GOP heads to Supreme Court after losing case over TV election ad prices

Republican campaign committees want the Supreme Court to mandate lower prices for election commercials on broadcast TV stations. The committees submitted an emergency motion for a stay and asked the 4th Circuit to rule on that motion immediately so they can file a petition to the Supreme Court. “Intervenors respectfully request that the Court rule on this stay motion as soon as possible—whether by expediting or waiving response briefs—to permit Intervenors to seek emergency relief at the Supreme Court,” Republican committees told the court. The court responded quickly, issuing an order today to deny the Republican committee’s motion and to immediately issue a mandate that can be appealed to the Supreme Court. The FCC repealed this ownership rule even though the 39 percent figure was specified by Congress in a 2004 law, paving the way for another court battle over the limits of FCC authority. From a legal perspective, all the cases are decided based on interpretations of what Congress meant when it put specific words and phrases into US law. A potential problem for Republicans is that the FCC position contradicts agency guidance from 1991 and a statement made to the Supreme Court last year by the Trump administration’s own solicitor general. In the recent Supreme Court case over spending limits, US Solicitor General John Sauer wrote in a filing that the “rules require broadcasters to charge low rates for candidate spending, but not for party spending—whether coordinated or independent.” But Republicans have reason for optimism given the conservative makeup of the Supreme Court and the 4th Circuit dissent from Judge J. The 4th Circuit judges decided they have jurisdiction because the FCC’s failure to act on a petition filed by Democratic candidates amounted to a “constructive denial.” Wilkinson disagreed on that count, too, saying the FCC guidance is not a final order because the FCC is still reviewing the candidates’ application. If the Supreme Court does act quickly in the GOP’s favor, it could stay the 4th Circuit court mandate on the grounds that the FCC order isn’t final and can’t be appealed yet. The Republican committees told the 4th Circuit to be wary of recent Supreme Court guidance. “Just two days ago, the Supreme Court reminded lower courts that they should not interfere with agency decision-making before it is final,” they wrote, referring to a ruling in Trump’s favor on vote-by-mail restrictions. “This Court should heed that instruction, and stay its order (or the mandate) pending a writ of certiorari to the Supreme Court.”