The
Legal Services Corporation (LSC) is one of the most controversial
of all federally funded programs. Polarized political debate has
resulted in funding cuts which are typically coupled with limitations
on the activities of LSC funded law offices and attorneys.1 Debate
has centered on the political ideology of these attorneys, as well
as the methods used to represent clients. At the core of the critics'
arguments is a concern that politically liberal LSC attorneys use
their clients to advance ideological issues. In particular, critics
contend that LSC attorneys rely heavily on class action suits, challenges
to legislation, lobbying, and other tools intended to force social
change. The accuracy of this contention has been assessed through
an examination of daily activity in LSC funded law offices. The data
indicate that the opinions of LSC critics are based on false assumptions.
If
debate regarding the LSC is limited to issues regarding "access to
justice," the majority of Americans are likely to support the LSC.
However, if increased access is seen as an effort to make widespread
social change, the support lessens, especially if these efforts are
funded with tax money. For example, Bennett and DiLorenzo argue that
the LSC "has routinely used taxpayer funds not to defend the poor,
but to promote radical political objectives that are often irrelevant
or detrimental to the poor" (1985:2). They suggest that legal services
clients are used as "pawns" to procure taxpayer funding to advance
the personal political agenda of LSC funded attorneys.
The
critics' arguments, at least overtly, are related to attorney ideology
and strategy, rather than the issue of access to justice. In effect,
critics have diverted attention from the access issue by shifting
the debate to the ideology of the attorneys. LSC critics, through
their focus on lawyer ideology and activity, have made the "client/cause" issue
a dominant theme in the public debate over the LSC. Critics suggest
that LSC attorneys should represent an individual "client," in a
single intervention, rather than attempt to make broader change,
with the potential to impact many in the client population, in a
class action or other "cause" based effort. By using this argument,
the critics have been able to place significant limitations on legal
services attorneys. LSC critics have defined the parameters for debate
over federally funded legal services to the poor, making the client/cause
issue a central theme in a discussion that has redefined the roles
of attorneys who represent the poor.
ORGANIZATION
OF THIS PAPER
This
paper is organized around an LSC time line. The time line begins
before the LSC was formed and continues to the present. Early on
the time line we see debate over the nature of, and need for, civil
representation of the poor. From the start, the debate referred to
the client/cause issue. Next on this time line we discuss the political
climate in which the LSC was formed. The early history of the LSC
is discussed, again with a focus on criticism related to the client/cause
issue. The rhetoric, as well as funding levels, are each documented.
The
next major event on the LSC timetable involves the efforts of President
Ronald Reagan. At this point in the LSC time line we begin to see
significant funding cuts. Moving further down the line, funding slowly
recovers as debate cools.
The
next major event in the LSC time line is again market by significant
funding cuts. These cuts, mandated by the Republican led Congress
that took control in 1995, were coupled with major restrictions on
LSC activity. At this time the LSC continues to function under the
limitations imposed by the Republican led Congress. Funding cuts
during these two time periods were so severe that it has been difficult
to develop a system in which the legal needs of even a minimal percentage
of the poor are being addressed.
This
paper concludes by summarizing events along the LSC time line. Patterns
of belief, throughout the life span of the LSC, have had a strong
impact on debate regarding the need for, and scope of, federally
funded legal services for the poor. The patterns are examined, along
with suggestions for alternate directions.
Common
Themes in the LSC Debate
Criticism
of the LSC includes reference to the political motivations of the
LSC, local organizations funded by the LSC, and the attorneys employed
in these organizations. Critics see the LSC as an organized, politically
progressive, public interest group. Critics assume that local offices
are politically liberal and base many of their comments on the perception
that local offices set case priorities in a way that favors client
oriented representation. Critics also express concerns regarding
individual attorneys. A common concern is that these attorneys, as
individuals, prefer ideologically liberal impact litigation over
the representation of individual clients. Critics are concerned that
LSC attorneys use their clients to advance ideological issues that
are consistent with the presumed liberal ideology of the attorney
and the office in which he or she is employed.
The
LSC debate has followed consistent themes from the beginning. The
consistency is so strong that it can be difficult to trace any historical
changes in the debate. The reality is that each side has been saying
many of the same things for over 30 years. The frequency of comments
from one side or the other my change over time, generally in reaction
to moves to expand or restrict the LSC, however the content of the
debate remains consistent with issues raised before the LSC was formed.
A
major point of dispute is whether lawyers to the poor should focus
on individual representation or impact litigation. Critics do not
routinely question whether lawyers should be provided. Instead, they
question the role these attorneys play. Three other common themes
are intertwined with concerns regarding the attorney's role. Critics,
even if supporting the idea of legal services to the poor, may question
the merits of federal funding to achieve this goal. Another common
criticism is related to the perception that the LSC is anti-business
or anti-government. Finally, LSC critics believe that the LSC, and
the attorneys funded by the LSC, are using the poor to advance a
liberal political agenda. Each of these themes is explored below.
The
Role of LSC Funded Attorneys
The
first clear definition of the client/cause issue was presented in
a widely cited article by Edgar and Jean Cahn (1964). The Cahns suggest
that it is useful to "distinguish between a service function (providing
legal services to all persons in need) and a representative function
(providing representation to individuals and cases which have broad
institutional implications and widespread ramifications)" (Cahn and
Cahn, 1964:1346). The "service function," as defined by the Cahns,
suggests a client based orientation, while the "representative function" correspond
to a cause orientation. The Cahns placed priority on the representative
function. Their opinions strongly influenced early debate regarding
OEO2 provided
legal services (Hannon, 1969) and set the stage for the debate which
continues today.
