Less than three weeks before the midterm elections, the Supreme Court told the Federal Communications Commission to take its time. This week, the justices lifted a court-ordered deadline that would have forced the agency to rule on a Democratic challenge to its political advertising policy before Nov. 3. That policy gives party committees the discounted rates candidates have long enjoyed. I think rate parity between a candidate and his own party is sound policy. I doubt an agency notice is the right vehicle for it, and Congress should step in.
During the 60 days before a general election, a candidate can’t be charged more than the station’s most favored commercial advertiser. On March 30, the FCC’s media bureau extended that treatment to ads coordinated between a party and a federal candidate, and to authorized committees, including joint fundraising committees. Independent party spending still pays full freight. Say a station sells its most favored advertiser a 30-second primetime spot for $1,000. A candidate in that window pays no more than $1,000.
I’ve spent 30 years reading fund side letters, and the most-favored-nation clause is the easiest one to understand: same product, same price. The FCC has applied the discount to candidates and their authorized committees since 1992, and its March notice carried that logic over to ads a party coordinates with a candidate. The notice never explains why a candidate’s name on such an ad makes it the candidate’s own use of the station. That gap is the policy’s weak point.
The calendar adds urgency. On June 30, the court struck down federal limits on coordinated party spending as a First Amendment violation, and the parties moved fast. Republican committees exceeded the old national caps by more than $48 million in July and August. Democratic committees topped them by just under $4 million. The discount applies to both parties, but it helps whoever has cash to spend. At the end of August, the three main national Republican committees held about $233 million. Democratic committees held roughly $130 million and carried nearly $18 million in debt.
Democrats sound shocked, shocked to find that parties buy campaign ads (cue Captain Renault). The same discount applies to their committees. Epictetus opined about sorting life into what we control and what we don’t. A donor list qualifies.
The critics appear to hold the stronger textual hand so far. The statute speaks of a “legally qualified candidate,” and the Fourth Circuit’s majority held that a stand-by-your-ad disclaimer “is not, on its own, enough” to earn the discount. Treating it as the candidate’s own use would make part of the statute redundant, the majority reasoned. On Aug. 25, that 2-1 panel set aside the March notice, leaning on Loper Bright, the 2024 decision requiring courts to judge a statute’s meaning for themselves. Judge Wilkinson’s dissent argued the FCC’s reasoning still deserves persuasive weight. Conservatives cheered Loper Bright. We can’t ask for deference now because FCC Chairman Brendan Carr wears our jersey.
The court hasn’t settled the merits either. In September, eight justices said Democrats must wait for the FCC to resolve their challenge before suing. Wednesday’s order lets the agency avoid a court-ordered deadline, and Democrats call the delay “blatant procedural trench warfare.” The September order also found the committees likely faced irreparable harm because broadcasters were rescinding favorable rates.
SUPREME COURT REVERSES ‘INAPPROPRIATE’ RULING IN FCC FIGHT OVER FAVORABLE CAMPAIGN AD RATE RULES
Congress should amend Section 315 to cover candidate-approved coordinated party ads in plain words, exclude independent expenditures, and require disclosure of who paid, the kind of safeguard the court pointed to in striking the spending caps. The FCC should rule on the pending challenge promptly, because an agency that wants its rule defended should be willing to defend it. Stations should keep requesting proof of eligibility, which the notice already permits, so the discount reaches only ads that qualify.
I coached youth sports for years. The fastest way to lose a locker room is a rulebook that changes at halftime. Voters feel the same way. Parties and candidates are buying airtime today under a rule an agency wrote in March, and nobody has finally resolved. The FCC has taken its time. Congress has 535 members and a pen, and it should use both.
Jay Rogers is a financial professional with more than 30 years of experience in private equity, private credit, hedge funds, and wealth management. He has a Bachelor of Science in criminal justice from Northeastern University and has completed postgraduate studies at UCLA, the University of Pennsylvania, and Harvard. He writes about issues in finance, constitutional law, national security, human nature, and public policy.