CREW: Office of Congressional Ethics: Ethics Complaint Against Speaker John Boehner: 6/14/11 - Exhibits

EXHIBIT A
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The Honorable John A. Boehner
Speaker
U.S. House of Representatives
Washington, DC 20515
February 23, 2011
Re: Defense of Marriage Act
Dear Mr. Speaker:
After careful consideration, including review of a recommendation from me, the
President of the United States has made the determination that Section 3 of the Defense of
Marriage Act ("DOMA"), 1 U.S.C. 7,
1
as applied to same-sex couples who are legally married
under state law, violates the equal protection component of the Fifth Amendment. Pursuant to
28 U.S.C. 530D, I am writing to advise you of the Executive Branch's determination and to
inform you of the steps the Department will take in two pending DOMA cases to implement that
determination.
While the Department has previously defended DOMA against legal challenges involving
legally married same-sex couples, recent lawsuits that challenge the constitutionality ofDOMA
Section 3 have caused the President and the Department to conduct a new examination of the
defense of this provision. In particular, in November 2011, plaintiffs filed two new lawsuits
challenging the constitutionality of Section 3 of DOMAin jurisdictions without precedent on
whether sexual-orientation classifications are subject to rational basis review or whether they
must satisfy some form of heightened scrutiny. Windsor v. United States, No. 1:1 0-cv-8435
(S.D.N.Y.); Pedersen v. OPM, No. 3:10-cv-1750 (D. Conn.). Previously, the Administration has
defended Section 3 in jurisdictions where circuit courts have already held that classifications
' DOMA Section 3 states: "In detennining the meaning of any Act of Congress, or of any ruling, regulation, or
interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means
only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a
person of the opposite sex who is a husband or a wife."
based on sexual orientation are subject to rational basis review, and it has advanced arguments to
defend DOMA Section 3 under the binding standard that has applied in those cases.
2
These new lawsuits, by contrast, will require the Department to take an affirmative
position on the level of scrutiny that should be applied to DOMA Section 3 in a circuit without
binding precedent on the issue. As described more fully below, the President and I have
concluded that classifications based on sexual orientation warrant heightened scrutiny and that,
as applied to same-sex couples legally married under state law, Section 3 ofDOMA is
unconstitutional.
Standard of Review
The Supreme Court has yet to rule on the appropriate level of scrutiny for classifications
based on sexual orientation. It has, however, rendered a number of decisions that set forth the
criteria that should inform this and any other judgment as to whether heightened scrutiny applies:
(I) whether the group in question has suffered a history of discrimination; (2) whether
individuals "exhibit obvious, immutable, or distinguishing characteristics that define them as a
discrete group"; (3) whether the group is a minority or is politically powerless; and (4) whether
the characteristics distinguishing the group have little relation to legitimate policy objectives or
to an individual's "ability to perform or contribute to society." See Bowen v. Gilliard, 483 U.S.
587, 602-03 (I 987); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 441-42 (1985).
Each of these factors counsels in favor of being suspicious of classifications based on
sexual orientation. First and most importantly, there is, regrettably, a significant history of
purposeful discrimination against gay and lesbian pe{)ple, by governmental as well as private
entities, based on prejudice and stereotypes that continue to have ramifications today. Indeed,
until very recently, states have "demean[ ed] the[] existence" of gays and lesbians "by making
their private sexual conduct a crime." Lawrence v. Texas, 539 U.S. 558, 578 (2003).
3
2
See, e.g., Dragovich v. U.S. Department of the Treasury, 2011 WL 175502 (N.D. Cal. Jan. 18, 2011); Gil/ v. Office
of Personnel Management, 699 F. Supp. 2d 374 (D. Mass. 2010); Smelt v. County of Orange, 374 F. Supp. 2d 861,
880 (C. D. Cal.,2005); Wilson v. Ake, 354 F.Supp.2d 1298, 1308 (M.D. Fla. 2005); In re Kandu, 315 B.R. 123, 145
(Bkrtcy. W.D. Wash. 2004); In re Levenson, 587 F.3d 925, 931 (9th Cir. E.D.R. Plan Administrative Ruling 2009).
3
While significant, that history of discrimination is different in some respects from the discrimination that burdened
African-Americans and women. See Adarand Constructors, Inc. v. Pen a, 515 U.S. 200, 216 (I 995) (classifications
based on race "must be viewed in light of the historical fact that the central purpose of the Fourteenth Amendment
was to eliminate racial discrimination emanating from official sources in the States," and "[t]his strong policy
renders racial classifications 'constitutionally suspect."'); United States v. Virginia, 518 U.S. 515, 531 (1996)
(observing that '"our Nation has had a long and unfortunate history of sex discrimination"' and pointing out the
denial of the right to vote to women until 1920). In the case of sexual orientation, some of the discrimination has
been based on the incorrect belief that sexual orientation is a behavioral characteristic that can be changed or subject
to moral approbation. Cf Cleburne, 473 U.S. at 441 (heightened scrutiny may be warranted for characteristics
"beyond the individual's control" and that "very likely reflect outmoded notions of the relative capabilities of' the
group at issue); Boy Scouts of America v. Dale, 530 U.S. 640 (2000) (Stevens, J., dissenting) ("Unfavorable opinions
about homosexuals 'have ancient roots."' (quoting Bowers, 478 U.S. at 192)).
2
Second, while sexual orientation carries no visible badge, a growing scientific consensus
accepts that sexual orientation is a characteristic that is immutable, see Richard A. Posner, Sex
and Reason 101 (1992); it is undoubtedly unfair to require sexual orientation to be hidden from
view to avoid discrimination, see Don't Ask, Don't Tell Repeal Act of201 0, Pub. L. No. 111-
321, 124 Stat. 3515 (2010).
Third, the adoption of laws like those at issue in Romer v. Evans, 517 U.S. 620 (1996),
and Lawrence, the longstanding ban on gays and lesbians in the military, and the absence of
federal protection for employment discrimination on the basis of sexual orientation show the
group to have limited political power and "ability to attract the [favorable] attention of the
lawmakers." Cleburne, 473 U.S. at 445. And while the enactment of the Matthew Shepard Act
and pending repeal of Don't Ask, Don't Tell indicate that the political process is not closed
entirely to gay and lesbian people, that is not the standard by which the Court has judged
"political powerlessness." Indeed, when the Court ruled that gender-based classifications were
subject to heightened scrutiny, women already had won major political victories such as the
Nineteenth Amendment (right to vote) and protection under Title VII (employment
discrimination).
Finally, there is a growing acknowledgment that sexual orientation "bears no relation to
ability to perform or contribute to society." Frontiero v. Richardson, 411 U.S. 677, 686 (1973)
(plurality). Recent evolutions in legislation (including the pending repeal of Don't Ask, Don't
Tell), in community practices and attitudes, in case law (including the Supreme Court's holdings
in Lawrence and Romer), and in social science regarding sexual orientation all make clear that
sexual orientation is not a characteristic that generally bears on legitimate policy objectives. See,
e.g., Statement by the President on the Don't Ask, Don't Tell Repeal Act of201 0 ("It is time to
recognize that sacrifice, valor and integrity are no more defined by sexual orientation than they
are by race or gender, religion or creed.")
To be sure, there is substantial circuit court authority applying rational basis review to
sexual-orientation classifications. We have carefully examined each of those decisions. Many
of them reason only that if consensual same-sex sodomy may be criminalized under Bowers v.
Hardwick, then it follows that no heightened review is appropriate - a line of reasoning that does
not survive the overruling of Bowers in Lawrence v. Texas, 538 U.S. 558 (2003).
4
Others rely on
claims regarding "procreational responsibility" that the Department has disavowed already in
litigation as unreasonable, or claims regarding the immutability of sexual orientation that we do
not believe can be reconciled with more recent social science understandings.
5
And none
4
See Equality Foundation v. City of Cincinnati, 54 F.3d 261,266-67 & n. 2. (6th Cir. 1995); Steffan v. Perry, 41
F.3d 677, 685 (D.C. Cir. 1994); Woodwardv. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989); Ben-Shalom v.
Marsh, 881 F.2d 454, 464 (7th Cir. 1989); Padula v. Webster, 822 F.2d 97, l 03 (D.C. Cir. 1987).
5
See, e.g., Lofton v. Secretary of the Dep 't of Children & Family Servs., 358 F.3d 804, 818 (II th Cir. 2004)
(discussing child-rearing rationale); High Tech Gays v. Defense Jndust. Sec. Clearance Office, 895 F.2d 563, 571
(9th Cir. 1990) (discussing immutability). As noted, this Administration has already disavowed in litigation the
3
engages in an examination of all the factors that the Supreme Court has identified as relevant to a
decision about the appropriate level of scrutiny. Finally, many of the more recent decisions have
relied on the fact that the Supreme Court has not recognized that gays and lesbians constitute a
suspect class or the fact that the Court has applied rational basis review in its most recent
decisions addressing classifications based on sexual orientation, Lawrence and Romer.
6
But
neither of those decisions reached, let alone resolved, the level of scrutiny issue because in both
the Court concluded that the laws could not even survive the more deferential rational basis
standard.
Application to Section 3 of DOMA
In reviewing a legislative classification under heightened scrutiny, the government must
establish that the classification is "substantially related to an important government objective."
Clark v. Jeter, 486 U.S. 456, 461 (1988). Under heightened scrutiny, "a tenable justification
must describe actual state purposes, not rationalizations for actions in fact differently grounded."
United States v. Virginia , 518 U.S. 515, 535-36 (1996). "The justification must be genuine, not
hypothesized or invented post hoc in response to litigation." !d. at 533.
In other words, under heightened scrutiny, the United States cannot defend Section 3 by
advancing hypothetical rationales, independent of the legislative record, as it has done in circuits
where precedent mandates application of rational basis review. Instead, the United States can
defend Section 3 only by invoking Congress' actual justifications for the law.
Moreover, the legislative record underlying DOMA's passage contains discussion and
debate that undermines any defense under heightened scrutiny. The record contains numerous
expressions reflecting moral disapproval of gays and lesbians and their intimate and family
relationships- precisely the kind of stereotype-based thinking and animus the Equal Protection
Clause is designed to guard against.
7
See Cleburne, 473 U.S. at 448 ("mere negative attitudes, or
argument that DOMA serves a governmental interest in "responsible procreation and child-rearing." H.R. Rep. No.
I 04-664, at 13. As the Department has explained in numerous filings, since the enactment of DOMA, many leading
medical, psychological, and social welfare organizations have concluded, based on numerous studies, that children
raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents.
6
See Cook v. Gates, 528 F.3d42, 61 (1st Cir. 2008); Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 866 (8th Cir.
2006); Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004); Veney v. Wyche, 293 F.3d 726, 732 (4th Cir. 2002);
Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati, 128 F.3d 289, 292-94 (6th Cir. 1997).
7
See, e.g., H.R. Rep. at 15-16 (judgment [opposing same-sex marriage] entails both moral disapproval of
homosexuality and a moral conviction that heterosexuality better comports with traditional (especially Judeo-
Christian) morality"); id. at !6 (same-sex marriage "legitimates a public union, a legal status that most people
feel ought to be illegitimate" and "put[s] a stamp of approval ... on a union that many people ... think is
immoral"); id. at 15 ("Civil laws that permit only heterosexual marriage reflect and honor a collective moral
judgment about human sexuality"); id. (reasons behind heterosexual marriage--procreation and child-rearing-are
"in accord with nature and hence have a moral component"); id. at 31 (favorably citing the holding in Bowers that an
"anti-sodomy law served the rational purpose of expressing the presumed belief ... that homosexual sodomy is
immoral and unacceptable"); id. at 17 n.56 (favorably citing statement in dissenting opinion in Romer that "[t]his
Court has no business ... pronouncing that 'animosity' toward homosexuality is evil").
4
fear" are not permissible bases for discriminatory treatment); see also Romer, 517 U.S. at 635
(rejecting rationale that law was supported by "the liberties of landlords or employers who have
personal or religious objections to homosexuality"); Palmore v. Sidotti, 466 U.S. 429, 433 (1984)
("Private biases may be outside the reach of the law, but the law cannot, directly or indirectly,
give them effect.").
Application to Second Circuit Cases
After careful consideration, including a review of my recommendation, the President has
concluded that given a number of factors, including a documented history of discrimination,
classifications based on sexual orientation should be subject to a heightened standard of scrutiny.
The President has also concluded that Section 3 ofDOMA, as applied to legally married same-
sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion,
the President has instructed the Department not to defend the statute in Windsor and Pedersen,
now pending in the Southern District of New York and the District of Connecticut. I concur in
this determination.
Notwithstanding this determination, the President has informed me that Section 3 will
continue to be enforced by the Executive Branch. To that end, the President has instructed
Executive agencies to continue to comply with Section 3 ofDOMA, consistent with the
Executive's obligation to take care that the laws be faithfully executed, unless and until Congress
repeals Section 3 or the judicial branch renders a definitive verdict against the law's
constitutionality. This course of action respects the actions of the prior Congress that enacted
DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised.
As you know, the Department has a longstanding practice of defending the
constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense, a
practice that accords the respect appropriately due to a coequal branch of government. However,
the Department in the past has declined to defend statutes despite the availability of
professionally responsible arguments, in part because the Department does not consider every
plausible argument to be a "reasonable" one. "[D]ifferent cases can raise very different issues
with respect to statutes of doubtful constitutional validity," and thus there are "a variety of
factors that bear on whether the Department will defend the constitutionality of a statute." Letter
to Hon. Orrin G. Hatch from Assistant Attorney General Andrew Fois at 7 (Mar. 22, 1996). This
is the rare case where the proper course is to forgo the defense of this statute. Moreover, the
Department has declined to defend a statute "in cases in which it is manifest that the President
has concluded that the statute is unconstitutional," as is the case here. Seth P. Waxman,
Defending Congress, 79 N.C. L.Rev. 1073, 1083 (2001).
In light of the foregoing, I will instruct the Department's lawyers to immediately inform
the district courts in Windsor and Pedersen of the Executive Branch's view that heightened
scrutiny is the appropriate standard of review and that, consistent with that standard, Section 3 of
5
DOMA may not be constitutionally applied to same-sex couples whose marriages are legally
recognized under state law. If asked by the district courts in the Second Circuit for the position
of the United States in the event those courts determine that the applicable standard is rational
basis, the Department will state that, consistent with the position it has taken in prior cases, a
reasonable argument for Section 3's constitutionality may be proffered under that permissive
standard. Our attorneys will also notify the courts of our interest in providing Congress a full
and fair opportunity to participate in the litigation in those cases. We will remain parties to the
case and continue to represent the interests of the United States throughout the litigation.
Furthermore, pursuant to the President's instructions, and upon further notification to
Congress, I will instruct Department attorneys to advise courts in other pending DOMA litigation
of the President's and my conclusions that a heightened standard should apply, that Section 3 is
unconstitutional under that standard and that the Department will cease defense of Section 3.
A motion to dismiss in the Windsor and Pedersen cases would be due on March 11, 2011.
Please do not hesitate to contact us if you have any questions.
6
Sincerely yours,
Eric H. Holder, Jr.
Attorney General
EXHIBIT B
Case: 10-2204 Document: 00116211258 Page: 2 Date Filed: 05/20/2011 Entry ID: 5552128
fJrf'it:t: ,,f lilt: .... ... l"'hil\1
Mr. Kerry Kircher
General Counsel
Washington. DC 20515
U.S. Department of Justice
Offke of Legislative Affairs
- . "' - -- .. -- . - ...... . .... - ....
