The Supreme Court on 14 October kept in force guidance from the Federal Communications Commission (FCC) that lets party committees buying airtime in concert with candidates pay the candidates' discounted rate1. The order puts on hold a judgment of the 4th Circuit, the federal appeals court for Maryland, Virginia, West Virginia and the Carolinas, in FCC v. Brown (26A476). Justices Sonia Sotomayor and Ketanji Brown Jackson would have refused.
The 4th Circuit had ruled 2-1 on 7 October, with Judge J. Harvie Wilkinson dissenting, that the FCC must decide a challenge to its March guidance by noon on 9 October. Chief Justice John Roberts paused that order the next day, and the full Court has now kept the pause in place2.
The FCC guidance turns on the Lowest Unit Charge. In the 60 days before a general election, broadcasters must sell candidates airtime at the lowest price they give their best commercial customer for the same slot; party committees and super PACs otherwise pay market rates, which climb in October. Parties may spend without limit in concert with their candidates since the Court struck those limits in June. According to the Supreme Court docket, the FCC guidance extends the candidate rate to party committees and joint fundraising committees (shared accounts that raise money for a candidate and a party together) when they buy alongside a candidate. The National Republican Senatorial Committee (NRSC) spent $45.92m in concert with its candidates in August, and buys like those now get more airtime per dollar than a Super PAC's.
Four Democrats brought the challenge: Sherrod Brown of Ohio, Jon Ossoff of Georgia, Roy Cooper of North Carolina and House candidate Kristen McDonald Rivet of Michigan. The guidance now stands through 3 November, which settles the price of party advertising run with candidates for the rest of the campaign.
