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National Campaign to Fix the Legal Services Restrictions

Published: February 22, 2010

A Broad, Strong Coalition Working to Improve Legal Aid

Leaders throughout the country, on the left and on the right, are supporting both a federal lawsuit and a national public education campaign to help low-income individuals and families obtain urgently needed legal assistance. Studies consistently show that only one-in-five low-income people in America are able to obtain legal assistance when they need it. The Legal Services Corporation’s so-called “non-LSC funds restriction” needlessly ties up precious state, local, private, and other federal funds intended to bring legal assistance to the most vulnerable members of our society.

The private money restriction hurts low-income families and undermines our nation’s promise of “Equal Justice Under Law.” A broad, strong coalition opposes this unfair, unwise, and unconstitutional law.

The Obama Administration

On May 7, 2009, the Obama Administration released its FY 2010 “detailed budget,” which called on Congress to lift three major legal services restrictions:  the non-LSC funds restriction and the restrictions prohibiting LSC grantees from using their LSC funds to seek attroneys’ fees and participate in class actions.

When the House did not heed the Administration’s recommendation in its FY 2010 Commerce-Justice-Science appropriations bill, the Administration released a “Statement of Administrative Policy” on the bill, expressing the Administration’s frustration that the House did not vote to lift all three restrictions.  The Administration again urged repeal of all the three major restrictions.

On July 23, 2009, in recognition of the 35th anniversary of LSC, President Obama repeated his call for the repeal of key restrictions in a presidential proclamation, announcing “These changes are critical to the organization’s mission and work.”

On July 31, 2009, Assistant Attorney General Tony West, at a speech before the American Bar Association’s Litigation Section concerning “Closing the Justice Gap,” repeated the Administration’s call, yet again, for the repeal of the non-LSC funds restriction and the restrictions on using LSC funds to seek attorneys’ fees and participate in class actions.  With respect to the legal services funding restrictions, West said

“But funding won’t solve the problem alone. Changes need to be made to the Legal Services Corporation to incentivize more lawyers and organizations to serve the most vulnerable populations. That is why the President has called for removing three of the onerous restrictions that have been placed on LSC funds and organizations that receive LSC funds—restrictions you in the ABA have long recognized may be eliminated to expand access to justice for low-income families without imposing unjustifiable costs on defendants.”

In a “Statement of Administrative Policy” released October 5, 2009, the Obama Administration commented on the Senate’s Commerce-Justice-Science Appropriations bill for Fiscal Year 2010. This bill, approved by the Senate Appropriations Committee in June 2009, contains language that almost wholly repeals the legal services restriction on non-federal funds. With regard to the language on the restrictions and funding for the Legal Services Corporation (LSC), the Administration writes:

“The Administration appreciates the Committees modification of the restriction on the use of non-LSC funds by LSC grant recipients but also urges the Congress to allow LSC attorneys to collect fees and to participate in class action lawsuits. These riders limit access to legal representation and constrain legal aid lawyers’ ability to secure settlements and to pursue injunctive relief to stop illegal activity. In addition, the Administration urges the Congress to fully fund the President’s request.”

In its FY 2011 budget, the Obama Administration again called for the repeal of the restriction on non-LSC funds and the class action restriction (The budget also requests the maintenance of the repeal of the attorneys’ fee restriction, which Congress approved during the FY 2010 appropriations process.

Members of Congress

Over 100 Members of Congress have expressed their support for efforts to fix the restriction on non-LSC funds. Former Republican Congressman Bob Barr (GA),* an architect of the original restrictions in 1996, has declared that Congress went too far in passing this restriction. Congressman Barr describes the restriction as “wasteful, anti-libertarian, and downright dangerous.” U.S. Representative José E. Serrano (D-NY) and Rep. David E. Price (D-NC) have also urged Congress to repeal the restriction. Read their statements on the floor of Congress.

In March 2009, U.S. Senator Tom Harkin, a Democrat from Iowa, has introduced legislation that would reauthorize the Legal Services Corporation and repeal the major legal services restrictions, the Civil Access to Justice Act of 2009.  That legislation now has 20 Senate cosponsors.  Sen. Harkin also has stated his support for efforts to repeal the restrictions through the appropriations process.  In October 2009, Representative Bobby Scott (D-VA) introduced companion legislation in the House of Representatives to reauthorize LSC.  Both reauthorization bills would lift the restriction on non-LSC funds and loosen other key restrictions that limit the tools LSC-funded legal aid lawyers can use when representing their clients.  Read both Sen. Harkin and Rep. Scott’s statements on the Civil Access to Justice Act from an April 2010 hearing on the bill held before the House Judiciary Committee’s Subcommittee on Commercial and Administrative Law.

