58
Federal Public Interest Funding Restrictions and the Legal Services Corporation Legal Services Corporation v. Velazquez
Federal Public Interest Funding Restrictions and
the Legal Services Corporation
Legal Services Corporation v. Velazquez
The Legal Services
Corporation
What is the LSC?O The Legal Services Corporation is a non-
profit government funded organization O Created by the Federal Government through
the Legal Services Corporation Act in 1974O Purpose to provide financial support for legal
assistance programs working with clients in non-criminal proceedings or matters to persons unable to afford legal assistance
O Structured as a Federal Administrative Agency
What does the LSC do?O Provides and administers grants to hundreds of
non-profit 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 Legal Assistance Foundation, O Land of Lincoln Legal Assistance FoundationO Prairie State Legal Services
LSC Executive BoardO LSC is headquartered in Washington, DCO Run by a board of 11 directors,
appointed by the President and confirmed by the U.S. Senate
O The Board is bipartisan by law and no more than 6 members may be from the same party
O Hilary Rodham Clinton most famous past Chair of the Board
O John G. Levi current chair
The Legal Services Corporation ActThe 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 TimelineFord Era
• Creates the LSC in 1974 via the Legal Services Corporation Act
Carter Era
• Nominates Hillary Rodham Clinton to the Board in 1978
• LSC funding at its highest ever mark at $300 million
George H.W. Bush Era
• Sought to level out LSC funding and decrease hostility
• Funding rises again to $350 million
Clinton Era
• Early era saw more growth for the LSC
• During “Republican revolution” funding cut from $400 million to $278 million
The Clintons!Bill Clinton: Served as
President from 1993-2001Hilary Rodham Clinton: Served as Chair of the Board of the LSC from
1978-1980
Hilary Rodham ClintonO Served as Chair of the Board of the
LSC from 1978-1980O Funding for the LSC expanded from
$90 million to $300 millionO Successfully fought off President
Reagan’s attempts to significantly reduce LSC funding and to eliminate the organization all together
104th CongressO Bill Clinton elected President in
1993O Republicans take control of both the
House of Representatives and Senate for the first time since the 1950s
O Senate President: Al GoreO House President: Newt Ginrich
Federal Government Shutdown of 1995
Video: Federal Government Shutdown of 1995
O November 14-19, 1995O Clinton v. Newt GinrichO Clinton vetoes
proposed Congressional bill seeking to limit federal spending for Medicare, education, environment and public health
Opinions on Welfare Reform
President Clinton CongressO 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 Goal to decrease Federal welfare spending
O Sought to increase welfare work requirements
O Families receiving welfare: from 4.5 million to 2 millions
The 1990’s: Social Climate
O 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
So who cares? O Leads to….Political and Social Effects:
The Perfect Storm
Omnibus Consolidated Rescissions and Appropriations
Act of 1996O 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 governmentO Restrictions on which clients grantees may
representO Restrictions on the type of cases grantees may
takeO Restrictions on how attorneys represent their
clients*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”
OCRAA §504(a)(16)
O Any organization will be prohibited from receiving LSC funding:
O “that initiates legal representation or participates in any other way, in litigation, lobbying, or rulemaking, involving an effort to reform a Federal or State welfare system, except that this paragraph shall not be construed to preclude a recipient from representing an individual eligible client who is seeking specific relief from a welfare agency if such relief does not involve an effort to amend or otherwise challenge existing law in effect on the date of the initiation of the representation.”
The Big One
Long story short…
O 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
The Litigants and the Lawyers
Legal Services Corporation v. Velazquez
Carmen Velazquez, et al
O Carmen Velazquez was a grandmother living in the Bronx
O Lost welfare benefits under the Temporary Assistance for Needy Families Act
O Was being represented by counsel from Bronx Legal Services in a public assistance claim
O Velazquez’s argument: TANF was unlawful
Who is she?
Temporary Assistance
for Needy Fam
ilies Act
O TANF did not allow her a “pre-termination 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
Velazquez et alO 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 Lawyers employed by LSC grantee
orgs.O Indigent clientsO Private contributors to LSC granteesO State and local public officials whose
governments contribute to LSC grantee orgs.
