When Paul Clement left King & Spalding last week and joined up with the Bancroft firm, he took his big new client with him, the House of Representatives, who had hired him to defend against repeal of the Defense of Marriage Act. According to the new retainer agreement Clement signed with the House, he and two other lawyers at Bancroft, H. Christopher Bartolomucci and Conor B. Dugan, will be doing the bulk of the work. Both Bertolumucci and Dugan have stellar conservative credentials. Bartolomucci was president of the Federalist Society when he was a law student at Harvard, later worked on the Hill for Alphonse D'Amato investigating the Clintons in the Whitewater scandal, and served in the White House from 2001 to 2003 as Associate Counsel to President George Bush. Dugan served in the Bush DOJ Civil Rights Division during the period in which the office was accused of ideologically-based hiring. The Washington Post quoted him in 2007 as explaining that the head of the Division moved out career lawyers, lawyers who also happened to be women of color, "to make room for some good Americans."
The new retainer agreement contains the same gag language as did the agreement with King & Spalding:
That all of its shareholders and employees who do [or do] not perform services pursuant to this Agreement will not engage in lobbying or advocacy for or against any legislation (i) that is pending before the Committee during the term of the Agreement, or (ii) that would alter or amend in any way the Defense of Marriage Act and is pending before either the U.S. House of Representatives or the U.S. Senate or any committee of either body during the term of the Agreement.
Perhaps my favorite clause in the agreement is one that in which the Bancroft firm pledges that it "will not discriminate in its performance of this agreement because of race, color, religion, sex, national origin, age, disability or any other prohibited basis, and shall comply with all applicable employment laws."
Of course, the basic purpose of the representation is to undertake advocacy that affirmatively discriminates on the basis of sexual orientation -- so isn't it quaint that the General Counsel's office of the House of Representatives insists that the firm not discriminate on any other grounds while doing so? One interesting question is whether this language bars Clement and his sidekicks from making arguments that could be understood as sexist or racist in nature -- such as denying that DOMA amounts to a form of sex discrimination?
As I mentioned in a previous post, the gag language in the agreement most likely violates local laws granting employees broad rights to political advocacy and speech in their off-work time. And it's hard not to be offended by the House authorizing payment to Clement and the firm for their work up to a ceiling of $500,000 -- that's at a rate of $520/hour. At a time of severe financial hardship when the government is forced to make devastating cuts across the board, it seems particularly offensive that the Republican leadership in the House is willing to shell out $500,000 to defend against efforts to repeal this law. Those members of the House who believe in the rightness of the Defense of Marriage Act should defend their case with the strength of their political arguments -- what is it about this issue that somehow renders them particularly in need of the assistance of high paid, high powered lawyers, whose fees will be paid by the taxpayers? Are their political arguments in favor of DOMA so weak that they feel they need the help of outside counsel? Hmmm.
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