February 25, 2011
Re: Information on Defense of Marriage Act Litigation
Dear Mr. Kircher:
Pursuant to the Attorney General's letter to you under 28 U.S.C. 530D, dated February
23, 2011, we are providing follow-up information concerning thosepending cases where Section
3 of the Defense of Marriage Act has been challenged and the Department of Justice will
cease its defense of Section 3. While we will remain a party to these cases in order to represent
the interests of the United we are notifying you of the details.ofthese specific cases in
order to provide Congress a full and fair opportunity to participate in the litigation of them. A
list of all pending cases is enclosed, along with signitlcant upcoming litigation deadlines in those
cases. Should you have any questions regarding participation in these matters. please direct them
to Judith C. Appelbaum, Deputy Assistant Attorney General, Office of Legislative Affairs, at
202-514-2141.
We hope this information is helpful. Please do not hesitate to contact this office if we
may provide additional assistance regarding this or any other matter.
Sincerely,
Ronald Weich
Assistant Attorney General .
Enclosure
Pending cases where the Defense of Marriage Act is being challenged:
Bishop v. United States, No. 04-848 (N.D. Okla.)
No impending deadlines, but motion to dismiss pending decision.
Commonwealth of Massachusetts v. U.S. Dep 't of Health and Human Services, et a!., No. 09-
11156 (D. Mass), on appeal, No. 10-2204 (1st Cir.), consolidated with Gillv. OPM, Nos. 10-
2207 & 10-2214.
Appellees' brief for plaintiffs due March 1, 2011
Consolidated reply brief for defendants due April4, 2011
Dragovich, eta/. v. Department of the Treasury, et al., No. 10-1564 (N.D. Cal.)
Defendants' discovery on class certification due February 28, 2011
Plaintiff's motion for class certification due April 14, 2011
Defendants' response to motion for class certification due May 12,2011
Plaintiffs' reply in support of motion for class certification due May 26, 2011
Hearing on class certification scheduled for June 9, 2011
Discovery closes on September 30, 2011
Defendants' summary judgment brief due October 6, 2011
Plaintiffs' opposition/cross motion for summary judgment due November 3, 2011
Defendants' reply/opposition to cross motion due December 1, 2011
Plaintiffs' reply due December 22, 2011
Hearing on the cross motions for summary judgment scheduled for January 5, 2012
Gill, et al. v. Office of Personnel Management, et ~ ! . , N o . 09-10309 (D. Mass.), on appeal, Nos.
10-2207 & 10-2214 (1st Cir.), consolidated with Commonwealth of Massachusetts v. HHS, No.
10-2204.
Plaintiff's brief as appellee due March 1, 2011
Consolidated reply brief of defendants due April4, 2011
Golinski v. Office of Personnel Management, No. 10-00257 (N.D. Cal.)
1
Response to court inquiry due February 28, 2011
Hara v. Office of Personnel Management, No. 09-3134 (Fed. Cir.)
No impending deadlines
Lui v .. Holder, No. 09-72068 (9th Cir.)
Case stayed pending administrative action and no impending deadlines
Pedersen eta/. v. OPMetal., No.10-CV-1750 (D. Conn.)
Defendants' motion to dismiss due March 11, 2011
Plaintiffs' opposition and cross-motion for judgment on pleadings or summary
judgment due March 3 i, 2011
Defendants' reply and opposition to plaintiffs' brief due May 16, 2011.
Plaintiffs' reply brief due June 20, 2011
Torres-Barragan v. Holder, No. 10-55768 (9th Cir.), consolidated with Nos. 08-73745 & 09-
71226 for purposes of calendaring
Defendant's brief as appellee due on March 28, 2011
Torres-Barragan v. Holder, Nos. 08-73745 & 09-71226 (9th Cir.), consolidated with No. 10-
55768 for purposes of calendaring
Fully briefed and awaiting oral argument
Windsor v. United States, No. 10-CV-8435 (S.D.N.Y.)
Defendant's motion to dismiss due March 11, 2011
Plaintiff's opposition to motion dismiss and cross-motion for summary judgment due
April 11, 2011
Defendant's reply in support of its motion to dismiss and government's motion, if
any, to stay briefmg and consideration of plaintiff's cross-motion for summary
judgment due April25, 2011
If no motion to stay is filed by the government, then opposition to plaintiff's motion
for summary judgment due May 9, 2011
1
While this case does not assert a direct challenge to the constitutionality of Section 3 ofDOMA, the district court
previously ordered supplemental briefing on this issue, and the parties provided such briefing.
EXHIBIT C
Statement by House Speaker John Boehner (R-OH) Regarding the De ... http://www.speaker.gov/News/DocumentSingle.aspx?DocumentiD=2 ...
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PRESS RELEASE
Statement by House Speaker John Boehner (R-OH) Regarding the
Defense of Marriage Act
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Washington (Mar 4) House Speaker John Boehner (ROH) today issued the following statement regarding the
status of the Defense of Marriage Act (DOMA):
"I will convene a meeting of the Bipartisan Legal Advisory Group for the purpose of initiating action by the
House to defend this law of the United States, which was enacted by a bipartisan vote in Congress and
signed by President Bill Clinton. It is regrettable that the Obama Administration has opened this divisive
issue at a time when Americans want their leaders to focus on jobs and the challenges facing our economy.
The constitutionality of this law should be determined by the courts .. not by the president unilaterally and
this action by the House will ensure the matter is addressed in a manner consistent with our Constitution."
NOTE: The Bipartisan Legal Advisory Group is a five-member panel consisting of the Speaker of the House,
Majority Leader, Majority Whip, Minority Leader, and Minority Whip. Under House rules, the advisory group
has the authority to instruct the non-partisan office of the House General Counsel to take legal action on
behalf of the House of Representatives.
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5/18/2011 9:49AM
EXHIBIT D
Case 1:1 0-cv-08435-BSJ -JCF Document 12 Filed 04/18/11 Page 1 of 3
UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK
EDITH SCHLAIN WINDSOR, in her
capacity as Executor of the Estate of THEA
CLARA SPYER,
Plaintiff,
vs.
THE UNITED STATES OF AMERICA,
Defendant.
)
)
)
)
)
)
) Case No. I: 1 0-cv-843 5 (BSJ) (JCF)
) ECF Case
)
)
)
)
UNOPPOSED MOTION OF THE BIPARTISAN LEGAL ADVISORY GROUP
OF THE U.S. HOUSE OF REPRESENTATIVES
TO INTERVENE FOR A LIMITED PURPOSE
Pursuant to Rule 24(a), (b) of the Federal Rules of Civil Procedure and 28 U.S.C.
530D(b)(2), 2403, and for the reasons set forth in the accompanying Memorandum of Points and
A\,lthorities, the Bipartisan Legal Advisory Group of the U.S. House ofRepresentatives
(hereinafter "the House") respectfully moves for leave to intervene as a party defendant in this
matter for the limited purpose of defending the constitutionality of Section III of the Defense of
Marriage Act, Pub. No. L. 104-199, 110 Stat. 2419 (Sept. 21, 1996), codified at 1 U.S.C. 7
("DOMA"), from attack on the ground that it violates the equal protection component of the
Fifth Amendment Due Process Clause.
1
The Department of Justice has stated that it will
1
The United States House of Representatives has articulated its institutional position in
litigation matters through a five-member bipartisan leadership group since at least the early
1980's (although the formulation ofthe group's name has changed somewhat over time). Since
1993, the House rules have formally acknowledged and referred to the Bipartisan Legal
Advisory Group, as such, in connection with its function of providing direction to the Office of
the General Counsel. See, e.g., Rule 1.11, Rules ofthe House of Representatives, 103rd Cong.
"continue to represent the interests of the United States" in this litigation, Letter from Tony
West, Assistant Attorney General, to the Honorable Barbara S. Jones (Feb. 24, 2011), attached to
Notice to the Court by Defendant United States of America (Feb. 25, 2011), and we understand
that to mean that the Department will take full responsibility for litigating issues other than
Section III's constitutionality under the equal protection component ofthe Due Process Clause.
Counsel for the House has conferred with Roberta A. Kaplan, Esq., counsel for plaintiff,
who has (i) advised that plaintiff does not oppose the relief sought by this motion, and (ii) agreed
that the House should not be required to file an Answer or other "pleading" in conjunction with
this motion. The Department of Justice has also informed us that the United States does not
oppose this motion to intervene for purposes of presenting arguments in support of the
constitutionality of Section 3 ofDOMA, but will be filing a response to explain its position. In
addition, the United States agrees that the motion need not be accompanied by a pleading.
(1993); Rule II.8, Rules of the House of Representatives, 112th Cong. (2011). While the group
seeks consensus whenever possible, it functions on a majoritarian basis, like the institution it
represents, when consensus cannot be achieved. The Bipartisan Legal Advisory Group is
currently comprised ofthe Honorable John A. Boehner, Speaker of the House, the Honorable
Eric Cantor, Majority Leader, the Honorable" Kevin McCarthy, Majority Whip, the Honorable
Nancy Pelosi, Democratic Leader, and the Honorable Steny H. Hoyer, Democratic Whip. The
Democratic Leader and the Democratic Whip decline to support the filing of this motion.
2
A proposed Order is submitted herewith and oral argument is not requested.
Of Counsel:
Kerry W. Kircher, General Counsel
John D. Filamor, Sr. Assistant Counsel
Christine Davenport, Sr. Asst. Counsel
Katherine E. McCarron, Asst. Counsel
William Pittard, Assistant Counsel
Kirsten W. Konar, Assistant Counsel
OFFICE OF THE GENERAL COUNSEL
219 Cannon House Office Bldg.
Washington, D.C. 20515
(202) 225-9700 (phone)
(202) 226-1360 (fax)
Respectfully submitted,
Is/ Paul D. Clement
Paul D. Clement, Esq.
JeffreyS. Bucholtz, Esq.
Nicholas J. Nelson, Esq.
KING & SP AiDING LLP
2
1700 Pennsylvania Avenue, NW
Suite 200
(202) 737-0500 (phone)
(202) 626-3737 (fax)
Counsel for the Bipartisan Legal Advisory Group
of the U.S. House ofRepresentatives
April 18, 2011
2
King & Spalding LLP has been "specially retained by the Office of General Counsel"
of the House to litigate the constitutionality of Section III of DOMA on behalf of the House. Its
attorneys are, therefore, "entitled, for the purpose of performing [that] function[], to enter an
appearance in any proceeding before any court of the United States ... without compliance with
any requirement for admission to practice before such court .... " 2 U.S.C. 130f(a).
3
EXHIBIT E
#DOMA vote no surprise-Hoyer & I NO Boehner, Cantor, McCa ... o ...
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l\1ajority Leader Eric Cantor
Authority to Intervene or File Amicus
I move that the bipartisan legal advisory group "BLAGH recommend that the
Speaker the General Counsel to:
(i) take such steps as he considers appropriate) including intervention or
submission of briefs curiae, to protect the interests of the House in
litigation in which the Attomey General has ceased to defend the constitutionality
of section 3 qfthe Defense of Marriage Act;
(ii) retain counsel to conduct such litigation on behalf of the BLAG; and
(iii) coordinate such litigation -vvith such counseL
5/26/2011 1 :41 PM
EXHIBIT F
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Statement After Bipartisan Legal Advisory Group Vote on DOMA
Pelosi Statement After Bipartisan Legal Advisory
Group Vote on DOMA
March 09, 2011
Washington, D.C.- Democratic Leader Nancy Pelosi released the following statement today after the Bipartisan
Legal Advisory Group voted, along party lines, to initiate action by the House to defend the Defense of Marriage
Act in court, potentially costing American taxpayers hundreds of thousands of dollars:
"President Obama took a bold step forward for civil rights when he announced that the federal government would
no longer argue to uphold the Defense of Marriage Act in court. DOMA is discriminatory; it's unfair and
indefensible; and it betrays our nation's long-held - and long-cherished -value of equality for all.
"Since its proposal and passage, this legislation has raised constitutional questions and has been viewed as a
violation of the equal protection clause. The House should not be in the business of defending an unconstitutional
statute that is neither rational nor serves any governmental interest. DOMA actually discriminates against
American families.
"Given the complexity and number of cases, this legal challenge would sap hundreds of thousands of taxpayer
dollars, if not more, during a time of limited fiscal resources.
"Pursuing this legal challenge distracts from our core challenges: creating jobs, strengthening the middle class,
and responsibly reducing the deficit. And that is why I voted against this action today."
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PRESS RELEASE
House Will Ensure DOMA Constitutionality is Determined by the
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Washington (Mar 9) House Speaker John Boehner (R-OH) today issued the following statement regarding the
Defense of Marriage Act (DOMA):
"Today, after consultation with the Biparlisan Leadership Advisory Group, the House General Counsel has
been directed to initiate a legal defense of this law. This action by the House will ensure that this law's
constitutionality is decided by the courls, rather than by the President unilaterally."
NOTE: The Bipartisan Legal Advisory Group is a five-member panel consisting of the Speaker of the House,
Majority Leader, Majority Whip, Minority Leader, and Minority Whip. Under House rules, the advisory group
has the authority to instruct the non-partisan office of the House General Counsel to take legal action on
behalf of the House of Representatives.
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AMERICA'S LEADING GAY NEWS SOURCE
NATIONAL NEWS. POLITICAL NEWS
Boehner Panel Directs Counsel To Defend DOMA
March 9, 2011 1111 4 Comments
By Cl1ris Johnson on March 9, 2011
A U.S. House panel on Wednesday voted along party lines to direct general counsel to defend the
Defense of Marriage Act in court following President Obama's announcement that his
administration would no longer defend the statute against litigation.
In a statement, House Speaker John Boehner (R-Ohio) said the Bipartisan Legal Advisory Group,
which he convened last week after the president's announcement, had come to the conclusion to
direct the House General Counsel to defend DOMA after the Wednesday meeting.
"Today, after consultation with the Bipartisan Leadership Advisory Group, the House General Counsel
has been directed to initiate a legal defense of this law," Boehner said. "This action by the House will
ensure that this law's constitutionality is decided by the courts, rather than by the President
unilaterally."
U.S. House Speaker John Boehner (Blade photo
by Michael Key).
The five-member Bipartisan Legal Advisory Group consists of the speaker, the majority leader, the majority whip, the minority leader, and minority whip.
Michael Steel, a Boehner spokesperson, said the panel voted 3-2 to direct the House General Counsel to take up defend of DOMA, but had no information
on any discussion that took place beforehand.
Boehner as well as House Majority Leader Eric Cantor (R-Va.) and House Majority Whip Kevin McCarthy (R-Calif.) voted in favor of directing counsel to
defend the statute, while House Minority Leader Nancy Pelosi (D-Calif.) and House Minority Whip Steny Hoyer (D-Md.) voted against such action.
Passed by Congress in 1996 and signed into law by then-President Clinton, DOMA prohibits the federal government from recognizing same-sex marriages
and providing married gay couples with the federal benefits of marriage.
Last month, U.S. Attorney General Eric Holder announced that the Obama administration would no longer defend DOMAin court and sent a letter to
Congress informing lawmakers of the Justice Department's decision. The move left the decision of whether to continue defense of DOMAin court to
Congress.
Litigation filed against the statute in the Second Circuit- where there's no precedent for laws related to sexual orientation- allowed the administration to
conclude that DOMA is unconstitutional and to call on the court to examine the law with heightened scrutiny.
In a statement, Pelosi denounced the panel's decision to take up defense of DOMAin court and called the statute "discriminatory"
as well as "unfair and indefensible."
