The Obama Administration and the Democratic Congress may soon
gain another valuable ally in their effort to radically expand
government. On March 26, Senator Tom Harkin (D-IA) introduced
legislation that ends the restrictions on the ability of legal
services organizations, funded by the Legal Services Corporation
(LSC), to file ideologically motivated lawsuits. In addition,
Harkin’s bill, “The Civil Access to Justice Act of 2009,” nearly
doubles the LSC budget from $390 million to $750 million. If
Harkin’s bill is enacted, thousands of legal services lawyers
will unleash a barrage of lawsuits in the nation’s federal and
state courts to advance a liberal political agenda.
The Harkin bill comes as no surprise. Liberal groups started
lobbying Congress at the beginning of the year on LSC’s behalf.
On January 6, the Leadership Conference on Civil Rights sent a
letter to members of Congress calling for the abolition of
restrictions on LSC-funded activism. The Washington Post
ran an editorial on March 14 calling on lawmakers to “unshackle
Legal Services from congressionally-imposed restrictions that
have kept it from working more efficiently and broadly.”
The restrictions were enacted by Congress in 1996 in response to
legal services lawyers systematically using taxpayer money to
advance liberal policies. These restrictions included bans on
representing undocumented aliens, abortion-related litigation,
prisoner advocacy, class action lawsuits, challenges to welfare
reform, and congressional redistricting cases.
The restrictions did have a significant effect in reducing
LSC-funded activism. However, legal services lawyers were still
able to push a political agenda within the confines of the law.
In several cases, they brazenly violated the restrictions. For
example, in 2008 the LSC inspector general subpoenaed client
records from California Rural Legal Assistance (CRLA) to
determine if it violated the restriction on representing
undocumented aliens. A former CRLA lawyer said the organization
had a policy of providing aid to illegal aliens. CRLA refused to
release the names to the inspector general, citing
attorney-client confidentiality.
In 2002, the Legal Aid Foundation of Los Angeles (LAFLA) filed a
lawsuit to force the California Department of Motor Vehicles to
implement the provisions of Assembly Bill No. 60 which would
allow undocumented aliens to obtain driver’s licenses even though
the bill was never enacted into law. A California appellate court
rejected the lawsuit and LAFLA’s quixotic legal reasoning.
In pursuing this case, LAFLA may have violated the restriction on
assisting undocumented aliens. Its client, Mary Grace O. De Asis,
did not have a Social Security number when it filed the lawsuit.
If De Asis did not have a Social Security number, it raises the
question of how LAFLA could confirm she was a legal alien.
By ending the restrictions, CRLA, LAFLA and the other 135
grantees will be able to openly and more aggressively pursue
their agenda of aiding and abetting illegal immigration. And that
would only be the beginning. Prior to the 1996 restrictions,
legal services attorneys were at the forefront in filing
challenges to welfare reforms at the federal and state level.
Even with the restrictions in place, legal services lawyers
repeatedly filed lawsuits to thwart efforts to control spending,
combat fraud, and promote efficiency.
In 2003, for instance, Legal Services of Northern California
(LSNC) filed a lawsuit to stop the State of California from
cracking down on welfare fraud by instituting a fingerprinting
system. Among its objections to the fingerprint system, LSNC
argued that it violated recipients’ constitutional rights to
privacy and religious freedom. It even invoked the specter of
Orwell’s 1984 novel in describing how fingerprinting
undermined privacy and personal dignity. In addition, LSNC went
so far as to claim that fingerprinting violated religious liberty
because it “is a mark of the devil and stains the soul with sin.”
The California Supreme Court rejected LSNC’s lawsuit.
Alameda County, California, is currently in court fighting a
lawsuit filed by Bay Area Legal Aid that challenges the county’s
decision to impose a six-month limit on General Assistance
benefits for adults that are deemed employable.
In 2007, Legal Action of Wisconsin (LAW) won its lawsuit against
the state in which it argued that welfare recipients must be
given additional state-subsidized employment or training. Pat
DeLessio, the LAW attorney who handled the case, praised the
ruling because it would encourage more people, who otherwise
might be required to work, to apply for welfare.
