Federal Public Interest Funding Restrictions and the Legal Services Corporation

1. Federal Public Interest Funding Restrictions and the Legal Services Corporation Legal Services Corporation v. Velazquez

2. The Legal Services Corporation

3. What is the LSC? • The Legal Services Corporation is a non-profit government funded organization • Created by the Federal Government through the Legal Services Corporation Act in 1974 • 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 • Structured as a Federal Administrative Agency

4. What does the LSC do? • Provides and administers grants to hundreds of non-profit legal organizations than in turn provide legal assistance to low-income clients • LSC organizations provide assistance to between 1 million and 2 million clients annually • LSC funding comes directly from the Federal Government, and averages around $350 million per year • In Illinois, LSC funded organizations include: • Legal Assistance Foundation, • Land of Lincoln Legal Assistance Foundation • Prairie State Legal Services

5. LSC Executive Board • 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

6. The Legal Services Corporation Act The Congress finds and declares that-- • (1) there is a need to provide equal access to the system of justice in our Nation for individuals who seek redress of grievances; • (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; • (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; • (4) for many of our citizens, the availability of legal services has reaffirmed faith in our government of laws; • (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 • (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

7. Political and Social Climate: The Perfect Storm 1990’s Society 1990’s Politics

8. Presidential Timeline

9. The Clintons! Bill Clinton: Served as President from 1993-2001 Hilary Rodham Clinton: Served as Chair of the Board of the LSC from 1978-1980

10. Hilary Rodham Clinton • Served as Chair of the Board of the LSC from 1978-1980 • Funding for the LSC expanded from $90 million to $300 million • Successfully fought off President Reagan’s attempts to significantly reduce LSC funding and to eliminate the organization all together

11. 104th Congress • Bill Clinton elected President in 1993 • Republicans take control of both the House of Representatives and Senate for the first time since the 1950s • Senate President: Al Gore • House President: Newt Ginrich

12. Federal Government Shutdown of 1995 Video: Federal Government Shutdown of 1995 • November 14-19, 1995 • Clinton v. Newt Ginrich • Clinton vetoes proposed Congressional bill seeking to limit federal spending for Medicare, education, environment and public health

13. Opinions on Welfare Reform Congress Vows to “end welfare as we know it” Favors significant budget increases for welfare Proposed welfare reform Plan for Universal Health care Goal to decrease Federal welfare spending Sought to increase welfare work requirements Families receiving welfare: from 4.5 million to 2 millions President Clinton

14. The 1990’s: Social Climate • The Oklahoma City Bombing: April 19, 1995 • NATO Operation Deliberate Force against Serbs in Bosnia and Herzegovina • President Clinton invokes emergency powers to extend a $20 billion loan to Mexico • Federal Government Shutdown: December 16, 1995- January 6, 1996

15. Leads to…. So who cares? Political and Social Effects: The Perfect Storm

16. Omnibus Consolidated Rescissions and Appropriations Act of 1996 • Congress places significant restrictions on LSC grantee organizations and their use of Federal Government funding • Four general categories of restrictions: • A prohibition on influencing government • Restrictions on which clients grantees may represent • Restrictions on the type of cases grantees may take • Restrictions on how attorneys represent their clients *ORCAA 504(a)

17. ORCAA §504(a) • Generally, section 504(a) prevents legal aid entities engaging in various activities, including: • “lobbying, participation in class actions, providing legal assistance to aliens in certain categories…litigating on behalf of prisoners, and seeking to reform welfare”

18. Any organization will be prohibited from receiving LSC funding: • “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.” OCRAA §504(a)(16) The Big One

19. 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 • 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 • If an organization or attorney continued to pursue said litigation, they would lose all LSC funding

20. The Litigants and the Lawyers Legal Services Corporation v. Velazquez

21. Carmen Velazquez was a grandmother living in the Bronx • Lost welfare benefits under the Temporary Assistance for Needy Families Act • Was being represented by counsel from Bronx Legal Services in a public assistance claim • Velazquez’s argument: TANF was unlawful Carmen Velazquez, et al Who is she?

