New “Cap” on House DOMA Defense Set at $1.5 Million, Additional Change Alters Payment Liability
Author: Chris Geidner
Publication: Metro Weekly
Publication Date: October 4th, 2011
Click here to read the full article at Metro Weekly
On Oct. 1, the obligation of the federal government to pay for the House Republican leadership's defense of the Defense of Marriage Act increased from $500,000 to $750,000 -- with a new "cap" on the defense set at $1.5 million.
Those new numbers are set by a modification ofthe original April contract between House General Counsel Kerry Kircher and Bancroft PLLC partner Paul Clement for Bancroft to represent the House Bipartisan Legal Advisory Group in its DOMA defense.
But, per another provision in the modified agreement, the government could owe no additional funds beyond those already paid if no funds are appropriated for the defense.
Among the questions raised over the past months by some opponents of the Republican majority of the BLAG's decision to defend the 1996 marriage law in court challenges was whether Kircher had, by signing the contract, committed to payment of funds that had not been appropriated to the House General Counsel's Office.
The opposition led to a complaint filed with the Office of Congressional Ethics in June by Citizens for Responsibility & Ethics in Washington, alleging a violation of the Antideficiency Act and of House Rules -- charges that House Speaker John Boehner (R-Ohio)'s office strongly denied.
In addition to the changed "cap" on the fees that Bancroft can accrue -- a "cap" that, asdiscussed at Metro Weekly in April, can be raised by a similar modification at any time in the future -- the second change to the contract makes the obligations and liability of the general counsel to pay the fees under the contract contingent on money to pay those fees being appropriated to pay for them.
The relevant portion of the contract modification, which was released today by House Democrats who have opposed BLAG's defense of DOMA, reads, "It is further understood and agreed that the General Counsel's obligation under this Agreement is contingent upon the availability of appropriated funds from which payments pursuant to this Agreement can be made; [and] that no legal liability on the part of the General Counsel shall arise until such appropriated funds are made available to the General Counsel[.]"
A spokesman for Boehner, one of the three Republican members of BLAG, directed questions about the contract change to the House Administration Committee, the chairman of which -- Rep. Daniel Lungren (R-Calif.) -- approved the contract and modification.
Sally Wood, a House Administration Committee spokeswoman, said the $1.5 million "cap" in the modification is "a good-faith effort" to account "for all of the costs related to multiple cases throughout the U.S."
As to the contingencies on the obligations and liability of the general counsel, Wood said, "This is simply a standard clause that assures that the general counsel does not obligate funds that have not been appropriated."
Under the House Gift Rule, a House member or employee "may not accept anything of value" unless it meets one of the exceptions provided for under the rule. This rule would appear to prohibit Kircher from allowing Bancroft to provide the legal services under the contract for free or at a reduced rate.
The contract at issue -- first signed with King & Spalding and then with Bancroft -- was entered into after the Department of Justice informed Boehner on Feb. 23 that it would no longer be defending Section 3 of DOMA -- the federal definition of marriage -- in court challenges.
Most of the initial responses from Democratic and LGBT leaders focused on the increased "cap" on the DOMA defense.
Rep. Jerrold Nadler (D-N.Y.) is the lead sponsor of the bill to repeal DOMA, the Respect for Marriage Act. He issued a statement about the news, saying, "In the current climate of Republican-sponsored deficit hysteria, draconian spending cuts, and an ongoing recession in which Americans are still awaiting congressional leadership on jobs and mortgage relief, it is shocking and supremely hypocritical for Republican Leadership to spend additional taxpayer dollars on the unwarranted, unconstitutional and unnecessary defense of DOMA."
He added, "It seems that the only jobs program the House is creating is one for high-priced lawyers to defend an unconscionable law."
On the "unconscionable" front, the spokeman for House Minority Leader Nancy Pelosi (D-Calif.) also slammed the move. Spokesman Drew Hammill said in a statement, "It is absolutely unconscionable that Speaker Boehner is tripling the cost for his legal boondoggle to defend the indefensible Defense of Marriage Act. At a time when Americans are hurting and job creation should be the top priority, it just shows how out of touch House Republicans have become that they would spend up to $1.5 million dollars to defend discrimination in our country."
Human Rights Campaign president Joe Solmonese said in a statement, "There seems to be no limit to how much taxpayer money the House Republican leadership is willing to spend to keep this discriminatory law on the books. The Defense of Marriage Act singles out same-sex couples for unfair treatment and no amount of money can overcome the fact that it flies in the face of our cherished constitutional principles."
Freedom to Marry president Evan Wolfson pointed in his statement to the fact that gay and lesbian Americans are paying for DOMA's defense: "At a time when Americans are struggling through one of the worst economies in our nation's history, it is shameful that House Republicans are now tripling the spending of tax dollars -- including those of gay and lesbian Americans -- to defend a discriminatory anti-gay law that makes it even harder for committed gay and lesbian couples to take care of and protect their loved ones."