LAW is a longtime critic of Wisconsin’s highly successful program
to move welfare recipients off the rolls and into paying jobs.
DeLessio once called the workfare component “a stupid program.”
In 2002, LAFLA lost its three-year-old lawsuit against Los
Angeles County that challenged the legality of its policy of
requiring applicants for welfare benefits to allow home visits by
case workers. LAFLA claimed home visits, which were intended to
prevent welfare fraud, violated the Constitution’s Fourth
Amendment guarantees against unreasonable searches.
These are the kinds of outrageous cases legal services filed
under the restrictions. Without the restrictions and with the
White House and Congress in control of a party determined to
radically expand social spending, legal services lawyers will
most certainly be in the vanguard in using the courts to
obliterate welfare reform, one of the most notable public policy
achievements of the last 30 years.
In introducing the “Civil Access to Justice Act,” Harkin claims
that “severe restrictions on LSC-funded attorneys impede the
ability of legal aid attorneys to provide the most meaningful
representation.” To rectify this alleged problem, the bill lifts
the prohibitions on collecting attorneys’ fees, to bring class
action lawsuits, and permits lobbying with non-federal funds.
Harkin claims that “in the spirit of compromise” the bill would
maintain many of the prohibitions on the kinds of cases that can
be pursued with LSC funds. These include the prohibitions on
representing undocumented immigrants, prisoners challenging
prison conditions, and people charged with illegal drug
possession in public housing eviction proceedings.
However, Harkin inserted a measure in his bill that overturns
these prohibitions, putting the lie to his compromising spirit.
The legislation lifts all restrictions, except those related to
abortion litigation, on the use of non-LSC funds. Known as the
“program integrity” restriction, the limit on the use of non-LSC
funds is crucial. Virtually all LSC grantees, which are private,
nonprofit foundations, receive money from private or other
government sources. Without the “program integrity” rule, the
other restrictions would be rendered virtually meaningless
because grantees could simply claim they are using non-LSC money.
By lifting the “program integrity” rule, LSC grantees would be
permitted to resume litigation on behalf of illegal aliens,
prisoners, and drug dealers in public housing. In short, the
Harkin bill would return LSC grantees to the “glory days” of the
1970s and '80s when they could file ideologically-motivated
litigation with impunity.
Harkin is also doing for legal services lawyers what they
couldn’t achieve in the courts. Since the restrictions went into
effect 13 years ago, legal services programs and other advocacy
groups filed numerous lawsuits to overturn the rules, especially
the “program integrity” rule. However, the courts consistently
ruled that the restrictions passed constitutional muster.
In addition to ending the restrictions, Harkin aims to give a
huge financial boost to LSC. The “Civil Access to Justice Act”
increases the authorized funding for LSC to $750 million, nearly
double its 2009 appropriation of $390 million. The rationale for
the $750 million figure is that it is approximately the amount
appropriated in 1981, adjusted for inflation, which was
presumably the high-water mark for LSC funding. The Harkin bill
is most generous in that LSC is officially requesting $485
million for fiscal year 2010.
Co-sponsors to “The Civil Access to Justice Act of 2009” include
Edward Kennedy (D-MA), Patrick Leahy (D-VT), Barbara Mikulski
(D-MD), Ben Cardin (D-MD), John Kerry (D-MA), Dick Durbin (D-IL),
Frank Lautenberg (D-NJ), Claire McCaskill (D-MO), and Jeff
Merkley (D-OR).
The bill is supported by the American Bar Association, the George
Soros-funded Brennan Center for Justice, National Legal Aid &
Defender Association, National Organization of Legal Services
Workers and United Auto Workers.
The federal legal services program has served as liberalism’s
judicial shock force since it was established 35 years ago.
Democratic control of the government has produced in just a few
short months an unprecedented explosion in spending and an
assault on signature conservative achievements in social policy,
most notably welfare reform. Boosting LSC spending and removing
the constraints on politically-motivated litigation will only add
fuel to this new outburst of government activism.
