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OP-ED: Market capitalism is not the answer to close the justice gap

Western Center senior attorney Lorraine López wrote an op-ed to explain why the California State Bar’s current recommendations for closing the state’s justice gap is off target, and points to the solutions legal service providers have spent years advocating for.

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Legal services attorneys help people experiencing poverty enforce their rights, but federal restrictions on funding prevent opportunities for lasting justice

Federal funding for legal services began as part of President Lyndon B. Johnson’s war on poverty. With the legislative successes of the Civil Rights Movement in the 1960s, people living in poverty needed lawyers to access the courts and assert their newfound rights.

New legal services groups sprouted up across the country, and existing privately-funded programs expanded; both were very successful at serving thousands of low-income folks and winning cases.  Before 1965, no legal aid case made it to the Supreme Court, but following federal investment in legal services, over 200 cases made it to the high court, and legal services won most of them.

From the outset of the program, that success drew ire of both corporate and political interests over the continued funding for legal aid. For example, in 1969 then-California Governor Ronald Reagan attempted to defund California Rural Legal Assistance (CRLA) because of its success in court against corporate dairy farmers and the state.  Reagan’s attempt failed spectacularly when a commission of three state Supreme Court justices, all Republicans, vindicated CRLA against all 127 charges.

When most of the war on poverty was dismantled, the legal services program survived.  The last bill President Nixon signed into law before resigning in 1974 established the Legal Services Corporation, which remains the largest source of funding for the nation’s legal aid programs.

But old animosities did not die.  When Reagan was elected President, his administration tried to eliminate funding for LSC altogether.  When this effort was thwarted by bi-partisan support for legal services, he appointed extremists to govern the national program.  This had a very real effect of limiting legal aid groups in their ability to challenge an unjust status quo.  Further, it kept legal service organizations battling to maintain funding – diverting time and energy from fighting poverty. Western Center’s successful case against the Legal Services Corporation for its arbitrary denial of funding in 1984 is one example of such a battle.

Then, in 1995, the Newt Gingrich-led Congress eliminated federal funding for national and state support centers like Western Center, and imposed additional restrictions on LSC funding with the clear intent of preventing legal aid groups from seeking systemic change.

These are some of the restrictions that have been imposed on LSC organizations through the years: (1) no class actions, eliminating the major procedural mechanism to represent masses of people wronged by an entity; (2) severe restrictions on legislative  and administrative advocacy; (3) no organizing; (4) no representation of undocumented immigrants; (5) no representation in cases involving voting redistricting; (6) no representation of people facing eviction from public housing based on a drug conviction; (7) no civil representation of prisoners; (8) no cases seeking statutory attorneys’ fees, a restriction that lasted from 1995-2009; (9) no school desegregation cases; (10) no abortion cases; and (11) no litigation or other advocacy “involving an effort to reform a Federal or State welfare system.”

Perhaps worst of all, most of these restrictions apply not just to the federal funds received by programs, but also to money received from other sources, such as private donations.  In other words, legal services attorneys, who represent clients in need of the most aggressive and creative representation, are faced with restrictions not imposed on any other members of the legal profession.

It’s evident that these restrictions are designed to preserve power and eliminate the opportunity for people experiencing poverty to access real justice.  Limited funding (and for a long time, limited ability for legal aid groups to seek attorney’s fees in cases they won) keeps legal aid attorneys chronically under-resourced, overworked, and underpaid.  The prohibitions on class actions and restrictions on lobbying are intended to prevent legal aid firms from addressing systemic issues faced by the broadest numbers of people living in poverty, like institutional racism and residential segregation. All of these restrictions serve as dog whistles at best, targeted dehumanization to keep people in poverty at worst.

We are proud to partner with advocates in LSC-funded programs who, despite restrictions, work daily miracles for their clients.  Imagine what these creative and talented advocates could do if they did not have one hand tied behind their backs.