Joe Biden’s politically chosen nominee to the U.S. Supreme Court has once again left doubts in the minds of legal experts regarding her ability to interpret law and the Constitution after being the lone voice of dissent – again – in a case before the high court last week.
Political party committees will be able to continue purchasing certain television and radio advertisements at discounted candidate rates after the Supreme Court intervened Friday in a dispute that could have significant financial consequences during the final two months of the 2026 midterm campaigns.
The justices granted an emergency request from the National Republican Congressional Committee and National Republican Senatorial Committee, temporarily blocking a federal appeals court ruling that had prevented party committees from receiving the Federal Communications Commission’s “lowest unit charge” for advertisements coordinated with candidates.
Justice Ketanji Brown Jackson was the only justice to publicly dissent.
She argued that the FCC’s ongoing administrative process did not prevent judicial review. Citing a Fourth Circuit concurrence, she highlighted in part that “an agency may not reserve to itself the power to defeat judicial review through delay or inaction.”
The decision represents an immediate legal victory for the Republican committees, which told the court they had already planned tens of millions of dollars in advertising purchases based on receiving the lower rates.
“The party committees have also demonstrated that they will likely suffer irreparable harm absent a stay. They represent that, in light of the Fourth Circuit’s decision—which the Fourth Circuit likely lacked jurisdiction to issue—broadcasters are already rescinding favorable rates,” the high court ruled in part.
“Current and future rescissions 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,” the majority added.
The FCC’s lowest-unit-charge rules generally require broadcasters to offer qualified candidates their most favorable comparable advertising rate during the final 45 days before a primary election and 60 days before a general election.
For the Nov. 3 midterms, that 60-day period began Sept. 4 — the same day the Supreme Court issued its order.
The dispute began in March, when the FCC’s Media Bureau issued guidance stating that the discounted rate could apply not only to candidates and their authorized campaign committees, but also to advertisements purchased by political parties when those ads qualify as coordinated expenditures with a candidate.
The FCC distinguished those ads from independent expenditures by political parties. Ads purchased independently, without coordination with a candidate, do not qualify for the lowest-unit rate under the agency’s guidance.
That distinction has taken on much greater importance because of another major Supreme Court campaign-finance decision earlier this summer.
On June 30, the court struck down federal limits on how much political parties could spend in coordination with their candidates, holding that the restrictions violated the First Amendment. Before that decision, federal law placed varying limits on coordinated party spending depending on the office and state involved.
The combination of the two developments means political parties can now spend substantially more money in coordination with candidates while, at least for the moment, purchasing qualifying broadcast advertisements at the lower rates traditionally available to campaigns.
That could make party money considerably more valuable during the final stretch of the midterms.
The FCC guidance was challenged by four Democratic candidates: Sen. Jon Ossoff of Georgia, Ohio Senate candidate Sherrod Brown, North Carolina Senate candidate Roy Cooper and Michigan Rep. Kristen McDonald Rivet.
They argued that federal communications law reserves the lowest-unit charge for candidates and their authorized committees and does not permit the FCC to extend those rates broadly to political parties purchasing coordinated advertisements.
A divided 4th Circuit panel sided with the Democratic candidates on Aug. 25 and set aside the FCC guidance, concluding that party committees were not entitled to receive the discounted rates under the agency’s interpretation.
The Republican committees then turned to the Supreme Court, arguing that broadcasters were already withdrawing discounted rates and that the resulting increase in advertising costs would disrupt campaign plans that had been made months earlier.
Jackson disagreed, saying she did not believe the Republican committees were likely to prevail on their argument that the 4th Circuit lacked jurisdiction.
