The Center for Individual Freedom (CFIF) last week filed a motion with the United States District Court for the Eastern District of Pennsylvania seeking, among other things, to further solidify its First Amendment rights to run issue ads in the state. CFIF is also asking the court to award attorney's fees and other fees for being forced to defend its speech against the state's efforts to remove our ads from the air in violation of a stipulated judgment.
Prior to the recent election for Pennsylvania Supreme Court, CFIF filed a lawsuit charging that portions of Pennsylvania's campaign finance law were vague and overbroad and thus violated the First Amendment. CFIF wished to broadcast independent issue ads in the state prior to the November 2007 statewide elections. The initial lawsuit alleged that the challenged provisions did not provide tailored and objective guidance as required by U.S. Supreme Court precedent. The threat of punishment and prosecution resulted in self-censorship. CFIF named Pennsylvania Attorney General Thomas Corbett and Commonwealth Secretary Pedro Cortes, among other enforcement authorities, as defendants in that suit.
In August, the U.S. District Court declared in a stipulated judgment, agreed to by CFIF and Attorney General Thomas Corbett on behalf of all named defendants, that the challenged portions of Pennsylvania's campaign finance law "regulating any 'expenditure in connection with an election of any candidate or for any political purpose whatever'" were properly construed as applying only to spending for "express advocacy" as it's defined in the U.S. Supreme Court's Buckley v. Valeo decision. In other words, CFIF was permitted to run its ads so long as it didn't use words like "vote for" or "vote against" that expressly advocated the election or defeat of a candidate.
In full compliance with that stipulated judgment, CFIF launched its issue ads in late October.
On November 2, Commonwealth Secretary Cortes and Attorney General Corbett filed a lawsuit seeking to silence CFIF's speech and remove its ads from the air. That evening, the Commonwealth Court of Pennsylvania in Harrisburg ruled in CFIF's favor, denying the state's request for an injunction.
Despite the favorable ruling, the potential for Pennsylvania enforcement authorities to seek to impose fines and other penalties on CFIF for its ads still ominously exists, as the judge's opinion clouded the bright line established in the stipulated judgment and required by the First Amendment.
With that threat looming, CFIF is asking the federal district court to declare, among other things, that the state's legal position violates both the First Amendment and the stipulated judgment, and that CFIF's ad is not "express advocacy" and, therefore, is not subject to regulation under existing Pennsylvania law.