On June 4, 2009, 45 U.S. Representatives, many from the House Judiciary Committee, which has jurisdiction over LSC, signed onto a letter to the Chair and Ranking Member of the House CJS Appropriations Subcommittee urging them to lift three of the major restrictions on legal services providers receiving grants from the federal LSC in the FY 2010 appropriations process: the non-LSC funds restriction and the restrictions prohibiting LSC grantees from using their LSC to participate in class actions and seek attorneys’s fees.  This letter was authored by Representatives Steve Cohen (D-TN) and Jerrold Nadler (D-NY).

U.S. Senator Barbara Mikulski (D-MD), a Democrat from Maryland and Chair of the Senate Appropriations Committee’s Commerce-Justice-Science Subcommittee, has greatly advanced efforts to roll back the restrictions by including the repeal of the restriction on non-federal funds in her draft of the CJS Subcommittee’s FY 2010 appropriations legislation.

On September 17, 2009, 108 Members of the House of Representatives signed onto a letter, authored by Rep. Adam Schiff (D-CA), which calls on the Representatives and Senators who will participate in the conference committee for the Commerce-Justice-Science Appropriations bill to pass language that would lift the crucial restriction on non-federal funds, along with the restriction on seeking attorneys’ fees.  The letter also urges the conferees to adopt a $440 million funding level for LSC for FY 2010.

On October 26, 2009, Rep. John Conyers Jr. commented on the foreclosure crisis and the subprime lending mess in The Huffington Post.  In his blog, he discussed one way he was working to speed Michigan and the country’s recovery:

With Detroit being among the worst hit cities of this crisis, I have been tirelessly and intimately engaged in getting out better tools for people who are stuck in this downward spiral. First, since countless individuals facing foreclosure lack legal representation to protect their rights, I am working to increase funding for Legal Services Corporation (LSC) and lift the restrictions on whom LSC can service. LSC provides civil legal assistance for low-income individuals, but currently inadequately funded, in the category of foreclosures—LSC-funded programs have been projected to turn away two for every person served. Should such restrictions get lifted and funding increased, more people will be empowered with the necessary resources to battle these scheming banking giants.

Rep. Alan Mollohan (D-WV), in his Chairman’s Mark of the FY 2011 Commerce-Justice-Science Appropriations bill, included a repeal of the restriction on class actions, which the Subcommittee approved on June 29, 2010.  In his opening remarks at the Subcommittee markup, Rep. Mollohan said:

The bill continues the existing limitations on the use of funds, except it lifts the current restriction on the ability of LSC grantees to consolidate related client cases into class action suits. Lifting this restriction will allow grantees to more efficiently address systemic issues such as predatory lending or wrongful eviction.

This comes after Rep. Mollohan included repeal of the restriction on attorneys’ fees in his Chairman’s mark of the FY 2010 Commerce-Justice-Science Appropriations bill, a repeal that was signed into law in Dec. 2009.

Faith-Based Groups and Religious Leaders

Leading religious organizations representing 85 million Americans of faith, including the National Association of Evangelicals, the National Council of Churches, Dr. Ron Sider’s Evangelicals for Social Action, and the National Baptist Convention, USA, have expressed concern about the private money restriction by writing letters to Congress. Rev. Richard Cizik of NAE wrote, “God measures societies by how they treat the people at the bottom, and He teaches us to care for the poor and oppressed among us. The services provided by LSC grantees are vital for this purpose and should not be unwisely restricted.”  In December 2005, 31 other faith-based groups wrote a separate letter to Congressmen Frank Wolf and Allan Mollohan, respectively the Chairman and Ranking Member of the House Appropriations Subcommittee that allocates funds to LSC.

In a letter to the editor of The New York Times, Rev. Dr. Eileen Lindner of the National Council of Churches wrote, “It’s time for Congress to stand up for those who, without a helping hand from legal services organizations and the shared blessings of others, have no place else to turn for legal help.”

