Supreme Court Orders TV Stations to Offer More Election Ads at Deep Discounts

Justice Kagan’s majority opinion emphasized that agencies cannot avoid judicial review through prolonged inaction. She referenced Fourth Circuit Judge James Wynn’s view that “an agency may not reserve to itself the power to defeat judicial review through delay or inaction.” Kagan also cited her own past rulings stating that courts “routinely” treat pre-suit requirements as “nonjurisdictional” and have “yet to hold that any statutory exhaustion requirement is jurisdictional.”

Ad discount for “ever-expanding number of groups”

The Democratic challengers included former senator and current Ohio candidate Sherrod Brown, Georgia Sen. Jon Ossoff, North Carolina Senate candidate and former Gov. Roy Cooper, and U.S. Rep. Kristen McDonald Rivet of Michigan. They argued to the Supreme Court that “the Fourth Circuit reasonably held that the Commission constructively denied the Candidates’ Application by failing to resolve it despite clearly having decided to reject it, and there is no circuit split on that question.”

The U.S. Justice Department and FCC submitted a joint brief backed by Republican committees. They contended that the Fourth Circuit lacked jurisdiction and that the FCC correctly interpreted its directive to broadcasters.

“It makes no difference that a political party assisted in funding the advertisement,” the government brief stated. “Section 315(b) focuses on whether the candidate is making ‘use’ of a broadcast station—not whether they are covering the costs. When a candidate collaborates with their party to air an ad and explicitly approves it, they are utilizing the station, regardless of who pays for it.”

The Trump-era legal position faced criticism from the Campaign Legal Center, a nonprofit led by former FEC Chairman Trevor Potter. In an amicus brief, the group argued that the FCC’s interpretation “grossly distorts the plain meaning of the Communications Act” and contradicts clear congressional intent, adding that it lacks proper boundaries.

“As noted by the applicants, any effort by a candidate to involve additional groups in their fundraising efforts—or to implicitly endorse or authorize independent committees—could grant those entities Lowest Unit Charge (LUC) protections,” the Campaign Legal Center explained. “This expansion risks stretching the LUC rule—and broadcasters’ associated obligations—to accommodate an ever-growing array of organizations.”

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