"Since its proposal and passage, this legislation has raised constitutional questions and has been viewed as a violation of the
equal protection clause," Pelosi said. "The House should not be in the business of defending an unconstitutional statute that is
neither rational nor serves any governmental interest. DOMA actually discriminates against American families."
Pelosi said the defense of DOMAwould sap the U.S. government of "hundreds of thousands of taxpayer dollars, if not more" at a
time when fiscal resources are limited.
"Pursuing this legal challenge distracts from our core challenges: creating jobs, strengthening the middle class, and responsibly
reducing the deficit," she said. "And that is why I voted against this action today."
Joe Solmonese, president of the Human Rights Campaign, also criticized the panel for voting to take action to defend DOMA.
House Minority
Leader Nancy Pelosi
(Blade photo by
Michael Key)
"Apparently, the Republicans' jobs plan is a full employment project for right-wing lawyers bent on defending discrimination," Solmonese said. "With today's
vote, Speaker Boehner has made clear that an anti-equality agenda trumps helping American families in tough economic times, including loving and
committed couples who are legally married in their states."
But Casey Pick, programs director for Log Cabin Republicans, said Boehner's decision to defend DOMA after consulting with the panel is "entirely
appropriate."
"While Log Cabin Republicans firmly believe that DOMA is an unconstitutional intrusion on states' rights and a violation of individual liberty, we agree with
the speaker that the constitutionality of this law should be determined by the courts and not by the president unilaterally," she said.
Pick said "nobody should be surprised that Congress has decided to exercise its legal right, and some would say duty" to defend DOMA given how
5/3112011 11:14 AM
Boehner panel directs counsel to defend DOMA I Washington Blade - ... http://www. washingtonblade.com/20 11/03/09/house-panel-directs-cou ...
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controversial same-sex marriage is at this time.
"We are confident that this law will ultimately be overturned despite any defense presented by House Counsel, and will continue to work with our allies in
Congress to advocate for legislative repeal," she said. "With that decided, it is critical that Congress not waste anymore time on the president's efforts to
distract Republicans with divisive social issues, and instead return to working on the issues that matter most: jobs and the economy."
A Democratic aide, who spoke on condition of anonymity, said Democrats on the panel pushed back on the decision to intervene on behalf of DOMA before
the vote took place.
The aide said Boehner's statement is misleading becaues it implies the panel held a bipartisan vote in favor of defending DOMA when in fact Pelosi and
Hoyer "forcefully argued against the House intervening in these cases."
According to the aide, Pelosi and Hoyer pressed General Counsel Kerry Kirchner on how much intervening to defend the statute in court would cost the U.S.
government.
"General Counsel Kerry Kirchner would only say it would 'not be inexpensive,"' the aide said. "Mr. Kirchner noted that there are currently at least 10 cases
and he does not have the in-house resources to deal with that many cases as he has a staff of five with one lawyer currently on maternity leave."
The aide said Kirchner told the panel he believed the House intervention in the DOMA case would take a minimum of 18 months because litigation
could continue for years before the U.S. Supreme Court hears one of these cases.
"Mr. Kirchner also laid out that the Reagan Administration chose to no longer defend 5 laws in the 1980s," the aide said. "Clearly, the Republicans were fine
with a Republican President choosing not to defend statutes passed by the Congress."
According to the aide, Pelosi repeatedly pushed back on assertions that the administration was deciding the constitutionality of DOMA by declining to defend
the law in court.
"She noted that judicial review was continuing and that a number of groups were filing pro-DOMA briefs in the cases so there was no need for the House to
intervene," the aide said. "And that the administration was still enforcing the law."
In response, a Republican aide, who also spoke on condition of anonymity, called the Democratic aide's account of the discussion that took place "silly."
The GOP aide took issue with the Democratic aide's assertion that Republicans were fine when President Reagan declined to defend laws in court against
litigation.
"Republicans didn't have the majority in the House during the Reagan administration," the GOP aide said. "That comparison doesn't even make sense."
Additionally, the Republican aide also said decisions haven't yet been made on the cost and duration of any potential DOMAcases.
Filed under nalional news, political news. You can follow any responses to this entry through the RSS 2.0.
Tagged v.ith Casey Pick, Defense of Marriage Act, Human Rights Campaign, Joe Solmonese, John Boehner, Log Cab<n Republicans, Nancy Pelosi, U.S. House
customartist March 10, 2011 at 10:48 am
Three top Republicans and two top Democrats on the panel and Boehner thinks this is "Bi-Partisan"? This is commonly known as a "stacked deck", and it was a waste of time and
of taxpayers' money, as it will continue to be going forward.
I would like to know if a Democratic House, or Senate for that matter, did form a panel to defend any of the Five Cases that then President Reagan decided "unilaterally" to not
defend, or if a Democratic Majority has EVER taken such steps in relation to My Case, as Republicans have done in relation Particularly to the Sexual Orientation of Law Abiding
Citizens? Mybody?? ______ _
The Republican House is now The Main Player in withholding Constitutionally Guaranteed Equal Protections to a Specific Class of American Citizens.
They own this. History is written.
Doctor Whom fv'larch 10, 2011 at 2:51 pm
It's wonderful that Congress has solved all of our problems regarding the budget and the economy, so that it now has the time and resources to devote to this.
Peter Rosenstein March 10,2011 at4:00 pm
It is interesting that as they did in 1994 the Republicans are again over reaching in their misreading of what the last election was about. From Wisconsin to the Congress they are
going to lose their blue collar constituents and energize the Democratic base for 2012.
I feel for groups like Log Cabin who feel they have to defend such actions even when they agree DOMA is unconstitutional. They are still fighting the good fight in court on DADT
and I wish them luck in working to get more moderate Republicans elected who aren't as anti-gay as the current leadership. But the current leadership clearly makes that an uphill
struggle as even if they elect a few moderates they can't get their leadership to move. Just like years ago when Connie Morella was representing Montgomery County, MD, and
she was by all standards moderate- her first vote each year was for a right wing leader which meant her views never got anywhere when it came to votes.
Unless the leadership of the Republican party changes the GLBT community's interests will remain firmly with the Democratic Party.
5/31 /2011 11: 14 AM
EXHIBIT I
Press Releases II News Room II Democratic Leader Nancy Pelosi http:llwww.democraticleader.govlnewslpress?id=2081
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Letter to Speaker Boehner on House Counsel Defense of DOMA
Pelosi Letter to Speaker Boehner on House Counsel
Defense of DOMA
March 11, 2011
Washington, D. C. - Democratic Leader Nancy Pelosi sent the following letter to Speaker John Boehner today on
the legal defense of the discriminatory Defense of Marriage Act (DOMA) by the House General Counsel. This
week, the House Bipartisan Legal Advisory Group (BLAG) voted, along party lines, to direct the House General
Counsel to initiate defense of the statute using outside lawyers. In the letter, Pelosi reiterated her opposition to
DOMA on constitutional grounds and expressed concerns about the cost and oversight of the litigation as it
proceeds through the courts.
The full text of the letter is below.
March 11, 2011
The Honorable John Boehner
Speaker of the House
H-232, The Capitol
Dear Mr. Speaker:
The House Bipartisan Legal Advisory Group (BLAG) voted this week by a 3-2 margin to direct the House General
Counsel to initiate a legal defense of the Defense of Marriage Act (DOMA). As you know, the Democratic
members of the BLAG voted against directing the House Counsel to initiate the costly defense of a statute which
many believe to be unconstitutional under the Equal Protection clause.
While respecting the role of the BLAG to make such decisions, I disagree in this circumstance because of the
number of cases, at least 10. There are numerous parties who will continue to litigate these ongoing cases
regardless of the involvement of the House. No institutional purpose is served by having the House of
Representatives intervene in this litigation which will consume 18 months or longer. As we noted, the
constitutionality of this statute will be determined by the Courts, regardless of whether the House chooses to
intervene.
The resolution passed by the BLAG also directs the House General Counsel to hire private lawyers rather than
utilize his own office to represent the House. The General Counsel indicated that he lacked the personnel and the
budget to absorb those substantial litigation duties. It is important that the House receive an estimate of the cost
512612011 2:42PM
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to taxpayers for engaging private lawyers to intervene in the pending DOMA cases. It is also important that the
House know whether the BLAG, the General Counsel, or a Committee of the House have the responsibility to
monitor the actions of the outside lawyers and their fees.
The American people want Congress to be working on the creation of jobs and ensuring the continued progress
of our economic recovery rather than involving itself unnecessarily in such costly and divisive litigation.
Thank you for your responses to these questions concerning the cost and oversight of the litigation as it proceeds
through the courts.
best regards,
NANCY PELOSI
Democratic Leader
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EXHIBIT J
CONTRACT FOR LEGAL SERVICES
This Contract for Legal Services ("Agreement") is made as of the last date entered below
by and between Kerry W. Kircher, in his capacity as General Counsel for the U.S. House of
Representatives, Office of General Counsel, 219 Cannon House Office Building, Washington,
D.C. 20515 ("General Counsel"), and the law firm ofKing & Spalding, 1700 Pennsylvania
Av\nue, N.W., Suite 200, Washington, D.C. 20006 ("Contractor"), subject to the approval of the
Committee on House Administration of the U.S. House of Representatives ("Committee").
Pursuant to the authority conveyed to him by the March 9, 2011 vote of the Bipartisan
Legal Advisory Group ofthe U.S. House of Representatives, and at the direction of the
Bipartisan Legal Advisory Group, the General Counsel retains the Contractor to render the
following services: to represent the Bipartisan Legal Advisory Group as a party or as an amicus
in one or more civil actions in judicial fora, including, but not limited to U.S. Bankruptcy Courts,
U.S. District Courts, U.S. Courts of Appeal, and/or the U.S. Supreme Court, as directed by the
General Counsel, in order to litigate the constitutionality of Section III of the Defense of
MatTiage Act, Pub. L. No. 104-199 (Sept. 21, 1996), codified at 1 U.S.C. 7 (the "Litigation").
1. The General Counsel shall have the right to terminate this Agreement at any time for
any reason or no reason. In such case, payment shall be b.ased upon work performed.
2. The General Counsel agrees to pay the Contractor for all contractual services rendered
a sum not to exceed $500,000.00. It is further agreed that payment for such contractual services
may be paid on a partial basis from time to time and in such amounts as the General Counsel may
approve. Furthermore, it is understood and agreed that should the $500,000.00 cap be reached
before the Litigation is complete, and if the cap has not then been raised by written agreement
1
between the parties with the approval of the Committee, Contractor shall not be obliged to
continue providing legal services under this Agreement.
3. The General Counsel agrees to pay the Contractor at a blended rate of $520.00 per
hour for all reasonable attorney time expended in connection with the Litigation, and at 75
percent of the Contractor's usual and customary rates for all reasonable non-attomey time
expended in connection with the LWgation, and to reimburse Contractor for all reasonable
expenses incurred by the Contractor in connection with the Litigation, provided that the total
charge for all reasonable attomey time shall not exceed the amount Contractor would have billed
for such reasonable attorney time had it billed at its usual and customary rates for such
reasonable attomey time. Contractor agrees to submit bills detailing all time and expenses
incurred to the General Counsel on a monthly basis.
4. The Contractor agrees and warrants:
a. That it has not employed any person to solicit or obtain this Agreement for any
commission, percentage, brokerage, or contingent fee.
b. That it will hold the Government harmless from any liability in performance.
This provision shall be construed to mean that the Contractor is an independent contractor, and is
not a federal employee covered under the Federal Tort Claims Act or other federal statutes
applicable to federal employees.
c. That it will release no information obtained in carrying out this Agreement
without the prior consent of the General Counsel.
d. That it will not subcontract or assign elsewhere any of the work or service
involved without the prior written consent of the General Counsel.
2
e. 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.
f. That all of its partners and employees who perform services pursuant to this
Agreement will not engage in lobbying or advocacy for or against any legislation (i) that is
pending before the U.S. House of Representatives or any committee thereof 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.
g. That all of its partners and employees who 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.
h. That it will take appropriate steps to prevent partners and employees who are
permitted to, and do in fact, engage in lobbying or advocacy with respect to legislation pending
in the U.S. House ofRepresentatives or any committee thereof, from influencing, or participating
in any way in, the Litigation.
5. It is understood and agreed that Paul D. Clement, Esq., a partner in the law firm of
King & Spalding, will be principally responsible for conducting the Litigation on behalf of the
Contractor, and that Mr. Clement, along with Daryl L. Joseffer, Esq. and JeffreyS. Bucholtz,
3
Esq.; also partners in the law firm of King & Spalding, will personally perform a substantial
portion of the services contracted for in the Agreement.
6. It is also understood and agreed that the Office of General Counsel may participate in
the Litigation, for the purpose of reducing the overall cost of the Litigation, by performing such
tasks as the General Counsel may assign to it.
7. Contractor agrees that it will retain no outside experts to assist in the conduct of the
Litigation without the prior consent of the General Counsel.
8. This Agreement shall terminate when the Litigation is complete or at 12:00 noon on
January 3, 2013, whichever occurs first, unless this Agreement shall have been terminated earlier
or unless the term of this Agreement shall be extended by mutual written agreement of the parties
with the approval of the Committee.
8. Other than as expressly provided herein, no Member of or Delegate or Resident
Commissioner to the U.S. House of Representatives, and no employee of the U.S. House of
Representatives, shall be admitted to any share or part of this Agreement or to any benefit that.
may arise therefrom.
General Counsel King & Spalding
Paul D. Clement, Partner
Date: April 14, 2011 Date: April 14, 2011
4
APPROVED
Committee on House A
U.S. House ofRepre
Date: Aprill4, 2011
5
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PRESS RELEASE
Boehner Says DOJ Funds Should Be Cut to Pay for DOMA Defense;
Asks Leader Pelosi to Join in Supporting Redirection of Funds
Washington (Apr 18) House Speaker John Boehner (R-OH) today sent the following letter to Democratic
Leader Nancy Pelosi (D-CA) regarding the House's intent to protect taxpayers from any cost associated with
the Obama administration's refusal to defend the constitutionality of the Defense of Marriage Act in court.
The Honorable Nancy Pelosi
Democratic Leader
H-204, the Capitol
Washington, DC 20515
Dear Leader Pelosi:
April18, 2011
Thank you for your letter of March 11, 2011 regarding the Bipartisan Legal Advisory Group's (BLAG) decision
to defend the constitutionality of the federal statute, Defense of Marriage Act (DOMA). This decision was
necessitated by the extraordinary announcement by the current Attorney General, U.S. Department of Justice
(DOJ) declining to defend the constitutionality of Section 3 of that Act.
Had the BLAG not taken this action, the constitutionality of the law would have been determined by a
unilateral action of the President. By the House taking this action and the steps necessary to defend the law,
the House is ensuring that the courts will decide DOMA 's constitutionality.
The burden of defending DOMA, and the resulting costs associated with any litigation that would have
otherwise been born by DOJ, has fallen to the House. Obviously, DOJ's decision results in DOJ no longer
needing the funds it would have otherwise expended defending the constitutionality of DOMA. It is my intent
that those funds be diverted to the House for reimbursement of any costs incurred by and associated with the
House, and not DOJ, defending DOMA.
I appreciate that ordinarily DOJ should be in a better position to defend a federal statute in the Courts, both in
terms of resource allocations and in expertise of personnel. However. by the President's action through the
Attorney General we have no choice; the House now faces that additional burden and cost. I would also
point out that the cost associated with DOJ's decision is exacerbated by the timing of this decision. Most of
these cases are in the middle of lower court litigation and not ripe for Supreme Court review. Had the
Attorney General waited until the cases were ripe for certiorari to the Supreme Court, the costs associated
with the House defense would have been exponentially lower.
