Sunday, March 19, 2017

From Reagan to Trump: The battle for civil legal aid

As many of you may be aware, the White House recently unveiled the blueprint for President Donald Trump's first budget. The budget calls for dramatic cuts to some programs and the complete elimination of funding for others (some are perhaps most familiar with the elimination of federal funding for the Corporation for Public Broadcasting and Meals on Wheels). One of the other programs that the Trump Administration wants to withdraw funding from is the Legal Services Corporation, a non-profit entity that provides funding to organizations that provide civil legal services to indigent populations. President Trump's decision to propose the elimination of funding for the Legal Services Corporation is sadly representative of a pattern that goes back to Ronald Reagan. In 1981, President Ronald Reagan called for the elimination of the program and in 1995, House Speaker Newt Gingrich, future House Speaker John Boehner, and future Ohio Governor, Rep. John Kasich were vocal proponents of the program's elimination. The Legal Services Corporation and the legal aid movement more broadly have long been accused of being a front for a "liberal" agenda, sentiments echoed in both Reagan's earliest attempts to eliminate it and the most recent attempts in 1995. The Trump Administration has yet to give a reason for their attempts to eliminate the LSC.

Rural legal services organizations are perhaps the most vulnerable to these proposed cuts. Owing to spatial isolation and historically entrenched poverty, the rural impoverished are incredibly reliant on the services of lawyers who can provide them with a voice in a community where they are marginalized and help them obtain access to resources that may not otherwise be available to them. For many agencies, LSC funding makes up the majority of their funding and when funding is cut, rural offices are often the first to close. If enacted, President Trump's cuts would be devastating to the rural impoverished.

The creation of the LSC

The LSC has its roots as the "Legal Services Program" within the Office of Economic Opportunity, created by President Lyndon Johnson in 1965 as part of the War on Poverty. The creation of the LSP is important for rural legal services, if only because the Legal Aid movement had historically been a predominantly urban phenomena. In his 1919 writing, Justice and the Poor, Reginald Heber Smith wrote, "[i]n the country towns and smaller cities this difficulty [in obtaining legal services] is overcome by the charity work of the lawyers. It is the general opinion that it is rare indeed for an inhabitant of a small town to be denied legal assistance even if he is unable to pay for it. Just where the line of demarcation is to be drawn is not certain, but there is good authority for fixing it at cities with a population of one hundred thousand." Smith postulated that only cities of 100,000 or more even needed a civil legal aid society, an assumption that we know today to be false.

On July 25, 1974, President Richard Nixon signed the LSC Act, creating the Legal Services Corporation as an independent non-profit agency. Despite its independence, the President retained the power to appoint, with the approval of the United States Senate, the board of the LSC.

Reagan's crusade

The creation of the Legal Services Program saw the creation of what may perhaps be the first successful rural legal services organization, California Rural Legal Assistance (CRLA). California Rural Legal Assistance quickly proved the potency of an organization that actively advocated for the rights of rural citizens. As one of the first rural legal assistance programs in the country, CRLA sought to change the distrust that many of the rural poor in California had for the legal system. While the vast majority of the cases that CRLA took were service cases, which dealt primarily with only remedying the problems of the individual, they did often take cases that were designed to set precedent and reform the legal system. 

The CRLA would directly clash with then-Governor Ronald Reagan, often taking cases that sought to overturn the policies of the Reagan Administration. As governor, Reagan had the ability to veto funding for the CRLA, but his veto was subject to approval by the director of the OEO. Knowing that he lacked the political will to have his veto upheld, Reagan appointed a new director for the California OEO and commissioned a study into the activities of the CRLA. The study alleged that the CRLA was connected to unions, racial violence and had allegedly exploited the poor by refusing to simply settle their cases. In December of 1970, Reagan vetoed funding for the CRLA. The federal OEO did not immediately overturn Reagan’s veto, but instead funded CRLA for six months while they investigated the report itself. The OEO found that many of the allegations made in the report were without merit and overturned Reagan’s veto.

