Right Wing Blocks Legal Aid

By William Fisher

For the past 14 years, the non-profit company set up by Congress to provide legal services for the poor, has been forced to short-change the needy because of severe Government restrictions on how it can use its funding.

The Legal Services Corporation (LSC) has been attempting to operate with large chunks of its potential activity foreclosed. It has been unable to help with both programs that receive government funds and even those that use non-federal funds raised by legal services programs.

Since their passage, these restrictions have been plagued by repeated First Amendment questions and have sparked calls for change, says watchdog group OMB Watch. (OMB stands for the Government’s powerful Office of Management and Budget.)

Lee Mason, Director of Nonprofit Speech Rights at the Washington-based advocacy group told IPS, “The restrictions on the use of non-federal funds of the Legal Services Corporation amount to an all out attack on the constitutionally guaranteed First Amendment Rights of millions of Citizens of America."

The Legal Services Corporation (LSC) is a private, non-profit corporation established by the United States Congress to seek to ensure equal access to justice under the law for all Americans by providing civil legal assistance to those who otherwise would be unable to afford it. The LSC was created in 1974 with bipartisan congressional sponsorship and the support of the Nixon administration, and is funded through the congressional appropriations process.

OMB Watch says the origin of the funding restrictions was a concerted effort by right-wing interests to deny low-income people access to the courts by destroying LSC. In “Mandate for Leadership,” the conservative agenda published on the eve of President Ronald Reagan’s first term in 1981, the conservative Heritage Foundation called for LSC’s wholesale destruction. Barring its complete demise, Heritage argued for steep budget cuts and the imposition of broad restrictions through LSC appropriations riders.”

According to state bar associations, court-established Access to Justice Commissions, and state legal services planning bodies, the funding restrictions have had disastrous consequences for poor people who need legal services.

These organizations have found that the restrictions placed on organizations receiving federal funding present "major barriers to justice for low-income persons . . ." (Arkansas); prevent representation "in cases ranging from an illegal tenant lockout to consumer fraud, to civil rights enforcement." (New Hampshire); have a "negative impact," "in actual practice (causing great inefficiencies in the way applicants for service must be processed and referred) and principle (denial of essential and fundamental legal assistance to some who need it)." (New Jersey); are "major obstacles . . . for achieving ‘equal access' for disfavored clients and politically unpopular cases." (Texas); and limit programs' "use of the most appropriate legal strategies to effectively represent low income clients with high priority legal needs."(Washington).

The LSC Act specifically prohibits organizations receiving LSC funding from using LSC or private funds to engage in: political activities; most criminal cases; "challenging criminal convictions against officers of the court or law enforcement officers; organizing activities, including training for – or encouraging of – political or labor activities"; litigation to receive "non-therapeutic abortions" or "compel the provision of abortion services over religious or moral objections"; and "proceedings involving desegregation of public schools, military service or assisted suicide."

Additional funding restrictions have been added over the years. In 1996, Congress expanded the LSC restrictions to apply to funds from all sources, including federal, state, local, and private funds, with the exception of tribal funds. It also prohibited additional activities, including: class actions; all abortion-related litigation; representing prisoners; representing people who are being evicted from public housing for allegedly distributing illegal drugs; redistricting activities; lobbying governmental bodies, with limited exceptions; and representing non-U.S. citizens, with limited exceptions.

Current LSC rules also require legal aid programs that wish to lobby, spend
private dollars on class action lawsuits, comment on proposed regulations, or
represent certain types of clients, such as prisoners or certain immigrants, to
set up physically separate offices with separate staff.

Legislative efforts to overturn the LSC funding restrictions have increased in
the past year. In March 2009, Sen. Tom Harkin, an Iowa Democrat, introduced the Civil Access to Justice Act of 2009 that would end the restrictions on the use of non-federal funds by LSC grantees, except those related to abortion litigation and a few other activities. "Lifting these restrictions allows individual states, cities and donors the ability to determine themselves how best to spend non-federal funds to ensure access to the courts," said Harkin.

Public sentiment also appears to be on the side of providing legal access to
those in need. OMB Watch charges that, “Since the Reagan administration, conservatives have sounded a drumbeat of opposition directed at the LSC. The Reagan budgets annually proposed elimination of legal services, only to have those services protected by Congress. Over the years, LSC funding has limped along. However, with the recent economic downturn, there has been a noticeable uptick in support for legal services. According to the Associated Press, two-thirds of those polled in 2009 on behalf of the American Bar Association said they favor federal funding for people who need legal assistance. Notably, Congress increased funding for the LSC in the last appropriations cycle.”

For 2007, LSC had a budget of some $350 million. This year it has asked Congress to provide $516.5 million, with more than 95 percent of the budget request going to fund 136 nonprofit legal aid programs across the nation that provide civil legal assistance to the nation's poor.