I would welcome your joining me in support of redirecting those resources from the DOJ to the House that
would otherwise have been necessary expenses on the Attorney General to defend this federal statute. In
the interim, I have directed House Counsel and House Administration Committee to assure that sufficient
resources and associated expertise, including outside counsel, are available for appropriately defending the
federal statute that the Attorney General refuses to defend.
Thank you.
Sincerely,
JOHN A. BOEHNER
P..rint of til is document
6/3/201112:17PM
EXHIBIT L
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Presses Boehner on Cost of Outside DOMA Counsel to Taxpayers
Pelosi Presses Boehner on Cost of Outside DOMA
Counsel to Taxpayers
April18, 2011
Washington, D.C.- House Democratic Leader Nancy Pelosi wrote a letter to Speaker John Boehner concerning
his effort to initiate a defense in court cases concerning the discriminatory and indefensible Defense of Marriage
Act (DOMA). Speaker Boehner had written (http://www.speaker.gov
/News/DocumentSingle.aspx?DocumentiD=237431) Leader Pelosi earlier today responding to Pelosi's letter
(http://www.democraticleader.gov/blog/?p=3700) five weeks ago asking for the cost to taxpayers of the House's
intervention in at least 12 DOMA cases.
News reports from today indicate that the House of Representatives, at Speaker Boehner's direction, will
intervene in the Windsor case in a New York federal court and that Speaker Boehner has retained former Bush
Administration Solicitor General Paul D. Clement.
Excerpts:
Unfortunately, your letter did not respond to the central question in my March 11th letter: the cost to taxpayers of
hiring outside legal counsel. Again, I am requesting that you disclose the cost of hiring outside counsel for the 12
cases where DOMA is being challenged.
According to reports, a contract engaging Paul D. Clement to serve as the outside counsel reportedly was
forwarded to the Committee on House Administration, although not to the Democratic members or staff of the
Committee. Mr. Clement, a former Solicitor General of the United States, is a partner in the Washington firm King
& Spalding where he is in charge of the national appellate practice. I would like to know when the contract with
Mr. Clement was signed, and why a copy was not provided to Democrats on the Committee.
A full copy of Leader Pelosi's letter is below:
April18, 2011
H-232, The Capitol
6/3/2011 12:15 PM
Press Releases II News Room II Democratic Leader Nancy Pelosi http:llwww.democraticleader.govlnewslpress?id=213 5
2 of4
Dear Mr. Speaker:
Thank you for your response earlier today to my letter of March 11, 2011 concerning litigation relating to the
Defense of Marriage Act (DOMA). My letter had requested that you provide me with the cost to the House and to
taxpayers resulting from the decision of the Republican members of the Bipartisan Legal Advisory Group (BLAG)
to hire outside counsel to represent the House in support of the DOMA. You note that President Obama and
Attorney General Holder have determined that DOMA is unconstitutional, a conclusion I share, and have declined
to engage in further judicial proceedings in defense of the law. As you may know, presidents have acted similarly
in the past on at least 50 instances since 1979.
Unfortunately, your letter did not respond to the central question in my March 11th letter: the cost to taxpayers of
hiring outside legal counsel. Again, I am requesting that you disclose the cost of hiring outside counsel for the 12
cases where DOMA is being challenged.
Press reports indicate that the House, at your direction, will intervene today in the Windsor case, which is in a
federal court in New York. Ms. Edie Windsor spent more than 40 years with her partner, Ms. Thea Spyer, and
they were married in 2007. When Ms. Spyer passed away Ms. Windsor was unable to claim the federal estate
marital tax benefit because of DOMA and the federal government imposed estate taxes of more than $360,000 on
the money left to her. This case is a prime example of the injustice perpetuated by DOMA on millions of American
families.
According to reports, a contract engaging Paul D. Clement to serve as the outside counsel reportedly was
forwarded to the Committee on House Administration, although not to the Democratic members or staff of the
Committee. Mr. Clement, a former Solicitor General of the United States, is a partner in the Washington firm King
& Spalding where he is in charge of the national appellate practice. I would like to know when the contract with
Mr. Clement was signed, and why a copy was not provided to Democrats on the Committee.
The House of Representatives need not enter into this lengthy and costly litigation. Contrary to the assertion in
your letter, a BLAG determination against House involvement in the litigation -which was the position of
Democratic Whip Hoyer and me- would not have allowed the constitutionality of the law to "have been
determined by a unilateral action of the President." As you know, only the courts can determine the
constitutionality of a statute passed by the Congress.
Thank you again, and I look forward to working together with you on behalf of our country.
best regards,
NANCY PELOSI
Democratic Leader
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Questions Boehner on House Contract with Outside DOMA Counsel
Pelosi Questions Boehner on House Contract with
Outside DOMA Counsel
April 20, 2011
Washington, D.C.- House Democratic Leader Nancy Pelosi questioned Speaker John Boehner in a letter today
on the contract between the House of Representatives and the law firm of King and Spalding concerning litigation
on the Defense of Marriage Act (DOMA), which was released yesterday. Leader Pelosi also wrote
(http://www.democraticleader.gov/news/press?id=2135) Speaker Boehner on Monday pressing for information on
the cost of outside counsel to taxpayers. Speaker Boehner had written (http://www.speaker.gov
/News/DocumentSingle.aspx?DocumentiD=237431) Leader Pelosi earlier this week responding to Pelosi's letter
(http://www.democraticleader.gov/blog/?p=3700) five weeks ago asking for the cost to taxpayers of the House's
intervention in at least 12 DOMA cases.
Below is the full text of today's letter:
April 20, 2011
H-232, The Capitol
Dear Mr. Speaker:
The release of the contract between the House of Representatives and the law firm of King and Spalding
concerning litigation on the Defense of Marriage Act (DOMA) raises many questions. While the Democratic
Members of the Bipartisan Legal Advisory Group (SLAG) opposed the decision of the Republican Members to
authorize involvement in the DOMA lawsuits, that opposition in no way diminished the need for normal oversight
of the terms of any contract signed by the Republican Leadership obligating the House of Representatives to pay
half a million dollars of taxpayer money for private attorneys. Yet the Democratic representatives on the SLAG,
and the Democratic members of the Committee on House Administration, were provided with no information
about the contract prior to or, at the time of, its being signed on April 14th. Since Democratic members were
excluded from all negotiations, I would appreciate your providing the following information concerning the
contract's transparency, cost, the discount and the restrictions placed upon King and Spalding's vast lobbying
practice:
TRANSPARENCY
61312011 12:18 PM
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Did the BLAG or any House entity issue a call for bids, or was the selection of King and Spalding made as a sole
source contract? Who specifically made the decision to hire this firm, and what criteria were used? Why was the
Democratic membership of the Committee on House Administration not informed of the ongoing negotiations with
King and Spalding and provided an opportunity to participate in order to assure a transparent process to prevent
taxpayer dollars from being wasted?
COST
How was the $520 dollar an hour "blended rate" for attorneys negotiated, and how was the $500,000 fee
established? Was there a determination that $500,000 would be sufficient to pay for the complete legal
representation in the 12 pending cases, and if so, who made that determination and how? Is $520 an hour the
regular rate normally charged by King and Spalding attorneys? What are the specific hourly rates that will be
charged by each of the King and Spalding attorneys listed in section 5 of the contract? Is it anticipated that King
and Spalding will represent the House in all 12 pending DOMA cases from the trial stage through any and all
appeals?
DISCOUNT AND ETHICS
The contract states that other fees may be assessed at 75% of the firm's regular charges. What "other fees" are
contemplated, and how was the 75% rate established? Is it the standard practice of King and Spalding to give a
25% discount for non-attorney time to all government agencies or does the discount only pertain to the House
Republican leadership? Did the Ethics Committee review the proposed contract discount to ascertain whether it
complied with all House ethics rules governing the provision of gratuities to the House by a commercial entity? If
so, please provide the written opinion of the Ethics Committee.
LOBBYING
Please provide a copy of all written restrictions imposed on King and Spalding's extensive lobbying practice to
ensure that no conflicts of interest arise on behalf of its extensive list of corporate clients while that firm is
employed by the House.
Thank you for your timely response to this letter and my letter of April 18th.
best regards,
NANCY PELOSI
Democratic Leader
EMAIL(#)
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Jun 03 (http:l/www.cadems.org/news/press?id=2199)
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POLITICO
DOMA defense in turmoil
By: Josh Gerstein
April25, 2011 02:45PM EDT
The House of Representatives' courtroom defense of the Defense of Marriage Act suffered
a serious jolt Monday after the law firm the House hired to argue the law's constitutionality
in up to a dozen pending court challenges abruptly withdrew- and the former solicitor
general heading up the defense resigned from the firm to stay on the case.
Just a week ago, House officials announced they had signed up Atlanta-based King &
Spalding and prominent constitutional lawyer Paul Clement, a former solicitor general under
President George W. Bush, to defend the constitutionality of the 1996 law barring federal
recognition of same-sex marriage. The defense of the law fell to the House after President
Barack Obama instructed the Justice Department to abandon defense of a key portion of
the law because he and Attorney General Eric Holder concluded it was unconstitutional.
The House's appointment of outside counsel was made- and a contract for up to
$500,000 issued- over the objection of House Democratic leaders, who called the effort a
waste of taxpayer money.
However, late last week, King & Spalding came under pressure from gay rights activists
decrying the firm's decision to back a law some view as unfair discrimination. On Monday
morning, King & Spalding chairman Robert Hays Jr. announced that the firm was backing
out.
"In reviewing this assignment further, I determined that the process used for vetting this
engagement was inadequate," Hays wrote. "Ultimately, I am responsible for any mistakes
that occurred and apologize for the challenges this may have created."
Minutes later, Clement announced - in a blistering letter- that he was quitting the firm and
planning to see through the defense of DOMA.
"I resign out of the firmly held belief that a representation should not be abandoned
because the client's legal position is extremely unpopular in certain quarters. Defending
unpopular clients is what lawyers do," Clement wrote to Hays. "I recognized from the outset
that this statute implicates very sensitive issues that prompt strong views on both sides. But
having undertaken the representation, I believe there is no honorable course for me but to
complete it."
"Efforts to delegitimize any representation for one side of a legal controversy are a profound
threat to the rule of law," Clement said. "If there were problems with the firm's vetting
process, we should fix the vetting process, not drop the representation."
Clement said he planned to keep up the DOMA defense and was joining Bancroft PLLC, a
small Washington firm that is home to one of Clement's former colleagues in the Bush
Justice Department, Viet Dinh.
House Speaker John Boehner blasted King & Spalding in a statement, but welcomed
Clement's action.
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"The Speaker is disappointed in the firm's decision and its careless disregard for its
responsibilities to the House in this constitutional matter. At the same time, Mr. Clement has
demonstrated legal integrity, and we are grateful for his decision to continue representing
the House," Boehner spokesman Brendan Buck said. "This move will ensure the
constitutionality of this law is appropriately determined by the courts, rather than by the
President unilaterally."
"King and Spalding's cut and run approach is inexcusable and an insult to the legal
profession," said House Administration Committee Chairman Dan Lungren (R-Calif.), who
signed the contract to pay up to $520 an hour for the defense. "Less than one week after
the contract was approved engaging the firm, they buckled under political pressure and
bailed with little regard for their ethical and legal obligations. Fortunately, Clement does not
share the same principles."
Unsurprisingly, advocates for broader recognition of same-sex marriage hailed King &
Spalding's decision.
"It seems like defending discrimination is becoming less popular these days," said Jon
Davidson, legal director for Lambda Legal, a gay rights advocacy group.
"It was smarter to say now, we screwed up, rather than sticking with this loser and branding
them as anti gay. This kind of a thing could stick to a firm for decades," said Richard
Socarides, president of Equality Matters and a former adviser to President Bill Clinton.
Before Clement announced he would continue the defense, Human Rights Campaign
President Joe Solmonese suggested that other firms should steer clear of the case.
"Speaker Boehner is likely to pursue continued defense of this odious law. However, law
firms that value LGBT equality should remain committed to those values," Solmonese said.
Davidson said it was hard to know precisely why King & Spalding backed away. Usually,
law firms perform thorough "conflicts" checks before taking on new clients. It seems certain
that senior partners at the firm must have discussed the potential blowback from taking on
the defense of DOMA, which is deeply unpopular with the gay community as well as liberal
activists more broadly. Obama has repeatedly called for the law's repeal.
Before the firm announced its withdrawal, Human Rights Campaign and Equality Georgia
were planning a protest Tuesday morning at King & Spalding's offices in Atlanta. In addition,
a full-page ad denouncing the firm was set to run Tuesday morning in the Atlanta Journal-
Constitution, one person familiar with the plan said.
One issue the firm may not have considered thoroughly, or thoroughly enough, was a
provision in its contract with the House that barred any King & Spalding lawyer or employee
from any advocacy whatsoever related to DOMA. An article Wednesday in Washington,
D.C.'s Metro Weekly highlighted that restriction and quoted Davidson saying it might run
afoul of state laws that restrict employers' rights to limit workers' political activities.
"It said you can't advocate for any bill to amend DOMA, that would in theory include
sending an e-mail to members of Congress saying you support making DOMA tougher,"
Davidson said Monday. "I haven't seen a lot of these agreements, but I have seen some,
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and I've never seen a provision quite like this before."
Stephen Gillers, a law professor at New York University and expert on legal ethics, called
that provision "truly offensive .... That agreement affronted constitutional values and the
free speech rights of [the firm's] lawyers and employees."
A spokesman for House Minority Leader Nancy Pelosi, who has sharply criticized the
appointment, welcomed the firm's decision.
"Leader Pelosi shares Mr. Hays' apparent concerns with the lack of transparency and
accountability in the way this contract was signed. She also vigorously opposes using half a
million taxpayer dollars or any taxpayer resources to defend discrimination, at a time when
Republicans in Congress are cutting critical initiatives like education and infrastructure,"
said the spokesman, Drew Hammill. "It is now more critical than ever that Speaker Boehner
fully account for his decision to sign this half million dollar contract to defend this
indefensible statue."
King & Spalding spokesman Les Zuke declined to expand on the firm's reasons for backing
out of the DOMA defense. However, he said the firm was disappointed about Clement's
departure. "We're sorry to see Paul Clement leave. He's been a good partner, and we wish
him the best," Zuke said. Technically, the firm will require permission from the federal courts
to withdraw from pending cases challenging DOMA. King & Spalding filed at least one such
motion Monday morning asking leave to withdraw from the case it entered a week ago.
Firm lawyer Richard Cirillo did not give any reason for the withdrawal but said it was
permitted by New York and Washington, D.C., bar ethics rules. Cirillo asked the court to
delay some filings in the case "in order to allow time for successor counsel ... to appear in
the action."
Despite the complaints from gay activists, King & Spalding had found support in some
quarters for its initial decision to help the House defend the 1996 law.
"The suggestion that it's shameful for Clement or his firm to [defend the law]
misunderstands the adversarial process. For one thing, with sharp-witted counsel on both
sides making the strongest possible arguments, it is more likely that justice will be done,"
the Los Angeles Times editorial board wrote on Thursday.
However, one lesbian-rights advocate said the newspaper confused representing a person
with defending a law.
"A private lawyer is under no obligation -from a state bar, pursuant to ethical rules, or out
of respect for the adversarial process- to defend an indefensible law," Maya Rupert of the
National Center for Lesbian Rights replied on the Times's site. "Those who choose to
defend such a law do so at the peril of their reputations as fair-minded and just advocates."
Ben Smith contributed to this report.
