Supreme Court sides with Republicans in fight over broadcast ad rates

The Supreme Court on Friday granted Republicans' request to halt a lower court decision that prevented political party committees from receiving more favorable broadcast advertising rates, giving the GOP a win weeks before the November elections.

The order from the high court restores guidance from the Federal Communications Commission that allows political parties and committees access to cheaper rates for political ads in the run-up to the midterms. The decision could be a boon for national Republican groups, which have amassed bigger war chests than their Democratic counterparts and can flood the airwaves with more ads in support of GOP candidates. 

The National Republican Congressional Committee has reserved $10.8 million in television ads for 23 House races this month, according to the group and AdImpact.

The move by the NRCC, which aims to expand Republicans' ranks in the House, comes after the Supreme Court in June struck down federal limits on the amount of money political committees can spend in coordination with federal candidates.

In an unsigned decision, the Supreme Court said the appeals court likely did not have jurisdiction to address the challenge to the FCC's policy that was brought by a group of Democratic candidates for the House and Senate. Those candidates are Sen. Jon Ossoff of Georgia, Rep. Kristen McDonald Rivet of Michigan, Sherrod Brown of Ohio and Roy Cooper of North Carolina. Ossoff and McDonald Rivet are seeking reelection, and Brown and Cooper are both running for the Senate in their respective states.

The high court also said the GOP party committees are likely to be harmed by the 4th Circuit's decision, since they said broadcasters are already withdrawing favorable rates in light of the lower court's ruling.

"Current 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," the Supreme Court said. "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."

Justice Ketanji Brown Jackson dissented.

The dispute involves the rates that broadcasters charge for political ads in the run-up to federal elections. Under federal law, stations must give candidates and their campaign committees favorable rates during election season. These lesser rates are known as the "lowest unit charge" rates and take effect 60 days before a general election, which for the upcoming midterms is Friday.

In March, a component of the Federal Communications Commission issued a public notice on the rules for political ad buys that directed broadcasters to offer discounted rates to joint fundraising committees and political parties spending in coordination with candidates.

Soon after that guidance was issued, the four Democratic candidates asked the FCC to review the policy. After the FCC took no immediate action on the Democrats' request, they turned to the U.S. Court of Appeals for the 4th Circuit and argued the policy is unlawful. In a divided decision last month, the 4th Circuit agreed to set aside the public notice.

In its 2-1 ruling, the 4th Circuit said that the FCC's guidance is unlawful because neither political parties nor joint fundraising committees are entitled to the discounted rates. The two judges in the majority said that the more favorable rates are only for candidates for public office in connection with his campaign.

Writing in dissent, Judge Harvie Wilkinson said that the 4th Circuit got involved too soon, since the FCC has not yet issued a final order in response to the Democrats' application for review. 

In their request for emergency relief to the Supreme Court, the National Republican Senatorial Committee and NRCC said they have budgeted "tens of millions of dollars" in ad buys at the cheaper rates. But it said broadcast stations are rescinding those rates because of the 4th Circuit's ruling.

They argued that the 4th Circuit did not review final action by the FCC, but rather a "staff-level guidance document," so the court should not have gotten involved at that stage.

"In the midst of election season, a divided Fourth Circuit panel just rewrote longstanding rules about preferential broadcast rates for political ads," the Republicans wrote, adding that the Democrats were seeking to "upend the status quo" by limiting access to favorable ad rates to candidates.

The Trump administration, including the FCC, backed the GOP committees. In a brief to the Supreme Court, Solicitor General D. John Sauer argued the Democratic candidates did not have the legal right to sue, and the 4th Circuit did not have jurisdiction to review the public notice.

Sauer also asserted that the FCC's guidance applies equally to candidates of both political parties. 

"The notice does not grant favored treatment to one side or the other; instead, the notice's interpretation offers the same benefit to all sides, including the challengers themselves and the committees and parties supporting them," he said.

But lawyers for the Democrats said the 4th Circuit's decision was "well-grounded," since federal law allows cheaper ad rates only for a "legally qualified candidate" for public office.

"That covers advertisements purchased by the candidate or their principal campaign committee on their behalf, but not advertisements that are purchased by party committees or JFCs who are not … acting on behalf of candidates when purchasing the ads in question," they wrote in a Supreme Court filing.

The Democrats argued that if the lower rates were extended to political parties and joint fundraising committees, their access to them would be unlawfully diluted. As a result, the candidates"would face a higher volume of opposing advertising, and in their competition with other advertisers for scarce television inventory."

"In each case, the unlawful dilution requires them to raise and spend more money in response," they said.