Following
the Cahn's lead, Carlin, Howard, and Messinger call for "facilitating
the development of legal rights in areas where the law is now vague
or biased" (1966:60). Carlin et al. also discuss the protections
and benefits "the law could be made to provide" (1966:61). They suggest
that attorneys should act to alter the law, and the legal system,
in an effort to expand legal protection of the poor. They are endorsing
the Cahn's suggestion that poverty lawyers should develop skills
other than those needed to simply serve the individual client's needs.
In
contrast to the tone of criticism since 1980, early debate was often
dominated by those who wanted OEO legal services to move away from
client, and toward cause, based litigation. Hannon, citing the Cahns,
suggests that the "distinction between kinds of cases lies at the
heart of the current (1969) contests for control of the legal services
offices" (Hannon 1969:237). The Cahns had cut to the heart of a debate
which continues over 30 years later.
Federal
Funding of LSC Activity
Once
the LSC was formed, those opposed to cause oriented work began to
make their voices heard. Their criticisms often centered on federal
funding for impact litigation, especially when there was no clear
method for determining the ideological direction this newly embraced
impact litigation would take. Senator Orrin Hatch was a strong LSC
critic in the 1980's. The issue of federal funding was troublesome
to him, especially when combined with issues of impact litigation
and "anti-business" litigation. Hatch (1985) complained about using
taxpayer funds to sue taxpayers, the government itself, and corporations
on the behalf of special interest groups who may not care about the
needs of the poor. Similarly, Bennett and DiLorenzo write that "hundreds
of millions of taxpayers' dollars have been used to fund the political
goals of a determined group that has used the needs of the poor as
a pretext to obtain vast sums of money from the government" (1985:19).
They suggest that taxpayer dollars have been diverted to elect candidates,
defeat or support litigation, to finance lobbying, and a number of
other activities. McCalpin refers to LSC activity as "the greatest
political fraud ever perpetuated" (1990:84) as he discusses the spending
of federal money in pursuit of political goals that do not correspond
with the needs of the poor. Isaac writes that the LSC "is a giant
laundering operation that converts federal into private dollars" (1997:44).
Each
of these statements was made by individuals with an ideological perspective
which is in conflict with perspectives they presume exists in the
LSC. The fact that these statements are made in forums such as The
National Review, and publications of the CATO Institute and The American
Enterprise Institute, may motivate the reader to discount their merits.
This may be a mistake in light of the long running political nature
of the debate over legal services to the poor. Each side claims that
the other is ignoring facts in the pursuit of goals. While there
may be truth to this assertion, there is no doubt that these beliefs
have had a significant impact on funding and activity in the LSC
funded law office.
Anti-Business
Activities of the LSC
DiLorenzo
(1988) discusses LSC efforts which he believes are intended to promote
governmental control over private sector decisions as well as government
takeover of private enterprise. For example, Isaac (1997) writes
of farmers who, she believes, are faced with extortion threats posed
by the LSC. The farmers are forced to create certain working conditions,
or face potential lawsuits brought by workers. OEO funded litigation,
directed toward California farmers, brought the anti-business issue
to the attention of then Governor Ronald Reagan (Weinstein, 1995).
President Reagan, and Republicans who have followed, strongly endorse
the idea that LSC activities are harmful in a free enterprise system.
For example, a Republican Policy Committee statement informs Senate
members of the Committee's belief that LSC grantees have filed spurious
cases in an effort to harass Texas landowners, again on behalf of
migrant workers (Nickles, 1995).
Many
cases cited in support of the anti-business nature of the LSC are
related to farming. Critics report anti-business activity in other
areas, especially banking and housing, as well. DiLorenzo (1988)
argues that LSC funded attorneys who oppose bank mergers under the
Community Reinvestment Act are acting contrary to the public interest
by forcing side payments to the community groups and wasting the
bank's assets. In this article DiLorenzo (1988), a long time LSC
critic, continues with a long list of grievances regarding anti-business
activity.
The
LSC's Liberal Political Agenda
Many
LSC critics believe that LSC funded attorneys use the poor to advance
a liberal, or even left-wing, political agenda. The theme is that
LSC attorneys, with little real concern for the poor, use their clients
to redistribute wealth, expand the welfare system, undermine the
rights of private property owners, and encourage alternative lifestyles
(Bennett and DiLorenzo, 1985). Bennett and DiLorenzo argue that legal
services attorneys seek cases with "social significance," as defined
by the attorneys, rather than society as a whole. They write that "Legal
Services is a radical political movement, and tax-financed politics
have permeated the agency since its inception" (1985:5).
It
is difficult to separate concerns regarding ideological bias from
other concerns raised by LSC critics. For example, the "pawn" status
of LSC clients was raised in relation to critic concerns regarding
taxpayer funding. It is safe to assume that if the LSC endorsed conservative
issues, or served to replicate a status quo that discriminates against
the poor, there would be less concern, at least from the current
set of critics, regarding the behavior of LSC funded attorneys. But
then, if past patterns hold true, another set of critics will enter.