2011 Capitol News Company, LLC
6/3/2011 12:20 PM
EXHIBIT 0
-------------------------------------------------------
CONTRACT FOR LEGAL SERVICES
This Contract for Legal Services ("Agreement") is made as of the last date entered below
by and between Kerry W. Kircher, in his capacity as General Counsel for the U.S. House of
Representatives, Office of General Counsel, 219 Cannon House Office Building, Washington,
D.C. 20515 ("General Counsel"),. and Bancroft PLLC, 1919 M Street, N.W., Suite 470,
Washington, D.C. 20036 ("Contractor"), subject to the approval of the Committee on House
Administration ofthe U.S. House ofRepresentatives ("Committee)}).
Pursu1mt to' the authority conveyed to hi:111 by the March 9, 2011 vote of the Bipartisan
Legal Advisory Group ~ f the U.S. House of Representatives, and at the direction of the
Bipartisan Legal Advisory Group, the General Counsel retains the Contractor to render the
following services; to represent the Bipartisan Legal AdvisoryGroup as a party or as an amicus
in one or more civil actions in judicial fora, including, but not limited to U.S. Bankruptcy Courts,
U.S. District Courts, U.S. Courts of Appeal, and/or the U.S. Supreme Court, as directed by the
General Counsel, in order. to litigate the constitutionality of Section III of the Defense of
Mal1'iage Act, Pub, L. No. 1 04-199 (Sept: 21, 1996), codified at 1 U,S.C. 7 (the "Litigation").
1. The General Counsel sha_ll have theright to terminate this Agreement at any time for
any reason or no reason. In such case, payment shall be based upon work performed.
2. The General Coj.lnsel agrees to pay the Contractor for all contractual services
rendered a sum not to exceed $500,000,00. It is further agreed that payment for such contractual
services may be paid on a partial basis from time to time and in such amounts as the General
Counsel may approve. Furthermore, it is understood and agreed that should the $500,000,00 cap
bereached before the Litigation is complete, and if the cap has not then been raised by written
1
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agreement between the parties with the approval of the Committee,.Contractor shall not be
obliged to continue providing legal services under this Agreement.
3. The General Counsel agrees to pay the Contractor at a blended rate of $520.00 per
hour for all reasonable attorney time expended in connection with the Litigation, and at 75.
percent of the Contractor's usual and customary rates for all non-attorney time
expended in connection with the Litigation, and to reimburse Contractor for all reasonable
expenses incurred by the Contractor in connection with the Litigation, provided that the total
charge for all reas?nable attorney time shall not exceed the amount Contractor hav.e billed
for such reasonable attorney time had it billed at its usual and customary for such
reasonable attorney time. Contractor agrees to submit bills detailing all time and expenses
incuned to the General Counsel on a monthly basis.
4. Contractor agrees and warrants:
a. That it has not employed any person to solicit or obtain this Agreement for any
percentage, brokerage, or contingent fee.
b. That it will hold the Government harmless from any lia.bility in performance,
This provision shall be construed to mean that the Contractor is an independent contractor, and is
. not a federal employee covered under the Federal Tort Claims Act or other federal statutes
applicable to federal employees.
c. That it will release no information obtained in carrying out this Agreement
without the prior consent of the General Counsel.
d. That it will not subcontract or assign elsewhere apy of the work or service
involved without the prior wri.tten consent of the General Counsel.
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:
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------------------------------------------ -----
e. 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.
f. That all of its shareholders and employees who perform services pursuant to
this Agreement will engage in lobbying or advocacy for or against any legislation (i) that is.
pending before the U.S. House of Representatives or any committee thereof during the term of
the Agreement, or (ii) that would alter or amend in any way the Defense ofManiage 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 ..
g. That all of its shareholders and employees who 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
Ol' amend in any way the Defense of Marriage Act and is pending before either the U.S. House of
or the U.S. Senate ot any committee of either body during the tetm of the
Agreement.
h. That it will take appropriate steps to prevent shareholders and employees who
. are permitted to, and do in fact, engage in lobbying or advocacy with respect to legislation
pending in the U.S, House of Representatives or any committee thereof, from influencing, or
participating in any way in, the Litigation.
5. It is understood and agreed that Paul D. Clement, Esq., a partner/shareholder in the
law finn of B.ancroft PLLC, will be principally responsible for conducting the Litigation on
behalf of the Contractor, and that Mr. Clement, along with H. Christopher Bartolomucci, Esq.
3
1
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I
I
and Conor B. Dugal?-, Esq., both attorneys.in the law firm of Bancroft PLLC, will personally
perfonn a substantial portion of the services contracted for in the Agreement.
6. It is also understood and agreed that the Office of General Counsel may participate in
' '
the Litigation, for the purpose of reducing the overall cost of the Litigation, by perfonning such
tasks as the General Counsel may assign to it.
7. Contractor agrees that it will retain no outside experts to assist in the conduct of the
Litigation without the prior eonsent ofthe General Counsel.
8. This Agreement shall terminate when the Litigation is complete or at 12:00 noon on
January 3, 2013, whichever occurs first, unless this Agreement shall have been terminated earlier
or unless the term of this Agreement shall be extended by mutual written agreement of the parties
with the approval of the Committee.
8. Other than as expressly provided herein, no Member of or Delegate or Resident
Commissioner to the u:s. House of Representatives, and no employee of the U.S. House of
Representatives, shall be admitted to any share or prut of this Agreement or to any benefit that
may arise therefrom.
General Counsel
ep.rcs ntatives
Kerry W. Kircher
Date: April 25, 2011
4
Bancroft PLLC

--
Paul D. Clement. Partner/Shareholder
Date; April 25, 2011
APPROVED
Date: April 25,2011
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EXHIBIT P

ACC-NO: 66535
LENGTH: 11452 words
1 of 62 DOCUMENTS
Copyright 20 11 Pro Quest Information and Learning
All Rights Reserved
Copyright 2011 Roll Call, Inc.
Political Transcript Wire
May 13, 2011 Friday
Page 1
HEADLINE: REP. ANDER CRENSHAW HOLDS A HEARING ON HOUSE CLERK AND SERGEANT AT ARMS
BUDGET
BODY:
HOUSE COMMITTEE ON APPROPRIATIONS, SUBCOMMITTEE ON LEGISLATIVE BRANCH HOLDS A
HEARING ON HOUSE CLERK AND SERGEANT AT ARMS BUDGET
MAY 12,2011
SPEAKERS: REP. ANDER CRENSHAW, R-FLA. CHAIRMAN REP. STEVEN C. LATOURETTE, R-OHIO
REP. JOANN EMERSON, R-MO. REP. DENNY REHBERG, R-MONT. REP. KEN CALVERT, R-CALIF. REP.
HAROLD ROGERS, R-KY. EX OFFICIO
REP. MICHAEL M. HONDA, D-CALIF. RANKING MEMBER REP. SANFORD D. BISHOP JR., D-GA. REP.
DAVID E. PRICE, D-N.C. REP. NORM DICKS, D-WASH. EX OFFICIO
WITNESSES: DANIEL J. STRODEL, INTERIM CHIEF ADMINISTRATIVE OFFICER, HOUSE OF REPRE-
SENTATIVES
HOUSE CLERK KAREN HAAS
HOUSE SERGEANT AT ARMS BILL LIVINGOOD
HOUSE OF REPRESENTATIVES GENERAL COUNSEL KERRY KIRCHNER
[*] CRENSHAW: Well, welcome everyone. The committee will come to order. Today, we're going to receive tes-
timony from officers ofthe House of Representatives, the Honorable Dan Strode!, Chief Administrative Officer; Hon-
orable Karen Haas, the Clerk of the House; the Honorable Wilson "Bill" Livingood, Sergeant-at-Arms. We're pleased to
welcome you here today. And we thank each of you and all your employees for what you do to serve the House.
The Fiscal Year 2012 budget request that we're going to consider is $1.3 billion and represents about a $22.3 mil-
lion increase or 1.7 above the current year. Many of you are aware, the appropriations subcommittee chairman will give
tentative 302(b) allocations yesterday for Fiscal Year 2012. The number, excluding the Senate, for the Legislative
Branch subcommittee is going to necessitate a reduction of about $227 million beyond the cuts we've already taken last
year. This is going to mean further reductions across the House and the legislative branch agencies. Having to cut
roughly 6.4 percent from the current levels, I can't imagine holding any of these agencies harmless.
When you look at the distribution of the legislative branch funding, excluding the Senate, the House Appropriation
represents about 36 percent of this bill. So members, committees and leadership started tightening their bills in January
and will have to do it again this year and we're probably going to have to do it again next year.
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REP. ANDER CRENSHAW HOLDS A HEARING ON HOUSE CLERK AND SERGEANT AT ARMS BUDGET
Political Transcript Wire May 13, 20II Friday
As chairman of this subcommittee, my philosophy is to thoroughly review each and every line item of the budgets
that come before our subcommittee and determine what we can afford and what we can't afford with our limited re-
sources. That's what Americans are doing across the country and when they're faced with these economic times they
expect the Congress to do the same thing. So we look forward to hearing how each of you are going to approach bring-
ing costs down while still delivering the services that are so required. So, again, thank you for being here. I'll start with
Mr. Honda for any remarks he might have.
HONDA: Thank you, Mr. Chairman.
And I'll also welcome to the officers of the House Mr. Dan Strode!, Chief Administrative Officer, Mr. Bill Liv-
ingood. In Spanish, that would be, Bill Living-- !a vida loca ...
(LAUGHTER)
HONDA: How I like that.
Our Sergeant-at-Arms, and Ms. Karen Haas, our Clerk of the House. We also have several other heads of offices
with us today submitting testimony for the record. You and your staffs are the backbone of this institution that gets here
before us and leave well after us to ensure that this institution functions uninterrupted. We all appreciate your service to
the nation. And please pass along our thanks to your staffs that toil really without much recognition, my mom says you
can never say thank you enough.
With that said, your jobs are getting tougher as resources are tightened. I'm sure that today we'll spend lots of time
with and try to figure out how to do more with less. But at some point, my colleagues will have to inevitable that certain
service will have to be cut as funding is cut.
The House budget is the people's budget and nearly 80 percent of the budget support staff that do everything from
helping constituents fight for social security benefits, and providing technical assistance, and bill drafting, to ensuring
the safety of the House Chamber. I know all of you are up for the challenge, you have all held these positions in previ-
ous congresses and I appreciate the continuity that exists with this team.
The budget request for the House is the most modest we have seen in many years. The House request of $I.3 bil-
lion represents a I. 7 percent increase over Fiscal Year 20 II, the recently passed omnibus continuing resolution.
After your remarks, I plan to ask questions at your officers as well as some of the other officers that are represent-
ing here. So, today, I want to thank all of you and I look forward to your comments.
CRENSHAW: Thank you, Mr. Honda.
Before we hear from the witnesses, we reviewed your testimony and all your prepared statements will be made part
of the record. And I understand that everybody has made adjustments based on the recently passed C.R. We've got a lot
of challenges in front of us. Each of you served now for the first four months, we've been through this process once.
And I just would appreciate as you summarize your testimony, kind of tell us what your approach is to bringing these
costs associated with your office down as you summarize those statements.
So we'll begin with the Honorable Dan Strode!.
STRODEL: Good morning, Mr. Chairman, and Ranking Member Honda, and Mr. Bishop. And I'm pleased to be
here before the committee. I could hear the message you've sent already, the actions we've taken, I've provided further
detail in the testimony, Ifl can summarize very quickly.
As a result of the CRs and the final C.R., the initial reduction of2.03 percent, we took immediate action to make
recommendations to freeze 38 positions within the CAO's organization and reduce contractor support in specific areas,
those being the sustainability area and certain IT initiatives that we felt we could put off until another time. But it's re-
ally, sir, the beginning of a refocus on the critical and core mission of our organization.
The CAO's office provides the widest variety of services to the House, but our primary and our core functions are
finance, information technology, and logistical support. We are going back with a disciplined budget management ap-
proach called zero-based budgeting, which isn't anything, Mr. Chairman, but it's a time for which it has come here in
this organization.
Since February, we've been working internally with that management tool. We've identified over 200 programs,
projects and activities of CAO and are going through the process of determining whether they fall within our core mis-
Page 3
Political Transcript Wire May 13, 2011 Friday
sion. Then if not or if they can be done differently, but I can tell you we are absolutely looking at further reductions in
services and absolutely what is on the table, sir, are staff reductions.
Our approach will hopefully show where we can make efficiencies or we can eliminate duplication. But with the
numbers that appear to be the mark, that's -- that's really where we are.
CRENSHAW: Well, thank you very much. And it's encouraging to hear you talk about the core mission. I mean,
that I think sometimes in govemment, things expand and grow. And you know, when we have limited resources, we
have to kind of get back to the basics. And it sounds to me like that's what you're working on. And I guess your core
mission is to make life easier for the members of the House, provide the information and support, etcetera.
So one of my questions is, is what-- like greening the Capitol, we've heard a lot of talk about that, that does not fill
in to the core mission or is that something that may be just outside the realm of that mission?
STRODEL: Sir, that is I believe an example of what do you call sustainability or bringing the Capitol. I think
there's cost efficiencies that can -- that can be made through looking at sustainability efforts, whether it's in the House
community or in the private sector or it's a way of doing business.
But I think that in analyzing the zero-based approach, does this program, project or activity fit within the core mis-
sion has a duplicative function with another entity in the House, and the way I see it going forward is the architect of the
capital has had a sustainability program in place for years, are greening the capital, made perhaps enhancements as it
relates specifically to the House community and we have worked in partnership with the AC (ph).
But I think the time has come and I think that working through the process, we're going to see whether the duplica-
tion and/or core mission fits with the sustainability program.
CRENSHAW: Great. Thank you very much.
Mr. Honda, do you have a question or two?
HONDA: (inaudible) ... things like that and I guess you were-- one of the subject matter was that the switching of
the materials we had in the cafeteria to Styrofoam, how does that fit in your equation and how was that -- how was that
decision made and can you just sort of...
STRODEL: Yes, sir, Mr. Honda. The service ware issue, as it relates to the food service and the cafeterias and oth-
er House facilities, their specific as it relates to the Styrofoam and I can elaborate them at greater connection to our sus-
tainability program. But the service ware -- was provided by the vendor, Restaurant Associates, which they provide a
range of service ware options as a part of their package.
The decision was made prior to me that compostable materials were -- were preferred in the House community. The
vendor said essentially, "Sure, we can provide compostable service ware. However, there's a cost associated with that."
And the decision was made at that time to do so and the numbers that I've seen since '08, I believe, the cost of the ser-
vice ware and the labor associated with it and the contract to haul it was -- exceeded $600,000 in '08. And I believe in
'09 and '10, it was slightly under $500,000 annually. That money was offset against the gross receipts due to the House
from the vendor.
Fast-forward to January of this year, one component of that program was the contract to haul the compostable ma-
terials from the House community. The architect at the Capitol has a separate waste disposal program but we had a spe-
cific program for the House. So for Restaurant Associates, the compostable service ware they provided had to be taken
to a facility to do composting.
That contract expired in mid-January of this year. And because the contract related to the hauling of decomposa-
bles, the issue about what service ware are we going to us, in other words, if we were going to haul compostable materi-
als, we don't need to have a compostable facility.
The cost-cutting measure was to look at what is the cost for these decomposable service ware options and is there a
more cost- effective way that would save money to the -- coming into the House. And that decision was made, the Res-
taurant Associates provided options and looking at on the most cost-effective was their standard service ware package,
which is what we have today.
