Political Ad Rate Fight Reaches Supreme Court.

Political eyes are on the Supreme Court today as the general election window requiring broadcasters to offer candidates their lowest unit rates has opened, while the justices consider an emergency request that could determine who qualifies for the discount.

The National Republican Congressional Committee and National Republican Senatorial Committee are asking the high court to temporarily restore an FCC policy that extended lowest unit charge eligibility to candidate-party coordinated advertising and certain joint fundraising committee ads. The FCC and Justice Department are backing their request.

The Supreme Court had not acted on the emergency application. That leaves the Fourth Circuit’s ruling in place as the 60-day lowest unit charge window opens ahead of the Nov. 3 general election.

The appeals court struck down the FCC’s guidance last week, concluding that federal law reserves the lowest unit rate benefit for legally qualified candidates — and it doesn’t extend it to political parties or joint fundraising committees with non-candidate members. The Fourth Circuit then made that ruling effective Aug. 27 when it rejected the Republican committees’ request for a stay of its decision.

The NRCC and NRSC then turned to the Supreme Court, warning that broadcasters in some states had already begun rescinding lowest unit rates for coordinated advertising and saying they had budgeted tens of millions of dollars in advertising purchases based on receiving those rates.

Democratic candidates Sherrod Brown, Jon Ossoff, Roy Cooper and Kristen McDonald Rivet, who successfully challenged the FCC guidance, on Thursday urged the Supreme Court to leave the Fourth Circuit decision in place. They argue the Republican committees are not suffering irreparable harm simply because stations are charging them market rates. They also emphasize that the appeals court did not prohibit broadcasters from voluntarily offering discounted rates to party committees; it held that those committees are not legally entitled to receive the discounted ad rates.

The Supreme Court has also heard from supports on both sides of the issue.

A friend-of-the-court filing from Campaign Legal Center, which supports the Democratic candidates, argues the FCC policy could effectively open broadcasters’ lowest political rates to advertising substantially financed by super PACs. That is because recent Federal Election Commission decisions have allowed candidate committees and super PACs to participate together in joint fundraising committees and have permitted those the groups to finance candidate advertising.

The CLC argument is that campaign committees are also entitled to lowest unit charge, super PAC money could indirectly gain access to rates that super PACs could not receive on their own. CLC also points out that some campaign committees can include multiple super PACs while the candidate pays only a small portion of the advertising cost. In effect, the group characterizes the FCC interpretation as potentially requiring stations to “subsidize” super PAC-funded political ads.

At the same time, the Republican National Committee and three political media buying firms are pushing back from the other side. National Media Research, Planning & Placement, Smart Media Group and FlexPoint Media joined have the RNC in a friend of the court brief supporting the NRCC and NRSC.

The media buyers say they have longstanding experience purchasing political airtime and argue that the Fourth Circuit disrupted established industry practice. They also reinforce the Republican committees’ procedural argument that the Democratic candidates went to court before the full FCC had completed its review of the Media Bureau guidance. The brief suggests the Democrats “jumped the line” and argue the Fourth Circuit’s decision could have consequences beyond political advertising by allowing parties to seek judicial review while an agency is still considering the same issue internally.

On the merits, they say the Fourth Circuit also improperly focused on who pays for an advertisement rather than who “uses” the station. They contend candidate-party coordinated ads and certain campaign committee ads have long been treated as candidate uses eligible for lowest unit rates.

Until the Supreme Court acts, however, the Fourth Circuit ruling remains controlling — leaving broadcasters entering the general election advertising window without the FCC’s expanded lowest unit rate policy in place.