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Congress Considers Law to Narrow the Justice Gap

The Brennan Center’s Rebekah Diller testified at Tuesday’s House Judiciary Subcommittee hearing, speaking of the vastly increased need for LSC grantees’ services amid the current recession.

  • Brennan Center for Justice
April 30, 2010

On April 27th, the House Judiciary Committee’s Subcommittee on Commercial and Administrative Law held a hearing on the Civil Access to Justice Act of 2009 (CAJA). This legislation, which was introduced in similar forms in the both the House and the Senate last year (S. 718, H.R. 3764), would reauthorize LSC for the first time in over 30 years. The legislation would: 1) increase the authorized funding level for LSC to $750 million, 2) repeal the most onerous of the 1996 LSC funding restrictions (including the non-LSC funds restriction, the restriction that prohibits LSC funds from being used to participate in class actions, the restrictions that unduly proscribe legislative and administrative advocacy, and the restrictions that make certain categories of people ineligible for LSC-funded representation), and 3) modernize oversight and governance at LSC.

The Brennan Center’s Rebekah Diller testified at Tuesday’s hearing, speaking of the vastly increased need for LSC grantees’ services amid the current recession. Diller also identified the many inefficiencies and harms created by the LSC funding restrictions, both for clients and programs, problems that CAJA would largely eliminate. “The legislation would restore efficiency to the legal aid system by alleviating the need for state and private funders to establish separate organizations to spend their funds free of the federal chokehold. And it would ensure that low-income individuals are not barred from using legal tools available to every other litigant,” testified Diller.

Sen. Tom Harkin (D-IA) and Rep. Bobby Scott (D-VA), the original sponsors of this landmark legislation, both testified in support of its imminent passage.  Quoting former Supreme Court Justice Lewis Powell, Jr., Rep. Scott said, “’Equal justice under law is not merely a caption on the facade of the Supreme Court building, it is perhaps the most inspiring ideal of our society. It is one of the ends for which our entire legal system exists…it is fundamental that justice should be the same, in substance and availability, without regard to economic status.’ This is the goal that H.R. 3764 seeks to achieve.”

Remarking on his own experience as a legal aid lawyer in Iowa, Sen. Harkin stressed the injustice of the “system of second-class legal representation” that the LSC restrictions have created, saying, “The fact is, in many cases, these restrictions impede the ability of legal aid attorneys to provide the most meaningful and effective legal representation. They often have prevented lawyers from doing what attorneys are ethically bound to do: Provide zealous representation.”

The other witnesses for the majority were John G. Levi, the newly-appointed LSC board chair and Jeffrey E. Schanz, LSC’s Inspector General.

Also testifying, for the minority, was Kenneth F. Boehm, Chairman of the National Legal and Policy Center.  Mr. Boehm and the National Legal and Policy Center have long supported efforts to limit LSC’s reach and the scope of legal aid programs’ advocacy on behalf of their clients, including the 1996 LSC funding restrictions.  Citing 20-year-old cases, Mr. Boehm’s testimony painted a picture of the “anything goes” era that he said was sure to return if the restrictions were lifted.  Mr. Boehm appeared to acknowledge that in some cases, class actions offer an efficient and effective litigation tool.

The Civil Access to Justice Act has garnered 22 cosponsors in the Senate and 46 in the House, including a majority of the Senators and Members on the respective authorizing committees.  Over 150 diverse organizations signed onto a letter in support of the bill.  The American Bar Association also supports passage of the legislation, and leaders of over 60 state and territorial bar associations and five national bar associations recently sent a letter of support to Congress.

In the House, the bill will next be marked up by the Commercial and Administrative Law Subcommittee and then sent to the full Judiciary Committee for its consideration.  In the Senate, CAJA remains under the consideration by of the Health, Education, Labor and Pensions Committee, chaired by Sen. Harkin.