By The Epoch Times | Created at 2026-10-09 01:32:02 | Updated at 2026-10-09 02:14:39
58 minutes ago
Chief Justice John Roberts on Oct. 8 temporarily blocked an order that would have compelled the Federal Communications Commission (FCC) to decide by noon the next day whether parties and joint fundraising committees may purchase broadcast ads at discounted candidate rates.
The new order by the Supreme Court freezes an Oct. 7 ruling of the U.S. Court of Appeals for the Fourth Circuit, which held that the FCC had to make a decision on the Democratic candidates’ challenge to its cheap-ad policy before the Nov. 3 midterm congressional elections.
The Communications Act provides that in the 45 days before a primary election and 60 days before a general election, broadcasters must charge legally qualified candidates no more than the lowest rate offered to their most favored customers. The rule does not apply to streaming and social media ads.
The Democrats contested an FCC Media Bureau public notice that told broadcasters the lowest unit charge discount had to be given to political party committees and certain joint fundraising committees, not just candidates themselves.
The Democratic candidates argued that the Communications Act requires that the cheap airtime rate be given to candidates, not political parties. They said a party or joint fundraising committee buying an ad is spending its own money, so it should pay the regular rate.
On Aug. 25, a Fourth Circuit panel voted 2–1 to set aside the FCC notice, finding it unlawful, and holding that the lowest unit charge should be reserved for candidates alone, not parties or joint fundraising committees with non-candidate members. Judge J. Harvie Wilkinson dissented, saying the appeals court should not have reviewed the notice while it was still pending at the FCC and that barring parties from the discount rate restricted political speech on the eve of an election.
The Supreme Court stayed the panel’s Aug. 25 ruling on Sept. 4. The high court said the Democratic candidates challenging the notice asked the Fourth Circuit to intervene before the FCC had even ruled on their request to review the notice. The court also said the National Republican Congressional Committee and the National Republican Senatorial Committee had demonstrated that they would likely experience irreparable harm if a stay were not granted.
The ruling addressed the issue of jurisdiction, or authority to hear the case, and did not decide the merits of the case itself. That stay remains in effect, so the FCC notice is still in place; parties and joint fundraising committees may still buy ads at the candidate rate.
In a one-paragraph dissent, Justice Ketanji Brown Jackson said she would have denied the stay because the party committees were “not likely to succeed on the merits of their argument that the Fourth Circuit lacked statutory jurisdiction.”
Then on Oct. 7, the same Fourth Circuit panel issued a writ of mandamus and ordered the FCC to decide the candidates’ still-pending challenge to the guidance by 12 noon on Oct. 9. Mandamus is an extraordinary, rarely granted court order that forces a lower court, government official, or public agency to take a specific action that they have either refused or failed to do.
The panel held the FCC “delayed agency review in an obvious effort to preclude judicial review prior to the November 3 election.” Wilkinson dissented, saying mandamus was “uniquely inappropriate” given the “timeline of this litigation.”
In the application filed Oct. 8, Solicitor General D. John Sauer said that the Fourth Circuit’s order was “a flagrant abuse” of the mandamus process, and “a baseless effort to circumvent a prior stay entered by this Court.”
“Just as the Fourth Circuit seriously erred when it tried to leap-frog the Commission’s decision, it has now seriously erred in trying to short-circuit the Commission’s deliberations,” he said.
Under the FCC’s review process that was established by statute and that the Supreme Court recently enforced, the FCC “is not an inconvenient road-bump for the Fourth Circuit to jump over or blast through,” Sauer said.
Chief Justice John Roberts paused the Oct. 7 order through an administrative stay and without explanation. It gave the Democratic candidates who challenged the FCC notice two days to respond to the commission’s application. An administrative stay pauses a lower court’s ruling to give the justices more time to consider a case.
Roberts directed the respondents in the current application—former Sen. Sherrod Brown (D-Ohio); Sen. Jon Ossoff (D-Ga.); former North Carolina Gov. Roy Cooper, a Democrat; and Rep. Kristen McDonald Rivet (D-Mich.)—to respond to the application by 5 p.m. on Oct. 10. Brown, Ossoff, and Cooper are currently running for the Senate; Rivet is seeking reelection to the House.
