WASHINGTON — The Supreme Court on Friday blocked a lower-court ruling that had barred national party committees from buying television advertising at the discounted 'candidate rate,' an 8-1 order that preserves a Republican cash advantage in the closing weeks of the midterm campaign.
The unsigned per curiam decision stays an Aug. 25 ruling by the 4th U.S. Circuit Court of Appeals that had invalidated a March Federal Communications Commission notice extending the lowest-unit rate to party committees working in coordination with candidates. Justice Ketanji Brown Jackson was the lone dissent. The order lets the National Republican Congressional Committee, the National Republican Senatorial Committee and their Democratic counterparts continue to buy ads at the discounted rate while litigation continues.
Combined with a June ruling that struck down federal limits on "coordinated party communications," Friday's decision lets the parties spend more committee money more cheaply — an outcome that helps Republicans more than Democrats because the Republican National Committee holds more than $100 million more cash than the Democratic National Committee.
What the court said
The justices said the Democratic challengers — a group of House and Senate candidates including Sen. Jon Ossoff of Georgia — had gone to the wrong forum. "The Communications Act thus contemplates that an aggrieved party will file an application for review with the Commission, that the Commission will resolve that application by order, and that public notice of that order will issue before an aggrieved party may petition for further review in federal court," the order said. "Because the candidates’ application for review was pending when they filed their petition for review, the Fourth Circuit likely lacked statutory jurisdiction to address their challenge."
The majority also said the committees had shown "irreparable harm" because broadcasters had begun rescinding the discount. "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 order 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."
The money picture
The federal lowest-unit rate requires broadcasters to sell ad time to candidates at the cheapest price offered to any commercial buyer for the same slot. The FCC's March notice extended that discount to national party committees buying in coordination with a candidate. Paired with the June ruling lifting caps on coordinated party expenditures, it allows Republicans to stretch a party-level war chest that dwarfs the Democrats'. Democratic candidates have individually outraised Republicans in many contested races, but the DNC's committee account is more than $100 million behind the RNC's.
The NRSC celebrated the decision. Communications Director Joanna Rodriguez said the ruling lets the committee maximize "the fall of coordinated spending limits and achieve unprecedented cost-sharing on polling, research, critical infrastructure, advertising, and direct mail." She added that "the candidate rate on our coordinated television spending stretches our hard dollars further than ever before."
The dissent
Jackson wrote a brief dissent arguing the Republican committees were not likely to prevail on the merits of the jurisdictional question the majority used to reach its result. The Democratic challengers, who included Ossoff, had contended that the FCC exceeded its authority in March by extending to party committees a discount Congress reserved for candidates themselves.
General-election ballots begin going out in some states later this month. The stay leaves the FCC's rate in place through the November vote; the underlying case will continue in the 4th Circuit and, potentially, back at the Supreme Court next term.