Four Democratic candidates for the U.S. House of Representatives and the U.S. Senate on Thursday the justices to leave in place a ruling by a federal appeals court that limited the availability of preferential advertising rates to candidates for political office. The candidates – former Sen. Sherrod Brown of Ohio, who is running again in that state; Sen. Jon Ossoff of Georgia; 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 – told the justices that “[n]o court has ever held, or even hinted,” that the preferential rates should be more broadly available. And until it issued the guidance at the center of this case, the challengers added, the FCC itself “had long agreed that ‘only candidates are entitled to’” the more favorable rates.
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Under federal law, candidates for federal office can purchase advertising time at favorable rates during the 45 days before a primary election and 60 days before a general election. The dispute before the court arose this spring, after the Media Bureau of the Federal Communications Commission issued a “public notice” informing broadcasters that political parties and joint fundraising committees are also entitled to the preferential rates.
The Democratic candidates asked the full FCC to review the public notice. Approximately six weeks later, before the FCC had acted on that request, they went to federal court, where they argued that the public notice conflicted with federal election laws. As a practical matter, they contended that the rule favors Republicans, whose fundraising committees have more to spend, while Democratic candidates rely more on small-money donors.
A divided panel of the with the candidates. Writing for the majority, Judge Robert King held 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.”
Judge J. Harvie Wilkinson dissented. In his view, because the FCC was still deliberating the issue, the court of appeals could not yet weigh in. And in any event, the text was in his view ambiguous: it can “accommodate[], and may indeed favor, the FCC’s view.” Moreover, he added, the court’s decision “restrict[s] political speech in the sensitive period leading up to an election.”
The National Republican Senatorial Committee and the National Republican Congressional Committee, which had joined the case, came to the Supreme Court on Monday, the justices to pause the 4th Circuit’s order while litigation continues. Like Wilkinson, they first contested the court’s power to consider the challenge at all. They contended that the public notice was merely a “staff-level” document “that is neither final nor an agency action” – an important distinction, they said, because the court only has the power to review “final orders of the Federal Communications Commission.”
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And the 4th Circuit’s decision was also wrong on the merits, the committees continued. Whether an entity is entitled to a preferential rate hinges on whether a candidate or “any authorized committee of the candidate” uses a broadcasting station before the election; who pays for the advertisements is irrelevant, they argued. “Indeed,” they suggested, “a candidate might ‘use’ a broadcasting station by appearing in an advertisement authorized by the candidate.”
In on Thursday, the Democratic candidates pushed back against the committees’ suggestion that their challenge was not properly in the courts. They have a legal right to sue, known as standing, they argued, because of the impact that a ruling in the committees’ favor would have: “the Candidates’ rival party committees have promised that if the Public Notice stands,” they wrote, “they will spend hundreds of millions of dollars ‘at the candidate rate’ to ‘obliterate’ Democratic candidates like” the challengers in this case, “characterizing it as ‘a complete game changer.’”
Moreover, the candidates continued, they had not gone to the court of appeals too soon. Federal law, they said, specifically envisions that federal courts of appeals can review agency actions like the public notice as long as the challenger has filed an application asking the FCC to review the action – which is exactly what the candidates have done here.
Finally, the candidates argued, the text of the law at the center of the case is clear that the preferential rates are only available for “the use of any broadcasting station by any person who is a legally qualified candidate for any public office in connection with his campaign.” This language, the candidates said, “covers advertisements purchased by the candidate or their principal campaign committee on their behalf, but not advertisements that are purchased by party committees or [joint fundraising committees] who are not,” under federal election law and regulations, “acting on behalf of candidates when purchasing the ads in question.” Indeed, the candidates noted, just last year in another election-law case, the U.S. solicitor general told the justices that the rules governing preferential rates “require broadcasters to charge low rates for candidate spending, but not for party spending—whether coordinated or independent.”
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