Supreme Court Decision Renews Focus on Political Advertising and Lowest Unit Charge
A recent decision from the U.S. Supreme Court, together with guidance from the Federal Communications Commission’s (FCC) Media Bureau, could reshape political advertising and the volume of ads entitled to lowest unit charge (LUC).
The Supreme Court’s NRSC Decision. In its June 30, 2026, decision in National Republican Senatorial Committee v. Federal Election Commission, the Supreme Court held that a law limiting coordinated expenditures by political parties is unconstitutional, permitting unlimited party coordinated expenditures on behalf of candidates.
The Federal Election Campaign Act (FECA) authorizes national and state party committees to make a limited amount of party coordinated expenditures (i.e., campaign spending in coordination with candidates) on behalf of the parties’ nominees for federal office. Party coordinated expenditures do not count against a political party’s contribution limit for the benefiting federal candidate. Instead, FECA provides a different limit for party coordinated expenditures that varies by office sought and state.
The National Republican Senatorial Committee, National Republican Congressional Committee, and two federal candidates challenged the constitutionality of these provisions, arguing that the party coordinated expenditure limits “stand in serious tension” with current First Amendment jurisprudence because the limits do not prevent quid pro quo corruption (or its appearance) and severely infringe on the rights of political parties to campaign with their own candidates.
The Supreme Court agreed by a 6-3 vote. Specifically, it held that “FECA’s limits on political parties’ coordinated expenditures violate the First Amendment.” The Court described the party coordinated expenditure limits as severe restrictions that “inflict[ed] a ‘stifling effect on the ability of the party to do what it exists to do.’” In its 2001 decision in Federal Election Commission v. Colorado Republican Campaign Committee, the Court upheld the limits on coordinated expenditures based on “the Government’s desire to prevent or reduce influence, ingratiation, gratitude, access, or the like for those who spend in support of, or contribute to, political parties or candidates.” But the Court overturned that decision, finding that the limits “can no longer be justified on that basis.” The Court also found the limits could not be upheld on an anticircumvention rationale because “other less-speech-restrictive tools” – such as earmarking and disclosure law – were “available to the Government to prevent circumvention.”
Effect on Lowest Unit Charge. The NRSC decision is particularly relevant to broadcasters to the extent it expands the volume of party-coordinated expenditures entitled to LUC. We have previously written about the March 30, 2026, guidance from the FCC’s Media Bureau, in which the Bureau “remind[ed]” broadcasters that the LUC requirements apply to “(1) authorized committees, including authorized committees that engage in joint fundraising with legally qualified candidates for federal office, and (2) advertisements that qualify as coordinated expenditures of political parties and legally qualified candidates for federal office.”
Thus, taken together, the NRSC decision and the Media Bureau’s guidance suggest that an expanded pool of party coordinated expenditures could be used to purchase advertising time entitled to LUC.
What Comes Next. Four Democratic lawmakers are challenging the FCC Media Bureau guidance, arguing that it conflicts with Section 315(b) of the Communications Act. Section 315(b)(1) of the Communications Act states:
“The charges made for the use of any broadcasting station by any person who is a legally qualified candidate for any public office in connection with his campaign for nomination for election, or election, to such office shall not exceed ... during the forty-five days preceding the date of a primary or primary runoff election and during the sixty days preceding the date of a general or special election in which such person is a candidate, the lowest unit charge of the station for the same class and amount of time for the same period.”
The Democratic lawmakers argue that the term “legally qualified candidate” limits entitlement to LUC to candidates themselves and does not extend to coordinated expenditures.
The lawmakers filed an Application for Review with the FCC on April 29, 2026, and a Petition for Review in the U.S. Court of Appeals for the Fourth Circuit on June 19, 2026. Following the NRSC decision, the Fourth Circuit granted the Petitioners’ Motion to Expedite. Briefing in the Fourth Circuit case will conclude by July 27, 2026.
We are following the Fourth Circuit litigation and monitoring for additional FCC guidance, and we will provide updates as appropriate.
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Wiley’s Media Practice has extensive experience counseling broadcasters on FCC compliance and political broadcasting matters. If you have any questions, please contact one of the attorneys listed on this alert or the Wiley attorney who routinely handles your FCC matters.
