Supreme Court lets party committees access lower ad rates

The Supreme Court on Friday allowed political party committees to receive the same discounted broadcast advertising rates available to candidates, blocking a lower-court ruling in a decision that could reshape television ad spending in the final weeks before the November midterm elections.

The unsigned order restores Federal Communications Commission guidance issued in March that directed broadcasters to offer “lowest unit charge” rates to political parties and joint fundraising committees when they buy ads in coordination with candidates. Those rates, often sharply discounted, are available under federal law during election season, including the 60 days before a general election.

Only Justice Ketanji Brown Jackson publicly dissented.

The National Republican Congressional Committee and the National Republican Senatorial Committee, backed by the Trump administration, had asked the justices to pause an Aug. 25 ruling by the Richmond, Virginia-based 4th U.S. Circuit Court of Appeals. The appeals court had set aside the FCC notice, ruling 2-1 that the discounts apply only to legally qualified candidates and their campaign committees, not party committees or joint fundraising committees.

The Supreme Court said the Republican committees had shown they were likely to suffer “irreparable harm” if the appeals court decision remained in place, citing their claim that broadcasters had already begun withdrawing favorable rates.

“Current and future recissions will require the party committees to pay more for advertising space, thereby hampering their efforts to reach the electorate in the critical weeks leading up to the midterms,” the court said. “That injury, which implicates their First Amendment rights to speak and coordinate their political activities freely, cannot be remedied after the fact through refunds or reimbursements.”

The court also said the 4th Circuit likely lacked jurisdiction because the case involved a staff-level FCC guidance document rather than final agency action.

The dispute was brought by Democratic candidates including Sen. Jon Ossoff of Georgia, Rep. Kristen McDonald Rivet of Michigan, Sherrod Brown of Ohio and Roy Cooper of North Carolina. Ossoff and McDonald Rivet are seeking reelection, while Brown and Cooper are running for Senate in their states.

Their lawyers argued that federal law reserves the lower rates for a “legally qualified candidate” for public office. That provision, they wrote, covers ads bought by a candidate or the candidate’s principal campaign committee, “but not advertisements that are purchased by party committees or JFCs who are not … acting on behalf of candidates when purchasing the ads in question.”

The Democratic candidates said expanding access to the lower rates would dilute their own access to limited television inventory, increase the volume of opposing advertising and force them to raise and spend more money in response.

Republican committees told the Supreme Court they had budgeted “tens of millions of dollars” in ad buys at the lower rates and said the appeals court ruling had disrupted longstanding practice in the middle of election season. The NRCC has reserved $10.8 million in television ads for 23 House races this month, according to CBS News, citing the group and AdImpact.

Solicitor General D. John Sauer, representing the Trump administration, said the Democratic candidates lacked standing and that the 4th Circuit had no jurisdiction to review the FCC notice. He also said the policy does not favor either party.

“The 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,” Sauer said.

The advertising-rate fight follows a separate Supreme Court ruling in June that struck down federal limits on coordinated party communications, allowing national party organizations to spend more directly in concert with candidates. NBC News reported that the two decisions together are especially helpful to Republicans because GOP committees have more money available for the fall, while Democratic candidates have generally raised more money individually.