The Supreme Court on Wednesday cleared the way for political parties and joint fundraising committees to continue to receive favorable advertising rates in the run-up to the 2026 election. In a five-page, unsigned opinion, the justices extended a pause on a ruling by a federal appeals court in Virginia that had instructed the Federal Communications Commission to act quickly on a petition by four Democratic candidates for Congress for review of a notice that the parties and committees are entitled to those advantageous rates.
Justices Sonia Sotomayor and Ketanji Brown Jackson indicated, without explanation, that they would have denied the requests.
Wednesday’s opinion by the Supreme Court means that the FCC no longer has any obligation to rule on the availability of the favorable rates, which are currently in place, on any particular timetable – and in particular, it does not have to do so before the November election.
This was the second time since late August that the court has been drawn into the dispute over the discounted rates, which under federal election law are available to candidates for federal office during the 45-day-period before the primary election and the 60-day-period before the general. In March, the FCC’s Media Bureau issued a “public notice” indicating that political parties and joint fundraising committees should also receive the favorable rates.
Three candidates for U.S. Senate seats – Sen. Jon Ossoff of Georgia, former Sen. Sherrod Brown of Ohio, and former Gov. Roy Cooper of North Carolina – as well as Rep. Kristen McDonald Rivet, who is running for reelection in Michigan, went to the full FCC in late April, asking it to review the notice. In early June, with their request still pending before the FCC, the candidates went to federal court, where they argued that the public notice was inconsistent with federal election laws.
A divided panel of the 4th Circuit agreed. In his opinion for the majority, Judge Robert King deemed federal law “unambiguous”: it gives the preferential rates only to a “candidate” for his or her personal use, which does not extend to a candidate’s “mere authorization of someone else’s use.”
The National Republican Senatorial Committee and the National Republican Congressional Committee, which had joined the case, went to the Supreme Court in late August, asking the justices to put the 4th Circuit’s ruling on hold. They contended (among other things) that the 4th Circuit lacked the power to consider the candidates’ challenge because the public notice was not the kind of final agency action that the court of appeals has the authority to review.
On Sept. 4, the justices temporarily paused the 4th Circuit’s decision, with only Justice Ketanji Brown Jackson dissenting. In a four-page, unsigned opinion, the court emphasized that the committees were likely to prevail on their argument that the 4th Circuit cannot review the public notice before the FCC does.
The case then went back to the lower court, where the candidates sought an order instructing the FCC to act on their petition for review of the public notice. A divided panel granted that request on Wednesday, Oct. 7, and directed the FCC to issue its decision by noon on Friday, Oct. 9.
Before that deadline, U.S. Solicitor General D. John Sauer came to the Supreme Court, asking the justices to intervene again. Sauer told the court that the 4th Circuit had “seriously erred in trying to short-circuit the Commission’s deliberations.” The National Republican Senatorial Committee and National Republican Congressional Committee filed their own application the same day, seeking to pause the 4th Circuit's order. They told the justices (among other things) that, "[i]f the case for a stay was strong the first time around, it's open and shut now."
Later on Thursday, Oct. 8, Chief Justice John Roberts, who handles emergency applications from the 4th Circuit, immediately paused the 4th Circuit’s order to give justices time to consider the request – a procedure known as an administrative stay. Roberts also took the relatively rare step of instructing the challengers to respond on Saturday.
In their Saturday filing, the candidates urged the justices to leave the 4th Circuit’s ruling in place. They blamed the FCC for the dispute now before the court, accusing the agency of seeking to “engage in blatant procedural trench warfare to stave off judicial review of an unlawful agency directive until it is too late to matter.”
In its opinion, the court explained that although the FCC must “act on every application it receives,” it is not required “to act within a particular timeframe. The Commission may exercise its discretion to set its own procedures and schedule for resolving such applications.” Therefore, it reasoned, the 4th Circuit’s order instructing the FCC “to issue a final decision on the candidates’ application just five months after it was filed and within just 48 hours—all while the Commission’s deliberation process was still ongoing”—violated the “system of separation of powers.”
If allowed to stand, the court continued, the 4th Circuit’s order would also cause irreparable harm, another factor that courts consider in deciding whether to grant emergency relief, by requiring the FCC to “triage its ongoing deliberation process and prepare a final order on an extremely expedited timeline.”
The Supreme Court granted the FCC’s request and put the 4th Circuit’s order on hold while the appeals process plays out. It dismissed the Republican groups’ request as moot – that is, no longer a live controversy – in light of its grant of the FCC’s request.