Attorneys representing a slate of Democratic office-seekers, among them Sen. Jon Ossoff from Georgia and former Sen. Sherrod Brown of Ohio, petitioned the Supreme Court to maintain a federal appellate court’s order. That order requires the Federal Communications Commission (FCC) to issue a prompt decision on a dispute over its “public notice,” which would grant generally reduced additional advertising rates for political parties and joint fundraising committees.
Court of Appeals for the 4th Circuit. Chief Justice John Roberts granted an administrative stay, putting the 4th Circuit’s ruling on hold while the Supreme Court considers the requests.
Background on the Dispute
Federal campaign finance rules allow candidates running for Congress or the Senate to buy airtime at reduced prices during the final 45 days before a primary and the final 60 days before a general election. The current legal battle stems from the FCC’s Media Bureau announcement on March 30, which suggested that political parties and joint fundraising committees should also qualify for these discounted rates.
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On April 29, the Democratic candidates asked the full FCC to review the public notice. When the agency had not yet acted on their request, the candidates went to the 4th Circuit, arguing that the public notice was inconsistent with federal election laws. By a vote of 2-1, the 4th Circuit agreed, with Judge Robert King writing that federal law is “unambiguous” and gives preferential rates only to a “candidate” for their personal use.
Supreme Court Involvement
The National Republican Senatorial Committee and the National Republican Congressional Committee went to the Supreme Court, asking the justices to step in and pause the 4th Circuit’s decision. On September 4, the Supreme Court granted that plea, emphasizing that the Republican groups were likely correct that the 4th Circuit lacked the power to review the public notice before the FCC had acted on the Democratic candidates’ petition for review.
When the case returned to the lower court, the candidates sought an order instructing the FCC to act quickly on their petition for review of the public notice. A divided panel granted that request, instructing the FCC to issue its decision by noon on Friday. The FCC then came to the Supreme Court, asking the justices to intervene, with U.S. Solicitor General D. John Sauer calling the panel’s order an “egregious intrusion into the nation’s electoral process”.
In their Saturday filing, the candidates argued that legal review is essential to resolving confusion over discounted ad rates, not the cause of it. They blamed the FCC for the late-stage dispute, pointing out that the agency had been given multiple opportunities to act promptly. The candidates insisted the Supreme Court should reject the FCC’s and Republican groups’ requests to block the 4th Circuit’s ruling, which they claimed was the only fair way to settle the matter before Election Day.
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The candidates argued that the FCC, rather than the candidates, is responsible for the fact that this dispute is taking place so close to the election. They then asked the 4th Circuit in June to review the public notice, “after waiting as long as they could to let the Commission act, but grounded in what they believed in good faith was the best reading of the Communications Act’s judicial review provisions. It is the Commission that has, time and again, ‘drag[ged] its feet’ and changed its procedural plans to fit whatever seemed, at any given time, most likely to ward off judicial review.”
The Supreme Court is now considering the requests from the FCC and the Republican groups, with the candidates arguing that the Court should not grant temporary relief because it is unlikely to take up the question at the core of their applications. The candidates’ brief notes that the question involves the scope of a statutory right, and only the federal courts can provide an authoritative answer to that question. The FCC’s decision on the public notice is still pending, with the agency having been instructed to issue its decision by noon on Friday, a deadline that has been put on hold by the Supreme Court’s administrative stay.
Implications of the Dispute
The dispute over the favorable advertising rates has significant implications for the upcoming federal elections. The Democratic candidates argued that the FCC’s public notice was inconsistent with federal election laws, and that the agency’s delay in acting on their petition for review was unreasonable.
