When the constitutionality of a statute is challenged in court, and the attorney general – the state’s chief litigating officer – agrees that the statute is unconstitutional, what should (or can, or must) he do?

In the usual case, the attorney general defers to the presumed view of the legislature and the chief executive who signed the legislation, and defends the law without mentioning any constitutional doubts.  When the chief executive himself weighs in, however, and agrees that the law is unconstitutional, the practice is typically different.  Sometimes the executive stops enforcing the statute, especially in cases where a constitutional defense is untenable.  Increasingly, however, the federal executive branch does what President Obama and Attorney General Holder decided to do in 2011 regarding Section 3 of the Defense of Marriage Act – namely, to cease defending, or even to argue against, the constitutionality of the law, but to continue to enforce it and take the necessary steps, including appeal, to ensure that the Supreme Court has the final word on the constitutional question.  In the wake of the Court’s landmark decision in United States v. Windsor last Term, several state attorneys general have adopted such an “enforce-and-appeal-but-don’t-defend” posture in litigation challenging the constitutionality of state laws limiting marriage to opposite-sex couples.

Other strategies are less common.  There is at least one case in which the acting U.S. solicitor general (John Roberts) attacked the constitutionality of federal statutes before the Supreme Court even though the President had recently signed the laws and had not publicly questioned their constitutionality.  In still other cases, as I explained in a SCOTUSblog post last year, the executive might enforce and not defend at the outset, but then decline to appeal a lower-court ruling that the statute is unconstitutional and cease enforcement – which is what the governor and attorney general of California did in the Hollingsworth v. Perry litigation.  And in very rare cases – I only know of one example in the Supreme Court – the Department of Justice might defend the constitutionality of a statute even after the chief executive has publicly announced his view that it is unconstitutional.

Even less well known is yet another strategy, which was first employed by then-Solicitor General Robert Bork in Buckley v. Valeo in 1975.  Bork and Attorney General Edward Levi filed two briefs in Buckley, on opposite sides of the First Amendment questions raised in that case.  As far as I know, no one has emulated the Bork dual briefing in the four decades since Buckley . . . until now, in a remarkable recent filing by Ohio Attorney General Michael DeWine in Susan B. Anthony List v. Driehaus.

The two U.S. DOJ briefs in Buckley v. Valeo 

In Buckley, SG Bork and AG Levi filed an eighty-five-page brief in the Supreme Court on behalf of the Attorney General and the Federal Election Commission as parties.  That brief advanced a robust defense of the contribution, expenditure, and disclosure limitations of the Federal Election Campaign Act of 1974.

The Solicitor General’s own views about the constitutionality of the statute, however, were very different.  Frank Easterbrook, then an Assistant to the SG, would later recount that Bork considered FECA “unconstitutional root and branch,” and referred to it as the “fecal matter.”  Both Bork and Attorney General Levi appeared on a second brief, styled as a brief on behalf of the United States as amicus curiae, which included a ninety-five-page discussion of the First Amendment issues.  The brief’s stated purpose was to “attempt to assist [the Court] in analysis without pointing the way to particular conclusions”; but in fact the brief pressed a much more skeptical view of the constitutionality of FECA’s contribution and expenditure provisions.  The brief explained that the amicus United States was offering these views to the Court “in light of the dual commands [to the President in Article II] to ‘preserve, protect and defend the Constitution of the United States’ and to ‘take care that the Laws be faithfully executed.’”  (The Department of Justice did not defend the provisions of FECA establishing the powers of the Federal Election Commission, which had been challenged on Appointments Clause and separation-of-powers grounds.  It left that defense for yet a third brief, filed by the FEC itself, while the Attorney General as appellee, in the “second” DOJ brief, actually argued that the FEC’s enforcement powers were unconstitutional.)

