October 4, 2011 at 1:05 pm EDT | by Chris Johnson
Boehner triples cost cap for defending DOMA in court

U.S. House Speaker John Boehner (Blade file photo by Michael Key)

The U.S. House has tripled the cost cap for the legal expenses of hiring a private attorney to defend the Defense of Marriage Act in court to reach a potential total sum of $1.5 million.

According to recently approved contract modification dated Sept. 30, House General Counsel Kerry Kircher has agreed to pay Bancroft LLC private attorney Paul Clement a sum not to exceed $750,000 to defend DOMA, but this cap may be raised to $1.5 million under written notice.

“It is further understood and agreed that, effective October 1, 2011, the aforementioned $750,000.00 cap may be raised from time to time up to, but not exceeding, $1.5 million, upon written notice of the General Counsel to the Contractor specifying that the General Counsel is legally liable under this Agreement for a specific amount,” the contract modification states.

The contract modification is signed by Committee of House Administration Chair Dan Lungren (R-Calif.) as well as Kircher and Clement.

The Obama administration in February announced that it would no longer defend DOMA, which prohibits federal recognition of same-sex marriage, against litigation in court.

After the House’s Bipartisan Legal Advisory Group voted a 3-2 in March along a party-line basis to take up defense of DOMA, U.S. House Speaker John Boehner (R-Ohio) directed Kircher to defend the law and hired Clement, a U.S. solicitor general for former President George W. Bush, for assistance in defending the statute. The initial contract hired Clement to defend the law at a blended rate of $520 an hour and initial total cost cap of $500,000.

In addition to raising the cost cap to $1.5 million, the contract modification also opens the door for further increases upon agreement of the parties involved.

“In no event shall the cap exceed $1.5 million without a written agreement between the parties with the approval of the Chair of the Committee,” the contract modification states.

The contract modification states that the House’s new financial obligation is contingent upon three factors: the availability of appropriated funds from which payments under the agreement can be made; the understanding that the general counsel isn’t legally liable for costs until appropriated funds are available; and the allowing of payments to be made on a partial basis in amounts approved by the general counsel.

Michael Steel, a Boehner spokesperson, reiterated the speaker’s position that funds should be redirected from the Justice Department to the House to pay for the expenses of defending DOMA in court.

“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 said.

House Democrats and LGBT advocates railed against Boehner for allowing the cost cap of defending DOMA in court to be tripled under his watch.

In a joint statement, Democrats on the Committee of Administration — Reps. Robert Brady (D-Pa.), Charles Gonzales (D-Texas), and Zoe Lofgren (D-Calif.) — called the cost increase “simply unconscionable” and said the contracting process lacked “any semblance of transparency.”

“Our letters of warning and our questions about how any of the numbers were reached and where the money would come from have gone unanswered,” the Democrats said. “Now, we find that Speaker Boehner’s hand-picked lawyers have exhausted the half-million dollars we were told would be the total cost and they need an additional $1 million dollars — or 300% of the original contract, to continue the work.”

Drew Hammill, a spokesperson for the House Minority Leader Nancy Pelosi (D-Calif.), also had harsh words for Boehner.

“It is absolutely unconscionable that Speaker Boehner is tripling the cost for his legal boondoggle to defend the indefensible Defense of Marriage Act,” Hammill said. “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.”

Joe Solmonese, president of the Human Rights Campaign, also took aim at House Republican leadership for what he said was being willing to spend any amount of money to keep DOMA on the books.

“At a time when budgeting is the watchword in Washington, Americans will be rightly aghast at this boondoggle for right-wing lawyers,” Solmonese said. “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.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson is a member of the White House Correspondents' Association. Follow Chris

  • Ahhhhh……..an employee is doing a bad job in the position you gave them, so you throw more money at him!
    I can only hope that by doing this sort of thing, the Republicans will only drive the nails into the DOMA coffins much sooner.
    The old saying…….”give them enough rope and they’ll hang themselves”……..comes to mind.

  • Chris, I begged you and other journalists to never report the cost as being $500K and instead report the cost as being completely bogus. At the time, we could have brought to bear the mainstream media to apply more pressure on Boehner. Now, that isn’t likely an option. We can’t ever be snowed over by these bogus things our opponents try to put out there.

  • When same-sex couples want t get married, and many have children, they are in fact “Defending” the institution of marriage. And, when a US state legalizes gay marriage, couples flock to the licensing bureaus by the thousands, to get a marriage license to make their commitment and relationship “legal.” The conservative cry out that gays are promiscuous and “live in sin,” and when they can and do marry, they cry out that we are threatening marriage; so we gays are in a catch-22. Damned if we don’t, and damned if we do. So, DOMA is not about defending marriage, but defining a marriage for heterosexuals as they define marriage as “between a man and a woman.” Hmmmm, wonder how they deal with transsexuals? And, I wonder how the heterosexuals would feel if the tables were turned and they were not allowed to marry? Anyway, I hope DOMA and its heterosexual definition, because gays can have very successful marriages and even raise successful families with children. Why we are a threat, I don’t know. Finally, DOMA frustrates me even more, because I am engaged to a wonderful man, who happens to be a “foreigner,” so even if we get married legally in a US state, the Feds won’t acknowledge it for purposes of US Citizenship and he will be forced to leave, or both of us leave and live in another country. Now, isn’t’ that stupid, as we both had PhDs and great jobs and contribute to the success of the USA, but because of DOMA, some other country may get the benefits of our education and productivity. How is gay marriage a threat to the heterosexuals? I just don’t get their reasoning. Whatever happened to common sense in this country?


  • DOMA will not be repealed. The yes on Prop 8 side will win. Marriage is between a man and a woman whether they like it or not.

  • Deficit reduction at work!

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