John Boehner

The Antideficiency Act is not the sort of federal law that an ordinary American would be familiar with. It applies to government officials who are in a position to spend government money. And it prohibits those officials from spending federal money unless Congress appropriates it to be spent.

It appears that Kerry Kircher, General Counsel of the U.S. House, may have violated the Antideficiency Act when he and House Administration Committee Chair Dan Lungren (R-Calif.), signed a contract to pay attorney Paul Clement half-a-million dollars to defend the Defense of Marriage Act (DOMA) in federal courts.

The problem, according to a recent report in the Huffington Post, is that the General Counsel’s office has no budget for the deal, and Congress has not appropriated $500,000 for those legal fees.

The Post says House Speaker John Boehner (R-Ohio) appeared to acknowledge the problem in April when he suggested the Justice Department should turn over funds it would have spent defending DOMA.

But, as Attorney General Eric Holder said, the Justice Department did not have a specific budget to defend DOMA. It simply has staff attorneys who do work as assigned.

Democratic Rep. Michael Honda of California and others think the contract with Clement violates the Antideficiency Act.

Honda is the ranking Democrat on the subcommittee for House Legislative Branch Appropriations, which oversees appropriations for the House. During a subcommittee hearing May 12, Honda suggested the contract with Clement and his newly adopted law firm, Bancroft, may be a case where “an overzealous House Speaker committed $500,000 of the American people’s tax dollars to push a partisan and political agenda without having a funding source in place.”

“If so,” said Honda, “do Speaker Boehner’s actions violate the Antideficiency Act?” Honda did not attempt to answer the question and has not yet taken any action to test the issue.

Instead, Honda posed a political question: “If the message from the last election is to cut spending, then why is Speaker Boehner forcing Americans to pay a high-priced private law firm $520 per hour to defend a Constitutionally-flawed and discriminatory law?”

During his testimony before the subcommittee on May 12, General Counsel Kerry Kircher did not ask for any increase in the General Counsel’s budget for Fiscal Year 2012. The request for FY 2012—$1.4 million—is the same as for FY 2011. In fact, he never mentioned the contract with Clement at all.

Money may become an issue for Boehner’s efforts to defend DOMA in another way—the sheer number of federal legal challenges underway. There are at least 11, in one phase of litigation or another. And it is exceedingly unlikely that $500,000—even a properly authorized $500,000—will stretch far and wide enough to mount defenses in every case.

“$500,000 is a paltry amount that surely will be quickly exhausted,” said Jon Davidson, legal director for Lambda Legal Defense and Education Fund. He noted that a tax form filed by the American Foundation for Equal Rights, the organization funding the litigation to overturn Proposition 8, showed it paid Ted Olson’s law firm “almost 1.7 million dollars” in 2009, “for just one year for just one case.” Davidson said he believes there are 15 DOMA-related lawsuits underway.

Interestingly, Clement and his associates have not filed to intervene in every DOMA-related case.

So far, court records indicate they have filed to intervene only in three: in the Gay & Lesbian Advocates & Defenders (GLAD) case Pedersen v. Office of Personnel Management, in federal district court in Connecticut; in the ACLU’s case Windsor v. U.S. in New York; and in the Golinski v. OPM case, seeking the right to health coverage for a same-sex spouse, a case pending before the 9th Circuit.

They have not yet filed to intervene in GLAD’s Gill v. OPM cases (one lawsuit, two cases) or in Massachusetts v. HHS, which is consolidated with the Gill cases. Those cases are still in the briefing phase before the First Circuit and Chief Judge Sandra Lynch ordered the government to indicate by June 1 whether “and, if so, when,” the Attorney General would submit a report to both houses of Congress indicating his intentions regarding the Gill and Massachusetts cases and what Congress intends to do.

House General Counsel Kircher has intervened in a tax-related DOMA challenge, Dragovitch v. Treasury, in Oakland, California. But neither Kircher nor Clement has intervened in at least four other lesser-known DOMA challenges.

But attorneys on several of the cases for which Clement and/or Kircher have not yet intervened said both men have indicated an intention to do so.