Presumptions regarding political ideology, ideas about funding sources,
opinions regarding litigation strategies, and identification with
the targets of litigation each work together to create beliefs either
for or against the LSC. This interaction of factors can make it difficult
to separate the issues.
An
issue related to assumptions regarding reform oriented public interest
lawyers is the suggestion that these lawyers have a predictable,
left leaning, social change agenda. This agenda is presumed to motivate
the attorney to consider the broader implications of a case. For
example, do public interest lawyers prefer clients with social change
agendas? Must the lawyer agree with that agenda? Do lawyers seek
to advance their own social change agendas through the selection
of clients? Do public interest lawyers adequately inform their clients
of choices, and the implications of those choices, or is their role
more paternalistic?
These
questions are applicable to public interest lawyers in ways that
are not necessarily comparable to corporate attorneys. The corporate
lawyer is, in most cases, working for a powerful client with the
resources necessary to dictate the direction of the attorney's efforts.
In contrast, the public interest lawyer, especially within the LSC,
is working for clients with very little political or economic power.
DiLorenzo suggests that since LSC attorneys do not rely on the poor
for funding, they are "more accountable to their own political activities
than to the legal needs of the poor" (1988:200). He argues that LSC
attorneys, who have more power than their clients, will take advantage
of that power imbalance in an effort to assert their own political
agenda. Implicit in this argument is the suggestion that the poor
have no ideological foundation, that the poor are easily manipulated
to suit the needs of the LSC attorney, and that the party with the
most money and relative power will naturally use that imbalance to
achieve goals that are in opposition to the needs of the less powerful
party.
The
power issue is not limited to the role of the attorney. LSC clients,
being poor, are somewhat powerless. The balance of client or cause
litigation is impacted to the extent that groups on either side of
an issue have equal access to all the tools available in an effort
to impact public policy. Historically, this balance has not existed.
The poor have most typically been excluded from courtroom based forms
of policy formation, especially if forced to finance cause based
litigation without financial resources provided by the government
or other source. Public interest lawyers play an important role in
our society, yet they are often faced with structural issues that
limit their availability and effectiveness. Galanter (1975), in his
widely cited article, discusses the skills and motivations of those
who litigate regularly. The repeat players are able to structure
the process in ways that disadvantage those with fewer legal experiences.
Public interest lawyers, especially if prevented from engaging in
cause oriented litigation, are unable to address the structural issues
that limit their effectiveness.
Many
lawyers work for the status quo. These lawyers are often employed
by big business and individuals who control great amounts of power
and wealth (Kennedy, 1983). As we know, law and lawyers can be very
expensive. Those who want justice must be able to pay a price, but
in a free society it is accepted that the price should not be prohibitive.
The idea that legal representation is important to those who are
facing a legal battle with a much stronger foe has led to an acceptance
that individuals in criminal cases are entitled to legal representation
(Gideon v. Wainwright, 372 U.S. 335). This constitutional
protection applies only in criminal cases, and only in certain situations.
State provision of civil legal services is more complicated, and
far less available. Many in our society are uncomfortable with the
reality that the poor are often shut out of the legal system. As
a result, we have taken steps to provide legal services to the poor.
Although it can be argued that we have not gone far enough, the fact
that we have acted at all provides evidence of our belief in this
ideal.
The
historical role of public interest law is to speak for the powerless,
either as advocates for individuals or in broader reform oriented
cases intent on changing the laws and/or structure of our society.
If the law's role is to create and interpret rules in our society,
the role of public interest law is to provide for the legal needs
of those who have fallen through the cracks. Most Americans, even
those opposed to the LSC, are likely to agree with this definition
of the role of public interest law. However, there is less agreement
that the role of public interest lawyers includes efforts to fill
in the cracks. In effect, the support for federally funded legal
services to the poor is dependent on how we define the role of public
interest lawyers. That role definition relies heavily on the client/cause
issue.
Client/Cause
Dichotomy
The
client/cause issue is directly related to society's conception of
the role of lawyers. This issue is based on questions of whether
public interest lawyers should work for social change as reformers,
or limit themselves to representation of individuals, as advocates,
without consideration of the broader societal implications that could
stem from that representation. LSC critics have focused on this role
distinction. Critics argue that the attorney's role is to represent
his or her clients. The attorneys interviewed for this research agree
with that definition of role. Differences in opinion arise as the
attorneys and critics consider issues related to "zealous representation," which
may not be possible if all the tools of a lawyer are not available.
Paternalism and power differences are also considered as the attorneys
and critics consider issues regarding the role of the public interest
attorney. Conception of role is also impacted by beliefs regarding
whether social change should occur as a result of litigation, legislation,
or a combination of other factors.
The
categories of client or cause representation are not necessarily
mutually exclusive. A lawyer may view the cumulative effect of helping
many individuals, in an advocate role, as an effective tool for social
change. The lawyer acts as an advocate for an individual, but the
attorney may have reform motives that he or she believes are best
achieved through a series of individual representations. Is this
a client or cause oriented attorney?
Other
attorneys will act in ways that are consistent with the needs of
the client, yet know that a victory will have a major impact on similarly
situated individuals. Others may paternalistically lead their clients
down certain paths, believing that this path is best for the client,
yet failing to recognize that personal issues are preventing the
attorney from making unbiased recommendations to his or her client.