22. Temporary Assistance for Needy Families Act • TANF did not allow her a “pre-termination opportunity to demonstrate that physical impairments prevented her from working” • Velazquez’s attorneys argued the only way to help her was to challenge the existing welfare law itself • OCRAA restrictions forced Velazquez’s attorneys to withdraw or Bronx Legal Services would lose all LSC funding • Also objected to restriction on class action litigation

23. Velazquez et al • Velazquez was subsequently listed as representative of the plaintiff group • Not certified as a class, as the OCRAA prevented legal representation in class action suits • Plaintiff group included: • Lawyers employed by LSC grantee orgs. • Indigent clients • Private contributors to LSC grantees • State and local public officials whose governments contribute to LSC grantee orgs.

24. Burt Neuborne: Plaintiff’s Attorney

25. Burt Neuborne • 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”

26. Alan Levine: Defense Attorney

27. Alan Levine • Current partner at Cooley, LLP in NYC • Focuses practice on Antitrust, Commercial Litigation and Securities Litigation • At the time of Velazquez, worked for law firm Kronish, Lieb, Weiner & Hellman, LLP • Had held positions with the American College of Trial Lawyers, the Legal Aid Society, The ABA and the New York State Bar Association • Named member of the New York State Commission on Public Authority Reform and known for Pro Bono work

28. United States as Defendant-Intervenor 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 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 United States Joined the Case on Two Grounds:

29. Stephen W. Preston: U.S. Attorney General

30. Stephen W. Preston • At the time of Velazquez, was acting as Deputy Assistant Attorney General • Was responsible for all U.S. Civil Appeals cases • Previously served as Principal Deputy General Counsel of the U.S. Department of Defense • In 1998 President Clinton nominated Preston to General Counsel of the Navy • In 2009 President Obama nominated Preston as General Counsel of the Central Intelligence Agency

31. LSC President James Sandman Interview

32. James Sandman Interview • Fordham Law Review Journal Article • The case had no affect on the LSC itself- more of a direct impact on the grantee organizations • LSC still gives grantee organizations the same amount of money, the case only dictates how they use the money • LSC itself is “very reliant” on the OCRAA, affects all work that is done and confines all grants of funding

33. “Justice for All” • “Justice for all”- believes the mission of the LSC is fundamentally tied to core American values • 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 • Believes that the biggest issue is the same as that faced by all governmental organizations- all funding must be cut

34. 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

35. Alan Houseman Interview

36. Government Speech

37. Definition • 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.” • Essentially, when government speaks, it can take a particular position and can have its own viewpoint

38. Rust v. Sullivan • Issue: federal regulations that prohibited doctors from engaging in abortion counseling as part of a federally funded Title X project. • This is a constitutional restriction: government IS speaking, and thus the First Amendment prohibition on viewpoint discrimination is inapplicable

39. Rust Cont’d • Government may choose to fund one activity to the exclusion of another , even if the latter involves the exercise of a fundamental right • Not a case involving “unconstitutional conditions” • Title X focused on the project and not the grantees • Doctors and patients can still engage in such activities as long as they do not use any of the government funding • 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

40. Rust Dissent • 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 • Also, women would not interpret a doctor’s medical advice as government speech : discussion of private medical issues

41. Rosenberger • 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 • 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.”

42. Rosenberger cont’d • Court held this was NOT a government speech case • Government had created a limited public forum, and as such, could not discriminate based on viewpoint • “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.”

43. Rosenberger cont’d: Souter dissent • 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 • State is given a lot more latitude when the Court finds that it is speaking • Justice Souter: “There is a communicative element inherent in the very act of funding itself”

44. LSC v. Velazquez • Holding: this is an unconstitutional restriction on private speech • 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.” • Here, the LSC was established to facilitate private speech: essentially providing legal services to the poor and disenfranchised

45. Justice Kennedy’s Reasoning • The suits-for benefits limitation altered the traditional role of lawyers in the judicial system • Restriction has placed a substantial burden on low-income 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

46. Justice Scalia’s Dissent • There is not meaningful distinction between Rust and Velazquez • Funding similar causes • Distortion (novel argument) • 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 • Government could simply require that LSC attorneys be barred from engaging in any welfare litigation • No fundamental right to an attorney: irrelevant that an indigent cannot find another attorney • “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.”

47. The Aftermath Legal Services Corporation v. Velazquez

48. Subsequent Government Speech Cases • 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

49. Johanns Dissent • Justice Souter dissent: real test should be whether a reasonable observer would view it as government speech • Rationale: “the requirement of effective public accountability” – government should clearly identify itself as the speaker to hold ensure it is politically accountable

50. Pleasant Grove City v. Summum • Constitutional for city to accept a monument of the 10 Commandments and reject Summum monument • 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