Special Report

Legal Services Unleashed

Congress moves to end restrictions on activism funded by the infamous Legal Services Corporation.

By 4.3.09

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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.


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About the Author

John Carlisle is director of policy at the National Legal and Policy Center, a nonprofit foundation based in Falls Church, Virginia.