In America: Supreme Court grants Request To Pause Ruling On Preferential Broadcasting Rates
Anton Petrus
Federal election law is a complex, ever-changing system intended to establish an even playing field in elections and campaigns. One aspect of federal election law governs the use of political advertising on broadcast stations at preferential rates during specific time periods in the lead-up to an election. The law’s language indicates that any candidate for federal office, or any authorized committee of that candidate, may use these preferential broadcasting rates. An authorized committee typically refers to the election campaign associated with the candidate using the preferential rates. The main intent of this law was to create some parity for elections where one candidate has an immense wealth advantage over the other.
Disagreement over how this law is interpreted originated earlier this spring, when a coalition of Democrats running for office led by Sen. Jon Osseff (D-GA) asked the Federal Communications Commission (FCC) to review a public notice for potentially violating federal election law. In this communique, the FCC indicated that not only candidates but also political parties and joint fundraising committees were eligible for preferential broadcasting rates.
Roughly 6 weeks later, Sen. Osseff’s coalition would bring the case before the 4th Circuit Court of Appeals. A key critique in their petition was that the FCC’s expansion of eligibility for preferential broadcasting rates is antithetical to the original spirit of the law. Allowing joint fundraising committees and political party expenditures access to heavily subsidized advertising rates only deepens the influence and disparity created by big money in politics.
A fragmented panel of the 4th Circuit agreed with the position of Sen. Osseff’s coalition. The majority opinion for the 4th Circuit indicated that the language of the federal election law in question is unambiguous. From this perspective, only a candidate may receive preferential broadcasting rates rather than having a candidate authorize a political party or joint fundraising committee to purchase ads at the preferential broadcasting rate for said candidate.
The dissenting opinion from the 4th Circuit argued that it was both too soon for the 4th Circuit to weigh in and that the text of the law is more flexible than the majority opinion gave it credit for. Another concern was that this decision could restrict free speech during a critical pre-election period.
Following this decision, the National Republican Congressional Committee (NRCC) and the National Republican Senatorial Committee (NRSC), which had joined the case with the FCC, petitioned the Supreme Court in late August to review the 4th Circuit’s decision. Echoing the dissenting opinion from the 4th Circuit, the NRCC and NRSC argued that the FCC’s public notice about preferential broadcasting rates was not finalized as an official agency action. Notably, the court can review only the FCC's “final orders,” which complicates the standing, or legal right to sue, of Sen. Osseff’s coalition.
Another dimension to the NRCC and NRSC’s position is that the 4th Circuit’s decision also follows an incorrect rationale for determining who is eligible for preferential rates. The 4th Circuit argued that eligibility for preferential broadcasting rates is determined by usage of a broadcasting station before the election. “Usage” here means that a candidate directly pays for (or authorizes a committee to pay for) advertisements with a broadcasting station. The NRCC and NRSC argue that who pays for the advertisement is irrelevant, with the prime example of a candidate appearing in another candidate’s authorized advertisement. Here, the NRCC and NRSC argue that even though the first candidate did not pay for the advertisement, they are still eligible for preferential broadcasting rates because they are still “using” the broadcasting station.
The Trump administration also rebuffed the legal standing of Sen. Osseff’s coalition in a brief filed by U.S. Solicitor General D. John Sauer. Sauer argued in the brief that “[the public notice] does not grant favored treatment to one side or the other; instead, the notice’s interpretation offers the same benefit to all sides, including the challengers themselves and the committees and parties supporting them.”
The day before the Supreme Court’s ruling, Sen. Osseff’s coalition requested the Supreme Court to leave the 4th Circuit’s decision in place. This document rehashes their position on who is eligible for preferential broadcasting rates and emphasizes that the FCC “had long agreed that only candidates are entitled to the more favorable rates.” An important aspect of this case for the Democratic candidates in Sen. Osseff’s coalition (and in elections across the country) is that these preferential broadcasting rates ultimately favor Republicans, who often can outspend Democrats. Typically, this trend stems from Republicans’ access to fundraising committees with deep pockets, while Democrats rely more heavily on small donors to fund their campaigns.
This trend is often cited as a political talking point beyond this legal case and debated among political scientists. One study paints a more complicated picture of big money’s impact on political advertising. Reflecting the legal discourse over who is qualified for preferential broadcasting rates, Gregory J. Martin and Zachary Peskowitz analyzed a newer trend in political advertising: congressional campaigns often outsource their advertising expenditures through intermediary firms. These firms pass their service markups on to the campaigns that outsource to them. Among other findings, Martin and Peskowitz found that firms working for Republican campaigns often charged higher prices than those working for Democratic campaigns. This suggests that political advertising firms may already informally “balance” how money is spent in politics.
Ultimately, the legal battle over preferential broadcasting rates has been stonewalled until after the midterms. A prime concern for the Supreme Court’s majority opinion on this case was the immediate harm that the 4th Circuit’s decision caused. Republican committees had noted that broadcasters were already rescinding favorable rates following the 4th Circuit’s decision. This raises a potential violation of the 1st Amendment’s free speech protections.
It is difficult to say whether this specific legal case will continue beyond the midterms; however, the broader question these cases raise will remain a mainstay in American politics. Understanding the role of big money in politics includes seemingly trivial things like determining eligibility for preferential broadcasting rates.