The central legal question is whether the phrase “used by” a candidate includes advertising time purchased on the candidate’s behalf by a political party or joint fundraising committee. In the Fourth Circuit case, two judges appointed by Democratic presidents ruled that the Federal Communications Commission’s (FCC) interpretation was incorrect, while a judge appointed by a Republican president concluded that the agency’s interpretation was legally sound.
Why Republicans are optimistic about the Supreme Court case
Republicans face a potential challenge because the FCC’s current position appears to conflict with the agency’s 1991 guidance and with arguments recently presented by the Trump administration’s solicitor general to the Supreme Court. In a case involving campaign spending limits, U.S. Attorney General John Sauer wrote in a filing that “the rules require broadcasters to charge lower fees for spending by candidates, but not for spending by political parties, whether coordinated or independent.”
Despite that inconsistency, Republicans have reason to be optimistic because of the Supreme Court’s conservative majority and the dissenting opinion from Fourth Circuit Judge J. Harvey Wilkinson III, a President Reagan appointee. Wilkinson argued that the FCC’s interpretation was a “natural and plausible” reading of the law’s language concerning nominees’ “use by” advertising time. The FCC welcomed the dissent and praised “Mr. Wilkinson’s sound and thoughtful analysis.”
Republicans also argue that the Fourth Circuit does not yet have jurisdiction because the FCC has not issued a “final” decision. The two Fourth Circuit judges who heard the case disagreed, ruling that the agency’s failure to act on complaints from Democratic candidates amounted to a “constructive denial.”
Wilkinson rejected that conclusion, arguing that the FCC’s guidance was not a final order because the agency was still reviewing the candidates’ applications. If the Supreme Court intervenes quickly in favor of the Republican challengers, it could preserve the Fourth Circuit’s jurisdictional objection by determining that the FCC’s order is not final and therefore cannot yet be appealed.
Republicans on the committee also urged the Fourth Circuit to follow recent Supreme Court guidance limiting judicial intervention in agency proceedings before they are complete. “Just two days ago, the Supreme Court reminded lower courts not to interfere in agency decision-making before it is final,” they wrote in their ruling concerning President Trump’s advantage in a dispute over mail-in voting restrictions. “This court should heed that direction and maintain its order (or orders) pending a writ of certiorari to the Supreme Court.”
Source: arstechnica.com