Several faith-based organizations also signed onto a letter sent to the Chairs and Ranking Members of the House and Senate Appropriations CJS Subcommittees on June 4, 2009 calling for the repeal of key restrictions.

Prisoner Reentry Advocates

Dozens of groups concerned about helping incarcerated people prepare for a stable and successful reentry into society have sent a letter to Congress urging it to fix the restriction. Chuck Colson’s Prison Fellowship, Human Rights Watch, and many other influential organizations have signed this letter.

These groups, along with other reentry advocates, also signed onto the June 2009 letter sent to the Chairs and Ranking Members of the House and Senate Appropriations CJS Subcommittees calling for the repeal of key restrictions.

Seniors Groups

AARP, which boasts 35 million members, has joined an amicus brief in support of litigation challenging the restriction, and has taken a public policy position in favor of removing the non-LSC funds restriction. The Alliance for Retired Americans, Families USA, the Center for Medicare Advocacy, the Medicare Rights Center, and the Congress of California Seniors all oppose the restriction as well.

Seniors groups, including AARP, Families USA and the Medicare Rights Center, also signed onto the June 2009 letter sent to the Chairs and Ranking Members of the House and Senate Appropriations CJS Subcommittees calling for the repeal of key restrictions.

National Media Outlets and Prominent Opinion-Makers

In a December 5, 2005 editorial, The New York Times editorial page wrote, “The fact that Washington provides money for legal representation does not give it unlimited authority to control what lawyers say or do, or to restrict the use of private money so severely.  More recently, on June 23, 2009,  the Times weighed in with another editorial, calling on the Senate, in its FY 2010 appropriations bill for LSC, to lift the three restrictions recommended by President Obama and to “support the cause of equal justice.”  And on October 8, 2009, as the congressional conference committee prepares to reconcile the House and Senate FY10 CJS bills, a Times editorial makes another appeal to legislators to repeal these “sweeping and unwarranted restrictions that continue to hamper the work of local legal services offices.”  On October 9th, a New York Times editorial examined the ever-present crisis in legal representation for the poor through the lens of the current foreclosure crisis, again highlighting the need to repeal the class action restriction and other of the legal services funding restrictions that limit the advocacy that legal aid lawyers can do on behalf of their vulnerable clients.

The Washington Post, in an editorial on March 14, 2009, applauded the federal government’s funding increase for LSC in FY09.  The editorial also urged lawmakers to “go a step further and unshackle Legal Services from congressionally imposed restrictions that have kept it from working more efficiently and broadly,” stating “such reforms are long overdue.”  In an editorial dated June 22, 2009, the Post called on the Senate to go further than the House did and lift the non-LSC funds restrictions in its FY 2010 appropriations bill, writing: “While some limitations on the use of tax dollars may be warranted, there is no legitimate reason for federal restrictions on how local legal aid groups use privately raised funds or money they receive from state or local governments.”  On July 13, 2009, the Post, in another editorial on the importance of legal services, congratulated the Senate, and Senator Mikulski, for the progress made on repealing the non-federal funds restriction.  Most recently, on November 16, 2009, the Washington Post appealed to the congressional conference committee that will reconcile the House and Senate versions of the appropriations bills to preserve the House’s higher funding level for LSC and the Senate’s repeal of the restriction on non-federal funds.

The Baltimore Sun, in an editorial dated June 26, 2009, congratulated Senator Mikulski for working to lift the non-LSC funds restriction: “Senator Mikulski obviously had to make a tough call in deciding whether to give up some of the agency’s funding in order to win enough Republican support to lift the bill’s most [onerous] restriction, but we think she made the right choice. The legislation her subcommittee marked up still faces more hurdles before it can become law, but for the first time since 1996 it looks as if the LSC finally may be able to get back to providing the kind of essential legal services its founders envisioned and that poor people desperately need in order to secure their rights under the law.”

On May 25, 2009, the Charleston Gazette published an editorial calling on Rep. Alan Mollohan (D-WV), chair of the House Appropriations Committee’s Commerce, Justice, Science Subcommittee, to follow the President’s recommendation and repeal key restricitions. The paper wrote: “Under the current rules, low-income people who rely on federally funded legal services corporations cannot use the same legal tools available to other Americans. That concept is unworthy of this country. President Obama is right to ask Congress to change it.”

