Bench Memos

On the Costs of Litigating in Defense of DOMA

In response to the Obama administration’s irresponsible failure to defend DOMA, the House of Representatives hired former Solicitor General Paul Clement to perform the role that DOJ should be performing. Clement and his legal team are now defending DOMA in some seven separate cases across the country, and it’s no surprise, as the National Law Journal reported yesterday, that the House’s contract with Clement has been modified to raise the cap on legal expenses to $1.5 million. The House Republicans’ statement on this news is right on:

Michael Steel, a spokesman for House Speaker John Boehner (R-Ohio), reiterated today that the House would not have needed to hire outside counsel but for the Obama administration’s decision to abandon the marriage law. Republicans want to subtract the cost from the Justice Department’s budget. “The cost of this litigation should and will be borne by the Department of Justice — which is shirking its responsibility to defend the law,” Steel wrote in an e-mail.

By contrast, according to the NLJ story, a spokesman for House Democratic leader Nancy Pelosi called the contract “absolutely unconscionable.” I gather from the spokesman’s fuller statement (as well as similar statements by Pelosi in the past) that she objects both to the fact that the House is defending DOMA at all and to the amount of the contract. As to the former objection: DOMA is federal law (enacted by overwhelming majorities in both Houses), and Pelosi, unable to get the votes to repeal it, shouldn’t be able to use abandonment of litigation as a substitute.

As to the latter, Pelosi’s concerns of fiscal frugality, if taken seriously, are badly misplaced. For starters, her complaint about additional litigation costs should be directed against the Obama administration. If DOJ were doing its job right, the House would not have had to hire outside counsel. Instead, DOJ invited more litigation over DOMA, first by sabotaging its own purported defense of DOMA (see Part IV of my House testimony), then by formally abandoning its defense.

Further, the House is getting quite a deal with Clement, who is a superb lawyer (and who just last week won a little-reported victory for DOMA in a federal district court in California). To put Clement’s fees in perspective, consider that one of the attorneys he is opposing recently filed a request for more than $1.1 million in fees and expenses for a single Supreme Court proceeding.

More broadly, it would seem that Pelosi can’t keep her trillions, billions, and millions straight, or perhaps she’s assuming that the public can’t. As speaker in 2009, Pelosi helped engineer discretionary spending of some $1.238 trillion dollars—a 103-billion dollar increase over 2008 (and nearly a million times the modified cap in the House contract with Clement). Likewise for 2010, when she helped engineer discretionary spending of $1.349 trillion dollars—a 111-billion dollar increase over 2009. (I’m using Congressional Budget Office figures from Table E-5 here.) I don’t mean by this comparison to condone any waste of taxpayer dollars (as I explain above, I think that the House deal with Clement is a great bargain and that DOJ is at fault for the unnecessary expenditures); I mean instead to point out that Pelosi’s sudden concerns of fiscal frugality can’t be taken seriously.