Still others may actively seek clients with traits, either related
to the legal issue or the enhancing the attractiveness of the client,
that will increase the odds of a successful challenge of a statute
or regulation that is personally offensive to the attorney. In reality,
the client/cause distinction may be more of a spectrum that a dichotomy.
In this case the perception is as important as the reality. Although
the client/cause distinction may be based on a false dichotomy, policy
decisions have been made in reliance on this dichotomy.
Issues
involved in the debate over legal services to the poor have consistently
centered on questions regarding the means through which this representation
might best be achieved. The question of whether service should be
provided is somewhat resolved. However, the mechanics involved in
implementing this decision are very unsettled. Several issues are
at the heart of the debate. The primary issue involves questions
of the attorney's role. If the attorney's role includes cause oriented
impact litigation, is it appropriate for the government to fund this
litigation? This question becomes more difficult if there are concerns
regarding the political orientation of the attorneys who provide
legal assistance to the poor.
Since
1974, much of the debate has focused on the activities and motivations
of LSC attorneys. It is clear that those with the power to make decisions
which lead to funding for legal services prefer to retain control
of those funds well after they have been disbursed. They support
federal funding for legal services until that support threatens their
interests. The question for those on one side of the issue involves
the problem of providing for the legal needs of the poor in a way
that assures that legal services will be provided as a commodity
rather than a tool for change. If not for the fact that law may threaten
their interests, many on this side believe in the importance of access
to justice. If critics could control the LSC they would be less likely
to suggest that all funding be removed. In short, if the LSC would "behave," they
would potentially be funded to meet the legal needs of many more
poor Americans.
On
the other side we have a conflicting definition of justice, along
with conflicting ideas regarding the role of the public interest
attorney. Many LSC funded attorneys realize positive rewards from
a role that is limited to individual representation. These individuals
might remain satisfied with legal services work even if cause litigation
were no longer possible. Others, who believe in the power of impact
litigation, will use that tool, to the extent that it is available,
to make social change that will impact the largest number of real
or potential clients. This is especially likely in a situation where
available funding is inadequate. This is exactly the situation which
has been created through the actions of LSC critics.
Early
History of the LSC
The
roots of the LSC can be found in President Lyndon Johnson's war on
poverty. The Office of Economic Opportunity (OEO) began making grants
to local legal aid organizations in 1965. The result of these grants
was felt in poor communities as OEO lawyers handled more than a million
cases each year (Brill, 1973). From the beginning, critics of legal
assistance to the poor were concerned with the use of public money
to challenge the status quo. Early debate centered on the use of
class action suits that challenged general practices and policies
of both private and public institutions. Critics preferred to limit
the use of federal funds in a way that favored client representation
with relatively little impact on the status quo. While critics pushed
for limitations, legal service providers were concerned with protecting
the autonomy of groups that were providing legal services to the
poor. The providers believed that decisions regarding strategy should
be made at the local level, or in combination with other legal service
providers. Based on their experiences, providers had concluded that
class action suits were necessary in an effort to effectively address
the needs of their clients. Providers believed that individual representation,
while important and still a major percentage of their caseload, would
prevent the type of systemic changes needed to correct the problems
faced by the poor.
In
1974, OEO legal services was replaced by the Legal Services Corporation.
The LSC was created to provide basic legal assistance to poor Americans.
It is a private nonprofit corporation established to help provide
low income Americans with equal access to justice under the law.
In reaction to experiences faced by early legal service providers,
the LSC was designed as an independent corporation to make it "immune
to political pressure" (ABA, 1996). The LSC does not directly provide
legal services to the poor. Assistance is provided by local legal
aid offices that receive grants determined by a formula based on
poverty rates in various service areas (Nickles, 1995). The local
legal aid offices also receive funding from states, IOLTA (interest
on lawyer trust accounts), and from private nonprofit groups ranging
from the United Way to groups interested in narrower issues such
as housing, elder law, and education.
Ronald
Reagan and the LSC
Ronald
Reagan was a longtime opponent of the LSC. While Governor of California,
Reagan had lost several battles over OEO funded legal services. In
September 1967, legal assistance lawyers obtained an order restraining
the Department of Labor from importing Mexican workers in the bracero
program. Two months later, the California Supreme Court ruled that
Governor Ronald Reagan should be prohibited from dropping 160,000
indigents from the Medi-Cal health care program. Soon thereafter,
legal aid lawyers won a case that forced California farm owners to
pay a minimum wage of $1.65 an hour, the highest in the nation for
farm workers at the time. Legal aid lawyers also prevailed in suits
requiring all California counties to adopt a government food program
and to participate in federal school lunch programs for poor children
(Weinstein, 1995).
These
legal services experiences became the foundation upon which Reagan
built his fight against government funded legal services for the
poor. Reagan made numerous attempts to kill the LSC before it became
law. As California Governor, he attempted to veto federal funding
for legal assistance in California. His attempt was thwarted as the
Office of Economic Opportunity overrode his veto (Siegel and Landau,
1983). In reaction to Reagan's efforts in California, which illustrated
the potential for political interference, the American Bar Association
and others called for the creation of a separate nonprofit corporation
to receive funds from Congress and distribute them to local programs.
In response, the LSC was created, as an independent private corporation.
However, the LSC had not heard the last of Mr. Reagan, who was elected
President in 1980.
