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The GOP Plot to Destroy Legal Aid

Behind the conservative effort to gut a crucial anti-poverty lifeline.

| Mon Feb. 14, 2011 7:00 AM EST

Editor's note: Also read Kat Aaron's companion piece on the crisis brewing in civil courts as the poor are left to fend for themselves without lawyers: "Foreclosure Crisis + Legal Aid Cuts = @#$%!"

Last month, when the House conservative caucus proposed scrapping a program that has provided the poor with free legal assistance for nearly four decades, it felt like déjà-vu. Indeed, this provision of the GOP's Spending Reduction Act of 2011 was simply the latest salvo against an entity that's been under siege by conservatives since the day it was conceived.

Legal Services Corporation (LSC) is a federally funded nonprofit that doles out money ($420 million this year) to 136 independent groups providing legal services in hundreds of communities around the nation. Debt collectors knocking down your door? Foreclosure mill trying to take your house? If you can't afford a lawyer and your family is hovering near the federal poverty line, then the LSC is your ticket to legal representation.

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If you're lucky, that is. The corporation's budget has always been limited, and over the past few years, as more and more Americans grapple with civil cases involving employment, foreclosures, debt collection, and bankruptcy, soaring demand for legal help has overwhelmed the LSC's limited resources.

But this legal crisis isn't merely a product of the Great Recession. It's the natural consequence of a decades-long campaign by agricultural interests, Christian conservatives, and their congressional allies who would prefer to do away with the LSC altogether.

Publicly funded legal aid got its start under the Johnson administration, which recognized that lawyers for the poor were a key element of its war on poverty. In 1964, Congress passed the Economic Opportunity Act, and beginning the next year, with the government's help, nonprofits began providing free community legal services, assisting broke clients with life's mundane issues—eviction and custody battles and so forth. With their challenges to public housing programs and school districts, legal aid lawyers antagonized politicians, but they were enormously popular among their clients. When the Nixon administration began dismantling Johnson's Office of Economic Opportunity, legal services survived. In 1974, Congress passed legislation creating the Legal Services Corporation, which President Nixon signed into law days before his resignation.

Among the LSC's early opponents was the American Farm Bureau Federation, whose members were rankled by lawsuits filed on behalf of agricultural workers, many of them immigrants, in cases involving unpaid wages and poor working conditions. The bureau argued that these cases were often frivolous matters and that underpayment of wages was usually unintentional. In 1995, bureau lobbyist Bryan Little assailed the LSC as a "money-making machine" for the American Bar Association.

Legal aid faced another formidable foe in the Christian Coalition and Ralph Reed, then its executive director, who claimed the LSC "subsidizes divorce and illegitimacy." The coalition's 1994 Contract With the American Family sought the complete defunding of the LSC, alongside platform planks on "Restoring Respect for Human Life" and "Restoring Religious Equality."

The following year, with Newt Gingrich safely installed as speaker of the House, congressional Republicans heeded the call with a proposal to phase out the LSC's funding over three years. Among the program's most vocal critics were Sen. Phil Gramm of Texas (a.k.a. "Foreclosure Phil"), whose spokesman called it "less an instrument for the delivery of legal services than a machine with a Democratic political agenda as its primary purpose." Indiana Congressman Dan Burton was among a group of House Republicans putting out a weekly "LSC Hall of Shame" newsletter. "Legal services," his spokesman argued, "wastes taxpayer dollars by spending millions on outlandish test cases." GOP Congressman Robert Dornan called for abolishing the LSC entirely, adding that "it's time to defund the left."

In 1996, Congress struck a compromise. The LSC could continue to exist, but its budget would be slashed by one-third, and crippling restrictions would be imposed on its network of lawyers. By this time, the LSC had been under attack for more than two decades and had managed to stay afloat, barely, despite dwindling funding—adjusted for inflation, its budget peaked back in 1981 and has been shrinking ever since. "Congress didn't want to cut it entirely, but they didn't want to give them a blank check for all these controversial cases," says Ken Boehm, chair of the National Legal and Policy Center and a longtime LSC critic. "So they decided to cut the baby."

The new restrictions meant that LSC-funded lawyers could no longer represent prisoners or most immigrants—legal and undocumented alike. They also were barred from collecting court-awarded attorney's fees (a restriction rescinded in 2009), from engaging in any sort of policy advocacy, and from alerting elected officials to problems they'd encountered—unless invited in writing to do so. The restrictions "deprived low-income clients of some of the tools that every other litigant has available to them," says Rebekah Diller, an expert on the civil courts at the Brennan Center for Justice at New York University School of Law. The restrictions included what legal aid advocates call a "poison pill": Any group taking even a single dollar from the LSC could not participate in any of the restricted activities, even if they planned to use state or private funding for those purposes.

Perhaps most significantly, the law included a ban on class-action lawsuits, which represented a tiny fraction of the cases but packed a big punch. Lawyers from South Brooklyn Legal Services, for instance, had won a class action securing disability benefits for women with HIV. Legal aid lawyers in Maryland had prevailed on behalf of state prisoners contesting overcrowded living conditions. And lawyers from around the country took part in a major national effort challenging the way Social Security reviews were handled.

But what really got under the skin of the Gramm crowd were the welfare-reform cases. On several occasions, publicly funded lawyers had come before the Supreme Court to challenge various welfare policies, including a regulation that required "a man in the house" and rules that denied benefits to people with green cards, people moving to new states, and children from large families. With three major cases, their litigation ended up boosting the nation's welfare tab by $400 million to $500 million annually.

With Congress gearing up for a welfare overhaul, some members may have wanted to preempt legal challenges to the changes they were poised to implement. Gramm, for one, called legal services "a major impediment to meaningful welfare reform." Legal services lawyers were "being advocates for the existing welfare bureaucracy, and while they may have a right to do it, they don't have a right to do it with taxpayers' money," he told the New York Times in 1995.

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