Reagan also tried to use his relationship with Republican Senator George Murphy of California to amend the OEO's enabling legislation as a means of weakening the CRLA. Murphy first tried to achieve this by introducing legislation that would bar Legal Aid organizations from suing federal, state and local agencies. When that failed to pass in the Senate, Murphy introduced legislation to give governors the absolute power to veto funding for OEO programs, a measure which also failed to pass.

During the period following President Nixon's signing of the legislation that created the Legal Services Corporation and the inauguration of President Reagan, the LSC's budget had grown from $11.7 million to $321.3 million. The program had successfully expanded to such a point that it had representation in every county in the United States. Upon taking office however, Reagan immediately called for the abolishment of the LSC, an action that was immediately rebuffed by a bipartisan coalition in Congress. Funding for the LSC for the 1981-1982 fiscal year was reduced however to $260 million. Reagan also tried to weaken the LSC by appointing people to its board that were hostile to its mission and it was because of his failure to get these appointees approved by the Senate that the LSC was essentially governed by a series of recess appointments for the duration of Reagan's presidency. In an article in the June 8, 1984 edition of the New York Times, Senator Tom Eagleton of Missouri described Reagan's efforts by saying, "[t]here are three ways to kill a federal program, and the President with respect to legal services has tried all three. One way is to kill it outright. That didn't succeed. Another is to fund it at such a low level as to make it inoperative. From Reagan's point of view, he made a little progress on that, he got a budget cut. And the third way is to put management and oversight of the program in unfriendly hands." 

Reagan ultimately failed to kill the LSC but did succeed in weakening it. During the Reagan years,  restrictions were put on the activities of LSC grantees (including limitations on class action lawsuits) that severely limited what they could accomplish for the indigent. As the below chart shows, the Reagan Administration did succeed in cutting funding for the organization. 

Under fire again: The new Republican majority

In 1994, the Republican Party took back control of the United States House of Representatives for the first time since 1955 and as a result, the LSC again faced a threat to its existence. Continuing with the Reagan-esque tactic of painting the LSC as a funder of "liberal causes," they sought to eliminate it and turn legal services into a block grant that would be given to the states. As an example of the rhetoric surrounding this attempt to end the LSC, we can look to Rep. Charles Taylor of North Carolina who was quoted in an article published in June 1, 1996 edition of the New York Times as saying, "[o]f the 1.6 million legal matters they say they handled last year, at our request, they could not find one case where they helped throw a drug dealer out of public housing or helped protect a home schooler ... [t]hey have never stepped forward to help on the moderate or conservative front." Like President Reagan, a decade earlier, the Republicans had politicized the mission of the LSC.

A plan was devised that would lower funding of the LSC incrementally until 1998 when the program would then be eliminated all together. To begin the implementation of this plan, the House Republicans implemented a 31% cut in LSC funding in FY1996. Like with President Reagan's plans to eliminate the LSC in 1980s, the House Republican plan of the 90s ran into bipartisan opposition

Like President Reagan, the House Republicans failed to eliminate the LSC but they were successful in enacting reforms that severely limited the scope of representation that LSC attorneys could provide. Legislation was enacted that banned LSC grant recipients from representing clients in class action suits against federal state, and local governments and trying to influence the passage of legislation. As with President Reagan's attempts, the House Republicans succeeded in severely reducing funding afforded to the Legal Services Corporation.

Legal aid: a lifeline for the rural poor

There is perhaps no population that benefits more from civil legal aid than the rural poor. Rural poverty is defined largely by spatial isolation and is also deep rooted and multigenerational. Every single "persistent poverty" county in this country is rural. When rural people are in poverty, it's often because their grandparents and their grandparents were in poverty and it is also likely that their grandchildren will be in poverty (this interactive map from the New York Times shows that the issue is particularly pervasive in the rural South). Poor rural people are often forced into substandard school districts and given substandard opportunities. They are trapped in a power structure that leaves them vulnerable to manipulation by unscrupulous slumlords, employers, and even domestic partners. To someone who has no money and no resources, a lawyer is often the only person who can help them assert themselves and their rights. Due to the relative isolation of many rural communities, lawyers may also represent the only help that they can get for other issues. As Tom Weeks, executive director of the Ohio State Legal Services Association, noted in a recent article in The Atlantic“[i]n the cities, you're more likely to have some other organizations, for example, that are doing domestic-violence protection work .... In southeastern Ohio, we're basically pretty much the only lawyers who are representing poor people in domestic-violence and other family cases.” 