Related to that part of your question about sustainability overall and where that fits, the greener Capitol initiative
incorporated many ideas that were cost savings particularly in the movement of IT support, that is servers, to the for-
Page 4
ward data center. I think the architect of the Capitol would tell you that the House has saved money by consolidating the
servers, and perhaps a significant amount of money.
But there were certain programs that weren't saving money. And I think from work that the IG had done in looking
this very program that their determination was that the cost-benefit was not there. So as it relates to that broader sus-
tainability initiatives, this one didn't appear to be fulfilling its promise.
HONDA: So, briefly, bottom line, are we saving money because of this?
STRODEL: Very briefly, yes. And ...
HONDA: And is the saving passed on to our workers, the patrons?
STRODEL: There's not a change in price at the consumer end. The House is taking in more money on the contract.
There is not a change in prices.
HONDA: If you wouldn't mind, Mr. Chairman, I'd like to direct Mr. Strode! to have a written report on this issue
and the cost savings and then explain why we shouldn't pass this on to our patrons and our workers rather than to the
House. Let me ask quickly ...
CRENSHAW: Mr. Honda, let me-- I'm going to ask each of the witnesses who are going to opening statement
now, that we're all here. And then we can ask them. And we've got a lot to do today, so I'm going to ask the members to
kind of observe the five-minute rule.
HONDA: OK.
CRENSHAW: But let's go ahead and have Ms. Haas and then Mr. Livingood to make their opening statements and
then we'll continue the questions.
CRENSHAW: Ms. Haas?
HAAS: Thank you. Good morning.
As newly reappointed Clerk of the House, I appreciate the continued support of the subcommittee and I'd like to
briefly report on two initiatives that we undertook in our office over the last year. Thanks to the funding you provided,
we successfully replaced the member display boards of the electronic voting system. The new system uses LED tech-
nology, which is more dependable, ADA-compliant, has built-in redundancy, increased clarity and readability and addi-
tional technological capabilities that can be explored in the future. This project was completed early and under budget.
The second initiative, House Live, is a web streaming service the House-- of the House work proceedings that was
launched last year. It provides increased access to the House community and to the general public of searchable video
archives with the 111 th Congress. We have enhanced House Live by adding a new video player, additional search capa-
bilities and the ability to view archive-to-video on mobile devices. Over the next two months, we will be adding a new
video clip tool that will make it easier for members to post videos to their websites and their Facebook pages. We will
also be adding streaming video to mobile devices.
As we move forward in 2012, the Office of the Clerk expects to be very busy with increased committee activity.
And in addition, we expect to be integrally involved in advancing efforts to make House documents available electroni-
cally in a more open data format. I understand we are facing very difficult economic times and I will work aggressively
to meet this challenges.
As we've been reviewing our operations over the last four months, there are clearly places that we can cut and effi-
ciencies we can achieve. We've begun the process already by identifying approximately $2.8 million in additional re-
ductions. The way we're going to approach these reductions, Mr. Chairman, is we've already identified current vacan-
cies we will not plan to fill. We have identified duplications within our organization that we've already looked to begin
the reorganization process.
And then finally, we've looked at all of our subscription services, both database and regular subscriptions, and we're
beginning that process to consolidate some of those, where we have some overlap there. So those are some of the addi-
tional areas we've looked at for savings.
I want to thank the committee for your support and I look forward to working with you.
Page 5
CRENSHAW: Thank you.
Mr. Livingood, take it from you.
LIVINGOOD: Thank you, Mr. Chairman, Ranking Member Honda. Good morning. (inaudible) And it's a pleasure
for me to be here today to present our budget request for F.Y. '12. But before I start, briefly, I just want to thank all of
you for your assistance because the assistance of the committees, this committee really helps us to provide a safer and
more secure environment for members, staff, and all the visiting dignitaries and world leaders, and the thousands of
visitors that we have every day.
As we just recently went under preparations for a potential government shutdown and made adjustments to our F.Y.
211 -- 2011 budget, during that period, I spent a considerable amount of time with the staff, looking at the entire Ser-
geant-at-Arms Office, its personnel and operations. As a result, I've implemented a freeze on future hires and to contin-
ue to look for additional safe -- or additional cost savings measures and I will work with the committee and the House
leadership in accomplishing this task.
The integration of the former Office of Emergency Preparedness into the Office of the Sergeant-at-Arms and it's
now called Office of Emergency Management has brought far greater coordination to the House community overall
emergency management effort. I'm pleased to report that we are moving forward on a number of projects to improve
occupant safety throughout the House complex.
And in particular, I'd like to note the project to install emergency communications stations and closed circuit color
television cameras in the stairwells of the House office buildings, and that's on schedule to be completed by September
of this year. This project-- this project will enable occupants of our House buildings to establish two-way communica-
tions with emergency responders should an evacuation route be blocked. It will also-- this-- the TV, the CCTV portion,
will allow the Capitol Police to monitor evacuations and more rapidly respond to resolve problems that might occur.
Call boxes have also been installed at elevators for persons with accessibility needs
With the support and assistance of the chief administrative officer, we have established a working group to reinvig-
orate efforts to integrate emergency notifications such as the roaming (ph) security system -- a roaming (ph) secure sys-
tem already is owned by the House.
We are confident that this united effort will lead to an expanded and more integrated means of communicating
emergency information in a very cost-effective means because we already have the system. We are also engaged in dis-
cussions with other Capitol entities regarding the acquisition of a computerized modeling tool with a view to requesting
funding in future years.
In closing, I'd like to thank the committee once again for all that you do to help all of us. Let me assure you that my
longstanding commitment is to provide the highest quality support for the House of Representatives in the safest and
most secure environment possible.
It is my goal to remain vigilant and security conscious while continuing to maintain the fiscal responsibility ex-
pected by the House of Representatives. I'm well aware and understand the climate that affects our country, the Legisla-
tive Branch and the entire federal community.
Some of the cost-saving methods that we have been looking at and are going to institute, first of all, after the last
C.R. implemented a freezing hire, have not filled current vacancies and do not plan on that. Secondly, we do not plan on
filling any future vacancies. We're going to look at the whole organization and with the idea where can we reorganize to
maintain maximum staff efficiency.
We've reduced travel to support off-campus events. We've reduced other services such as supplies, equipment, se-
curity contracts and consulting services. And we are in a process of looking at reducing the work closings, which will be
a Capitol police savings as in every building.
Thank you for your assistance, cooperation, sir, and guidance from all of you.
CRENSHAW: Thank you, and thank all of you for your testimony.
We'll continue now with questions, and call on Mr. Bishop.
BISHOP: Two questions for Mr. Strode!.
STRODEL: Yes, sir?
Page 6
Political Transcript Wire May 13,2011 Friday
BISHOP: As ranking member of the House Military Construction, Veterans Affairs of the Appropriations Sub-
committee, I'm very interested in the participation of the Wounded Warriors program.
Have you followed the careers of the 51 disabled participants in the House of Representatives Wounded Warriors
program since June of'08? And how many of them had been able to transition into full-time civilian employment? And
have any of those been offered employment by the House?
STRODEL: Yes, sir. The question about the Wounded Warrior program, it was authorized I think in 2007, sir,
around 50 positions. The administration of the program was assigned to the CAO. And we have a program manager,
Patricia Orsini, who does a fantastic job.
The elements of the program are a service member has to have less than 20 years of service, have the 30 percent
service-connected disability and have served post-September 11th. Participation has increased every year.
And to your point about the follow-on, the intention of the program is a two-year fellowship with the idea of bring-
ing these folks back into the workforce. We have placed-- I think we have 31 onboard now in member offices and more
in the pipeline.
Three individuals have gone on to be hired by the particular member. So they are current House employees, no
longer to the Wounded Warrior Program. Externally, I don't have that data as to if they move down to other employ-
ment. I do know one or two have gone on to the Veterans Administration, but I can follow up with specifics on all of
them.
BISHOP: All right. Thank you for that.
Mr. Strode!, member offices have long been frustrated about the length of time that it takes to get a purchase (inau-
dible) and our payment vouchers processed. I was pleased to hear that you've replaced your 15-year old financial system
with PeopleSoft, which promises to provide real-time updates on our orders and our voucher status.
Could you tell me --just tell the committee how many voucher transactions you process in a year and whether the
number has increased over the last five years? And will the implementation of the PeopleSoft system necessitate addi-
tional staff or will it reduce your staff requirements? STRODEL: There's a lot there, sir. Let me say (inaudible). The
PeopleSoft system was several years in the implementation. It replaced something called FFS, or Federal Financial Sys-
tem, which was a stopgap measure some 15 years ago.
So we were moving to the state-of-the-art technology and there were several points along the way where it was de-
layed. But it did, sir, go live as we say on October 1 of last year-- meaning, that, right now, we are using PeopleSoft as
a financial engine for the House.
It's an integrated system so that other standalone systems can function through PeopleSoft. So whether it's invento-
ry management, if it's procurement, they all run through that same system, which gives us certain savings and efficien-
cies, reporting capabilities, internal controls -- better internal controls.
In terms of the number of vouchers -- and let me just add a little bit about just (inaudible) in this position, and I felt
very, very, very strongly the frustration of-- of member offices. I met with the financial points of contacts and the
member offices with the financial groups that -- there's a group called the Professional Administrative Managers, which
your staff may serve on-- people whose job interacts with our organization, and were extremely frustrated, extremely
frustrated.
This subcommittee, previously, it asked for a survey of the House community and how they feel we're doing par-
ticularly in the area of finance and -- and voucher processing.
PeopleSoft is also --has a transparency component. And what we hope to get to, Mr. Bishop, is a point where your
office and other offices actually through the system plug in your own voucher and can follow it along the process. We
still pay it, but it's --I guess the best way to say it is you control the submission and then see how it's going through the
process.
That's where we hope to get to with PeopleSoft. We're not-- not there yet. We do have a pilot program where of-
fices can at least see how it's moving once it's in finance. They can't enter it themselves yet. And that all sounds great
and there are going to be efficiencies, but the transition and the development of it, we need to be methodical and -- and
in a programmatic way to rule these out.
Page 7
So I'm not suggesting that it's wonderful. It's a long developmental process. We'll work with the authorizing com-
mittee to make sure this is a direction we want to go.
Getting to your point about numbers, I'm so glad the CFO, Tracy (inaudible), is here because she can tell you the
number of vouchers that are processed annually. It's in the thousands per week.
Is that correct?
(CROSSTALK) STRODEL: About 250,000 annually, vouchers. I think there'll be efficiencies and-- and less pa-
perwork. There'll be efficiencies on our end in processing. If that ultimately leads to the opportunity to streamline the
staffing, that -- that would be a nice outcome.
BISHOP: Well, thank you.
I don't know, how is my time, Mr. Chairman?
CRENSHAW: I think it's expired. We'll have time for (inaudible) another round.
Let's go to Mr. Price.
PRICE: Thank you, Mr. Chairman.
I would like to raise the issue of the pending House defense of the Defense of Marriage Act, a legal action that was
voted on by the Council of House leaders and which apparently is moving forward.
And the -- I guess of the folks now sitting at the table, the -- the chief administrative officer would be the one to
address, but if Mr. Kirchner wants to chime in, I'd be happy to have him join us at the table as well.
General counsel, is he here?
KIRCHNER: (OFF-MIKE)
PRICE: Yes, if-- if you-- I'm sure you'll have something to say about this.
STRODEL: He's much smarter than me, but I can say that in terms of on -- on the operational side, I've notre-
ceived a request on -- on this topic.
PRICE: You've not received a request. There has been a vote taken by the-- by the Bipartisan Legal Advisory
Group, that is the-- the Group of Five House leaders, and, as you know, a well publicize letters exchanged between the
-- the speaker and the -- and the minority leader.
Other members I'm sure will have questions about this. Let me just begin though with a question about the histori-
cal context of this decision. Has-- what kind of precedent is there for the House paying for litigation approved by the
BLAG in previous congresses?
We're-- we're talking about substantial money here. It maybe not as big-- big legal endeavors go, but we're-- we're
talking about $500,000 as the fee that's been apparently stated. That-- that would be, of course, over a third of the Gen-
eral Counsel's budget. So we're talking about a substantial dedication of funds either for this source or from some other.
But -- but my initial question has to do with the -- the historical context. Is there precedent for this? Has this been
done in the past.
KIRCHNER: Is microphone on? Can you hear me?
In-- I've been working in the General Counsel's Office since 1995. There are two instances during that period of
time in which my office has signed retainer agreements with outside counsel to provide legal representation to the
House in one instance and advice to our office in another instance.
In both of those instances, the General Counsel signed a retainer agreement with the outside lawyer. The agreement
was approved by the chairman of the Committee on House Administration. And the funding to pay-- to pay for those
outside attorneys was provided from sources outside the General Counsel's budget.
So there are two instances, as I said, in the last 15 years. I'm aware of one other dating back to the early 1980s in --
you may be familiar with the Chadha case from late '70s or early '80 which ended up in the Supreme Court. In the
course of that, the House retained an outside attorney named Eugene Gressman, who at the time was a Law professor at
Page 8
UNC, who represented the House in briefing in the Ninth Circuit and the Supreme Court. So that's-- that's a third prec-
edent for this kind of arrangement.
PRICE: Now, these --these precedents, do they involve the defense of-- of statutes? How do they compare to the
case we're talking about here, both in subject matter and in the-- the cost involved? In other words, to what extent are
these convincing precedents for the House undertaking this kind oflegal action?
And -- and let me just also ask you, my private lawyers -- we're talking here apparently of an attorney named Paul
Clement's been retained. There's been a fee set of$500,000. Why a private lawyer? Why this fee?
We're told that's a 25 percent discount. Has that been reviewed by Ethics? This is-- how is that fee established?
What kind of bidding went on? What-- what-- how can you fill us in?
I'm interested in the precedent, of course, but I'm also interested in the terms of this agreement and how conven-
tional it is.
KIRCHNER: Well, in terms of the numbers that was spent in the previous-- in the previous three instances that I
described, I don't have those numbers in hand. Obviously, the Chadha case was more than 30 years ago, so the-- I-- the
dollars-- the dollar-- the (inaudible) dollars, you know, simply wouldn't compare.
The Chadha case did involve the defense of a federal statute that the Department of Justice declined to defend,
which is directly analogous to the situation here.
Another case in the late '90s involved litigation over the census. The -- the issue at that time was whether the Cen-
sus Bureau could conduct -- whether it was consistent with the Constitution for the Census Bureau to take surveys and
to rely on surveys in order to come up with a-- an enumeration of the population in time for the 2000 redistricting. So
that's a little bit different.
The third instance is -- is different in the sense that my office at that time -- this -- the third instance involved a
fallout from the search warrant that was executed in Congressman Jefferson's office in 2006. There were some efforts
between my office at the direction of the House to negotiate some protocols with the Department of Justice pursuant to
which warrants could be executed on the House consistent with the Constitution's was not to raise these kinds of issues.
PRICE: All right. So it sounds like one of these precedents, one from decades ago had something to do with de-
fending a statute. Why the --can you answer my other questions? Why-- why --why the hiring of outside counsel?
What kind of bidding process? How was this reset? What's the-- what's the story about the discount and so forth?
KIRCHNER: Well, let me start with the discount notion. There isn't a discount. This is if you take a look at there-
tainer, you'll see that it's actually a blended rate. And that is a -- simply a one- dollar-per-hour rate for every lawyer who
works on a contract.
Some of those lawyers will normally bill at a rate below that hourly rate. Some of the lawyers would normally bill
at a rate above that hourly rate. It's a method to simplify the billing. Whether it will ultimately work out to the House's
advantage in terms of savings is ...