Both Buckley briefs were drafted in the Office of the Solicitor General – the first by Deputy SG Daniel Friedman and Assistant to the SG Louis Claiborne, the second by Easterbrook and Deputy SG Ray Randolph.  At oral argument, only Friedman appeared, offering an unadulterated defense of the statute against First Amendment challenge.

When Levi and Bork announced their plan to file a second, amicus, brief, it infuriated the FEC, which strongly urged the Attorney General to reconsider.  Attorney General Levi responded:

The filing of an amicus brief that impartially explores all the issues—in addition to a brief on behalf of the Commission advocating the constitutionality of the Act — is not, as you suggest, a failure to live up to the Department’s institutional obligations.  On the contrary, it is in my opinion an effort to fulfill our highest obligations.  It has always been the tradition and the general understanding of the profession that the Attorney General and the Solicitor General stand before the Supreme Court as its officers and not solely as advocates.  As Solicitor General (later Judge) Sobeloff put it: “My client’s chief business is not to achieve victory, but to establish justice.”  And as Solicitor General Lehman said long ago: “The government wins its point when justice is done its citizens in the courts.”  The Department of Justice has a duty, particularly where novel, difficult, and grave constitutional issues are involved, to assist the Court in its resolution of those issues.  To do anything less would indeed be to default upon our most profound professional and institutional obligations.

Observers outside the executive branch also questioned the propriety of the dual-filing plan.  Simon Lazarus, then of Arnold & Porter, wrote to the Solicitor General that the amicus brief would inevitably be seen as undercutting the SG’s brief for the federal defendants, and that if the dual-filing practice were to become the norm, the stature of the Department and the “unique status” of the SG’s Office “would necessarily be diminished.”  Bork responded that “where the issues are not only novel and difficult but go to the heart of our method of democratic government, it would seem to me not only institutionally unnecessary but a betrayal of profound obligations to the Court and to constitutional processes to take the simplistic position that whatever Congress enacts we will defend, entirely as advocates for the client and without an attempt to present the issues in the round.”  “Questions of duty and obligation are not always simple,” Bork wrote.  “This one is not.  But I do think that, when the complexities of the situation are understood, the course the Attorney General and I have chosen is not merely allowable but preferable.”  (The Bork/Lazarus correspondence, as well as the Levi/FEC correspondence, can be found in the record of a hearing the Senate convened in 1975-1976 to consider how the interests of the United States should be represented in court.)

Sometime after the Court’s decision in Buckley, Easterbrook later recounted, some of the Justices told Bork and Easterbrook himself that “they were annoyed by this Cerberus-headed presentation,” but that they nonetheless “found the arguments very helpful in drafting a decision.”  (Easterbrook also points to Buckley, in which the executive branch filed well over two hundred pages’ worth of briefs, as being one of the principal sources of the Court’s decision in 1979 to set a fifty-page limitation on briefs.)

The Department of Justice has not, to my knowledge, ever repeated this Bork/Levi “dual filing” strategem.  Four decades later, however, the Court will now once more be offered dual filings by an attorney general that simultaneously defend and attack the constitutionality of a statute.  This time, however, it is not the U.S. attorney general, but instead the attorney general of Ohio, Michael DeWine, who is adopting the two-brief strategy.

The views of the Ohio attorney general in Susan B. Anthony List

On April 22, the Court will hear argument in Susan B. Anthony List v. Driehaus.  The question before the Court is whether the plaintiffs can bring an anticipatory, pre-enforcement challenge to an Ohio law making it unlawful during an election campaign to disseminate a false statement concerning a candidate, either knowing it to be false or with reckless disregard of whether it was false, if the statement is designed to promote the election, nomination, or defeat of the candidate.  A person cannot be subject to criminal sanctions under the law until the end of a multi-step process:

(i) someone must file a complaint with the Ohio Election Commission;

(ii) in a case where that complaint is filed shortly before an election, a panel of the Commission must then convene a hearing and determine whether there is “probable cause” to believe that . . . the violation of a law alleged in the complaint has occurred”; and if it makes such a finding “it shall refer the complaint to the full commission”;

(iii) the full Commission must determine whether there is clear and convincing evidence that a violation has been committed, in which case it can refer the case to a prosecutor;

(iv) the prosecutor must decide whether to press charges and, if she does . . .

