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The legal question is whether \u201cuse\u2026 by\u201d a candidate can refer to ad time purchased on a candidate\u2019s behalf by parties and joint fundraising committees. In the 4th Circuit case, two judges appointed by Democratic presidents ruled that the FCC\u2019s interpretation of the law was wrong, and one judge appointed by a Republican president said the FCC got it right.<\/p>\n
A potential problem for Republicans is that the FCC position contradicts agency guidance from 1991 and a statement made to the Supreme Court last year by the Trump administration\u2019s own solicitor general. In the recent Supreme Court case over spending limits, US Solicitor General John Sauer wrote in a filing that the \u201crules require broadcasters to charge low rates for candidate spending, but not for party spending\u2014whether coordinated or independent.\u201d<\/p>\n
But Republicans have reason for optimism given the conservative makeup of the Supreme Court and the 4th Circuit dissent from Judge J. Harvie Wilkinson III, a Reagan appointee who argued that the FCC offered a \u201cnatural and plausible\u201d interpretation of the law\u2019s reference to \u201cuse\u2026 by\u201d a candidate. The FCC welcomed the dissent, issuing a statement praising \u201cWilkinson\u2019s sound and thoughtful analysis.\u201d<\/p>\n
Republicans further argue that courts have no jurisdiction yet because the FCC hasn\u2019t made a \u201cfinal\u201d decision. The 4th Circuit judges decided they have jurisdiction because the FCC\u2019s failure to act on a petition filed by Democratic candidates amounted to a \u201cconstructive denial.\u201d<\/p>\n
Wilkinson disagreed on that count, too, saying the FCC guidance is not a final order because the FCC is still reviewing the candidates\u2019 application. If the Supreme Court does act quickly in the GOP\u2019s favor, it could stay the 4th Circuit court mandate on the grounds that the FCC order isn\u2019t final and can\u2019t be appealed yet.<\/p>\n
The Republican committees told the 4th Circuit to be wary of recent Supreme Court guidance. \u201cJust two days ago, the Supreme Court reminded lower courts that they should not interfere with agency decision-making before it is final,\u201d they wrote, referring to a ruling in Trump\u2019s favor on vote-by-mail restrictions. \u201cThis Court should heed that instruction, and stay its order (or the mandate) pending a writ of certiorari to the Supreme Court.\u201d<\/p>\n