Federal Public Interest Funding
Restrictions and the Legal
Services Corporation
Legal Services Corporation v. Velazquez
What is the LSC?
The Legal Services Corporation is a non-profit
government funded organization
O Created by the Federal Government through
the Legal Services Corporation Act in 1974
O Purpose to provide financial support for legal
assistance programs working with clients in noncriminal proceedings or matters to persons
unable to afford legal assistance
O Structured as a Federal Administrative Agency
O
What does the LSC do?
Provides and administers grants to hundreds of nonprofit legal organizations than in turn provide legal
assistance to low-income clients
O LSC organizations provide assistance to between 1
million and 2 million clients annually
O LSC funding comes directly from the Federal
Government, and averages around $350 million per
year
O In Illinois, LSC funded organizations include:
O
O
O
O
Legal Assistance Foundation,
Land of Lincoln Legal Assistance Foundation
Prairie State Legal Services
LSC Executive Board
O
O
O
O
O
LSC is headquartered in Washington, DC
Run by a board of 11 directors, appointed by
the President and confirmed by the U.S. Senate
The Board is bipartisan by law and no more
than 6 members may be from the same party
Hilary Rodham Clinton most famous past Chair
of the Board
John G. Levi current chair
The Legal Services Corporation Act
The Congress finds and declares that-O (1) there is a need to provide equal access to the system of justice in our
Nation for individuals who seek redress of grievances;
O (2) there is a need to provide high quality legal assistance to those who
would be otherwise unable to afford adequate legal counsel and to continue
the present vital legal services program;
O (3) providing legal assistance to those who face an economic barrier to
adequate legal counsel will serve best the ends of justice and assist in
improving opportunities for low-income persons consistent with the
purposes of this chapter;
O (4) for many of our citizens, the availability of legal services has reaffirmed
faith in our government of laws;
O (5) to preserve its strength, the legal services program must be kept free
from the influence of or use by it of political pressures; and
O (6) attorneys providing legal assistance must have full freedom to protect
the best interests of their clients in keeping with the Code of Professional
Responsibility, the Canons of Ethics, and the high standards of the legal
profession.
*42 USC §2996
Political and Social Climate:
The Perfect Storm
1990’s Politics
1990’s Society
Presidential Timeline
Ford Era
•Creates the LSC in
1974 via the Legal
Services Corporation
Act
George H.W. Bush Era
•Sought to level out
LSC funding and
decrease hostility
•Funding rises again
to $350 million
Carter Era
•Nominates Hillary
Rodham Clinton to the
Board in 1978
•LSC funding at its
highest ever mark at
$300 million
Clinton Era
•Early era saw more
growth for the LSC
•During “Republican
revolution” funding
cut from $400
million to $278
million
Reagan Era
•Attempts to eliminate
the LSC completely
•Significant funding
cuts put in place
Bush Era
•LSC not completely
recovered from the
Clinton era
•Legal services
funding meeting
only 20% of need
Hilary Rodham Clinton
Served as Chair of the Board of the LSC
from 1978-1980
O Funding for the LSC expanded from $90
million to $300 million
O Successfully fought off President Reagan’s
attempts to significantly reduce LSC funding
and to eliminate the organization all
together
O
104th Congress
Bill Clinton elected President in 1993
O Republicans take control of both the House
of Representatives and Senate for the first
time since the 1950s
O Senate President: Al Gore
O House President: Newt Ginrich
O
Federal Government
Shutdown of 1995
November 14-19, 1995
O Clinton v. Newt Ginrich
O Clinton vetoes proposed
Congressional bill seeking
to limit federal spending for
Medicare, education,
environment and public
health
O
Video: Federal
Government Shutdown
of 1995
Opinions on Welfare Reform
President Clinton
Vows to “end welfare
as we know it”
O Favors significant
budget increases for
welfare
O Proposed welfare
reform
O Plan for Universal
Health care
O
Congress
Goal to decrease
Federal welfare
spending
O Sought to increase
welfare work
requirements
O Families receiving
welfare: from 4.5
million to 2 millions
O
The 1990’s: Social Climate
The Oklahoma City
Bombing: April 19, 1995
O NATO Operation
Deliberate Force against
Serbs in Bosnia and
Herzegovina
O President Clinton
invokes emergency
powers to extend a $20
billion loan to Mexico
O Federal Government
Shutdown: December 16,
1995- January 6, 1996
O
Omnibus Consolidated Rescissions
and Appropriations Act of 1996
Congress places significant restrictions on LSC
grantee organizations and their use of Federal
Government funding
O Four general categories of restrictions:
O
A prohibition on influencing government
Restrictions on which clients grantees may
represent
O Restrictions on the type of cases grantees may
take
O Restrictions on how attorneys represent their
clients
O
O
*ORCAA 504(a)
ORCAA §504(a)
O
Generally, section
504(a) prevents
legal aid entities
engaging in various
activities, including:
O “lobbying,
participation in class
actions, providing
legal assistance to
aliens in certain
categories…litigating
on behalf of
prisoners, and
seeking to reform
welfare”
Long story short…
ORCAA 504(a)(16) served to bar
LSC funding to any organization that
threatened or attempted to
challenge any existing welfare laws
O If an LSC funding attorney found
themselves involved in a case with a
statutory or constitutional challenge,
the attorney was advised to
withdraw from the case
O If an organization or attorney
continued to pursue said litigation,
they would lose all LSC funding
O
The Litigants and
the Lawyers
Legal Services Corporation v. Velazquez
Temporary Assistance
for Needy Families Act
TANF did not allow her a “pretermination opportunity to demonstrate
that physical impairments prevented
her from working”
O Velazquez’s attorneys argued the only
way to help her was to challenge the
existing welfare law itself
O OCRAA restrictions forced Velazquez’s
attorneys to withdraw or Bronx Legal
Services would lose all LSC funding
O Also objected to restriction on class
action litigation
O
Lawyers employed by LSC grantee orgs.
