As solicitor general, I was involved in a situation similar, but not identical, to the DOMA capitulation. In 1976, the department was faced with defending a statute, the Federal Election Campaign Act, that seemed to Attorney General Edward Levi, and to me, to be clearly unconstitutional under the First Amendment as a restriction of political speech. Our solution was to delegate to the senior deputy of the solicitor general’s office the defense of the statute, thus ensuring a first-rate defense. Simultaneously, Levi and I filed a friend-of-the-court brief exploring the difficulties of the statute but not taking sides in the dispute. Justice Powell subsequently expressed his appreciation for the brief, which he and others on the Court had found extremely helpful.
In this way, we both called to the Court’s attention the very considerable difficulties the Constitution posed for the statute, and mounted the best defense of it that we could. It is important that the solicitor general be able to perform both tasks in appropriate cases. The Office of the Solicitor General consists of a small corps of elite lawyers who give every constitutional issue the scrutiny it requires. In the absence of that scrutiny, the defense of a major statute such as the Federal Election Campaign Act or DOMA may be inadequate, and the first case to reach the Supreme Court may set the parameters for later cases.