PRICE: Excuse me. Doesn't the contract state that the firm is assessing at 75 percent of the regular charges?
KIRCHNER: No. The 75 percent figure comes with respect to non- lawyer time. So that's essentially paralegal time
and that sort of thing, which should be a very, very small fraction.
PRICE: OK. But a discount is a discount, right, in terms of-- of the Ethics rules or is it?
KIRCHNER: Well, my understanding of the ethics rules is that there is-- if you view the-- if you view the 75 per-
cent discount, which is I said is a very small fraction of the-- of the likely billings we are supposed to-- are likely to
receive, my understanding is that the ethics rules with respect to the defense were cases involving challenges to federal
statutes do not place a limit on pro bono assistance.
So I think the fair reading of the ethics rule is that if you can take pro bono representation, which is zero, then you
can take a discount.
PRICE: And the ethics committee has confirmed that?
CRENSHAW: Mr. Price, we've been pretty liberal (inaudible). We can pursue that on your next round, but the oth-
er members (inaudible).
Page 9
PRICE: Just this one final question.
The ethics committee has confirmed this?
KIRCHNER: I do not believe there has been a committee signoff on that, an ethics committee signoff on that.
PRICE: Thank you, Mr. Chairman.
CRENSHAW: Ms. Haas, let me ask you. I know that the speaker has made transparency a big issue, making the
House more open, and I imagine you have a lot to do with implementing that. I wonder if you could just comment on,
you know, what are your thoughts about that?
What are you trying to do? And does that require additional resources? Just talk a little bit about that transparency
ISSUe.
HAAS: Sure. Absolutely. There are couple of areas that I could give you some examples on transparency and some
progress we're making set by this Congress.
First, as you know, the House adopted a new rule for this Congress, making constitutionality statements a require-
ment when bills are introduced. As part of that rule, it also require that that information be made available electronical-
ly.
As you know, we received this information in paper form. So we work together with the Library of Congress, the
GPO and our office to develop a system to make this information available electronically and also in searchable format.
I mentioned earlier in my testimony the House Live webcasting. That is something that we are continuing to roll
out improvements to. It will allow both the House community and the public community to receive the House proceed-
ings on mobile devices. We expect that upgrade to be rolled out in the next couple of weeks.
And then, finally, a project that I think we're going to be tasked with in the very near future is to develop a system
for committees' electronic document to be made available in an open data format. And that's a project that the public has
been very interested in because they want to receive a lot of this data in a format that they can use and is very accessi-
ble. The House Live rollouts will require some additional resources. We have some early estimates of about $75,000 or
so.
This third project on the-- on the electronic documents we think will be a significant project. We haven't been
tasked with it yet, but we expect to have it happen and we've done some early estimates on that. Our early estimates are
about $1.3 million. We assume that we will need to work on a document management system and we'll need to provide
additional network capability and additional servers.
So those are three examples of some things on the transparency side that we have either completed or in the process
of working on.
And Mr. Livingood, along the same lines in terms of, you know, increased resources, after the incident with Repre-
sentative Giffords, now there are a lot of members as well who might need more money in our office accounts to deal
with security et cetera and you at that time really, it seems to me came up with really very common sense solutions to
some of those issues and I know that you are working to establish kind of a law enforcement coordination with end re-
sults in most of that was just thinking ahead and being smart and not costing a whole lot of money.
Talk a little bit about how that is working out and what you've done there.
LIVINGOOD: Mr. Chairman, when we came up with the idea of a law enforcement coordinator in the district of-
fices, we were thinking that there's so many district offices in the House with all the House members.
And that, they, each member needed in his or her district office a law enforcement coordinator who would go out to
the police departments and that means every police department in your area, that would be the local police, the county
police, the Sheriffs Department and the State Police and make a contact with them at a higher level, and then just the
patrolman or a trooper and be able to go to them when you have any security concerns.
Plus let them know when the member is attending a public event. And then they would ask the police to go with
them or ask the police to cover that event but usually to go out and look at it with them first, and then request that they
have a presence at that event which the police which the police would decide. And if they a problem getting law en-
Page 10
forcement presence then they're to come back to the Capitol Police or to my office and we will then start making calls
ourselves.
We sent a letter, we, the Capitol Police board send a letter to over 17,000 police agencies and asked for their coop-
eration in this effort. And we did not hear a negative from anyone but we heard over 50, 60 positives, that we will help
you, don't worry. Several even said they're going to start a dignitary protection provision in their department.
So far it has worked out very well. We're just finishing getting an LEC (ph) in every district office, there are few
offices that have not yet furnished us with a name but we sent something out again this week asking them to please send
us their name. And we have information on our website, intranet for every district office about security and what to do
with these LECs (ph), and what to do to help the member when there's a public event.
CRENSHAW: So that's all working out it sounds like pretty well without...
LIVINGOOD: So far so good, sir.
CRENSHAW: That's good to hear. Thank you.
Mr. Honda? HONDA: Thank you, Mr. Chairman.
Let me get back to-- I was going to ask initially a question on the Defense of Marriage Act and then I'd like to fol-
low up on Mr. Price's line of questioning.
But the-- you said there were precedents before, three. In those days did they have the Anti-Deficiency Act in place
at that time?
KIRCHNER: I believe the Anti-Deficiency Act has been around since the middle of the 19th century. So yes, I be-
lieve so.
HONDA: The Anti-Deficiency Act says what?
KIRCHNER: Not spending, not committing unappropriated funds, is that what you were referring to?
HONDA: Well whatever the Act says, that's what it says? Cannot appropriate or spend money that you don't have
or has not been allocated?
KIRCHNER: Something to that effect, yes.
HONDA: Or spend money outside of the account area.
KIRCHNER: Well I don't have the Act in front of me, so you're putting me in a little bit of a disadvantage but I
mean I can certainly get access to it if you want me to discuss the act itself in detail with you.
HONDA: OK, so basically it's about not spending money that you don't have or you have in a budget (inaudible) it
seems to me. That's within our account area. And what I understand is that there's been a price tag of $500,000 that's out
there, is that being committed in a contract?
KIRCHNER: The contract is, you may be aware puts a cap on the spending. It puts a cap on the ...
HONDA: So it's you do not go beyond this amount?
KIRCHNER: Yes.
HONDA: And this is with a private firm or an outside firm?
KIRCHNER: Yes, it's with the firm (inaudible) ...
(CROSSTALK)
HONDA: Seventy-five percent of a paralegal is-- the paralegal is-- we will be charged 75 percent of a standard
charge of a paralegal.
KIRCHNER: Yes.
HONDA: And then I thought I heard you say that they also --that we will be charged a dollar per hour, per lawyer.
KIRCHNER: Yes $520.
Page 11
HONDA: I'm sorry?
KIRCHNER: $520 per lawyer hour.
HONDA: I thought it was $7 per hour.
KIRCHNER: No --well, I wish it was a dollar per hour. No it's $520 per hour.
HONDA: I didn't hear that much.
KIRCHNER: I'm sorry, I'm sorry, I meant a particular dollar amount per lawyer per hour.
HONDA: Is that kind of discount...
KIRCHNER: I don't think it gets a discount, Mr. Honda ...
HONDA: What does our legal counsel get for an hour, more or less?
KIRCHNER: Are you talking about me?
(LAUGHTER)
It would be a figure below that amount.
(LAUGHTER)
HONDA: OK. And so, having said all that I'm talking about precedents and costs, in order to effect the contract is
there not a process of approval where the Senate and the president's office has a say in doing this or is that just in trans-
fer of funds from one account to another?
KIRCHNER: Are you asking me how this particular contract will be paid ?
HONDA: How much and how we effect a contract such as that with outside counsel , using money that we don't
have.
KIRCHNER: Well I understand that we do have ....
HONDA: Where is it coming from?
KIRCHNER: My understanding is it's being reprogrammed from other sources in the House.
HONDA: Reprogrammed by whom?
KIRCHNER: Well, by the appropriators, the Speaker's office obviously will be involved in that process.
HONDA: So it hasn't happened yet?
KIRCHNER: I don't know, Mr. Honda, whether it has happened or not.
And, Mr. Strode!, you say you haven't received the request, does the request have to go to you first before you ef-
fect the contract?
STRODEL: At some point along the way it would come to my office to be effected.
HONDA: So as of now you don't know what's going on?
STRODEL: I do not have a request.
HONDA: You don't know what's going on?
STRODEL: That's correct, I do not.
HONDA: So you will have-- you won't even know whether it's coming our of your funds or not, $500,000 I think
it was said about 3 5 percent of your budget, correct?
KIRCHNER: It was not coming out of the budget of the Office of the General counsel, it was being programmed
from other sources. Whether it will be ...
HONDA: Are you part of that negotiations?
KIRCHNER: No, I told you that I've been informed, I have been informed that that is what will happen.
Page 12
HONDA: Have you asked where is it coming from?
KIRCHNER: No.
HONDA: Is anybody curious or-- how was this being done, does anybody know?
KIRCHNER: Well I assume the appropriators know, I assume the Speaker's Office knows. It's possible that the
Committee on House Administration also knows, I would think those would be the principal people involved in affect-
ing the reprogramming ...
HONDA: The check has already been signed.
KIRCHNER: Correct.
HONDA: How do you sign a contract without prior permission?
KIRCHNER: Permission of-- I was directed by the leadership of the House to do this. It was approved by the
chairman of the Committee on House Administration.
HONDA: Is that the process?
KIRCHNER: Well that was the process that was followed here. HONDA: Is that the legal process?
KIRCHNER: I'm not aware that there is anything illegal or improper about that process.
HONDA: The Anti-Deficiency Act says you can't spend money you don't have, you're not it spending out of your
budget and therefore when you signed it, knowing full well that it's not going to come out of your budget.
Where is it coming from and how can you sign something prior to, you know, with all those things in place?
KIRCHNER: Because I, as I indicated, was advised by the leadership of the House that the money would be repro-
grammed and would be available to pay the contract.
HONDA: Was that in writing?
KIRCHNER: No.
HONDA: How do you know that's --how would I know that that's the way it's going to be?
KIRCHNER: Well you're asking me, I'm telling you what I understand, you're certainly welcome to confer with the
Speaker's Office.
HONDA: OK, OK, thank you.
Mr. Bishop? I mean, yes, it's your tum.
BISHOP: Thank you very much.
I'd like to return to Mr. Livingood and return to the issue of security for members and member offices. Obviously
with the tension that developed around the health care debates and then the shooting and the Giffords incident, you've
developed a policy which is a very thoughtful policy which has been commented on to have liaisons in each of our dis-
trict offices as well as the Washington offices for security, for member security, and to have the liaisons with the local
police organizations.
However, you also made recommendations for the physical security for our officers, and given the reduction in the
MRAs (ph) I think NET (ph) was contracted by the Sergeant at Arms Office to provide security assessment for each of
our individual district offices, and of course that was -- I understand some problem with the reports that were coming
back initially.
But it will require funds to alter, to do physical alterations to the district offices to provide the security according to
security expert recommendations. Given the shortage of funds is there a precedent -- and I understand that there's some
precedent on the Senate side, how does the Senate handle providing modifications to member officers for security pur-
poses as compared to what we do in the House?
Page 13
And is there a recommendation that this committee or could make in terms of providing for the added cost of secu-
rity which obviously is a need to get it done given the fiscal constraints that we're under?
LIVINGOOD: Ifl may just to give you a basis historically. We started years ago, members were asking for securi-
ty, physical security in their district offices. We then got with the police, the committees, both committees, this com-
mittee and the Committee on House Administration and figured out, at that time, the best way was that the office could
-- we would send somebody from the Capitol Police and they'd do a survey.
Then if that office-- they would send it back, the Capitol Police physical security section would approve it so there
wasn't some wild idea that was way over cost than needed. And that then we would go back to the office and give their
approval through the Committee on House Administration. That worked out well for years.
Then with a large influx of new members the Capitol Police were overwhelmed because there are only several
teams that could go out and we didn't want to wait four to five years, or three years to have it done. So the Capitol Po-
lice came up with the idea from the Senate of the possibility of using its under contract ADT who was already under
contract to (inaudible) or not the (inaudible) branch but to the Capitol complex for the Senate.
And we talked to some others and we found out that ADT appeared to be the best or could handle. And so, we sent
it out that ADT is available. We also offered that office the chance if they don't want to use ADT they may use a local
contractor, that did not change.
ADT got overwhelmed too with the large number at once. I think since we've had several meetings particularly in
the last two weeks. Since that I've not heard in the two weeks a complaint and that it seems to be ironed out but the an-
swer is that it does come out of the MRA (ph), that's my understanding from the House Administration.
And does the Senate do it differently? I have been told, I do not have confirmation and I'm not exactly sure how but
that somehow the Senate pays for that. I don't know if they have an MRA (ph) or there's another way.
BISHOP: Yes, I'm talking about the physical security for example in our offices and the recommendation from
your team was that we needed to have some doors installed and some cameras installed and position the doors in a cer-
tain way which required physical alteration of the facilities, of the buildings.
And it's my understanding that the Senate has, for a number of years provided each senator's office through the-- I
guess, your counterpart of the Senate side is who?
LIVINGOOD: That's what I understand that is ...
BISHOP: What is your counterpart?
LIVINGOOD: The Senate Sergeant at Arms.
BISHOP: The Senate Sergeant at Arms has a fund from which the Senate Sergeant at Arms can provide physical
alterations for security purposes to Senate member offices?
LIVINGOOD: That was what I was alluding to, there is-- I do not, you know, (inaudible) with them on how they
do it, or what they do around much because I know that they have a hundred and we have quite a bit more.
And so far it has, at least until that period when ADT got behind, it had been working. I realize that everyone is
concerned about the MRAs (ph) but that's an area that's in my expertise.
BISHOP: But that's what I'm trying to get into the record is really that on the Senate side each member there has an
allocation for their physical offices in their respective states, so that if alterations have to be made for security purposes,
the Senate Sergeant at Arms from that security fund that has been allocated is able to do that and oversee that work and
to fund that work so that it doesn't come out of the members' allowance.
LIVINGOOD: That it appears to be. I do not have the full story (inaudible) but it appears to be that the Sergeant at
Arms of the Senate has a fund that he approves, that is a, I guess, a Senate fund.
I don't know where it comes from or how, or why.
BISHOP: Well obviously it has to be appropriated by Congress. But I guess if there's got to be lighting, there's got
to be wiring, there's got to be doors installed, there's got to be windows, bullet- proof glass, those kinds of alterations, it
seems that if there were an allocation of X amount per member district office that were put in to your account, for secu-
rity with your proper administering and monitoring of that in the method that you just described, don't you think that
Page 14
Political Transcript Wire May 13,2011 Friday
would assist members and their staffs, and their constituents in their respective offices, security-wise, providing better
security than we have now but at a reasonable cost?
LIVINGOOD: I'd say first on some of those major renovations we go back to the office and tell them like doors
moving and doing certain things that are more permanent fixtures. But we tell them to talk to the building manager or
whoever you signed your lease with and try to get, ask them to it and include that in your rent. That's working with the
CAO's (ph) office and we've discussed that.
And as far as having a fund in our office I can't answer that, it would be a large, large number and it still comes
from the House Appropriations Committee. And to administrate that, quite frankly, on my part, with a small office
would be a large task but it would alleviate possibly what you've been talking having to use the MRA (ph) would be
another way. But again, I don't have any answer to that because that's really not my area of expertise.
