
Jackson penned a one-paragraph dissent. In her view, the committees “are not likely to succeed on the merits of their argument that the Fourth Circuit lacked” the power to consider the candidates’ case. She pointed to cases (including the proceedings in the 4th Circuit in this case) standing for the ideas that an agency cannot ward off review of its conduct by a court by failing to act and that the failure to comply with requirements outlined in a statute does not strip a court of the authority to hear a case.