Impoverished rural citizens have long suffered from a lack of attorneys who can represent them. When the LSC faced being cut in 1995, Richard M. Taylor of Legal Services of North Carolina noted that "there are broad areas where there is great poverty and very few lawyers. The poverty is not distributed where the lawyers are." I also wrote about the issue of the misdistribution of lawyers here. In 1990, the Maine Commission on Legal Needs (chaired by Senator Edmund Muskie) issued a report that found that available legal services in Maine (an almost entirely rural state) were inadequate to fully address the needs of the poor. The report further found that, "[p]oor people living in a city in which a legal service office is located were nearly two times more likely to obtain legal assistance, and six times more likely to have obtained free legal service, than those not living in such a location. Residents of these cities were also twice as likely to be aware of the availability of free legal services." The findings of the Muskie report are particularly troubling when you consider that rural legal aid offices are perhaps the most vulnerable when funding gets cut. In 2011, Legal Aid of North Carolina lost $2 million in state funding. They responded by closing three rural offices, a decision that Executive Director George Hausen defended by saying, "[b]ecause those offices, because they cover so much geographic territory, don't serve as many clients. So if the issue is serving as many clients as possible with the same amount of money, we have to cut down on the travel and the time and kind of circle the wagons in the larger urban offices." In 2016, Legal Aid of North Carolina once again responded to budget cuts by closing yet another rural office. As with many issues of rural poverty, spatial isolation is the key barrier preventing a person from accessing the resources that they need. 

As Gene Nichol of the UNC School of Law noted in an October 2013 article in the Raleigh News & Observer, eighty percent of North Carolina's poor are unable to access legal representation. President Trump's proposal would only serve to exacerbate this problem. For many predominantly rural states, funding from the Legal Services Corporation represents the majority of their funding. According to Jim Sandman, President of the Legal Services Corporation, the organization provides the majority of funding for legal services provided in 12 states: Alabama, Arizona, Idaho, Indiana, Kansas, Mississippi, Nevada, New Mexico, South Carolina, South Dakota, Texas and Utah. When funding is cut from legal services, rural citizens are the among the first to suffer.

The scars remain

The below charts are visual representations of the cuts enacted by the Reagan Administration and Gingrich led House of Representatives.

Credit: Center for Law and Social Policy

Credit: Center for Law and Social Policy
As you can see, there is a marked decrease in funding in both 1982 and 1995, a legacy of these attempts to weaken the Legal Services Corporation. While it is incredibly likely that Donald Trump's budget will not pass, presidential budgets rarely do, it is likely that Trump's attempts will result in yet another weakening of the Legal Services Corporation. While Reagan and Gingrich failed to strike a fatal blow to the LSC, the scars from their attempts to do so remain. 

What will be the effects of President Trump's attempts to abolish the LSC and what resistance will be mounted against it? That remains to be seen. 

1 comment:

Kyle Kate Dudley said...

This post is very important and very near-and-dear to my heart, not only because I care deeply for many attorneys whose livelihoods are supported by LSC funding, but also because mine will be when I graduate. I read this post and I think of all the people who are supported by the work of LSC attorneys and who have been since 1974. I found this short and sweet story from Georgia Legal Services (on the LSC website) to be a particularly poignant example of how LSC attorneys are literally saving lives:

I thought your history of LSC and various periods of program-threat was incredibly illuminating. In one way, it made me feel so disappointed about how many years LSC has been under-siege, but on the other hand another, I began to feel a little less terrified that Trump's intended cuts were a death-knell. Vox also gave me some hope when reminding me of the long slog that it takes to pass a budget:

Let's face it, either way, it is likely that the Legal Services Corporation will have to rebound and become resilient in the face of a new, unjust, attack of its programs. However, it seems to me LSC is good at that: LSC attorneys fight back against the injustice surrounding their clients all the time. LSC is an old hat at resilience.