Throughout
the 1980's, Reagan's dislike for the LSC was coupled with a great
deal of political support, wielded by a President who enjoyed a high
level of public support. Reagan tried to remove funding for the LSC
in 7 of the 8 budgets he submitted to Congress. While Congress refused
to end the LSC, they did approve a 25 percent budget cut in 1981.
This cut reduced funding to $241 million. Reagan also appointed legal
aid critics to the LSC board of directors. These appointments resulted
in open warfare on everything from lobbying and class action suits
to the financial management of local programs (Jost, 1989). Between
1981 and 1982 the LSC lost 1,773 of its attorneys. This was a cut
of 28%, which was coupled with a cut of 31% of non attorneys. The
total staff shrank from 15,539 to 10,906 within months (Siegel and
Landau, 1983).
These
cuts were devastating at the local level. For example, the San Francisco
Neighborhood Legal Assistance Foundation, a group Reagan had attempted
to de-fund as Governor, went from 43 to 17 lawyers (Siegel and Landau,
1983). In most cases, those who left included the most experienced
attorneys. These attorneys, who due to their level of experience
had increased options elsewhere, left as they grew "tired of the
constant wondering from one moment to the next what the President
was going to do with the program" (Siegel and Landau, 1983:10). These
losses occurred at a time when demand for services was increasing.
The diversity of cases was also increasing. In effect, local offices
were losing their best people at a time when the organizations would
most benefit from the input of experienced legal service attorneys.
During
the Reagan years, the client/cause issue was at the root of many
complaints regarding LSC funded law offices. Restrictions on class
action litigation were clearly related to this issue. Restrictions
on litigation intended to challenge or amend existing welfare law
provide another example. Funding restrictions are also related to
an effort to restrict complex, and expensive, impact litigation.
If we examine the basis of many of these restrictions, we see that
the client/cause issue is very important to LSC critics.
As
we move further down the LSC time line it is clear that the Reagan
years played a major role in defining the LSC, the job duties of
LSC funded attorneys, and the context in which LSC funded attorneys
worked in 1994. His efforts to kill the LSC were, up to this point,
the most difficult events ever faced by the LSC as a whole. Although
he was no longer the President, Reagan's legacy remained, in spite
of the fact that the LSC now had a friend in the White House. By
the early 90's the general feeling was that things were going as
well as could be expected, given funding that was far short of that
necessary to address the legal needs of those the client population
(Spangenberg, 1993). By the late 1990's it was clear that things
were going from bad to worse in the LSC funded law office.
Reagan
Again?
As
we know, the LSC survived the Reagan presidency. An important factor
in the survival of the LSC was that Democrats, who supported the
LSC, controlled the House and Senate. The Democrats and their Republican
allies kept funding the LSC, although not at levels seen before the
Reagan years. Starting in 1984, funding began to increase again.
The budget continued to rise gradually during the Bush administration
and hit $400 million for the first time a year after Bill Clinton
was elected president (LSC, 1996). LSC funding took a major nosedive
after the Republicans won control of the U.S. Congress.
Did
Reagan Fail?
Ronald
Reagan failed to kill the LSC due to the efforts of the organized
bar, along with the support of the Democrat controlled Congress,
enhanced by Republican Senator Warren Rudman's vocal support for
the LSC. This experience led some in to believe that the LSC would
survive the current assault, just as they had survived the Reagan
years, as long as the foundation for a future LSC remained intact.
This thinking allowed commentators, as well as LSC funded attorneys,
to see Reagan's efforts as a failure. He didn't kill the LSC, so
they lived to fight another day. However, there are other ways of
viewing the impact of Reagan's attempts to kill the LSC. While it
is true that he failed to remove all funding, he was successful in
limiting available resources, and he did so over an extended period
of time. He was also successful in bringing significant support to
the idea that the LSC was an organization that did not deserve federal
funding. Many of those who were sympathetic to this idea have continued
in their criticism of the LSC. More important, they appear to have
learned from their Reagan era experiences with the LSC. This knowledge
made them much more effective during the second major assault on
the LSC.
If
the LSC had continued to grow at levels seen in the late 1970's,
it may have been difficult, no matter how well prepared, for the
Republican majority to suggest a complete phase out of the LSC. Federal
funding for legal services, in real as well as 1997 dollars, increased
until 1979 (see figure 1). Although the budget increased each year,
LSC funding failed to keep up with inflation after 1979. It appears
that the tide may have turned for the LSC even before Ronald Reagan
was elected President. While there is no doubt that he was able to
initiate a large funding cut, the cut may have been the result of
timing as well as his personal distrust of the LSC.
Figure
1: LSC Annual Budgets - In Millions of Actual and 1997 Dollars3
Reagan's
first budget, in 1982, resulted in a significant cut in funding.
There was a slight increase in 1984, followed by another slight increase
in 1985. The 1986 cut was the result of across the board spending
cuts required by the passing of the Gramm-Rudman bill. This budget
limitation, which applied to all federal spending, was sponsored
by a strong critic of the LSC, as well as the Senator often named
as a hero of the LSC.
When
using inflation adjusted figures, we see that LSC funding was fairly
consistent from the first Reagan budget of 1982 until 1995, as President
Clinton sent his budget to the last Democratically controlled Congress.
