The Supreme Court has handed the Trump administration a 7-2 win in an escalating fight over discounted political advertising rates ahead of the midterm elections.
In an unsigned order issued Wednesday in FCC v. Brown, the justices blocked a Fourth Circuit ruling that would have required the Federal Communications Commission to resolve a challenge to its political advertising policy within 48 hours.
The dispute concerns the FCC’s "lowest unit charge" rules, which require broadcasters to offer favorable advertising rates during the weeks immediately before an election.
Four Democratic candidates, Sherrod Brown, Jon Ossoff, Roy Cooper and Kristen McDonald Rivet, have challenged FCC guidance extending those discounted rates beyond candidates themselves to political parties engaged in coordinated spending and some joint fundraising committees.
The Supreme Court said the Fourth Circuit went too far when it ordered the agency to make a final decision within two days.
"The Fourth Circuit’s decision to issue an ‘extraordinary’ writ was inappropriate under the circumstances," the Court wrote.
It added that federal law requires the FCC to rule on applications before it, but "does not obligate the Commission to act within a particular time frame." Justices Sonia Sotomayor and Ketanji Brown Jackson said they would have denied the stay.
Newsweek has contacted the FCC and lawyers for the candidates for comment and is awaiting their responses.
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Federal law gives legally qualified political candidates access to a broadcaster’s "lowest unit charge" during the 45 days before a primary and 60 days before a general election.
In March, however, the FCC’s Media Bureau issued guidance stating that the discount could also apply to political parties engaged in coordinated political activity and joint fundraising committees that include noncandidate members.
Brown, Ossoff, Cooper and McDonald Rivet challenged that interpretation, arguing that Congress reserved the discount for candidates themselves. Their lawyers asked the full FCC to review the guidance.
While that administrative challenge was pending, they also went to the Fourth Circuit, in August, a divided Fourth Circuit panel sided with the candidates and set aside the FCC guidance, holding that the statute limits the lowest unit charge to candidates.
The Supreme Court stepped in on September 4 and stayed that ruling, saying the Fourth Circuit likely lacked jurisdiction because the candidates had gone to court before the full FCC had completed its own review.
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Why the Supreme Court Stepped In Again
This was the Supreme Court's second intervention in the dispute, on September 4, the justices stayed an earlier Fourth Circuit ruling that had struck down the FCC guidance.
The Supreme Court said the Communications Act appeared to require the full FCC to decide the candidates' administrative challenge before they could seek review in federal court.
Because Brown, Ossoff, Cooper and McDonald Rivet went to court while their application remained pending at the FCC, the Court said the Fourth Circuit likely lacked statutory jurisdiction to hear their challenge.
It also noted that the Fourth Circuit's position conflicted with every other federal appeals court to have considered the issue. Just over a month later, on October 7, the same Fourth Circuit panel ordered the FCC to resolve the candidates' application by October 9, giving the agency 48 hours to issue a final decision.
The FCC went back to the Supreme Court, this time, the justices said the appeals court had improperly interfered with the agency's deliberations.
The Court said a writ of mandamus is a "drastic and extraordinary" remedy and that the Communications Act requires the FCC to act on applications but does not require it to do so within a particular time frame.
"The Commission may exercise its discretion to set its own procedures and schedule for resolving such applications," the Court said.
The majority said forcing the FCC to issue a final decision within 48 hours, while its deliberative process was still underway, crossed constitutional boundaries.
"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.
The justices also found the FCC would suffer irreparable harm if the stay were denied because complying would force it to abandon its ongoing deliberations and prepare a final order on an extremely accelerated timetable.
Justices Sonia Sotomayor and Ketanji Brown Jackson would have denied the applications and allowed the Fourth Circuit order to remain in place.
Neither justice issued a written dissent explaining the reasons for that position. The stay will remain in effect while Supreme Court review is sought. If the justices decline to hear the case, it will terminate automatically. If they agree to hear it, the stay will remain until the Court issues its judgment.
Crucially, Wednesday's decision does not determine whether political parties and joint fundraising committees are legally entitled to the lowest advertising rates.
The immediate question was whether the Fourth Circuit could force the FCC to accelerate its administrative process.
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What the Ruling Means Ahead of the Midterms
The decision means the FCC does not have to resolve the dispute on the Fourth Circuit’s accelerated timetable.
It also means the agency’s current interpretation of the political advertising rules remains in place for now.
This is particularly significant as with the November 3 midterms approaching, political parties and qualifying joint fundraising committees can continue receiving discounted broadcast advertising rates alongside candidates while the legal fight continues.
The National Republican Congressional Committee and other Republican groups have backed the FCC’s interpretation.
Campaign Legal Center, meanwhile, has supported the Democratic candidates and argues that extending candidate discounts to joint fundraising committees could ultimately allow super PAC money to benefit from rates Congress intended only for candidates.
The Supreme Court did not decide whether the FCC’s underlying interpretation of the political advertising law is correct.
Instead, Wednesday’s ruling focused on whether the Fourth Circuit had authority to force the agency to complete its review within 48 hours.
This distinction means the wider legal question, who is ultimately entitled to the lowest political advertising rate, remains unresolved.
Contact Newsweek editors on this story: Matthew Cannon and James Debens