Every election season, candidates for office get a break that ordinary advertisers do not. Federal law requires TV and radio stations to sell them airtime at the “lowest unit charge,” the cheapest rate the station gives any other customer. The point is to protect candidates from being priced out of reaching voters.

Congress wrote that protection for “a legally qualified candidate.” This fall, the Supreme Court has twice used its emergency docket to keep it flowing to party committees, while a federal appeals court’s ruling that the law says otherwise sits on ice through the November 3 midterms.

What the Law Says

The lowest unit charge, or LUC, comes from 47 U.S.C. § 315(b)(1)(A). It applies to charges for broadcast time used “by any person who is a legally qualified candidate for any public office in connection with his campaign,” during the weeks before primaries and general elections. The Supreme Court quoted that language in its own order.

On March 30, 2026, the Media Bureau, a division of the Federal Communications Commission, issued a public notice saying more people were entitled to the discount: candidates, joint fundraising committees with non-candidate members, and political parties engaged in coordinated political activity, all subject to conditions.

Four Democratic candidates challenged it: Sherrod Brown, Jon Ossoff, Roy Cooper and Kristen McDonald Rivet. They argued that only candidates qualify.

The Fourth Circuit Reads the Statute

After a fast-tracked schedule, a divided Fourth Circuit panel agreed with the candidates on August 25. By a 2-1 vote, it concluded that the LUC requirement and the campaign finance statutes “are clear that neither political parties nor joint fundraising committees with non-candidate members can be entitled to the LUC,” according to reporting on the ruling. It set the notice aside.

The National Republican Congressional Committee and the National Republican Senatorial Committee, who had intervened in the case, ran to the Supreme Court. They told the justices they had “budgeted tens of millions of dollars in ad buys under these rules,” and that “broadcast stations are already rescinding those rates” (same source).

September 4: The First Stay

On September 4, the Court granted the stay in an unsigned per curiam order in National Republican Congressional Committee v. Brown, No. 26A274. It recalled the Fourth Circuit’s mandate pending a petition for certiorari.

To its credit, this order gave reasons, which cannot be said of many emergency orders. Its core holding was procedural. The Communications Act contemplates that an aggrieved party will wait for the Commission to resolve its application for review before going to court, and because the candidates’ application was still pending at the FCC when they filed in the Fourth Circuit, the Supreme Court said that court “likely lacked statutory jurisdiction.” It added that the Fourth Circuit’s holding “splits with every other Circuit to have considered the issue.”

On the harm side, the Court accepted the party committees’ representation that broadcasters were already rescinding favorable rates, which “will require the party committees to pay more for advertising space, thereby hampering their efforts to reach the electorate in the critical weeks leading up to the midterms.” It said that injury “implicates their First Amendment rights to speak and coordinate their political activities freely,” and cited its own June decision in National Republican Senatorial Committee v. FEC.

That is the ruling that struck down limits on coordinated party spending, by a 6-3 vote, with Justice Kagan in dissent. One decision lifted the cap on what parties can spend alongside candidates. The next used the first as a reason to protect their ad discounts.

Justice Jackson was the lone dissenter. She would have denied the stay and wrote that the committees were “not likely to succeed on the merits of their argument that the Fourth Circuit lacked statutory jurisdiction.” Citing a concurrence from the Fourth Circuit, she noted that “an agency may not reserve to itself the power to defeat judicial review through delay or inaction.” Her point was that an agency should not be able to block judicial review just by not ruling. The majority said the candidates had to wait for the FCC first.

October 14: The Clock Runs Out

The candidates went back to the Fourth Circuit and asked it to order the FCC to rule. On October 7, a divided panel directed the Commission to decide by noon on Friday, October 9.

The government rushed back to the Supreme Court. Solicitor General D. John Sauer called the order an “egregious intrusion into the nation’s electoral process” and asked the justices to make clear that the Fourth Circuit “should not issue any further orders that require the Commission to review the Bureau’s notice, or that prevent the Bureau from implementing that notice, until after this year’s elections” (SCOTUSblog, above).

Chief Justice Roberts issued an administrative stay on October 8, in No. 26A476. The candidates’ lawyer, David Fox, told the Court that “judicial review is the solution, not the problem,” and accused the FCC of “blatant procedural trench warfare” to avoid review (SCOTUSblog).

On October 14, the Court granted the FCC’s request in a five-page unsigned order. It held that although the FCC must “act on every application it receives,” it is not required to act within any particular timeframe, and that forcing a decision in 48 hours would make the agency “triage its ongoing deliberation process.” Newsweek reported the vote as 7-2, though SCOTUSblog gave no tally. Justices Sotomayor and Jackson would have denied the requests. Neither wrote an explanation.

What This Does in Practice

The Court has not decided whether parties are entitled to the candidate discount. It has not even reached the merits. What it has done is decide who gets the discount while that question is open, and the answer is the party committees.

Because the FCC has no deadline, it does not have to decide before the election. Parties and qualifying joint fundraising committees keep the discounted rates through the midterms, alongside candidates. The legal fight over whether they were ever entitled to them proceeds on a timeline that ends after the ballots are cast.

The money at stake is not symmetrical. By the end of July, according to FEC filings cited by Newsweek, the top three Democratic committees held roughly $136 million in cash with about $17.9 million in debt. The major Republican committees held nearly $279 million, with no reported debt. A discount on TV time is worth more to the side with more to spend. Dave Aronberg, a former Palm Beach County state attorney, said the order gives national party committees “a subsidy that Congress explicitly reserved for individual candidates.”

Why This Is a Court Reform Story

The emergency docket decides outcomes, not just timing. An emergency stay is supposed to preserve the status quo until a case can be heard. Here, the “status quo” the Court protected was an agency’s contested March interpretation, issued only months before the election, and a court order that would have unwound it was frozen. By the time the legal question is answered, the election the rates were designed for will be over.

The majority’s reasoning flows one way. The Court counted the party committees’ higher costs as irreparable harm and tied them to the First Amendment rights it had expanded in June. The harm the order identifies is the committees’, not the candidates’ or the voters’. A Court that cared equally about each side’s stake in a fair campaign would have at least explained why a statute written for candidates should bend in favor of parties.

A five-page order for a national election. Justices Sotomayor and Jackson did not explain their votes on October 14, and the majority wrote five pages in days, with no argument. Whatever the merits, an order that governs the final weeks of a national election was issued without a full adversarial test.

Where is the Court’s own timing principle? In October 2024, the same Court let Virginia purge voter rolls six days before an election despite lower-court findings that the federal 90-day rule applied. Here, it intervened weeks before an election to protect a benefit that a federal appeals court found the law reserves for others. In both cases the Court acted close to an election, and in both Republicans were the beneficiaries. Whatever principle the Court says guides its timing, it is not applied evenly.

Court reform cannot fix a single order. It can change the conditions under which orders like these are issued: requiring full briefing and argument for emergency applications that decide the rules of an election, and holding the Court to the same standard it applies to everyone else.

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