Pelosi queries Boehner on DOMA defense cost

House Minority Leader Nancy Pelosi (Blade photo by Michael Key)

House Minority Leader Nancy Pelosi (D-Calif.) sent a letter on Friday to House leadership seeking clarification on the cost of the congressional defense of the Defense of Marriage Act in court.

In the letter, Pelosi asks House Speaker John Boehner (R-Ohio) to provide an estimate of the cost of defending DOMA. She notes the House general counsel has been authorized to hire private lawyers to the defend the anti-gay statute.

“It is important that the House receive an estimate of the cost to taxpayers for engaging private lawyers to intervene in the pending DOMA cases,” Pelosi writes. “It is also important that the House know whether the BLAG, the General Counsel, or a Committee of the House have the responsibility to monitor the actions of the outside lawyers and their fees.”

On Wednesday, Boehner directed the House general counsel to defend DOMA in court after the five-member Bipartisan Legal Advisory Committee voted 3-2 on a party-line basis to argue on behalf of the law.

Boehner as well as House Majority Leader Eric Cantor (R-Va.) and House Majority Whip Kevin McCarthy (R-Calif.) voted in favor of directing counsel to defend the statute, while Pelosi and House Minority Whip Steny Hoyer (D-Md.) voted against such action.

In the letter, Pelosi also expresses concern about the duration of the DOMA litigation – noting an estimate that the cases could take 18 months until they reach the U.S. Supreme Court — and questions the necessity of the House intervening to defend the law.

“There are numerous parties who will continue to litigate these ongoing cases regardless of the involvement of the House,” Pelosi writes. ”No institutional purpose is served by having the House of Representatives intervene in this litigation which will consume 18 months or longer. As we noted, the constitutionality of this statute will be determined by the Courts, regardless of whether the House chooses to intervene.”

According to a Democratic aide, House General Counsel Kerry Kirchner has said defense of DOMA would “not be inexpensive,” but a Republican aide has countered that no decisions have been made about the cost of DOMA litigation.

Boehner’s office didn’t respond on short notice to the Washington Blade’s request to comment on the letter.

The full text of the letter follows:

March 11, 2011
 
The Honorable John Boehner
Speaker of the House
H-232, The Capitol
Washington, D.C. 20515
 
Dear Mr. Speaker:
 
The House Bipartisan Legal Advisory Group (BLAG) voted this week by a 3-2 margin to direct the House General Counsel to initiate a legal defense of the Defense of Marriage Act (DOMA).  As you know, the Democratic members of the BLAG voted against directing the House Counsel to initiate the costly defense of a statute which many believe to be unconstitutional under the Equal Protection clause. 
 
While respecting the role of the BLAG to make such decisions, I disagree in this circumstance because of the number of cases, at least 10.  There are numerous parties who will continue to litigate these ongoing cases regardless of the involvement of the House.  No institutional purpose is served by having the House of Representatives intervene in this litigation which will consume 18 months or longer.  As we noted, the constitutionality of this statute will be determined by the Courts, regardless of whether the House chooses to intervene. 
 
The resolution passed by the BLAG also directs the House General Counsel to hire private lawyers rather than utilize his own office to represent the House.  The General Counsel indicated that he lacked the personnel and the budget to absorb those substantial litigation duties.  It is important that the House receive an estimate of the cost to taxpayers for engaging private lawyers to intervene in the pending DOMA cases.  It is also important that the House know whether the BLAG, the General Counsel, or a Committee of the House have the responsibility to monitor the actions of the outside lawyers and their fees.
 
The American people want Congress to be working on the creation of jobs and ensuring the continued progress of our economic recovery rather than involving itself unnecessarily in such costly and divisive litigation. 
 
Thank you for your responses to these questions concerning the cost and oversight of the litigation as it proceeds through the courts.
 
Best regards,
 
NANCY PELOSI
Democratic Leader