Where Is Nixon Now, When Legal Aid Really Needs Him?

By Bruce G. Iwasaki

President Bush supports the Legal Services Corp., which allocates funds to 179 locally run legal aid operations across the country. A solid, bipartisan majority in Congress also supports legal aid. And while in real terms federal funding is only half what it was 20 years ago, the program endures. Women seeking escape from domestic violence, children in need of decent housing and families moving from welfare and into the job market all receive help from legal aid programs.

The notion that legal assistance should be available for those with nowhere else to turn enjoys broad popular support. Eighty-three percent of Americans support legal aid for low-income people, even as a taxpayer-supported program. The idea that equal justice requires that those who cannot afford lawyers have access to legal help is not that controversial.

Or so one would think. The 1995 Gingrich Congress, while failing to eliminate legal aid (just as it failed to pull the plug on "Sesame Street"), did manage to condition federal funding in a curiously unconservative way. Under the rules implemented in 1996, congressional restrictions apply not only to Legal Services Corp. funds but also to any other money the legal aid firm may raise from local governments, foundations or private contributors, unless it sets up a physically separate operation with the non-Legal Services Corp. funds. Where is Nixon, who signed the Legal Services Corporation Act into law, when we need him?

Here you have Washington telling cities and counties how to spend their money, Washington insiders restricting the wishes of private donors and Washington discouraging alternatives to federal funding. This is an odd federalism, indeed. Things conservatives say they want - more local control, greater governmental efficiency, more participation by the private
sector - are undermined by these rules.

Last term, the U.S. Supreme Court invalidated, on its face, one of those 1996 restrictions in LSC v. Velazquez, finding that Congress violated the First Amendment by trying to prevent Legal Services Corporation-funded lawyers from challenging welfare laws.

This June, the Legal Aid Foundation of Los Angeles, together with legal services programs and private foundations from across the country, jointly filed an amicus brief in Dobbins v. LSC, which challenges other statutory restrictions on what Legal Services Corporation-funded legal aid programs can do. Dobbins is a private lawyer who seeks to co-counsel with an LSC-funded program in New York, but because of the congressional restrictions, he cannot pursue the remedy that would benefit his clients most.

Another rule being challenged states that, although Congress and state legislatures provide that the prevailing party in litigation shall or may be awarded attorney fees, a lawyer who works at a firm that receives any Legal Services Corp. dollars cannot. It doesn't matter that none of its funds was spent on that particular case or that the adversary may have been awarded fees if it prevailed or that attorney fees are an essential part of the calculus in resolving cases before trial.

The attorney fee restriction deprives state and federal judges from establishing incentives needed for the efficient operation of the courts, thus warping the judicial process. In addition to being inconsistent with the reasoning the Supreme Court adopted in Velazquez, the restriction interposes federal control into state legislation, interposes congressional power into the province of the judiciary, and needlessly creates an economically inefficient disincentive to settlement - all contrary to often-expressed conservative principles.

Yet another restriction on Legal Services Corp. grantees often results, as a practical matter, in anyone being able to file a class action except a lawyer for the poor. In Velazquez, the Supreme Court ruled that Congress could not muzzle legal services lawyers by preventing them from filing suits challenging welfare laws. It reasoned that "an informed, independent judiciary presumes an informed, independent bar." The prohibition on Legal Services Corporation-funded lawyers bringing class actions limits the speech courts may hear and similarly distorts the operation of the judiciary. But it also runs directly counter to the view that government funds be spent in a cost-effective way, without the heavy hand of Washington dictating the outcome.

I'm looking forward to true conservatives joining legal aid groups in overturning these restrictions. Surely they would not betray their deepest values in order to deprive low-income families of the opportunity to resolve their legal problems through orderly judicial remedies.

Bruce G. Iwasaki is the executive director of the Legal Aid Foundation of Los Angeles.

This commentary originally appeared in the Daily Journal on June 27, 2002.

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