Funding was significantly cut in 1996. These cuts brought federal
funding for civil legal services to the poor down to levels not seen
since the 1970's. Of course, those who argue that Reagan failed to
kill the LSC are correct. The LSC survived the Reagan administration.
Yet funding levels have never returned to those seen before Reagan.
The reality is that the LSC has seldom, if ever, been funded to function
at levels initially envisioned. Funding came close to the desired
level in 1979. However, the climb began to slow, and fell significantly
with Reagan's 1982 budget.
Weinstein
writes that "despite cyclical attempts to kill the program, despite
its inclination to raise the anger of conservatives and big business,
despite the shrinking federal purse, the history of federal legal
aid to the poor since its birth 30 years ago has been one largely
of remarkable growth and expansion" (1995:1). An examination of funding,
when the dollars are adjusted for inflation, suggests that this statement
is not entirely accurate. This section begins by asking whether Reagan
failed in his efforts to end the LSC? While it is true that he did
not kill the LSC, he certainly inflicted serious damage. This damage
was so severe that the LSC has never fully recovered. LSC critics
have been able to refocus their agenda and have made significant
strides toward finishing a job Ronald Reagan started in 1981. An
examination of funding levels indicates that Reagan's efforts had
a long lasting legacy. It is clear that in 1995, this legacy is very
strong. Our time line now turns to the events of the Republican Congress.
The
Republican Congress and the LSC
In
1996, criticism of the LSC, coupled with a Republican majority in
the United States Congress, resulted in severe funding cuts. These
cuts were similar in nature to those imposed during the early years
of the Reagan administration. Again we heard calls to end the LSC.
While the LSC survived, funding for 1996 was cut by a third to $278
million. Critics in Congress expected to cut funding further and
hoped to "zero out" the LSC by 1998. Along with funding cuts, significant
restrictions were placed on LSC activity. LSC funded law offices
are now forbidden from engaging in redistricting litigation and class
action suits of any kind. Other provisions in the 1996 funding bill
limit representation of certain non citizens and prohibit representation
of persons accused of drug use in public housing evictions. LSC attorneys
are also prohibited from litigation, lobbying, or rulemaking in an
effort to amend or challenge existing welfare law.
The
most significant restriction on the LSC is related to outside funding
sources. Regardless of where the funding for such cases originates,
legal services agencies that accept federal funds cannot pursue cases
involving legislative redistricting, abortion, prisoners' rights,
welfare reform, public housing evictions for alleged drug crimes,
alien representation, or class actions. In effect, all funding to
LSC funded clinics is subject to the same restrictions as funds provided
by the federal government
What
Next?
The
controversy over federally funded legal services will not end soon.
Some critics contend that they will not be satisfied until the LSC
is abolished. They may get their wish. However, an end to the LSC
will not likely put an end to the debate. Those who feel that legal
services to the poor are too important to eliminate also have strong
voices. We have heard these voices in the past, and can expect to
hear them in the future. This is clearly a time of change in the
area of legal services to the poor. Whether through legislation or
litigation, the role of the LSC is being redefined. The real issue
is the provision of legal services to clients who face difficult
battles. These battles are made even more difficult by power imbalances
and systemic disadvantages for those who fall through the cracks.
For
the time being, Congress appears to have backed down from threats
to end the LSC. Funding for 1998 was $283 million, the same as that
in 1997. This funding level, while still well below what is needed,
indicated a retreat from a 1995 threat to zero out the LSC within
two years. The LSC has requested $340 million, and received $300
million, for fiscal year 1999. The request for fiscal year 2000 is
again at $340 million.
Grantees
Fight Back
While
many LSC backers are willing to settle for the fact that the LSC
was saved, others have directly challenged the legislation that placed
the most recent set of restrictions on the LSC. In February of 1997,
a federal judge in Hawaii issued a preliminary injunction which blocked,
on First Amendment grounds, many of the restrictions Congress imposed
on LSC funded activity. The injunction applied only to non LSC funds,
and applied only to areas of California, Hawaii and Alaska where
LSC-funded programs challenged the restrictions (Legal Aid of
Hawaii v. Legal Services Corp., 97-00032). Among the activities
U.S. District Court Chief Judge Alan C. Kay said were unconstitutionally
prohibited were lobbying for welfare reform; lobbying on reapportionment;
representing prisoners; representing public housing tenants accused
of drug dealing in eviction proceedings; participating in any litigation
involving abortion; lobbying on legislation; and conducting training
programs to teach people to lobby. Judge Kay did not strike down
the congressional ban on class action litigation. As this case made
its way through the courts the LSC prevailed. The case ended with
a summary judgment from the District Court in Hawaii, through the
unanimous opinion in the Corporation's favor from the Ninth Circuit,
and on up to the Supreme Court's denial of certiorari
A
second suit challenging the restrictions, filed in U.S. District
Court in Brooklyn, N.Y., less than a week after the Hawaii case,
challenges not only the restrictions on non federal funds, but on
LSC funds as well (Velazquez v. Legal Services Corp., CV
97-00182). A New York state trial judge was the first to rule on
the issue. She held that restrictions which prohibit legal aid organizations
from engaging in class action suits are unconstitutional.
