[EL] Ohio AG Files 2 Briefs–On Opposite Sides–in SCOTUS False Speech Case

[Rick Hasen]

    Ohio AG Files 2 Briefs–On Opposite Sides–in SCOTUS False Speech Case
    <http://electionlawblog.org/?p=59221>

Posted on March 4, 2014 7:31 am <http://electionlawblog.org/?p=59221>by 
Rick Hasen <http://electionlawblog.org/?author=3>

Yesterday Ilinked <http://electionlawblog.org/?p=59212> to anarticle 
<http://www.dispatch.com/content/stories/local/2014/03/03/DeWine-Ohio-Election-law.html> 
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 
constitutional.

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. 
<http://electionlawblog.org/wp-content/uploads/13-193-ac-Ohio-AG-DeWine-Final.pdf> 
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 
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1593253> 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.

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-- 
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org

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