O Indigent clients
O Private contributors to LSC grantees
O State and local public officials whose
governments contribute to LSC grantee
orgs.
O
Velazquez et al
Velazquez was subsequently listed as
representative of the plaintiff group
O Not certified as a class, as the OCRAA
prevented legal representation in class
action suits
O Plaintiff group included:
O
Burt Neuborne
O
O
O
O
O
O
Nationally renowned civil liberties defender
Former National Legal Director of the ACLU
Currently on the faculty at New York School of
Law
Legal director for the Brennan Center for
Justice
Member of the NYC Human Rights Commission
“Strives to persuade judges to view the U.S.
Constitution as a ‘living document’ that must be
re-interpreted every generation”
Alan Levine
Current partner at Cooley, LLP in NYC
Focuses practice on Antitrust, Commercial
Litigation and Securities Litigation
O At the time of Velazquez, worked for law firm
Kronish, Lieb, Weiner & Hellman, LLP
O Had held positions with the American College
of Trial Lawyers, the Legal Aid Society, The ABA
and the New York State Bar Association
O Named member of the New York State
Commission on Public Authority Reform and
known for Pro Bono work
O
O
United States as DefendantIntervenor
United States Joined the Case on Two Grounds:
O
1. The challenged
O 2. Respondent’s
welfare claim
challenges to the
proviso-OCRAA
regulations allowing
§504(a)(16) is fully
fund recipients to
consistent with the
establish separate
First Amendment and
entities to engage in
is not a violation of
restricted activities
free speech
using non-federal funds
are without merit
Stephen W. Preston
O
At the time of Velazquez, was acting as Deputy
Assistant Attorney General
O
Was responsible for all U.S. Civil Appeals cases
Previously served as Principal Deputy General
Counsel of the U.S. Department of Defense
O In 1998 President Clinton nominated Preston
to General Counsel of the Navy
O In 2009 President Obama nominated Preston
as General Counsel of the Central Intelligence
Agency
O
James Sandman Interview
Fordham Law Review Journal Article
O The case had no affect on the LSC itselfmore of a direct impact on the grantee
organizations
O LSC still gives grantee organizations the
same amount of money, the case only
dictates how they use the money
O LSC itself is “very reliant” on the OCRAA,
affects all work that is done and confines all
grants of funding
O
“Justice for All”
O
“Justice for all”- believes the mission of the
LSC is fundamentally tied to core American
values
O
But values in today’s society are flipped,
other ideals are placed above justice for all
Feels that today there is great bipartisan
support for the LSC. Many efforts made by
both parties to continue funding
O Believes that the biggest issue is the same
as that faced by all governmental
organizations- all funding must be cut
O
Need at an all-time high: More
than 60 million Americans are
applying for legal aid….
…and funding for legal aid is at an
all-time low
Government Speech
Definition
O Professor Nahmod: “When government itself
speaks, rather than regulating the speech of
private persons, its speech is immunized
from any meaningful First Amendment
scrutiny, including the prohibition against
engaging in viewpoint discrimination.”
O Essentially, when government speaks, it can
take a particular position and can have its
own viewpoint
Rust v. Sullivan
O Issue: federal regulations that prohibited
doctors from engaging in abortion
counseling as part of a federally funded Title
X project.
O This is a constitutional restriction:
government IS speaking, and thus the First
Amendment prohibition on viewpoint
discrimination is inapplicable
Rust Cont’d
O Government may choose to fund one activity to the
exclusion of another , even if the latter involves the
exercise of a fundamental right
O Not a case involving “unconstitutional conditions”
O Title X focused on the project and not the grantees
O Doctors and patients can still engage in such
activities as long as they do not use any of the
government funding
O Government is speaking through the people who
receive the money, and thus the government has a
right to ensure that its message is not garbled or
distorted
Rust Dissent
O These restrictions are viewpoint-based
suppression of speech: government is
threatening to withhold funding unless the
recipients agree not to engage in proabortion activities
O Also, women would not interpret a doctor’s
medical advice as government speech :
discussion of private medical issues
Rosenberger
O Court held that a public university’s refusal to fund a
student magazine with a Christian theme, while at
the same time funding other student organization
publications, violated the Free Speech clause
O Justice Kennedy: “We recognized [in Rust] that when
the government appropriates public funds to promote
a particular policy of its own it is entitled to say what
it wishes. When the government disburses public
funds to private entities to convey a governmental
message, it may take legitimate and appropriate
steps to ensure that its message is neither garbled
nor distorted by the grantee.”
