Supreme Court Intervenes in Political Ad Rate Dispute

Why it matters locally: While the immediate impact is national, this Supreme Court intervention in political ad rate disputes could affect how political parties and joint fundraising committees operate and campaign in Alabama during election cycles, potentially altering the media landscape for state and local elections as well.

WASHINGTON – The Supreme Court has again paused a lower court's order concerning broadcast advertising rates for political parties and joint fundraising committees, continuing an ongoing legal challenge. Chief Justice John Roberts on Thursday granted a request from U.S. Solicitor General D. John Sauer, placing a hold on a ruling by the U.S. Court of Appeals for the 4th Circuit. The appellate court had instructed the Federal Communications Commission (FCC) to decide by Friday on a challenge to its guidance that would extend preferential ad rates to parties and committees. The Supreme Court's order halts the lower court's directive "pending further order of the undersigned or of the Court" and requested a response from challengers by Saturday evening. This marks the second time the Supreme Court has intervened in this matter. In early September, the justices temporarily halted a 4th Circuit ruling that limited these favorable rates to candidates for federal office. Federal election law allows federal candidates to purchase advertising time at reduced rates during specific periods: 45 days before a primary election and 60 days before a general election. On March 30, the FCC’s Media Bureau issued a “public notice” indicating that political parties and joint fundraising committees should also qualify for these reduced rates. Senator Jon Ossoff of Georgia and three other Democratic candidates for the House or Senate petitioned the full FCC on April 29 to review this public notice. Approximately six weeks later, without FCC action, the candidates filed suit in federal court, arguing the public notice contradicted federal election laws. A divided panel of the 4th Circuit sided with the candidates. Judge Robert King, writing for the majority, stated that federal law is “unambiguous” in granting preferential rates solely to a “candidate” for personal use, a provision not extending to a candidate’s “mere authorization of someone else’s use.” The National Republican Senatorial Committee and the National Republican Congressional Committee, who had joined the case, appealed to the Supreme Court in late August. They argued that the 4th Circuit lacked the authority to review the public notice because it was a “staff-level” document, not a final agency action, which they contended falls outside the court's review powers. The Supreme Court on Sept. 4 granted the committees’ request, stressing that the 4th Circuit “likely lacked statutory jurisdiction” because the candidates' application for review was still pending before the FCC. When the case returned to the lower court, the candidates sought an order compelling the FCC to act on their petition. A divided panel of the 4th Circuit granted this request on Wednesday, mandating an FCC decision by noon on Friday. The FCC then appealed to the Supreme Court on Thursday morning. Solicitor General Sauer described the 4th Circuit's latest order as an “egregious intrusion into the nation’s electoral process” that “should not be allowed to stand.” Sauer argued the order was “inappropriate” given 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 noted the FCC was awaiting public comments on a parallel application, suggesting no unreasonable delay. He requested an immediate administrative stay and asked the Court to prevent the 4th Circuit from issuing further orders regarding the notice until after this year's elections. The National Republican Senatorial Committee and National Republican Congressional Committee also filed their own application Thursday, seeking to pause the 4th Circuit's order.