In
the face of Congressional threats to kill the LSC, the LSC board
had reached a compromise with Congress and agreed to require LSC
funded offices to withdraw from more than 630 pending class action
suits nationwide (ACLU, 1996). This was an important victory to LSC
critics, who have been critical of these suits. This agreement was
problematic according to Acting Manhattan Supreme Court Judge Beverly
Cohen. In her opinion in the Velazquez case, she called
the restrictions "a blatant attempt to inhibit the First Amendment
rights of LSC lawyers, their clients and anyone who agrees with them" (CV
97-00182). Judge Cohen rejected a Congressional mandate that all
Legal Services lawyers withdraw from pending class action suit and
refrain from filing such suits in the future. Cohen ruled that the
restrictions are unconstitutional, saying Congress had no right to
tell the corporation how to spend the money it got from other sources.
Cohen wrote that "the rhetoric of budget reform is being used to
thinly disguise an attack on basic freedoms" (CV 97-00182).
When
the Velasquez case moved to the district court, the restrictions
imposed on Legal Services Corporation (LSC) grantees were held to
be valid. In an appeal the New York Court of Appeals rejected plaintiffs'
claim that the restrictions prohibiting "welfare reform" litigation
discriminated against certain speech on the basis of viewpoint and
were therefore unconstitutional even as applied to the use of federal
monies. However, the court did invalidate that portion of the restrictions
that would prevent LSC grantees from representing individuals contesting
the legality of an existing welfare rule" (Velazquez v. Legal Servs.
Corp., No. 98-6006).
In
different circumstances the LSC might be thrilled with these challenges,
in spite of the fact that they are the target of the litigation.
However, the LSC was concerned about Congressional reaction to cases
that use federal funds to tell Congress that they cannot limit the
use of federal funds. LSC supporters warn that the grantee groups
have found the quickest way to inflame Congress against the LSC.
They warn that the plaintiffs are playing Russian roulette with clients'
lives, as well as the jobs of other legal aid lawyers. The grantees
counter that the LSC is caving in to budgetary blackmail (Rovella,
1997). The truth is, whether the LSC likes it or not, they are charged
with implementing regulations, as defined by Congress. They are attempting
to do so, at times in the face of lawsuits from those who receive
LSC funds. In a recent resolution the LSC referred to "statutory
restrictions which, while clearly unpopular within the legal services
community, the Corporation not only had the duty to implement, but
were also central to continued Congressional support for federal
funding of legal assistance" (LSC, 1999).
From
the start, LSC supporters feared the backlash from these lawsuits.
Alan Houseman says that the critics will argue that the LSC can't
be reformed, so let's just eliminate it (Hansen, 1997). Elimination
of the LSC is exactly what some of its critics have in mind, according
to Kenneth Boehm, a longtime critic of the LSC. Boehm says the litigation
will undoubtedly cost the LSC some crucial support in Congress, increasing
the likelihood of deep budget cuts, if not outright elimination.
Boehm said that if these grantees "sat around and tried to figure
out a better way to jeopardize their funding, they couldn't do it" (Hansen,
1997:28).
IOLTA
Funding is Challenged
Another
issue that may threaten the future of legal services is related to
attempts to restrict the use of IOLTA (interest on lawyer trust accounts)
funds. The basis for Phillips v. Washington Legal Foundation (No.
96-1578), a suit that originated in the Texas courts, is that clients
retain property rights in interest bearing accounts. In every state,
IOLTA funds have been used to fund numerous programs and scholarships.
LSC funded clinics are a major recipient of these funds. Richard
Samp, chief legal counsel for the Washington Legal Foundation, argues
that "most people don't know that hundreds of millions of dollars
are siphoned away from law clients to support legal services" (Chanen,
1997:42). Samp's group believes that clients' property right are
violated as they are forced to give money to political causes they
do not support.
It
is interesting to note the language Samp's group uses as they discuss "political
causes" in the context of stopping money that may go to LSC funded
organizations. The rhetoric used to challenge the use of IOLTA funds
is familiar, and comes from familiar sources. The Washington Legal
Foundation has been a long time critic of the LSC. They are now attacking
the use of IOLTA funds with the same vigor, and the same rhetoric,
as they suggest that these funds are used by liberal attorneys to
promote their own political agendas. David Brock, Chief Justice of
the New Hampshire Supreme Court, suggests that it is the Washington
Legal Foundation who is, in fact, promoting a political agenda as
they "use the federal Constitution as a sword to eliminate an effective
state-based program that's directed towards providing legal services
and assistance to low income individuals" (Totenberg, 1998:2). David
Hall, director of Texas Rural Legal Aid, states that the Washington
Legal Foundation "just doesn't want poor people to have access to
the justice system, period. And that's a very political kind of statement.
They gussie it up with a political attack on the claim that IOLTA
funded programs are themselves political. But that's just so far
from the truth, it's ludicrous" (Totenberg, 1998:2).
In
June 1998 the U.S. Supreme Court, in a 5-4 vote, ruled that under
Texas law interest earned on client funds held in IOLTA accounts
is the property of the client. The Court expressed no view as to
whether Texas had "taken" client property or whether "just
compensation" was due, and sent the case back to the lower court
in Texas for further consideration.
