The Republican war on civil legal aid: A brief primer

Civil legal aid, a surprisingly controversial idea, has had a contentious history. As mentioned in my last post, it has been routinely attacked and accused of moving away from its mission. For many people however, it is a life raft in the choppy seas of justice. Without access to civil legal aid, many people would walk into the courtroom without representation and thus without equal access to justice. For many, the federal government's involvement in the legal services world has been essential to ensuring that they have access to justice. However, federal funding for legal services has been increasingly imperiled and the history of the Legal Services Corporation, the organization that receives the federal dollars that it gives out to member organizations, has been filled with continual threats to its existence.

The development of a federal legal aid program came as the issue of class consciousness came back to the forefront in the early 1960s. In 1960, presidential candidate John F. Kennedy boldly campaigned on the idea of venturing into a “New Frontier” and tackling the issue of poverty. After Kennedy’s death, President Lyndon B. Johnson seized upon the “New Frontier” and used it to launch his “War on Poverty.” In 1964, President Johnson created the Office of Economic Opportunity (OEO), which within a year created the Legal Services Program. The program quickly won the support of the American Bar Association and within nine months was able to open and fund 130 offices throughout the country.

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. Often times, the CRLA would directly clash with Governor Ronald Reagan, often taking cases that sought to overturn his policies. In one instance, Reagan had reduced Medicaid funding and in the process, eliminated entire programs. The CRLA successfully represented an injured client who was reliant on one of the programs that had been eliminated. In Morris v. Williams, the court held that Reagan had violated California law by eliminating, instead of simply reducing the funding of several programs. Because of developments such as these, the CRLA quickly drew the ire 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, Ronald 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 ultimately overturned Reagan’s veto.

In its early years, the program was dependent upon yearly appropriations from Congress to remain functional. Upon assuming the presidency however, Richard Nixon sought to find ways to make the program permanent. In February of 1971, President Nixon sent a message to Congress advocating for the creation of the Legal Services Corporation, and after years of Congressional negotiation, he was finally able to sign the bill into law on July 25, 1974. One of the LSC’s biggest advocates in its early years was Hillary Clinton, who was appointed to the board of directors by President Jimmy Carter. The selection of Clinton marked a victory for the rural impoverished. As the wife of Arkansas Attorney General Bill Clinton, Hillary was familiar with the legal problems of the rural poor and was able to advocate for the interests of the rural poor and serve as a face for their interests.

The LSC would face its first big challenge when former California governor Ronald Reagan ascended to the presidency in 1981. As you will recall, Reagan had directly clashed with the CRLA years earlier and had no love for legal services organizations. Reagan first tried to eliminate the organization by defunding it completely, but that failed. In his first budget, Reagan proposed that the LSC be dissolved and that block grants be given to states so they could have complete autonomy as to how the money could be spent and how legal services would be structured in their state. The Reagan Administration reasoned that a change in structure would allow legal services to advocate for the poor instead of “promo[ting] social causes.” While Reagan was unsuccessful at entirely eliminating the program, he did achieve a 25 percent cut in his first budget. By 1982, the LSC’s funding had been reduced from $300 million in 1980 to $241 million. The effects of this cut were felt quickly as many offices had to lay off staff and even close entirely. Prior to Reagan’s election in 1980, there were 1,406 field offices funded by the LSC and by 1982, this number had been reduced to 1,12192. In 1980, these offices employed 6,559 attorneys and by 1982, that number had dropped to 4,776. Reagan encountered difficulty getting his appointees to the LSC board approved by the Senate, and as result would often just make recess appointments to the board. In fact, for much of the Reagan Administration, the LSC was governed by a series of hostile recess appointees with little stability in its governance. The Reagan-era LSC often harassed attorneys at local LSC field offices by confronting them in an adversarial manner and demanding records that attorneys could not ethically provide. They also withheld funding from offices for “technical violations” and sought to impose restrictions on them that went beyond the restrictions imposed by statute.

The end of the Reagan Administration and the beginning of the George H.W. Bush administration saw change for the LSC. Bush did not share his predecessor’s hostility towards legal services and actually increased funding for the program throughout his presidency. When Bush left office in 1993, he had increased funding for legal services to $350 million. The election of President Bill Clinton (husband of former board chair Hillary Clinton) saw continued progress for the LSC. President Clinton raised funding for the LSC to $400 million in his first budget. The trajectory for the LSC now looked to be in stark contrast to what it had been in the Reagan years.

1994 was a year of great change in America however. The Republicans took back the House of Representatives for the first time in many years and sought to quickly implement their policy proposals. In regards to the LSC, Republicans sought to return to the Reagan era hostility towards the program. In 1995, the House adopted a budget that would reduce funding for the LSC incrementally before eliminating it entirely after the 1997 fiscal year. Like Reagan, the Republican House delegation was not successful at entirely eliminating the program but they did however achieve significant cuts. They also succeeded at imposing significant restrictions on LSC, such as reducing the ability of local offices to take class action cases that are likely to result in legal change and also eliminating most of their ability to engage in legislative lobbying. Under the Republican House, funding for the LSC fell to $278 million, resulting in 900 fewer attorneys working at LSC funded offices and the closure of 300 local offices.

Like his father, President George W. Bush did not display much hostility towards the LSC and funding for the programs increased incrementally throughout his presidency. By the end of the Bush presidency and beginning of the Barack Obama presidency, the budget for the LSC had increased to $390 million. Obama sought to increase funding for the LSC, and was successful at getting funding increased to $420 million by 2011. Much like Bill Clinton however, Obama was faced with a Republican tidal wave during his first term and had to contend with their calls for cuts to the program. In 2011, the LSC requested that their budget be increased to $516.5 million in order to combat the increased need for legal services for the poor bought on by the economic downturn. The Obama Administration only asked for a modest $30 million increase, while congressional Republicans asked for a $75 million decrease. The two sides ultimately settled on $348 million in funding for FY 2012, its lowest level of funding since 2007. The LSC was once again cut in FY 2013 to $316 million before ultimately rising again to $343 million by FY 2015.

The LSC once again finds itself under attack with President Donald Trump proposing its complete elimination in his most recent budget. The Republican House of Representatives has proposed a decrease to $300 million.

The history of the LSC has been filled with resilience in the face of hostility. The Legal Services Corporation has stood at the forefront of the fight against injustice against the poor and has often found itself having to justify its existence. It is important that we keep its history in mind as it once again enters into hostile waters.

(For a more detailed post on this, see my post from March.)