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 can purchase campaign advertising on broadcast television and radio networks at a cheaper rate than other groups. Congress created this benefit to ensure that candidates 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 extend this discounted rate 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 campaign committees received the discount. The guidance also contradicted 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 law.  

CLC filed an amicus brief in the Fourth Circuit Court of Appeals supporting the candidates’ position and emphasizing that the FCC’s new guidance — viewed in light of recent developments in campaign finance law — would allow super PACs to exploit the lowest unit charge benefit through JFCs in which they participate.

As CLC’s brief explained, in 2024, the Federal Election Commission (FEC) not only approved of candidates and super PACs working together to form JFCs, it also failed to prohibit JFCs from running campaign-style ads that are paid for entirely (or predominantly) by super PACs participating in the JFC. In light of these developments, the FCC’s guidance allowing JFCs to place ads at a highly discounted rate would effectively supercharge super PACs’ ability to blanket the electorate with campaign-style ads directly coordinated with candidates — a boon to special interests that would do real harm to voters’ right to have a meaningful voice in their democracy.

The Fourth Circuit Court of Appeals struck down the FCC guidance on August 25, 2026. However, the FCC and parties seeking to exploit its new guidance sought an emergency stay from the U.S. Supreme Court that would pause the Fourth Circuit’s decision. CLC filed another amicus brief, this time with the U.S. Supreme Court, reiterating the point that under the FCC’s guidance, super PACs would effectively be able to access the candidate-only advertising discount, illustrating just how far the FCC has deviated from the text and purpose of the law.

What’s At Stake?

Candidates and super PACs are already taking advantage of the FEC’s deeply misguided campaign finance decisions by creating candidate-super PAC JFCs — an ideal vehicle for illegal coordination. If the FCC’s guidance is allowed to take effect, 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. And discounted ad rates would allow super PACs to buy more ad time for their money, making their donors even more influential.  

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. Stopping super PACs from unlawfully getting discounted political ad rates would be a step in the right direction.