(v) the case goes to trial, where a conviction can result in imprisonment for up to six months, and/or a fine of up to $5000.

Plaintiff Susan B. Anthony List (SBA List) does not claim that it will, in fact, make any knowingly or recklessly false statements about any candidate in the forthcoming 2014 Ohio elections.  The SBA List does allege, however, that it plans to characterize any candidate who voted for (or otherwise supported) the federal Affordable Care Act as having supported “taxpayer-funded abortion.”  For reasons it explains at pages 4-5 of its opening brief, SBA List does not believe that such a statement would be false (let alone knowingly or recklessly false).  But when the List previously made such a statement, about then-incumbent Ohio Representative Steve Driehaus in the 2010 election cycle, a panel of the Ohio Election Commission concluded (at step ii, above) that there was “probable cause” to believe that SBA List had violated the law, and therefore referred the case to the full Commission.  SBA List accordingly fears that when it (likely) makes a similar accusation in the next election cycle, it will incur a substantial risk of prosecution, and it has therefore sued to enjoin enforcement of the law.

Ohio law makes the attorney general “the chief law officer for the state and all its departments.”  Unlike in the federal system, the Ohio attorney general is elected, and is not subject to the direction of the chief executive (the governor).  Accordingly, the Ohio attorney general typically has the last word on deciding what the state’s view of the law will be in litigation.

In the Susan B. Anthony List case, Attorney General DeWine successfully represented the defendant state officials (the Ohio Election Commission, its commissioners and staff attorney, and the secretary of state) in the lower courts.  The U.S. Court of Appeals for the Sixth Circuit held that the SBA List’s complaint was not ripe, because it was too speculative that the SBA List would be subject to future prosecution, let alone to an unconstitutional prosecution.  The court reasoned that even if someone filed a complaint about the List’s expected “taxpayer-funded abortion” statement during the next campaign (which itself is speculative), and even if a Commission panel followed its previous precedent and found “probable cause” for a referral to the full Commission, such a finding “serves only to start proceedings that may — or may not — find an infraction.”

Attorney General DeWine, together with Ohio Solicitor General Eric Murphy, opposed the SBA List’s petition for certiorari, without expressing any doubts about the constitutionality of the state law.

But now, in the course of the merits briefing in the Supreme Court, Attorney General DeWine has filed an amicus brief, ahead of the brief he will file on behalf of the state officials, in which he argues that the Ohio statute raises serious constitutional concerns. Unlike in Buckley, the Ohio AG’s amicus brief was not written in the solicitor general’s office.  Instead, Attorney General DeWine “has arranged pro bono outside counsel,” Erik Jaffe and Bradley Smith (an option not legally available to the federal government, but I assume Ohio law authorizes it), and he represents that he has “screened” those pro bono counsel from contact with the “experienced lawyers in the Constitutional Offices section of the Attorney General’s Office” who are writing the state officials’ brief, due to be filed with the Court next Wednesday, March 26.

In his amicus brief, Attorney General DeWine emphasizes that he continues to “zealously represent” the state officials, but that he also has concluded that the Court “may benefit in its deliberations” from the further discussion of the law that he offers as an amicus.  Expressly invoking both the Levi/Bork precedent from Buckley, and Metro Broadcasting v. FCC, in which Acting Solicitor General Roberts “fully advocated for a law’s unconstitutionality,” DeWine writes that “[a]n attorney general has a special duty, as an officer of the Court and representative of the public, to acknowledge when the government’s side might be wrong.”  (For what it is worth, Article XV, Section 7 of the Ohio Constitution requires the state attorney general to take an oath or affirmation to support the Constitution of the United States, as required by Article VI, Section 3 of the U.S. Constitution.)

