Jackson’s dissent favorably quoted Fourth Circuit Judge James Wynn’s opinion that “an agency may not reserve to itself the power to defeat judicial review through delay or inaction.” Jackson also quoted a previous Supreme Court ruling, which she herself authored, that said the court “routinely” treats threshold requirements that claimants must complete before filing a lawsuit as “nonjurisdictional” and has “yet to hold that any statutory exhaustion requirement is jurisdictional.”

Ad discount for “ever-expanding number of groups”

The Democrats who challenged the FCC order to TV stations are former senator and current candidate Sherrod Brown (D-Ohio); Sen. Jon Ossoff (D-Ga.); Senate candidate Roy Cooper (D-N.C.), the former governor of North Carolina; and US Rep. Kristen McDonald Rivet (D-Mich.). They told the Supreme Court that “the Fourth Circuit reasonably held that the Commission constructively denied the Candidates’ Application by failing to resolve it despite clearly having decided to reject it, and there is no circuit split on that question.”

The US Justice Department and FCC filed a brief supporting the Republican committees’ case. In addition to saying the Fourth Circuit lacked jurisdiction, the US said the FCC got the law right in its directive to TV stations.

“It makes no difference that the political party helped fund the advertisement,” the US brief said. “Section 315(b) asks whether the candidate is making ‘use’ of a broadcast station, not whether he is ‘funding’ the broadcast. When a candidate works with his party to run an advertisement and announces in the advertisement that he approves it, he uses the broadcast station, even if the party helps him foot the bill.”

The Trump administration’s argument was disputed by the Campaign Legal Center, a nonprofit group founded by Republican Trevor Potter, a former Federal Election Commission chairman. The group filed an amicus brief saying the FCC “interpretation grossly distorts the plain meaning of the Communications Act, as well as Congress’s clearly expressed intent,” and “has no limiting principle.”

“According to applicants, any move by a candidate to include a group in their joint fundraising operation or to otherwise ‘authorize’ or bless an independent committee would potentially entitle this committee to the LUC, stretching the LUC provision—and broadcasters’ financial obligations thereunder—to cover an ever-expanding number of groups,” the Campaign Legal Center said.