The Supreme Court on Wednesday stayed a federal appeals court order that would have forced the Federal Communications Commission to rule quickly on a Democratic challenge to cheaper broadcast ad rates for political parties. The decision sided with the Trump administration and the National Republican Congressional Committee, which had both sought the stay, with the Nov. 3 midterm elections less than three weeks away.
In an unsigned opinion, the court granted the commission's application and put the 4th Circuit's Oct. 7 judgment on hold until it disposes of a petition for review, if one is filed in time. If the justices decline to hear the case, the stay ends automatically. Justices Sonia Sotomayor and Ketanji Brown Jackson would have denied the application.
"The FCC will suffer irreparable harm absent a stay," the court wrote. It said the appeals court should have left the matter to the commission, adding: "Our system of separation of powers does not allow the judiciary to meddle in the workings of a coordinate branch of the government in this manner."
The order keeps the commission's policy in use for the midterm election, the Los Angeles Times reported. Federal law caps what a station may charge a "legally qualified candidate" at its "lowest unit charge" during the 45 days before a primary and the 60 days before a general election. On March 30 the FCC, under Republican control, announced that broadcasters must extend those rates to political parties and their joint fundraising committees. According to the Times, the notice did not explain the basis for the change and the commission declined to hold a hearing on it. The shift was seen as helping Republicans, the paper reported, because Democratic candidates have raised more from individual contributions, which are capped, while Republicans have raised far more through party committees backed by wealthy donors.
Three Democratic Senate candidates, Sherrod Brown of Ohio, Jon Ossoff of Georgia and Roy Cooper of North Carolina, objected in April and asked the commission to review the change. When it did not act, they sued, arguing that the agency had no authority to alter a law that gave the discount only to candidates. The 4th Circuit, which sits in Virginia, sided with them in two 2-1 decisions, and each side has accused the other of seeking a late change in the rules.
The justices first stepped in on Sept. 4, when an unsigned order said the appeals court had moved too soon because the law requires a party to wait for the commission to resolve its request for review before going to court. Only Justice Jackson dissented. In September the FCC's only step was to ask for public comment on the March change, and the 4th Circuit then ordered it to act by Oct. 9. "Suffice to say that any 'chaos' is the FCC's fault, not ours," Judge Robert B. King said on Oct. 7.
Chief Justice John Roberts paused that deadline on Oct. 8 at the request of Solicitor General D. John Sauer, the commission's counsel of record, while the full court weighed the application. The candidates, represented by David Fox of the Elias Law Group, filed their response on Oct. 10, and the government replied the next day.
The policy has drawn sharp objections. Anna Gomez, the commission's lone Democrat, said in a statement: "The American public should not have sweeping election-year rule changes forced on them in the dark, on the eve of the election, without a single opportunity for public input." The nonpartisan Campaign Legal Center called the change "contrary to the text and purpose of the federal statute" and said it "would effectively grant super PACs an advertising discount."
Wednesday's order is a stay, not a ruling on whether the FCC's notice is lawful. Under the reasoning the court laid out on Sept. 4, the candidates must wait for the commission to rule on their request before a court can take up that question.