The brief states that the attorney general “has serious concerns about the constitutionality of the generalized false statements provisions” of Ohio law and that such concerns “should warrant judicial review in an appropriate case.”

Attorney General DeWine’s amicus brief does not expressly state a view on whether SBA List is that “appropriate case,” or whether it is ripe, which is technically the issue before the Court.  Nor does the brief come right out and say that the SBA List should prevail on its justiciability argument.  Indeed, in certain respects the brief tends to undermine the SBA List’s explanations for why the case is ripe.  For example, the SBA List’s opening brief is largely devoted to arguing that there is a likelihood that the List will be prosecuted for false statements in the next election – or, at a minimum, that the full Commission will determine there is clear and convincing evidence that a violation has been committed and refer the case to a prosecutor.  The DeWine amicus brief offers grounds to question whether those prospects are very likely:  It explains that complaints rarely go to the full Commission prior to election; that the full Commission typically does not find a violation, and “only sporadically” refers cases for prosecution; and that there is even the possibility (apparently Ohio law is not clear on the question) that the attorney general himself could direct a prosecutor not to prosecute a case if the AG thinks it would be unconstitutional to do so.

On the other hand, the principal thrust of the DeWine amicus brief is on a point that strongly supports the conclusion that the case is ripe:  DeWine argues that the primary way in which the Ohio scheme chills election speech in a constitutionally problematic manner is not the threat of a full Commission determination, let alone a criminal prosecution or sanction – as DeWine notes, those things rarely occur – but instead the initial “probable cause” finding itself, such as the one the Commission panel issued against the SBA List in 2010.  The SBA List itself makes this argument only in passing and in the alternative, on page 49 of its brief.  But it is the heart of the DeWine amicus brief, as reflected in these excerpts:

The impact of a state agency declaring that it has found “probable cause” that an individual has made a false statement (often described in the press as “lied”) in the immediate run up to an election can be profound.  As a practical matter, cases rarely go to the full Commission prior to the election, and pre-election judicial review is extremely uncommon.  As a result, candidates who find their campaigns disrupted in the final days, even for what eventually prove to be true statements, have no effective relief—the damage is done.  The probable-cause finding, which does not require even a preponderance of the evidence, is perceived by a substantial part of the electorate as the definitive pronouncement of the State of Ohio as to a candidate’s or other speaker’s truthfulness.

The practical effect of these provisions is to permit a private complainant to engage the State’s legal and administrative processes in order to gain a campaign advantage without ever having to prove the falsity of a statement, even to the standard of a preponderance of the evidence.

* * * *

A candidate who files a complaint that results in a “probable cause” finding may trumpet that in press releases and ads. . . .  [A] finding of probable cause, if issued, will often harm, and is often intended by the complainant to harm, the speaker’s campaign, regardless of any eventual final determination by the Commission.

Obviously, it would be considerably easier for the SBA List to demonstrate that it is likely to be harmed by a “probable cause” finding in the forthcoming campaign – after all, a Commission panel has already issued one respecting the speech in question in the last election – than to show that the full Commission will determine it has violated Ohio law, let alone that the List will be criminally prosecuted.  The amicus brief filed by Attorney General DeWine therefore not only calls into question the constitutionality of the state statute; it also makes the attorney general and solicitor general’s job more difficult on the ripeness question itself.

Posted in Susan B. Anthony List v. Driehaus, Featured, Merits Cases

Recommended Citation: Marty Lederman, Commentary: The return of the Robert Bork “dueling briefs” strategy: Buckley v. Valeo, Susan B. Anthony List, and Ohio Attorney General DeWine, SCOTUSblog (Mar. 17, 2014, 11:42 AM), http://www.scotusblog.com/2014/03/commentary-the-return-of-the-robert-bork-dueling-briefs-strategy-buckley-v-valeo-susan-b-anthony-list-and-ohio-attorney-general-dewine/