Supreme Court sides with Republicans in dispute over cost of campaign ads

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WASHINGTON — The Supreme Court sided with Republicans Wednesday and gave political parties and their fundraising committees lower rates for broadcast campaign ads.

Over two dissents, the justices granted a fast-track appeal from the Trump administration and the National Republican Congressional Committee and upheld the use of the GOP-friendly rule in the midterm election.

In a brief order, the court said the issue should be left to the Federal Communications Commission.

The outcome has given Republican candidates an advertising edge in the final weeks of the campaign.

Federal law says a “legally qualified candidate” running for election is entitled to a “lower unit charge” for campaign ads in the 60 days prior to an election.

However, on March 30, the FCC, under Republican control, announced that broadcasters must extend the lower rates to political parties and their joint fundraising committees.

The FCC notice did not explain the basis for this change, and it refused to hold a commission hearing to debate the issue.

But the change was seen as benefiting Republicans.

Democratic candidates have raised more money from direct but limited contributions from individuals, while Republicans have raised far more through party committees that are funded by wealthy donors.

The non-partisan Campaign Legal Center said the FCC’s rule change was “contrary to the text and purpose of the federal statute and would effectively grant super PACs an advertising discount.”

Anna Gomez, the lone Democrat on the FCC, issued a statement objecting to the change.

“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,” she said.

Democratic Senate candidates Sherrod Brown of Ohio, Jon Ossoff of Georgia and Roy Cooper from North Carolina objected to the FCC rule change in April and and asked for a review.

When no action was taken, they filed suit in federal court. They argued the FCC had no authority to change the law that gave only candidates, not fundraising committees, the benefit of the lower ad rates.

Since then, the two sides have gone back and forth in the courts, with both accusing the other of seeking a late change in the rules.

The U.S. 4th Circuit Court of Appeals in Virginia ruled for the Democrats in a pair of 2-1 decisions.

“Suffice to say that any ‘chaos’ is the FCC’s fault, not ours,” Judge Robert B. King, a Clinton appointee, said on Oct. 7. It “has endeavored to create from whole cloth a new rule entirely outside the purview of judicial review.”

But the Supreme Court stepped in twice to overturn the 4th Circuit and rule for the Republicans.

In a Sept. 4 order, the court said in an unsigned order the 4th Circuit intervened too soon. The law “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.”

Only Justice Ketanji Brown Jackson dissented.

In September, the FCC did nothing other than to ask for public comments on its March rule change.

Frustrated with the delay, the 4th Circuit issued a second order requiring the FCC to act by Oct. 9.

Last week, in response to an appeal from Solicitor Gen. D. John Sauer, Chief Justice John G. Roberts put the 4th Circuit order on hold.

On Wednesday, the full court said the 4th Circuit Court should have left the issue to the FCC.

“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 court said an unsigned opinion.

In dissent, Jackson and Justice Sonia Sotomayor voted to deny the administration’s appeal.

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David G. Savage has covered the Supreme Court and legal issues for the Los Angeles Times in the Washington bureau since 1986.

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