Approximately two months ago President Obama announced that the Justice Department would not defend the Defense of Marriage Act (DOMA) in court. Since that time Speaker Boehner (R-OH) has announced that the Congress will hire a private lawyer to undertake the defense of DOMA in federal court. Speaker Boehner has every right to hire a lawyer if the Justice Department refuses to defend DOMA, but his decision may have revealed just how much more cost-effective the government is in some areas compared to the private sector.
There are obviously wide-ranging opinions about DOMA within the American populace. The law defines marriage as a legal union between a man and a woman. Supporters of the law say it protects the institution of marriage. Critics argue the law violated basic human rights and that the federal government has no business defining marriage. Regardless of one’s opinion on the law itself, the defense of the law by private lawyers is proving to be a very costly enterprise.
The Republicans in Congress signed a contract with a private lawyer named Paul Clement in order for him to defend DOMA. The contract provides that Clement will be paid $520 per hour in order to defend the case. The contract provides a maximum of $500,000 to be spent on this one case by Clement’s new firm (Clement was forced to form his own firm after his old law firm dropped the case).
If the same job had been done by the Justice Department it almost certainly would have cost less to defend the lawsuit. Lawyers at the Justice Department make a maximum of $129,517 per year, or about $62.06 per hour. Even factoring in generous benefits would not raise the pay rate over $100 per hour, which is less than five times what it costs to defend the law using private sector lawyers. What this practically means is that the Justice Department could hire at least three lawyers to work only on the DOMA for a full year at the same price it is costing Speaker Boehner to hire Clement.
The Iraq and Afghanistan wars also proved that the private sector does not always do things as efficiently or cheaply as the government. The government awarded billions in contracts to Haliburton and Blackwater in both conflicts. Subsequent investigations have found a substantial amount of alleged waste, and mixed results from these private companies. The government can afford to pay employees at salaries less than the free market in exchange for benefits, more reasonable hours, and the rewarding nature of the work itself. Many young and talented Justice Department attorneys making less than $100,000 would love to work on the DOMA case in order to gain experience. If Clement works five full work weeks on the DOMA case he will charge more than a Justice Department lawyer would cost in a year. This is how the “invisible hand” of capitalism works to actually cost more money in many cases.