Editorial... Homophobia May Prove Costly To House Speaker Boehner

By Brody Levesque | Washington -- There's a little detail that the right honourable Speaker of the House, John Boehner, seems to have overlooked in his zeal to safeguard the "rights of the right" rushing to uphold the Defence of Marriage Act- Simply? Contracting with a law firm BEFORE having the money to pay that firm is illegal. The Antideficiency Act prohibits spending money that has not been through the correct channels and legal appropriation process and provides for a stiff penalty for those that ignore that fact at their own peril. 

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.

That's pretty straight forward folks. 

Joe Sudbay over at AMERICAblog wrote yesterday about the fiasco at the law firm of King & Spaulding which was the sole responsibility of former Bush Administration Solicitor General Paul Clement. Apparently the good counselor took on the GOP majority-led contractual obligation to defend DOMA without clearing/vetting the contract with the law firm's business review panel. Can we say unilateral oops? While its wonderful that King & Spaulding jettisoned that onerous bit of legal wrangling after a firestorm of criticism along with Clement's resignation, sadly, Clement just ran to another DC firm that apparently had no problems sucking up to the House GOPer's in their quest to halt, (God Forfend) same-sex marriage from infecting the country.

Ah but then, "it gets better." Amanda Terkel over at the Huffington Post asks the obvious question; "Who's gonna pay the lawyers?"

The House Bipartisan Legal Advisory Group, (BLAG), has no budget, since it's not an actual committee. Congress has not specifically appropriated $500,000 for this case. Boehner first asked the Justice Department to hand over "the funds it would have otherwise expended defending the constitutionality of DOMA" in April, but the agency has so far given no indication it will agree to his repeated requests.

Hmm, Justice most likely won't pay for it and U. S. Attorney General Eric Holder has told the press and even Congress that defence of DOMA wouldn't have cost DOJ all that much taking into account that the department would've used salaried full time government solicitors.
Goodness, what a tangled web we weave as we try to conceive- a half arsed attempt at defence of a discriminatory law. This fact has not escaped some distinguished members of the House:

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. Dan Strodel, the House's chief administrative officer, is the man who, according to Honda's office, would ultimately write the checks to Brancroft PLLC. But at the hearing, he also said he had no knowledge of where the money would come from.

Of course Speaker Boehner was quick to say, via his spokesman Michael Steel:

"Given Rep. Honda's concern, I hope he will join us in efforts to recoup any costs from the Department of Justice -- which is supposed to be defending the law in the first place."

Somehow I really don't thing that the gentleman from California will acquiesce to Boehner's request.  According to those knowledgeable with House procedures and Congressional rules, Congressman Honda may be on solid ground in his belief that the contract by BLAG violates the aforementioned Antideficiency Act.
Terkel continues in her reporting:

A source familiar with House finances told The Huffington Post that Honda may have a case. The House General Counsel signed the contract and agreed to pay the funds. But since he has admitted that his office doesn't have the money for this case, House leadership would have to have the funds reprogrammed or transferred from other House accounts. The source said that transfer should have been executed before Kircher signed the contract with Clement and Bancroft.

"The budget is tight for the House," said a Democratic Appropriations Committee aide. "All funds are pretty well accounted for. Trying to find $500,000 is not easy with the House budget as tightly wound as it is."

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?"

What really tickles me is Joe Sudbay's accurate summation of this sordid affair:

Sounds like the Department of Justice should now be investigating the Speaker and his counsel for breaking the law. The House Ethics Committee, as useless as it is, should also weigh in. The Speaker really wanted to demonstrate his homophobia by defending DOMA. He was so obsessed, he may have broken the law and the contract may not be valid. Paul Clement may be defending DOMA pro bono.