Sen. Jon Ossoff of Georgia and other Democrats are opposing a GOP bid for the Supreme Court to issue an emergency order that would help Republicans ahead of the midterms.
The Democrats filed their opposition Thursday in the case, which is about who can get favorable rates for broadcast campaign advertisements in the run-up to elections.
The Supreme Court could act soon on the matter, which is pending alongside a separate emergency application to make Michigan put a proof-of-citizenship voting measure on the state’s November ballot.
Under federal law, it’s clear that candidates can get those favorable ad rates, which are called the “lowest unit charge,” or LUC. But Republicans also want that treatment for political parties and joint fundraising committees with non-candidate members. The legal dispute is politically significant because Democratic candidates generally raise more money than their committees, and vice versa for Republicans.
“Federal law gives ‘legally qualified candidate[s],’ and only ‘legally qualified candidate[s],’ a special right to buy advertising time from broadcasters” at the LUC rate, the Democrats wrote in their high court filing, quoting the law at issue. The other Democratic congressional candidates in the case besides Ossoff are Rep. Kristen McDonald Rivet of Michigan, former Sen. Sherrod Brown of Ohio and former Gov. Roy Cooper of North Carolina.
The Federal Communications Commission under President Donald Trump took the GOP-friendly position, leading to the Democrats’ court challenge.
A divided three-judge panel of the U.S. Court of Appeals for the 4th Circuit sided with the Democrats, ruling that the LUC requirement and campaign finance laws “are clear that neither political parties nor joint fundraising committees with non-candidate members can be entitled to the LUC.”
The decision by two Democratic-appointed judges in the majority came over dissent from a GOP appointee, who said he refused to “neuter a federal agency and seize imaginary jurisdiction only to disfavor the place of political parties in our democratic dialogue and to dampen the vigor of preelection political speech.”
The national GOP senatorial and congressional committees cited that dissent in seeking emergency relief from the high court. In their application, they accused the appellate majority of rewriting the rules for political ads in the middle of an election season. They said broadcast stations have already rescinded favorable rates since the appellate ruling. They urged the high court to stay the lower court ruling by Friday.
The urgent bid for relief comes as the justices will likely soon be separately called on to decide the legality of the administration’s intended mail ballot restrictions for the midterms.
The administration supported the GOP application in this advertising litigation, telling the high court that “candidates and political parties need immediate relief from the uncertainty created by the Fourth Circuit’s decision on the rates they need to pay for campaign advertising.”
The Democrats said that “rather than sowing confusion,” the appellate ruling “benefits the public interest by ensuring clarity and definitively determining the correct reading of the Communications Act’s requirements.”
The GOP application went to Chief Justice John Roberts, who fields emergency requests from the 4th Circuit. He can act on his own or refer the matter to the full court. He recently acted on his own, for example, in granting temporary relief for the Trump administration’s White House ballroom construction, before the full court later cemented that relief on Monday over his dissent.
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