Padding the bill: The CBO issues what looks like a highly inflated cost estimate for the Equal Justice for United States Military Personnel Act

The Congressional Budget Office's cost estimate for S. 2052, the Equal Justice for United States Military Personnel Act, which was issued on 22 October, is available here.

Relying on "information provided by the Department of Defense (DoD) and the American Bar Association," the cost estimate makes highly dubious claims. The CBO tells us that if the Supreme Court granted cert in a military case, "DoD could spend an additional $1 million to $2 million from appropriated funds to defend the case." Rarely have a read such an outlandish figure. I'm not guessing here. I've been military counsel in a granted Supreme Court case and I've been the head of a military defense office providing representation in a granted Supreme Court case. The only additional expenses to DOD that such a case would cause are printing and postage. It would be surprising if the two of them together reached $20,000 -- or 1/100th the high-end figure provided by the cost estimate. (Actually, the CBO estimate says that the additional $1-to-2 million expense would be "to defend the case." Since the Solicitor General's Office would actually defend the case -- and since it does its own printing in-house, which is presumably paid for by DOJ -- it's difficult to see why there would be any cost to DOD "to defend the case.")

Does ANYONE believe that the total cost to DOD of a granted case would approach even the low-end figure of $1 million?

The other outlandish claim is that even without an actual grant, the legislation would "cost about $1 million a year." This figure is derived under the assumptions that "the bill would make several hundred court-martialed service members eligible to file petitions each year, and that a substantial portion of those individuals would pursue review by the Supreme Court." This ignores actual practice under the current regime, in which cert petitions filed by appellate defense divisions are rare. If the legislation were to be enacted, no cert petition would be filed in the huge majority of eligible cases. In some much smaller number of cases, a military defense counsel would tell the client that there is no non-frivolous issue in the case and explain how the client can file pro se and the client would do so--at no cost to DOD. In some very small number of cases that currently wouldn't be eligible for cert, a military appellate defense division would file a cert petition on the client's behalf, thus creating additional printing expenses. To reach $1 million, there would have to be more than 200 such cases each year.

Let's provide some historical perspective. Gene Fidell observes that following the passage of the Military Justice Act of 1983, "[i]t took nine years before the number" of military cert petitions "exceeded two hundred." Eugene R. Fidell, Review of Decisions of the United States Court of Appeals for the Armed Forces by the Supreme Court of the United States, in Evolving Military Justice at 156 (Eugene R. Fidell & Dwight H. Sullivan, eds., 2002). The notion that almost ten times as many cert petitions would be filed annually from among the cases that CAAF deems insufficiently important to grant review is fanciful.

I've seen this trick many times before. When I was a registered lobbyist with the Maryland General Assembly, if the Governor's administration wanted to kill a bill, it would often try to engineer an expensive fiscal note from the Department of Legislative Services. I suspect that something similar happened here: DOD wants to kill the bill, so it puffed up its likely cost. What I can't understand is what role the ABA had in this cost estimate. The ABA supports this legislation. What figures did its lobbyist provide to the CBO?