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Democratic candidates ask Supreme Court to leave in place appeals court ruling in political ad rate dispute
Lawyers for a group of Democratic candidates for the U.S. House of Representatives and the Senate, including Sen. Jon Ossoff of Georgia and former Sen. Sherrod Brown of Ohio, urged the Supreme Court on Saturday afternoon to leave in place a ruling by a federal appeals court that had directed the Federal Communications Commission to rule quickly on a challenge to its “public notice” that would extend favorable advertising rates to political parties and joint fundraising committees in the run-up to federal elections. David Fox, representing the candidates, accused the FCC of seeking to “engage in blatant procedural trench warfare to stave off judicial review of an unlawful agency directive until it is too late to matter.”
The candidates’ filing came just two days after the FCC and two Republican groups, the National Republican Congressional Committee and the National Republican Senatorial Committee, came to the Supreme Court, asking the justices to pause the decision by the U.S. Court of Appeals for the 4th Circuit, which had instructed the FCC to take action by noon on Friday. Chief Justice John Roberts, who has initial responsibility for appeals from the 4th Circuit, on Thursday granted an administrative stay, which put the 4th Circuit’s ruling on hold while the Supreme Court considers the requests from the FCC and the Republican groups.
Thursday’s filings were the second time in less than six weeks that the battle over the favorable advertising rates has come to the court. Under federal election law, candidates for federal office can purchase advertising time at preferential rates during the 45-day run-up to the primary election and the 60-day period before the general. The dispute now before the court arose after the FCC’s Media Bureau issued a “public notice” on March 30 indicating that political parties and joint fundraising committees should also receive the favorable rates.
On April 29, Ossoff, Brown, former Gov. Roy Cooper of North Carolina, who is running for Senate there, and Rep. Kristen McDonald Rivet, who is running for reelection in Michigan, asked the full FCC to review the public notice. Approximately six weeks later, when the agency had not yet acted on their request, the candidates went to the 4th Circuit, where they argued that the public notice was inconsistent with federal election laws.
By a vote of 2-1, the 4th Circuit agreed. Judge Robert King wrote in his opinion for the majority 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 NRSC and the NRCC, which had joined the case to defend the public notice, went to the Supreme Court in late August, asking the justices to step in and pause the 4th Circuit’s decision. On Sept. 4, the Supreme Court granted that plea. In a four-page, unsigned opinion, the court emphasized 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. “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 quickly on their petition for review of the public notice. A divided panel granted that request on Wednesday, instructing the FCC to issue its decision by noon on Friday.
The FCC came to the Supreme Court on Thursday morning (as did the NRCC and the NRSC), asking the justices to intervene. U.S. Solicitor General D. John 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.’”
In their brief on Saturday afternoon, the candidates countered that “[t]o the extent there is now uncertainty over the scope of lowest unit charge, judicial review is the solution, not the problem. The question involves the scope of a statutory right, and only the federal courts can provide an authoritative answer to that question.”
They argued that the FCC, rather than the candidates, is responsible for the fact that this dispute is taking place so close to the election. The candidates asked the FCC in April to expedite its review of the public notice, they said. 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.”
Moreover, the candidates continued, the Supreme Court should not grant the requests by the FCC and the Republican groups to pause the 4th Circuit’s order because it is unlikely to take up the question at the core of their applications (a key question in deciding whether to grant temporary relief): “the extraordinarily fact-bound question of whether the” 4th Circuit was clearly wrong when it concluded that the FCC’s delay in acting on the candidates’ petition for review was “unreasonable.”
