You Can Challenge the Rule After It Finishes Helping Us

The FCC needs more time to decide whether its political advertising policy is legal. The advertising, fortunately, can proceed without waiting. On October 14, the Supreme Court protected this convenient division of labor by staying a deadline for the agency to answer a challenge filed in April. The election remains scheduled for November 3. Only the accountability calendar is flexible.

The policy concerns the "lowest unit charge," a broadcast rate protection for candidates before elections. The FCC's March 30 notice also covers candidate-authorized joint fundraising committees, including those with noncandidate members, and party advertisements coordinated with candidates. Independent party spending does not qualify. This is not a Republicans-only coupon: qualifying Democratic committees can use it too. Reuters reports that Republican committees have the cash advantage. Equal access to a discount does not require equal money to spend.

Four Democratic candidates, Sherrod Brown, Jon Ossoff, Roy Cooper and Kristen McDonald Rivet, asked the full commission to review the notice on April 29. In September, the Supreme Court stayed a lower-court ruling against the policy because the candidates had gone to court before the FCC decided their application. They needed to wait for the agency. On October 7, the Fourth Circuit ordered the agency to decide by noon October 9. Now that deadline is stayed as well. The Court has not finally decided whether the advertising policy is lawful.

The defense is more substantial than "please stop looking." Congress requires commission review, and the Supreme Court said the statute sets no particular deadline. The National Republican Congressional Committee and National Republican Senatorial Committee accused the Fourth Circuit of having "short-circuited agency review." The justices emphasized that the candidates' comment period had only recently closed and a related proceeding's remained open. Forcing a final agency decision within 48 hours would disrupt deliberations. Courts should not treat administrative procedure as optional whenever litigants have somewhere to be.

But the FCC did not receive this application 48 hours earlier. It had been pending for more than five months. The agency solicited comments on September 15, long after the April filing. The Fourth Circuit's deadline required an answer, not a particular answer. The candidates argued that the agency was preventing judicial review until it could no longer help them. That allegation is contested; the calendar is not.

Broadcasters must price qualifying ads under the policy while the challenge waits. Candidates must compete under it. The agency's deliberations receive protection against irreversible disruption, while an election's approaching end becomes a reason to leave the disputed arrangement alone. Administrative review has a legitimate purpose. So does finishing it while relief can still matter. An answer after the campaign cannot unrun the commercials. Apparently the rules are stable enough to sell airtime under, but still too delicate to answer questions about.

You Can Challenge the Rule After It Finishes Helping Us

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