Challenging FCC Guidance Enabling Discounted Ad Rates for Super PACs (Brown et al. v. FCC et al.)

Federal communications law provides that television and radio broadcast stations must offer “legally qualified candidates” the “lowest unit charge;” in other words, candidates for office can purchase campaign advertising on broadcast television and radio networks at a cheaper rate than outside groups. Congress created this benefit to ensure that candidates for office would not be “priced out” of media markets and would have the opportunity to educate voters about their positions shortly before elections.

On March 30, 2026, the Federal Communications Commission (FCC) released a public notice purporting to broaden who qualifies for this discounted rate. The notice stated that broadcast stations must offer the discount to (1) political party committees acting in coordination with a candidate, and (2) joint fundraising committees (JFCs) in which a candidate participates.  

This guidance was a major departure from the FCC’s previous interpretation of the lowest unit charge, under which only candidates and their authorized campaign committees received the lowest unit charge benefit. The guidance also contradicts the statute’s clear and unambiguous text, which makes the discount available only to “legally qualified candidates.”

A group of federal candidates accordingly sued the FCC, arguing that requiring stations to offer the lowest unit charge to entities other than candidates and their campaigns violated the federal statute. CLC filed an amicus brief supporting the candidates’ position and highlighting for the court recent developments at the Federal Election Commission (FEC) that will, in conjunction with the FCC’s new guidance, allow super PACs to exploit the lowest unit charge benefit through candidate-super PAC joint fundraising efforts.

As CLC’s brief explains, two FEC actions from 2024 opened the door to problematic coordination between candidates and the well-funded super PACs that back them. The first FEC decision approved of candidates and super PACs working together to form JFCs. The second had the effect of approving JFCs running campaign-style ads that are paid for entirely (or almost entirely) by the super PAC participants. Taking these decisions together— and in combination with the FCC’s new guidance — JFCs involving candidates and super PACs can now run campaign-style ads that are underwritten by their super PAC participants and place them at a highly discounted rate.

Unless the FCC’s guidance is struck down, super PACs — entities that are legally required to be fully independent from candidates — will be able to underwrite campaign ads for the candidates they support and do so at a major discount.  

The federal communications statute is clear: Only candidates get the “lowest unit charge.” Super PACs are not candidates, and super PACs should not be able to access a candidate-only benefit simply because they can join forces with candidates for the limited purpose of fundraising together. CLC’s brief urges the court to set aside the FCC’s guidance and affirm that under the law, only candidates financing ads directly through their campaign committees get an advertising discount.  

What’s At Stake?

Candidates and super PACs are already taking advantage of the FEC’s deeply misguided decision to allow them to coordinate via JFCs. If the FCC’s guidance is allowed to stand, it will create an even stronger incentive for candidates and super PACs to work together through JFCs, increasing the amount of coordination taking place in federal elections and expanding the immense political influence super PACs wield.  

Billionaires and special interests already influence candidates through super PAC spending. Coordination increases the value of super PAC spending to candidates and therefore puts super PAC donors in an even more powerful position to demand policy favors from candidates once they take office.

To have a government that is responsive to voters, not wealthy special interests, we need to prohibit coordination and loosen the hold that super PACs have over candidates and officeholders. Blocking super PACs, working through JFCs, from unlawfully obtaining the lowest unit charge would be a step in that direction.