The U.S. Supreme Court issued a temporary stay requiring television stations to offer political parties and joint fundraising committees the same lowest advertising rates that apply to candidates. The decision was issued as the 60-day period preceding the election began. The discount known under U.S. law as the “lowest unit charge” (LUC) had previously applied only to advertisements to be used in the election campaigns of individual candidates.
The Federal Communications Commission (FCC) instructed television stations this year to apply the discount to political parties and joint fundraising committees as well. The Trump administration supported the change, while four Democratic candidates challenged the rule. The Fourth Circuit Court of Appeals ruled that the FCC’s public notice conflicted with the clear language of the law, which limited the discounts to individual candidates. Republican campaign committees filed an emergency application with the Supreme Court to halt the ruling, and the court issued a stay of enforcement on Friday.
The Supreme Court did not rule on the merits of the case. The court said the Democratic candidates had filed the lawsuit without waiting for the outcome of their petition for review, submitted to the FCC on April 29, and therefore the Fourth Circuit likely did not have jurisdiction to hear the case. The FCC had not yet ruled on the petition. The Fourth Circuit, meanwhile, had treated the delay as a “constructive denial” and regarded the FCC notice as a final decision. The Supreme Court said this approach diverged from the decisions of other appeals courts that had considered the issue.
The decision came after the Supreme Court struck down in June the federal limits on political parties’ coordinated spending with candidates. Anna Gomez, the FCC’s only Democratic member, argued that the decision would open the way for a flow of “dark money” from wealthy donors able to pool unlimited contributions, while financially strained broadcasters would bear the cost.
The unsigned decision, issued with the approval of at least five justices, was opposed by Justice Ketanji Brown Jackson. Republican committees said higher advertising rates would disrupt their efforts to reach voters and their political activities protected under the First Amendment ahead of the midterm elections. The Democratic plaintiffs were Sherrod Brown, Jon Ossoff, Roy Cooper and Kristen McDonald Rivet. The Justice Department and the FCC supported the Republican committees, while the Campaign Legal Center argued that the FCC’s interpretation distorted the meaning of the law and Congress’s intent.
Why it matters
The practical result of the decision is that, for now, the regulation requiring political parties and joint fundraising committees to benefit from the same lowest-unit-rate regime as candidate campaigns for television advertising can be implemented. This affects the terms of advertising purchases during the election period and the political competition surrounding the limits on coordinated spending with candidates. As wealthy donors can pool their resources, the question of which channels will make money visible in political advertising financing has come to the fore, prompting the FCC’s Democratic member to warn of the risk of dark money. For broadcasters, meanwhile, the financial burden of applying lower rates raises a separate issue. However, because the court did not reach the merits, the outcome of the FCC’s petition for review and how the lower court’s jurisdictional assessment will take shape remain unresolved.