Sunday Late Night: Is Boehner’s DOMA Defense Illegal?
Is Speaker John Boehner risking prison to defend DOMA (the Defense of Marriage Act) after Eric Holder decided the Justice Department would not defend the law in court any longer? It sure seems that way — the Speaker may have hired Paul Clement without legal or fiscal authority to do so, risking criminal charges. Spending federal funds without explicit legislative authorization or appropriation is a violation of federal law that carries a fine and a possible prison sentence.
The question is: how important to John Boehner is defending DOMA? Important enough to get behind bars?
Amanda Terkel at HuffPost lays out Speaker Boehner’s problem:
In March, the House Bipartisan Legal Advisory Group (BLAG) voted along party lines to defend DOMA, the federal law that defines marriage as between one man and one woman. Its decision came after Attorney General Eric Holder announced the administration would no longer argue in support of the law after it concluded that the law is unconstitutional.
At the behest of Speaker John Boehner (R-Ohio), the House General Counsel has signed a contract with former solicitor general Paul Clement to pay his firm, Bancroft PLLC, at a rate of $520 per hour for the case. If expenses go above the cap of $500,000, there is the opportunity to raise it.
The Speaker realizes he has a problem: he’s repeatedly asked AG Holder to put up the money he otherwise would have spent on DOMA, because BLAG has no appropriated budget. AG Holder has ignored Boehner’s repeated requests for money.
The mystery deepened during a House Legislative Branch Appropriations Subcommittee hearing on Thursday.
Rep. Michael Honda (D-Calif.) pressed House General Counsel Kerry Kircher on the matter. Although the contract states that “the General Counsel agrees to pay the Contractor for all contractual services,” Kircher said he was told by the House Republican leadership that no funds would come out of the Office of General Counsel’s budget for this purpose.
If Speaker Boehner has committed federal funds to Clement’s firm absent an authorization or appropriation, he may have violated the federal Anti-Deficiency Act:
On April 26, the three Democratic members of the Committee on House Administration wrote to Boehner, concerned about the source of the funding.
“How much of the cost will be borne by the budget of the House General Counsel?” wrote Reps. Robert Brady (D-Pa.), Zoe Lofgren (D-Calif.) and Charles Gonzalez (D-Texas). “This Committee is aware that the office of the General Counsel does not have $500,000, let alone the millions of taxpayer dollars which may be required to defend at least 12 DOMA-related lawsuits. If funding for the contract is reprogrammed or transferred from another source, what is that source and what is the approval authority?”
Americans have been pretty well convinced, by the House GOP no less, that there simply isn’t any extra money lying around except that due to waste and fraud. Did Speaker Boehner create some of his own waste and/or fraud?
There are criminal penalties for violating the Antideficiency Act. Chris Geidner pointed me to those penalties, which can be found at 31 U.S.C. § 1350.:
An officer or employee of the United States Government or of the District of Columbia government knowingly and willfully violating section 1341 (a) or 1342 of this title shall be fined not more than $5,000, imprisoned for not more than 2 years, or both.
Given how severe the financial situation is for the U.S. government (as we’re constantly reminded by the House GOPers), this certainly warrants jail time.
Speaker Boehner may need to decide soon: is one-man-one-woman opposite marriage — that specifically excludes same-sex couples — worth going to prison for? How important to the Speaker is DOMA’s defense? Important enough to check into the GrayBar Motel?
Just to keep two married dudes or two married ladies from having their legal marriage federally recognized? Is it worth it to The Boehn to be sure these folks can’t touch one another’s social security survivor benefits, or are prohibited from sponsoring each other’s immigration request, or are treated differently from other married people at tax time when they include their legal spouse in their employer health plans?
Does John Boehner really want to be Speaker of The Big House?