Burt Neuborne:Plaintiff’s Attorney
Burt NeuborneO Nationally renowned civil liberties defenderO Former National Legal Director of the ACLUO Currently on the faculty at New York School of
LawO Legal director for the Brennan Center for
JusticeO Member of the NYC Human Rights
CommissionO “Strives to persuade judges to view the U.S.
Constitution as a ‘living document’ that must be re-interpreted every generation”
Alan Levine:Defense Attorney
Alan LevineO Current partner at Cooley, LLP in NYCO Focuses practice on Antitrust, Commercial
Litigation and Securities LitigationO At the time of Velazquez, worked for law firm
Kronish, Lieb, Weiner & Hellman, LLPO 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
United States as Defendant-Intervenor
United States Joined the Case on Two Grounds:
O 1. The challenged welfare claim proviso-OCRAA §504(a)(16) is fully consistent with the First Amendment and is not a violation of free speech
O 2. Respondent’s challenges to the regulations allowing fund recipients to establish separate entities to engage in restricted activities using non-federal funds are without merit
Stephen W. Preston:
U.S. Attorney General
Stephen W. PrestonO At the time of Velazquez, was acting as
Deputy Assistant Attorney GeneralO Was responsible for all U.S. Civil Appeals cases
O 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
LSC President James Sandman
Interview
James Sandman Interview
O Fordham Law Review Journal ArticleO The case had no affect on the LSC
itself- more 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
“Justice for All”O “Justice for all”- believes the mission of
the LSC is fundamentally tied to core American valuesO But values in today’s society are flipped,
other ideals are placed above justice for allO 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
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
Alan HousemanInterview
Government Speech
DefinitionO 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. SullivanO 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’dO 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 granteesO 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 DissentO These restrictions are viewpoint-
based suppression of speech: government is threatening to withhold funding unless the recipients agree not to engage in pro-abortion activities
O Also, women would not interpret a doctor’s medical advice as government speech : discussion of private medical issues
RosenbergerO 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’dO Court held this was NOT a government
speech caseO 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 speechO State is given a lot more latitude when
the Court finds that it is speakingO Justice Souter: “There is a
communicative element inherent in the very act of funding itself”
LSC v. VelazquezO Holding: this is an unconstitutional restriction
on private speechO 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 ReasoningO The suits-for benefits limitation altered the traditional
role of lawyers in the judicial systemO Restriction has placed a substantial burden on low-
income citizens by forcing them to find substitute attorneys
O This is high-value speech, and thus is deserved of heightened protection
O This restriction may have created separation of powers concerns: Congress is essentially insulating its own legislation from judicial review
O States that this case is more like Rosenberger than Rust because the government is encouraging a diversity of opinion
Justice Scalia’s DissentO There is not meaningful distinction between Rust and
Velazquez O Funding similar causesO 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 AftermathLegal 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 DissentO Justice Souter dissent: real test
should be whether a reasonable observer would view it as government speechO 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 Legal Field
O Reactions in Congress initially mixed
O Democrats supported the decision
O Republicans condemned the decision
O 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
Lasting Social EffectsO Real world ramifications of the decision
much more significant than legal effectsO 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
Los Angeles Tim
es“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”
“A Gain for Equal Justice,” March 9, 2001
Parties’ ReactionsBurt Neuborne
The Legal Services Corp.
O Stated that the ruling “reads like a First Amendment textbook”
O Victory, but for how long?
O 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
So was it worth it?
O Positive advancement in First Amendment free speech
O Gives more flexibility to LSC grantee organizations to represent their client’s interests freely
O Got the courts talking- but is this a good thing?
Positives of Velazquez
Negatives of
Velazquez
O “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 testO “Lower courts are now faced with an
even more confusing legal framework”O Court did not apply the
unconstitutional conditions doctrine appropriately
O Separation of powers issues?O Court misinterpreted the purpose of
the LSC
The Legal Services
Corporation Today
O “The Obama Era”O 2011 LSC budget
level at $420 millionO In 2010, Obama
proposed a $30 million LSC budget increase
O In 2011, Republican-controlled House proposed a $75 million budget decrease
O The story continues…
“[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
