4th Circuit rules for Cooper, Dems in FCC campaign ad rule dispute

The 4th US Circuit Court of Appeals has ruled in favor of Roy Cooper and three other Democratic candidates challenging a federal agency’s plan to allow political parties to pay the same rate as candidates for broadcast election ads.

The decision means parties and joint fundraising committees not working directly with candidates will not be entitled to the same low ad rates as candidates on Sept. 4.

The  2-1 ruling Tuesday marks a win for Democrats and a loss for Republicans and the Federal Communications Commission.

“This time-sensitive matter concerns who is entitled to particularly favorable rates — known as the ‘lowest unit charge,’ or ‘LUC’ — for broadcast campaign advertisements in the run-up to elections,” Judge Robert Bruce King wrote for the majority. “The statutory LUC requirement provides that during the 45-day period preceding a primary election and the 60-day period preceding a general election, ‘[t]he 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’ must be at ‘the lowest unit charge of the station for the same class and amount of time for the same period.’”

“There is no question that candidates are entitled to the LUC,” King wrote. “But it is disputed whether political parties and joint fundraising committees with non-candidate members can also be entitled to the LUC. The Federal Communications Commission (the ‘FCC,’ or the ‘Commission’) has asserted that they can, saying so in a ‘Public Notice’ issued by the FCC’s Media Bureau on March 30, 2026.”

Cooper, the Democratic nominee for North Carolina’s open US Senate seat, joined Georgia Sen. Jon Ossoff, former Ohio senator and current Senate candidate Sherrod Brown, and US Rep. Kristen McDonald Rivet of Michigan to challenge the public notice.

It was scheduled to take effect on Sept. 4 for the upcoming general election.

“Their contention is that the Public Notice contravenes the plain language of the LUC requirement and pertinent campaign finance statutes,” King wrote. “In the Federal Candidates’ words, the Public Notice ‘unlawfully dilutes [their] and other candidates’ statutory right to buy advertising time at lowest unit charge by insisting that broadcasters make that same right available to political parties and joint fundraising committees in circumstances where their spending cannot, under campaign finance law, be considered spending by or on behalf of a candidate.’”

The FCC, joined by the National Republican Congressional Committee and National Republican Senatorial Committee, “argue both that we lack jurisdiction to review the Public Notice and that the Public Notice is correct on the merits,” King explained.

“[W]e are confident of our jurisdiction to review the Public Notice,” King wrote. “Further, we conclude that the LUC requirement and campaign finance statutes are clear that neither political parties nor joint fundraising committees with non-candidate members can be entitled to the LUC. We therefore grant the Petition for Review, such that we set aside and hold for naught the Public Notice.”

“Restricting the LUC to candidates and their authorized committees makes good sense because the only way a third-party advertisement could be deemed as ‘use … by’ the candidate is when the third-party acts on behalf of the candidate,” King wrote. “And pursuant to 52 U.S.C. § 30101(6), a political committee may make expenditures ‘on behalf of’ a candidate only if it is an ‘authorized committee’ of that candidate. Because political parties support multiple candidates and therefore cannot be authorized committees of a particular candidate, such parties cannot act ‘on behalf of’ the candidate so as to turn their spending into candidate ‘use.’ To conclude otherwise would put the LUC requirement and the campaign finance statutes ‘at war with one another.’”

Judge James Wynn joined King’s majority opinion. Both were appointed by Democratic presidents.

The majority decision “gives the parties and the public adequate notice of the ground rules for the upcoming elections,” Wynn wrote in a concurring opinion. “That laudable objective would be entirely undermined if we accepted the jurisdictional gamesmanship the FCC asks us to employ.”

Judge Harvie Wilkinson, a Republican appointee, dissented.

“Collaboration between candidates and parties ‘has formed the essence of our Nation’s party system of government’ since the Founding,” Wilkinson wrote. “What a shame the majority assaults that very ‘essence’ in this very case.”

“In striking that blow, the majority first transgresses its jurisdictional bounds,” the dissent explained. “Our jurisdiction is limited to ‘final orders’ of the Federal Communications Commission. The FCC is presently considering an ‘application for review’ brought by the same petitioners before us here. In both fora, petitioners make the same arguments and seek the same relief: a modification or reversal of the rule laid out in the FCC Media Bureau’s Public Notice.”

“While the Commission reviews the application, the Public Notice before us is not a final order,” Wilkinson added. “This court may not sit in judgment of the Commission until the Commissioners complete their statutory duty to ‘pass upon’ the application and decide whether to adopt the Public Notice.”

“But if we had jurisdiction, the First Amendment would disfavor petitioners’ view of ambiguous statutory text,” the dissent argued. “The majority says that the Communications Act denies Lowest Unit Charge (LUC) rates to candidates speaking via party-coordinated advertisements, whether such coordination is direct or the functional product of Joint Fundraising Committee expenditures. But Congress cannot dangle lower rates for some candidate speech as a means of penalizing other candidate speech.”

“The differentiated advertisement rates sought by petitioners degrade both the ‘important and traditional role of political parties during campaigns’ and the collaborative speech between candidate and party that role creates,” Wilkinson wrote.

“4th Circuit rules for Cooper, Dems in FCC campaign ad rule dispute” was originally published on www.carolinajournal.com.