Changes
in LSC Funded Law Offices
Political
changes, forced by LSC critics, created new organizational structures
that the critics may not have anticipated. The LSC, prior to 1996,
moved forward, slowly, under a set of restrictions that allowed them
to continue. They continued in ways that they may not have selected
if funding levels and restrictions were different, but they stayed
together nevertheless. The 1996 restrictions were too onerous to
withstand. These restrictions led to the creation of new organizations
that were devoted to doing exactly the kind of work the critics sought
to limit. If the critics' goal was to stop federally funded cause
litigation, their efforts were very successful. If they expected
their efforts to end all cause oriented litigation on behalf of the
poor, they seriously underestimated the resolve and commitment of
the attorneys and organizations who provide these services.
As
the result of the 1996 restrictions, much of the legal work done
on behalf of the poor will now be funded by a somewhat disorganized
collection of state, local, private, and non-profit funding sources.
LSC efforts to coordinate legal services to the poor will be less
effective. In some cases the legal needs of one group, although valid,
will be met through the efforts of legal services offices, perhaps
with narrow goals, and funded by a source with similarly narrow goals.
An equally needy group, without a funding champion, may not receive
legal assistance. As funding is splintered among groups with narrow
interests, certain groups may fall through the cracks.
These
new organizations are looking to the future. In some cases new partnerships
will be forged. In some cases the new organizations are struggling
with the partnerships that were formed as IOLTA money went in a direction
other than the LSC funded office. LSC work will continue to be redefined.
New delivery systems will develop. Organizations are beginning to
form alliances with other organizations, some of whom may have been
seen as competitors in the past. In some cases these new organizations
are sharing resources with other legal services providers.
Alternate
delivery systems have begun to develop as these organizations have
been forced to consider new ways of addressing the legal needs of
their clients. New alliances will be formed and new organizations
structures will be created. In communities where this resource is
available, legal representation of the poor may be done through increased
reliance on law school clinical programs. We may see an increased
role for alternative dispute resolution or other negotiated settlements.
State and local governments may be forced to play a bigger role in
the provision of legal services to the poor. The private bar will
also be called to assist through pro bono or other mechanisms. Perhaps
funding will be directed through private law firms rather than exclusively
through law offices established and maintained through taxpayers
funding.
These
are not new ideas. In fact, several were considered in the "Delivery
Systems Study" (LSC, 1980). These alternatives were, in fact, positively
reported and appeared to perform at levels comparable to staff-attorney
offices (Schwartz, 1983). In reality, "performance measures do not
indicate the superiority of staff-attorney offices over alternative
(i.e., private attorney) delivery systems" (Schwartz, 1983:v). Professor
Schwartz writes that the Delivery Systems Study (DSS) report "makes
assumptions and reaches policy conclusions that favor staff-attorney
offices as the major mode of legal-service delivery. These assumptions
and conclusions do not inevitably follow from DSS findings" (Schwartz,
1983: iv) . The LSC chose to ignore evidence regarding the potential
effectiveness of alternatives to the staff-attorney model that LSC
supporters fought so hard to maintain. LSC supporters, including
apparently, those within the organization itself, had a vision of
how they thought the LSC should function. Without challenging or
supporting that vision, it is safe to say that this vision ran contrary
to the desires of LSC critics.
The
decision to proceed with a narrow model of legal services to the
poor was obvious in the fight against Reagan's efforts, as well as
the LSC's interpretation of the Delivery Systems Study. This decision
set LSC supporters and critics on a collision course. The stubborn
refusal to change solidified the debate and obscured many of the
real issues. The fight over the LSC has been long and contentious.
There has been little effort to seek middle ground. Perhaps the current
situation regarding legal services to the poor provides an opportunity
to develop systems that address the legal needs of the poor, while
at the same time satisfying the concerns of LSC critics.
Conclusion
Legal
representation of the poor will, in many cases, no longer be funded
by the federal government. Although a victory for LSC critics, the
end result may disappoint those who thought that taxpayers should
not be supporting ideologically liberal legal services. Some critics
believed they could control certain types of legal challenges through
limitations on the LSC. The reality is that certain forms of litigation,
especially those that are most troubling to certain critics, may
actually increase. LSC critics won the battle over funding and restrictions.
However, LSC critics did not, in this microcosm, appear to be entirely
successful. The critics failed to accurately foresee the full impact
of their policies.
Cause
oriented representation is related to efficiency rather than ideology.
However, criticism of cause oriented representation is rooted in
ideology. The real issue, to the critics, may be "how do we provide
legal services to the poor, but at the same time limit the effectiveness
of this service." This is especially true when effectiveness involves
successful challenge to ideological positions held by LSC critics.
In effect, the problem may be much wider than is evident in debate
over the ideology and activity of LSC funded attorneys. However,
this is how the problem has been defined, by critics as well as supporters.
Throughout
the LSC debate the critics have been successful in painting the LSC,
and the organizations and attorneys funded by the LSC, as ideologically
driven. Perhaps those who cry foul regarding ideological bias are
the ones with the true ideological bias. Many LSC critics are motivated
by a right wing ideology that marginalizes the poor and prevents
them from being full participants in our society.
LSC
supporters have allowed critics to frame the debate. The debate has
diverted attention from another issue that may have led to more support
for the LSC. If debate had focused on access to justice, rather than
the ideological motivations of LSC funded attorneys, it would have
been difficult for LSC critics to develop support for their ideas.
In reality, the client/cause issue may be little more than a smokescreen
to shield a covert agenda. The critics' true agenda might be more
related to preventing justice, protecting their position in society,
and replicating a hierarchy that prevents many Americans from becoming
active participants in our society.
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