The Supreme Court on Friday granted an unsigned stay that freezes a Fourth Circuit ruling and restores, for now, March FCC staff guidance extending lowest-unit-charge television rates to parties and joint fundraising committees. [1][2] Justice Ketanji Brown Jackson dissented. [1][2] The 60-day general-election window for the cheaper candidate rate starts Friday. [1] The Court did not hold that parties are "candidates." It said the Fourth Circuit likely lacked statutory jurisdiction because the Democrats' application for FCC review was still pending when they went to court. [2]
Four Democratic candidates — Sen. Jon Ossoff of Georgia, former Sen. Sherrod Brown of Ohio, former Gov. Roy Cooper of North Carolina, and Rep. Kristen McDonald Rivet of Michigan — had won at the Fourth Circuit. [1] Judge Robert King, writing for a divided panel, held that federal law is "unambiguous": the preferential rate is only for a "candidate" for personal use, not "mere authorization of someone else's use." [2] Judge J. Harvie Wilkinson dissented, saying it was too soon and that the text can accommodate the FCC's view. [2] The National Republican Senatorial Committee and the National Republican Congressional Committee then asked the justices to step in. [2] They told the Court they had already budgeted "tens of millions of dollars" at the candidate rate. [1] Broadcasters, they said, were rescinding the cheaper rates off the Fourth Circuit's decision. [1]
CNN filed a GOP emergency-docket win, "the latest in a series of emergency rulings from the high court benefiting the GOP," and wrote that the order "effectively upholds" the March guidance. [1] "Effectively upholds" is CNN's frame. The instrument is a stay. SCOTUSblog's Amy Howe called it a four-page unsigned opinion that paused the Richmond ruling "for now" and gave the committees time to seek review. [2] The justices wrote that current and future rescissions would require the committees to pay more, "hampering their efforts to reach the electorate in the critical weeks leading up to the midterms." [1][2] "That 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." [1][2]
The Communications Act, the Court said, contemplates an application for review, a Commission order, and public notice of that order before a petition in federal court. [2] Because the candidates' application was pending, the Fourth Circuit "likely lacked statutory jurisdiction." [2] Jackson, in a one-paragraph dissent, said the committees were not likely to succeed on that jurisdictional argument, and that an agency cannot ward off review by failing to act. [2] The FCC application is still pending. Do not write that the Court decided the merits.
The Trump administration supported the GOP groups. Solicitor General D. John Sauer argued the notice does not grant favored treatment to one side. [2] CNN wrote that the Justice Department said the guidance would not harm the Democratic plaintiffs because the rule is applied universally. [1] The candidates had told the justices that rival party committees promised to spend hundreds of millions "at the candidate rate" to "obliterate" Democrats, calling it "a complete game changer." [2] A promise is not a buy. A stay is not a holding.
CNN tied Friday's order to this summer's coordination-cap case, in which the Court's 6-3 conservative majority rolled back longstanding limits on how much parties may coordinate with federal candidates. [1] That June rollback is not today's stay. Stack them. Do not merge them. Lowest-unit-charge is a rate. Coordination is a cap. The midterms get both.
-- SAMUEL CRANE, Washington