SCOTUS Ends Blockade On GOP Access To Low-Cost Ad Rates

In a win for Republicans, the U.S. Supreme Court on Friday overturned a lower court blockade that limited the most favorable broadcast advertising rates to solely political candidates. Justice Ketanji Brown Jackson was the lone dissenter in the case.

In its per curiam ruling, the high court granted an emergency application filed by the National Republican Congressional Committee (NRCC) and National Republican Senatorial Committee (NRSC) to temporarily stay last week’s decision by the 4th Circuit Court of Appeals. In that order, a three-judge panel (2-1) ruled that only candidates qualify for the low-cost rates — not “political parties nor joint fundraising committees.”

According to Courthouse News, “The lowest unit charge requirements allow legally qualified candidates to purchase campaign advertising on broadcast television and radio networks at cheaper rates than outside groups.” The Federal Communications Commission’s media bureau issued a public notice in March “stating that political party committees and joint fundraising committees also qualified for the discount.”

The new rules were subsequently challenged by several Democrat congressional candidates, including Senate Democrat candidates Roy Cooper (North Carolina) and Sen. Jon Ossoff (Georgia). The Democrat challengers alleged that the guidance “could have advantaged Republicans, whose party committees tend to raise more money than individual candidates,” as described by Courthouse News.

The NRCC and NRSC subsequently filed their emergency application pending disposition of a petition for writ of certiorari at SCOTUS. In asking the high court to halt the lower court’s ruling, they argued that the 4th Circuit “lacked jurisdiction to review and vacate interpretive guidance that is neither agency action, nor final.”

The Supreme Court tentatively agreed with that reasoning.

After describing the requirements for obtaining the sought-after relief, the high court noted how the Communications Act “makes clear that an aggrieved party must wait for the Commission to resolve its application for review by order before filing a petition for judicial review.” The majority underscored that, “[b]ecause the candidates’ application for review was pending when they filed their petition for review,” the 4th Circuit Court “likely lacked statutory jurisdiction to address their challenge.”

The 4th Circuit’s “holding to the contrary splits with every other Circuit to have considered the issue,” the court ruled.

The justices went on to note that the GOP appellees demonstrated that they are likely to suffer “irreparable harm” if the 4th Circuit’s injunction is permitted to remain in place throughout litigation. They specifically acknowledged how “broadcasters are already rescinding favorable rates” in response to the 4th Circuit’s ruling, and that “[c]urrent and future recissions will require the party committees to pay more for advertising space, thereby hampering their efforts to reach the electorate in the critical weeks leading up to the midterms.”

Citing a campaign finance decision from its most recent term, the high court added that such an injury — “which implicates their First Amendment rights to speak and coordinate their political activities freely” — “cannot be remedied after the fact through refunds or reimbursements.”

In her uncharacteristically short dissent, Jackson said that she would deny Republicans’ emergency request for relief because she believes that they “are not likely to succeed on the merits of their argument that the Fourth Circuit lacked statutory jurisdiction.”

According to Friday’s ruling, the 4th Circuit’s mandate is “recalled and stayed pending the filing and disposition of a petition for a writ of certiorari, if such a writ is timely sought.” The Supreme Court’s stay will terminate if a petition to SCOTUS is denied by the high court or if SCOTUS agrees to consider the matter and issue a judgment on the merits of the case.