Roberts Pauses Court Order in Fight Over Midterm Ad Rates for Party Committees

A dispute over a few lines of broadcast-rate guidance has returned to the Supreme Court four weeks before the midterm elections, and its outcome will help determine how cheaply the national party committees can buy television time in the campaign's final stretch. On Thursday, October 8, Chief Justice John Roberts issued an administrative stay of a federal appeals court order that would have forced the Federal Communications Commission to rule on the guidance by noon Friday, according to SCOTUSblog. He asked the challengers to respond by 5 p.m. EDT on Saturday, October 10. The full Court has not yet ruled on the underlying emergency applications.

What the guidance does

Federal law gives candidates for federal office access to the lowest unit charge, the favorable advertising rate stations must offer in the weeks before an election: 45 days before a primary and 60 days before a general election, per SCOTUSblog. On March 30, the FCC's Media Bureau issued a staff-level public notice stating that political parties and joint fundraising committees should receive the same rates. Roll Call describes the notice as extending the lower rates to party-coordinated advertising and joint fundraising committees for the first time.

The stakes are financial. The Denver Gazette reports that Republicans back the rule because they hold a significant cash advantage at the party level, while Democrats want the rates limited to candidates, where Democrats hold a cash advantage. CBS News reported in September that the National Republican Congressional Committee had reserved $10.8 million in television advertising for 23 House races that month, according to the group and the tracking firm AdImpact, and that the two Republican committees said they had budgeted tens of millions of dollars in ad buys at the cheaper rates.

How the case reached the justices

On April 29, Senator Jon Ossoff of Georgia and three other Democratic House and Senate candidates asked the full FCC to review the notice, SCOTUSblog reports. When the commission had not acted after about six weeks, they sued in federal court. CBS News identifies the candidates as Ossoff, Rep. Kristen McDonald Rivet, and the Senate candidates Sherrod Brown and Roy Cooper. They argued that the notice conflicts with federal election law, which they say covers only a legally qualified candidate.

A divided panel of the U.S. Court of Appeals for the Fourth Circuit agreed. SCOTUSblog says Judge Robert King, writing for the majority, held that the statute's preferential rates apply only to a candidate's own use, not to a candidate's authorization of someone else's use. Judge Harvie Wilkinson dissented, arguing, according to CBS News, that the court had acted too early because the FCC had not issued a final order.

The National Republican Senatorial Committee and the National Republican Congressional Committee, which had joined the case, asked the Supreme Court to intervene. On September 4, the Court paused the Fourth Circuit's decision. SCOTUSblog describes a four-page unsigned opinion saying the appeals court likely lacked jurisdiction because the candidates' application to the FCC was still pending when they sued. CBS News reported that the Court also found the Republican committees likely to be harmed because broadcasters were already withdrawing favorable rates, writing that the harm "cannot be remedied after the fact through refunds or reimbursements." Justice Ketanji Brown Jackson publicly dissented, per both outlets.

The new order and the emergency applications

The September ruling did not end the matter. On Wednesday, October 7, the Fourth Circuit panel, again divided, ordered the FCC to decide the candidates' petition by noon on Friday, October 9. Roll Call reports that the panel accused the agency of "dragging its feet."

On Thursday, Solicitor General D. John Sauer filed a 15-page application on the FCC's behalf (No. 26A476). The Denver Gazette quotes him calling the appeals court's order a "flagrant abuse of the extraordinary writ of mandamus." SCOTUSblog quotes him calling it an "egregious intrusion" into the electoral process. He argued that the challengers waited months to seek relief, that late judicial action could upend campaign-finance rules just weeks before the election, and that the FCC has not unreasonably delayed because it is still awaiting public comment on a parallel application. Roll Call reports the administration's position that declining to decide campaign-finance rules in the middle of an election season is "entirely reasonable."

The Republican committees filed their own application (No. 26A477), which SCOTUSblog says argues that the public notice is a staff-level document, neither final nor an agency action, and that appeals courts may review only final FCC orders. Their lawyers wrote that if the case for a stay was strong before, it is "open and shut now." The FCC also asked the justices to bar the Fourth Circuit from issuing further orders, until after this year's elections, that require review of the notice or block its implementation.

The candidates take the opposite view. SCOTUSblog summarizes their argument as follows: the statute expressly allows courts of appeals to review such agency actions once a party has applied for FCC review, which they did, so they did not seek court review prematurely. After the September order, the Cooper campaign's manager, Jeff Allen, said the Court had given "a massive TV ad discount to billionaires and other big money donors," according to CBS News. The administration's side, in the same report, said the notice "does not grant favored treatment to one side or the other."

What comes next

The immediate question is procedural: whether the Court keeps the Fourth Circuit's order on hold, which would leave the FCC's guidance in effect through the election, or lets the order take effect and forces the commission to rule. The sources reviewed do not report whether the FCC acted on the October 9 deadline before the stay, and none reports a ruling from the full Court. Roll Call notes that once the FCC's own review process concludes, the Fourth Circuit could rule on the merits, which would reopen the question of whether the notice is lawful.

The case sits at the intersection of two disputes that recur in election law: who may challenge an agency's guidance and when, and how much courts should intervene close to an election. The September order turned on the first question, jurisdiction and timing, rather than on whether the statute permits the broader rates. The justices have so far not addressed that statutory question, and the candidates and Republican committees offer opposing readings of it. The timing of any ruling on the stay applications has not been announced.