Rosenberger cont’d
O Court held this was NOT a government
speech case
O Government had created a limited public
forum, and as such, could not discriminate
based on viewpoint
O “Having offered to pay the printing costs of
private speakers who convey their own
messages, the University may not silence
the expression of selected viewpoints.”
Rosenberger cont’d: Souter
dissent
O Justice Souter criticized the majority’s
attempt to distinguish between the State’s
use of public funds to advance its own
speech and the State’s funding of private
speech
O State is given a lot more latitude when the
Court finds that it is speaking
O Justice Souter: “There is a communicative
element inherent in the very act of funding
itself”
LSC v. Velazquez
O Holding: this is an unconstitutional restriction on
private speech
O Court stated that “viewpoint-based funding
decisions can be sustained in instances in which
the government is itself the speaker, or
instances, like Rust, in which the government
used private speakers to transmit information
pertaining to its own program.”
O Here, the LSC was established to facilitate
private speech: essentially providing legal
services to the poor and disenfranchised
Justice Kennedy’s Reasoning
O The suits-for benefits limitation altered the traditional
O
O
O
O
role of lawyers in the judicial system
Restriction has placed a substantial burden on lowincome citizens by forcing them to find substitute
attorneys
This is high-value speech, and thus is deserved of
heightened protection
This restriction may have created separation of
powers concerns: Congress is essentially insulating
its own legislation from judicial review
States that this case is more like Rosenberger than
Rust because the government is encouraging a
diversity of opinion
Justice Scalia’s Dissent
O There is not meaningful distinction between Rust and
Velazquez
O
O
Funding similar causes
Distortion (novel argument)
O Law is viewpoint-neutral: prevents LSC-funded orgs from
engaging in litigation that challenges existing welfare law,
regardless of whether the group is challenging or defending
existing law
O Government could simply require that LSC attorneys be barred
from engaging in any welfare litigation
O No fundamental right to an attorney: irrelevant that an indigent
cannot find another attorney
O
“No litigant who, in the absence of LSC funding, would bring a suit
challenging existing welfare law is deterred from doing so by the
Act.”
The Aftermath
Legal Services Corporation v. Velazquez
Subsequent Government
Speech Cases
O Johanns v. Livestock
Marketing Association: the
Court, in an opinion by
Justice Scalia, ruled that
mandatory assessments
on beef producers that
were used to disseminate
the advertisement, “Beef,
it’s what’s for dinner,”
(compelled speech) did
not violate the First
Amendment because the
advertisement constituted
government speech
Johanns Dissent
O Justice Souter dissent: real test should be
whether a reasonable observer would view it
as government speech
O Rationale: “the requirement of effective
public accountability” – government should
clearly identify itself as the speaker to hold
ensure it is politically accountable
Pleasant Grove City v.
Summum
O Constitutional for city to
accept a monument of
the 10 Commandments
and reject Summum
monument
O Court held this is
government speech
because they have
traditionally used
monuments to speak to
the people, and thus the
city can engage in
viewpoint discrimination
Lasting Legal and Political
Effects
Congress
Reactions in
Congress initially
mixed
O Democrats
supported the
decision
O Republicans
condemned the
decision
O
Legal Field
No significant effect
on the legal field
O Most felt that the
court did little else
than create more
confusion on the issue
O 5-4 decision served to
lend little strong
authority
O
Lasting Social Effects
Real world ramifications of the decision
much more significant than legal effects
O Overall positive social effect- legal aid
organizations now able to use any argument
that will best further the interests of their
clients
O Increase in overall justice in the legal
system
O Places legal services attorneys on equal
footing with their private counterparts
O
“A Gain for Equal Justice,” March 9,
2001
Los Angeles Times
“That poor people have a right to the
basic legal rights enjoyed by those who
can afford to pay an attorney shouldn’t
be so wild a notion. The high court
took an important step toward
restoring a measure of dignity to
indigent clients”
Parties’ Reactions
Burt Neuborne
Stated that the
ruling “reads like a
First Amendment
textbook”
O Victory, but for how
long?
O
The Legal Services Corp.
Immediately revised
internal rules and
regulations to adhere
to the ruling
O No direct effect on the
LSC itself
O Effect felt by LSC
grantee organizations
O
O
“Lower courts are now faced with an
even more confusing legal framework”
Court did not apply the
unconstitutional conditions doctrine
appropriately
O Separation of powers issues?
O Court misinterpreted the purpose of
the LSC
O
Negatives of Velazquez
“Muddled” the waters of First
Amendment jurisprudence
O Court still hasn’t developed a principle
that adequately distinguishes between
cases
O Missed opportunity to clarify and
create a definitive test
O
“[Velazquez was] the end of the
latest chapter, although almost
certainly not the last, in a long
political struggle over the federally
financed program of civil legal
services for the poor."
New York Times