I think you raise an interesting point, and I think a lot of this-- when we stop and think, there are risks involved. It
makes us all think whether it's what we do every day whether what kind of office space we're leasing because I know
it's come to mind to a lot of members (ph), that you realize maybe that there's a better place to have an office or a more
secure place, all those kinds of things but I think it's very legitimate to talk about it because I think it's all beginning to
come to light. So, thank you for that.
Let's go now to Mr. Price.
PRICE: Thank you, Mr. Chairman. Let me return to our line of questioning about the defense of the Defense of
Marriage Act.
First a loose end from my questions and then an additional question raised by the answers of the general counsel to
Mr. Honda.
But just quickly, can you fill us in on what kind of bidding process, if any, was utilized to choose the-- choose
counsel on this case? Did you or anyone else administer a search or a bidding procedure?
KIRCHNER: I wouldn't call it a bidding procedure. We did talk with another law firm that hadn't been identified as
a-- as a possible candidate for this job. And we talked with those two firms, Mr. Clement's original firm, King & Spal-
ding, and another firm.
PRICE: So you did. You did think about it and confer but you did not -- you did not do anything as formal as a -- as
a issuing a notice or receiving bids?
KIRCHNER: No.
PRICE: And is that standard practice?
KIRCHNER: Well, I've given you the instances in which I know of that the House has done this as I said within the
past 15 years that I have been here. And in both of those instances, the House went out and identified the lawyers that it
thought could do the job.
Lawyers are different than widgets. There are lawyers with particular expertises ...
PRICE: Well, bidding processes, of course, take that into account. You're not-- you're not bound to hire unquali-
fied people.
KIRCHNER: Right. I will say what happened here is consistent with what happened in those other two instances I
identified which is we went and we looked for lawyers that we thought could do the job and had the expertise to handle
the ...
PRICE: There was no public notice that his position was available? KIRCHNER: No.
PRICE: This was simply a private internal process to your office.
KIRCHNER: That's fair.
PRICE: All right.
Page 15
KIRCHNER: I should say not just our office. Obviously, the Speaker's office and the -- and the leadership offices
were involved as well.
PRICE: But it was not a public process.
KIRCHNER: No, it was not a public process.
PRICE: I'm puzzled by your answer about the Anti-Deficiency Act and by where this money is coming from. You
-- if I heard you correctly, you suggested that a reprogramming request would be forthcoming for transfers of funds --
for a transfer of funds within the legislative branch.
KIRCHNER: Yes.
PRICE: That is not my understanding of the speaker's intent. And perhaps you can correct me or perhaps there's
been a change. And I'm quoting here from an April 18th letter from the speaker to Senator Pelosi and here's what it says,
quite straightforwardly, "Obviously, the Department of Justice's decision, i.e. the decision not to defend this statute re-
sults in DOJ no longer needing the funds it would have otherwise expended pending the constitutionality of DOMA. It
is my intent than those funds be diverted to the House for reimbursement of any cost incurred by and associated with the
House and not DOJ defending DOMA."
And then he says again later in the letter, "I would welcome your joining me in support of redirecting these re-
sources, those resources from the DOJ." Now that sounds like something rather different from the internal reprogram-
ming you described. And it certainly raises Anti-Deficiency Act issues, doesn't it?
KIRCHNER: I don't think so. I mean, I don't want to presume to speak for the speaker here but I think what he's
probably referring to there is -- I think he used the word reimbursement, that is the House obviously is going to have to
pay the lawyers to get started on this thing. The work has already begun, obviously. The cases were in litigation at that
time the Department of Justice pulled the plug on them.
I think what he's probably referring to there is diverting money from the Department of Justice budget to the House
to reimburse the House for the monies that the House had to reprogram in order to pay the lawyers on a going forward
basis. I suspect that's what he's referring to but as I said, I would like not to be (inaudible) speak for the speaker. PRICE:
The ultimate source of the reimbursement is presumably-- presumably $500,000 from the Department of Justice. Has--
has any request been made of the Department of Justice for reimbursement? Has-- has any appropriations proposal
been made to reduce the appropriations by that amount or has any other public or private request gone forward that
would effect such a transfer?
KIRCHNER: Are you talking about from the Department of Justice to the House?
PRICE: That's what he's talking about here, yes.
KIRCHNER: Well, I'm not aware of that and that's-- that's way beyond the scope of my responsibilities. I-- I don't
know if that's going to happen. I assume that if it was going to happen, it would happen in the course of the operations.
PRICE: Whether it's happened or whether it will happen in the future or whether it's just a hypothetical, in the
meantime, you will be spending the money, is not that correct? The legislative branch, your office, will be spending the
money.
KIRCHNER: Well, yes.
PRICE: And this is money that maybe somebody has an idea somewhere where it's going to come from but it's --
it's certainly not in hand yet. Is that correct?
KIRCHNER: Well, no, I don't think that's fair. Again, I'm-- I'm --I'm-- the answers I'm giving you are based on
my understanding that there has been money appropriated to the House for various resources. And that some of that
money will be reprogrammed so as to be available to pay the lawyers. Exactly where it will be reprogrammed from and
to, I do not know.
In other words, I don't know whether it will end up in a fund with OGC at the top of it, the Office of General
Counsel, whether it'll be in a fund with the Committee on House Administration at the top it or the CAO (ph) at the top
of it. I don't-- I don't know where the money will end up. But it is my understanding and I have been led-- understood
to believe that the money will be available to pay the -- the lawyers' fees when they begin to send the bills.
Page 16
HONDA: Will the gentleman yield for ...
(CROSSTALK)
CRENSHAW: Let's -- let's -- I'll tell you what. That time has expired. Let's go another round and you all can pursue
that.
Let me -- let me ask Mr. Strode!, you mentioned in your testimony zero-based budgeting. It's a concept that's been
around; it's a good way to exercise fiscal discipline. And I just -- I'm curious how -- how did that work as you ap-
proached your spending from -- from that because that's something that probably other people could learn about. I'm
sure there's some difficulties involved but talk a little bit about how you went through that process trying to kind of im-
plement a zero-based budgeting process.
STRODEL: Yes, sir. As you mentioned, it's a -- a concept that's been around for -- for sometime. But it's one that
has advantages in terms of fiscal discipline because instead taking last year's request and adding a percentage, you start
with zero and you justify your programs, projects and activities.
For our organization as we talked about earlier, there's a lot-- it's a wide range of services so it's an opportunity to
revisit as well the efficacy of the particular program, project or activity. But it involves internal management developing
a team within each area that meets on a regular basis and has milestones that they're trying to achieve, to complete
whether this particular program, project or activity is still viable.
So we added a-- additional management requirement internal to CAO but it's-- it's well worth the exercise. And to
the extent we can find efficiencies and squeeze, that's what we -- we have to do.
CRENSHAW: Is that the way you put together your budget this year? Did you actually kind of go through that
from a zero base?
STRODEL: In a modified way, Mr. Chairman because we were kind of operating in the fly based on the CRs and
the way the budget has-- has evolved this year. So we had-- absolutely we're doing it for '13 but we thought we could
capture some for '12 as well.
So we're moving at a more truncated pace than we would like to but it's the intention going forward to do so.
CRENSHAW: And you found that it does in fact help you weed out duplication and helps you streamline, it helps
you understand as you started out your testimony going back to those core issues as you started at the very beginning. It
really helps you go back to the basics, is that -- is that true?
STRODEL: Yes, sir. Absolutely.
CRENSHAW: I mean, did you find it more difficult than maybe the normal process of just taking last year's budget
and it probably involves a little more work, I would imagine. But -- but you would say it's -- it's worth the effort?
STRODEL: Yes, I would. And it does involve more work. And the professionals that I work with within CAO
they're versatile; they're enthusiastic about their job. They come here to work not as a job but for public service. They
love working for the House of Representatives. So there's esprit de corps about how we do our job. And so the approach
is then in a positive way to look back and say, "Why do we do this? What (inaudible) is yielded from it. Is somebody
else doing it? There's another element doing it. Can we find some duplication to reduce?" So it's a management tool that
is well worth it. CRENSHAW: You probably recommend it to other people. Even though it involves more work, it's--
it's a good exercise to go through from time to time you'll probably say.
STRODEL: Yes. And I believe my counterparts are doing that as well.
CRENSHAW: Great. Thank you very much.
Mr. Honda?
Mr. Kirchner, I'm on the Justice, Commerce and Science Subcommittee on Appropriations. You mentioned that the
funds will be appropriated through that process. The funds for covering the contract...
Page 17
KIRCHNER: I think what I said was we're talking about monies that have been appropriated to the House and
they're simply being reprogrammed for another purpose something which I understand happens on a regular and ongo-
ing basis on the House.
HONDA: So, reprogramming appropriations still has to take committee action or subcommittee action first, does it
not?
KIRCHNER: I -- I do not know how the reprogramming process works. I understand that it goes through the Ap-
propriations Committee. I don't know specifically how that process works.
HONDA: It would seem that would be appropriate on pathway (ph). I sit on the subcommittee and maybe I missed
it but I haven't-- I don't remember ever attending a subcommittee meeting on-- on this item (inaudible). So I would
imagine that if that's the case, one, we haven't been notified; two, if that's the intent, we should be notified so that we
can have that debate; three, the contract was signed and that's a legal document we're committed to it. And so someone's
liable for that $500,000.
KIRCHNER: Yes.
HONDA: And it doesn't seem like it's your office although you signed it.
KIRCHNER: I did sign it.
HONDA: And who else signed it?
KIRCHNER: We-- well, Mr. Clement signed it obviously. And the chairman of the Committee on House Admin-
istration approved it.
HONDA: They signed it?
KIRCHNER: Yes. Mr. Lungren signed it.
HONDA: And did that take committee action also or ... KIRCHNER: I do not know how the committee handled
that. I do not know how CHA handled that process.
HONDA: So the chair of the authorizing committee signed it along with yours and the ...
KIRCHNER: The attorney.
HONDA: The attorney.
KIRCHNER: I have a copy of the retainer if you like to see it.
HONDA: That would be helpful.
KIRCHNER: Can I...
HONDA: No. I can get it later.
KIRCHNER: OK.
HONDA: And again, refreshing my memory, the CAO still doesn't know what the processes or that process is right
now.
STRODEL: As far as I know, sir, we -- our office, the CAO's office has not received a request for programming or
other document.
HONDA: Or has any knowledge of the proceedings that we've just discussed. This is all new?
STRODEL: Yes, that's correct.
HONDA: OK. It's new to me, I'm just (inaudible). And trust me, it's uncomfortable for me to ask these kinds of
questions.
KIRCHNER: It's quite all right.
HONDA: But, you know, it's something that...
KIRCHNER: I'll do the best I can to answer them for you.
Page 18
HONDA: No, you're doing fme, thank you very much.
Thank you, Mr. Chairman.
CRENSHAW: Thank you. I don't have any more questions on this. Mr. Honda, do you have nay further questions?
HONDA: Well, on the-- getting back to sustainability, and I guess I'd like to see the paperwork as far as the sus-
tainability versus the amount of money that we saved. It seems to me that if (inaudible) saving money that funds should
be passed on to the consumers, our staffers, our members who patronize the cafeteria.
I disagree that, in terms of sustainability, that transferring over to styrofoam from compostables is the smart move
in terms of the larger picture. And so, what I'm hearing is that the extra cost comes from the hauling of compostables to
another site and that's cost on top of hauling trash and garbage and wet garbage and everything else from our site to
another site. Is that conect?
STRODEL: Yes, it is. And if I could elaborate a little bit in that there's two costs that were associated with the
compostable service (inaudible) program. One is the service ware itself that the vendor provided which the cost they
incuned and then reduced the payment to the House from the (inaudible) receipts by.
The other cost was for the hauling of that compostable service ware which was a contract between CAO and a spe-
cific hauler who would take it to a compostable facility. If that helps kind of clarifY.
So the totals of those equaled in '08 a little over $600,000, in '09 and '010 somewhere between $450,000 and
$500,000.
So those were the -- specific to those programs. The architect has the larger campus-wide responsibility for recy-
cling and trash removal. At that time they-- their hauling was not to a compostable facility. But that's where, if that
helps understand it, a little bit of an overlap in-- in-- in terms ofwhat CAO was doing versus AOC.
HONDA: Well, did folks-- did folks get together to try and figure out how you bring these two activities together
to reduce the costs? That's one.
Two, by whose directions did we change this practice? Was it through negotiations or were they directed? Did we
just renegotiate another contract and said this is the way we want it and the contractors complied.
STRODEL: Ifl understand, the coordination or kind of what the architect does or is doing or has been doing versus
this particular service ware and the compostable program, they-- I'm not-- I don't want to speak too much for them but
their campus-wide focus, they had contacts in place for this initiative, and to this day. I believe they're working with this
committee and House administration on future opportunities to recycle or go to a waste-to-energy-type model.
But it was in the House community itself, the decision was made in '07 to ask the vendor to provide compostable
service ware. It has to go to a compostable facility to effect its purpose and I think there was some discussion between
AOC, and there is a partnership between our office that focused on sustainability and the architect as well.
But we were a smaller player in the larger campus that decision- making, if that-- ifthat helps.
HONDA: Well, my question was, did we renegotiate and was it our-- our action rather than the contract? Because
it seems to me the contractors would be perfectly happy to continue the way they were. And so, did we make that deci-
sion or did they?
STRODEL: Yes. We made that decision. The part of-- the two components that are costs that the House did not get
money for were the hauling of the compostable material and the service ware. The hauling contract expired and the
question arose, in this budget environment, is there a better way to have this service ware in place that does not cost the
House money? So that was a driver for the decision-making, the ...
HONDA: OK.
STRODEL: ... end of the contract and then the budget environment.
HONDA: $500,000 or $400,000 that's over and above our normal charge. That's in addition because of that one
particular activity.
Page 19
STRODEL: It was a cost that was incurred to the program-- to do the compostable service ware program that-- for
which we were charged or money to the House was offset or reduced. Less money came into the House to operate the
program.
And then based on the-- an inspector general report about the efficacy of this particular program perhaps there
could -- I believe the concern was in the end the energy savings weren't what was intended.
HONDA: Energy savings to the Capitol?
STRODEL: Yeah. As an initiative of sustainability, this wasn't cost-effective.
HONDA: But sustainability and the greening were part of a larger carbon footprint, are we not, and so it seems like
maybe the inspector general was very focused on his conclusions and it would have been good to have a little bit more
discussion on that.
But -- but this change was initiated by us not by the contractor. And did we try to work with the contractor to rene-
gotiate for them to absorb, in order for them to continue business with us?
STRODEL: Yes, discussions were -- were had with the-- with the vendor. The --there's versions of service ware
with costs associated to them -- full compostability, other combinations, or the most cost- effective was their standard
service ware, which is not an additional cost to the House. And so that was a decision that was made -- using the stand-
ard vendor service ware at no additional cost.
HONDA: When is the contract up?
STRODEL: The overall contract with Restaurant Associates, who's the current food service vendor, is three and a
half years into its first seven years. So it's a seven-year-based contract-- we're halfway through.
HONDA: (inaudible) every year?
STRODEL: Pardon?
HONDA: With the ability to renegotiate every year? STRODEL: No. It's a seven-year contract. Price changes are
subject to consideration and may or may not happen, but the contract itself is not.
HONDA: I suggest that we initiate the price change considering the savings that's been incurred and pass that on to
our customers and let's make it known that we've done that on behalf of the consumers. If that happens, appreciate that.
STRODEL: Yes, sir.
CRENSHAW: Thank you, Mr. Honda.
And thank you all for being here today. Thank you for the service that you and your colleagues provide to the
House.
So this meeting stands in recess subject to call of the chair.
END
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