Updated on Oct. 8 at 3:16 p.m. EDT
The battle over favorable advertising rates for political parties and joint fundraising committees returned to the Supreme Court on its interim docket on Thursday morning, just a little over a month after the justices temporarily paused a ruling by a federal court that had limited the rates to candidates for federal office. In a 15-page filing, U.S. Solicitor General D. John Sauer asked the court to block an order by the U.S. Court of Appeals for the 4th Circuit directing the Federal Communications Commission to decide by noon on Friday, Oct. 9, on a challenge to its “public notice” that would extend the favorable rates to parties and committees. Sauer wrote that the court of appeals had “seriously erred in trying to short-circuit the Commission’s deliberations.”
On Thursday afternoon, Chief Justice John Roberts, who handles emergency applications from the 4th Circuit, granted Sauer’s request to immediately pause the lower court’s order while the justices consider the request. The order is now on hold “pending further order of the undersigned or of the Court.” Roberts also asked the challengers to respond by 5 p.m. EDT on Saturday.
Under federal election law, candidates for federal office can purchase advertising time at preferential rates during the 45-day-period before the primary election and the 60-day-period before the general. On March 30, the FCC’s Media Bureau issued a “public notice” indicating that political parties and joint fundraising committees should also receive the 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, when the agency had not yet acted on their request, the candidates 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.”
The National Republican Senatorial Committee and the National Republican Congressional Committee, which had joined the case, went to the Supreme Court in late August, asking the justices to intervene. They contended (among other things) that the 4th Circuit 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.”
Ossoff and the other candidates urged the justices to leave the 4th Circuit’s ruling in place. They pushed back against 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 Sept. 4, 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. In a four-page, unsigned opinion, the court stressed that 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 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 wrote, “the Fourth Circuit likely lacked statutory jurisdiction to address their challenge.” Only Justice Ketanji Brown Jackson publicly dissented.
When the case returned to the lower court, the candidates sought an order instructing the FCC to act on their petition for review of the public notice. A divided panel granted that request on Wednesday, directing the FCC to issue its decision by noon on Friday.
The FCC came to the Supreme Court on Thursday morning, asking the justices to intervene. Sauer called the panel’s order an “‘egregious intrusion into the nation’s electoral process’” that “should not be allowed to stand.” The order is “inappropriate” in this case, he continued, because the candidates “delayed for months in seeking such relief” and because “judicial intervention at this late date could upend campaign-finance rules in the ‘critical weeks leading up to the midterms.’” Sauer also questioned any suggestion that the FCC has unreasonably delayed its action on the candidates’ petition for review. He noted that the FCC “is still awaiting public comments on a parallel application.”
Sauer urged the court to issue an immediate administrative stay, which would put the 4th Circuit’s order on hold while the justices consider the FCC’s request. He also asked the justices to “make clear that the Fourth Circuit should not issue any further orders that require the Commission to review the Bureau’s notice, or that prevent the Bureau from implementing that notice, until after this year’s elections.”
The National Republican Senatorial Committee and National Republican Congressional Committee filed their own application later on Thursday morning, seeking to pause the 4th Circuit’s order. They told the justices (among other things) that, “[i]f the case for a stay was strong the first time around, it’s open and shut now.”
