Yesterday I linked to an article about Ohio SG Mike DeWine filing a brief against the constitutionality of Ohio’s false campaign speech law. On Twitter, I noted that DeWine seemed to be following in the footsteps of Eric Holder and some state AGs who have refused to defend various laws that the AGs believe are unconstitutional.
Well it turns out that DeWine doesn’t fit into this category, at least not for this case. Thanks to Jonathan Adler, here is a copy of the brief from the Susan B. Anthony case. And here is the statement from DeWine at the beginning of the brief:
The Attorney General makes this filing in fulfillment of his duties as Ohio’s chief law officer, as an officer of the Court, and as an independently elected state official. His position as amicus here is independent of his representation of the Ohio Elections Commission Defendants. He continues zealously to represent those State Defendants in a separate capacity, acting through experienced lawyers in the Constitutional Offices section of the Attorney General’s office.2 As set forth below, the Attorney General does not express the concerns raised in this brief lightly, but has concluded that this Court may benefit in its deliberations from further discussion of the actual workings and effect of the Ohio false statements statute in practice. [2 The Attorney General has screened counsel on this brief from contact with those attorneys, and has arranged pro bono outside counsel for the preparation and filing of this brief.]
This is not unprecedented. In The Nine Lives of Buckley v. Valeo I tell the story of infighting in the Ford Administration over Buckley v. Valeo, and how that led to the filing to two briefs, one for the FEC supporting the federal campaign finance law and the other, drafted by Robert Bork, supposedly “neutral” but actually making the case against the constitutionality of aspects of the law.