Supreme Court Halts 48-Hour Deadline in Political Ad Rate Fight. Judges Should Stay in Their Lane.

The Supreme Court on Wednesday stopped a federal appeals court from forcing the Federal Communications Commission to rush a decision on political ad rates before the Nov. 3 election. The ruling means national party committees and joint fundraising committees can keep receiving the discounted advertising rates now in place.

The order came in an unsigned, five-page opinion, SCOTUSblog reported. Justices Sonia Sotomayor and Ketanji Brown Jackson indicated without explanation that they would have denied the request, SCOTUSblog reported. The case is FCC v. Brown, No. 26A476.

How the fight started

Federal election law gives candidates for federal office access to the lowest ad rates in the 45 days before a primary and the 60 days before a general election. In March, the FCC's Media Bureau issued a public notice saying political parties and joint fundraising committees should also get those rates, SCOTUSblog reported.

Four Democrats challenged that notice: Sen. Jon Ossoff of Georgia, former Sen. Sherrod Brown of Ohio, former North Carolina Gov. Roy Cooper and Rep. Kristen McDonald Rivet of Michigan. They first asked the full FCC to review it in late April. In early June, with that request still pending, they went to federal court.

A divided panel of the 4th U.S. Circuit Court of Appeals sided with them. Writing for the majority, Judge Robert King called the law "unambiguous" and said it gives the lower rates only to a "candidate," not 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, asked the Supreme Court to step in. On Sept. 4, the justices paused the 4th Circuit's ruling, with only Justice Jackson dissenting. They said the committees were likely to win on the argument that the appeals court could not review the notice before the FCC did.

The 48-hour order

The candidates went back to the 4th Circuit and asked it to make the FCC act. On Oct. 7, a divided panel ordered the commission to issue its decision by noon on Oct. 9.

Solicitor General D. John Sauer asked the Supreme Court to intervene, saying the appeals court had "seriously erred in trying to short-circuit the Commission's deliberations." Chief Justice John Roberts paused the order on Oct. 8 and told the challengers to respond by Oct. 10. The candidates accused the FCC of "blatant procedural trench warfare to stave off judicial review of an unlawful agency directive until it is too late to matter."

The full Court sided with the government. The FCC must "act on every application it receives," the justices wrote, but it is not required "to act within a particular timeframe." Ordering a final decision "within just 48 hours—all while the Commission's deliberation process was still ongoing" violated the "system of separation of powers," the Court said, and would cause irreparable harm by forcing the agency to "triage its ongoing deliberation process."

The stay lasts while the appeals process plays out, SCOTUSblog reported, and the Court dismissed the Republican committees' separate request as moot. In practice, SCOTUSblog noted, the FCC no longer has to decide the question before the election.

Process is not a technicality

The challengers have a point worth taking seriously. If the law says only candidates get the lowest rate, then an agency notice cannot expand that by decree. And agencies do sometimes slow-walk decisions until the moment to challenge them has passed.

But the answer to slow agencies is not judges writing deadlines measured in hours. Congress wrote the law, the FCC enforces it, and the courts review what the agency finally does. When a court skips ahead and orders a federal commission to rule on an important election question within two days, a month before Election Day, it is taking on a job the Constitution gave to someone else.

Conservatives have defended that principle when a ruling cuts against our side, as Dock Line argued when a judge let banned reporters back into the White House. It is fair to say plainly that Republican committees benefit from this ruling. That does not make the ruling wrong. A good rule is one you would accept if the parties were reversed.

"Let every soul be subject unto the higher powers," Paul wrote in Romans 13:1, and part of that order is that each power stays in its own lane. The question of who gets the cheaper ad rate will still be answered. It should be answered by the agency first, and then by the courts, in the order the law sets out.

Hero photo: Packer1028 via Wikimedia Commons, CC0, cropped and resized.