Invective Left and Right in King+Spalding DOMA Affair
Opinionated political hyperbole continues to shroud cold analysis in our society, nowhere more evident than exaggerated grandstanding about one law firm’s role in representing politicians committed to upholding a controversial 1996 statute defining marriage in a particular way. On one side, the lawyer handling the case accused his firm of cowardly capitulating to political pressures that risk undermining the rule of law; his opponents accused the lawyer of signing an agreement that was “illegal” and “criminal.” In fact, the firm credibly cited internal failures, not political pressures, and the agreement’s terms do not warrant such condemning invective.
As background: The politicians, a group of House members calling themselves the Bipartisan Legal Advisory Group, authorized the General Counsel of the House on March 14, 2011 to retain a law firm to support Section III of the Defense of Marriage Act against constitutional challenge in United States federal courts. The General Counsel retained King & Spalding, a large and generally respected law firm, naming as the principal lawyer Paul Clement, a former Solicitor General of the United States, under a retention agreement signed April 14. The firm promptly filed an application to intervene in a pending civil case, on April 18.
Yesterday, however, the firm announced its preference to rescind the contract and filed formal papers seeking to withdraw its application to intervene. The firm explained its preference as due to an internal failure to vet the retention adequately. Mr. Clement promptly resigned the firm, writing a letter protesting against “abandoning” a client because its “legal position is unpopular in certain quarters.” He attributed the firm’s decision to political efforts that sought to “delegitimize” the representation and complained that it’s not the business of the firm or himself to evaluate whether a client is on the “wrong side of history” or the “right side of history.”
The firm, notably, did not mention any of these factors in its request to withdraw its application, citing instead “problems with the firm’s vetting process.” The vetting process could have failed in many ways, and those may include failure to evaluate fully the political aspects of the case. But it could also be due to the low price reflected in the retainer agreement, which capped the total payment for services at $500,000, put the average hourly rate for attorney time at a low $520, and discounted non-lawyer rates to 75% of market rates. Mr. Clement should be ashamed for his posturing. If his ideals require resigning and finding another firm to handle the case, he should simply do so without the self-righteous hyperbole and without gratuitously smearing the firm.
On the other side of this overheated and irresponsible exchange are those who claim the retainer agreement is “insulting, illegal, unconscionable or criminal” because of a clause they say bars firm employees from exercising basic rights to speak on controversial matters of public significance. These spokespeople contended that the contract violated a state law that prohibits employers from adopting or enforcing any “rule, regulation or policy” that “forbids or prevents” employees “from engaging or participating in politics.” It’s highly contestable that any provision of the retainer agreement violates this basic law—despite confident and elaborate contrary protestations.
The offending clause, instead, restricts firm employees from “lobbying or advocating,” “for or against,” (1) any “pending legislation” in the House or (2) “pending legislation” in the House or the Senate addressing the Act in question. Any client retaining and paying a law firm to represent a particular position in a legal matter would reasonably wish that the firm limit its employees from campaigns against the position of any sort. But few firms could agree to such a broad limit. And the clause at issue in this case does not provide for such a limit.
Certainly it would not amount to a “rule, regulation or policy” against “participating in politics.” It is much more narrow. It is not a “rule, regulation or policy” but a term of a contract. It restricts “lobbying or advocacy for or against” any position on “pending legislation.” It does not restrict “participating in politics.” Maybe the firm would like to narrow that further or remove it and maybe the poor internal vetting process it cites concerns that clause. But it is not obviously odious and is certainly not the obnoxious muzzle political activists portray it to be.
Pity that vociferous opinion peddlers can’t avoid any opportunity to pound the table and spout invective and instead stick to facts and analysis and reasoned discourse. It’s one price of free speech, of course, and worth paying, but it’s important for the rest of us to stick with the facts.