On October 5, 2009, Arianna Huffington, in The Huffington Post, wrote of the need to lift the legal services restrictions that limit the ability of low-income homeowners facing foreclosure from having their fair day in court.  Huffington wrote:  “It’s time to do the right thing and give at-risk homeowners—especially those who have been the victims of discriminatory lending practices—access to at least a tiny fraction of the legal tools at the disposal of the banks forcing them into foreclosure.”

Bar Associations, Lawyers’ Groups, and Non-Profits’ Rights Advocates

Hundreds of national and local organizations have submitted five separate “friend of the court” briefs expressing deep concern about the non-LSC funds restriction. These include: 17 bar associations, including the State Bar Associations of Virginia and Connecticut and the Bar Foundation of Florida; the National Legal Aid and Defender Association, the National Organization of Legal Services Workers, UAW Local 2320; the National Association of IOLTA Programs; the New York County Lawyers’ Association; eighteen legal services programs; and over 130 non-profits and philanthropies.  Learn more about the private money restriction litigation.

American Legion, Veterans of Foreign Wars (VFW), and Disabled American Veterans posts across the country are beginning to speak out about the private money restriction. American veterans recognize the important assistance that legal services programs provide for veterans, and regret that the private money restriction makes legal aid exceedingly scarce for the men and women who have served in America’s armed forces.

On March 6, 2009, the American Bar Association sent a letter to OMB Director Peter Orszag urging that the President’s FY10 budget request call on Congress to remove the restriction on non-LSC funds and the restrcition prohibiting LSC-funded legal services providers from seeking attorneys’ fees.  The ABA wrote, “Removal of these two restrictions will be a modest step toward adjusting the legal aid system so that it once again can approach the promise of ensuring equal access to justice for all.”  On June 3, 2009, the ABA expanded its call, writing a letter to the House CJS Subcommittee leaders urging the repeal of the attorneys’ fee and class action restrictions, plus the non-LSC funds restriction, in the FY 2010 appropriations legislation.

On June 4, 2009, over 100 groups, including nine state IOLTA funders, the National Association of IOLTA Programs and state bar associations of Maine, New Hampshire, and Virginia, signed onto a letter sent to the Chairs and Ranking Members of the House and Senate Appropriations CJS Subcommittees calling for the repeal of key restrictions.  Advocacy organizations for noprofits’ rights, including the Center for Lobbying in the Public Interest, the National Committee for Responsive Philanthropy, the National Council of Nonprofits, Independent Sector, and OMB Watch also signed on.

When the Senate Appropriations Committee approved legislation that would lift restrictions on LSC grantees’ non-federal funds, the New York State Bar Association and the State Bar of Wisconsin expressed their support.  So too did the New York City Bar Assocation, which wrote: “Progress is being made. We will continue to work to undo these harmful and counterproductive restrictions, so organizations that represent the poor can do so without one hand tied behind their back, and can give their clients the full range of services and representation that they deserve.”

Forty-five members of the West Virginia State Bar, including a former U.S. Congressman and two state delegates, sent a letter to Rep. Mollohan (D-WV) on September 10, 2009.  The letter urges Rep. Mollohan to vote to repeal the restriction on non-federal funds when the Congressman participates in the conference committee that will reconcile the House and Senate’s FY 2010 Commerce-Justice-Science Appropriations bills.  The letter also asks that the Congressman to vote to preserve language that would lift the restriction on attorneys’ fees.  The same day, 16 members of the West Virginia University College of Law signed onto the same letter.

The American Judicature Society also supports the restrictions’ repeal.  The Society signed onto a coalition letter in February 2010 supporting passage of the Civil Access to Justice Act, federal legislation that would reauthorize the Legal Services Corporation and roll back the most onerous of the restrictions.

Civil Rights Groups

On January 6, 2009, The Leadership Conference on Civil and Human Rights (formerly the Leadership Conference on Civil Rights, “LCCR”), a conference consisting of more than 192 national organizations, sent a letter to Congress outlining its top legislative priorities for the 111th Congress. Among other reforms aimed at promoting effective national civil rights legislation and policy, LCCR urged Congress to remove the restrictions on legal services for low-income communities, starting with the restriction that extends the LSC funds’ restrictions to state, local, and private money.  LCCR also signed onto the June 2009 letter to Appropriators calling for the repeal of key restriction, and wrote their own letter to the Senator CJS subcommittee on June 24, 2009, reiterating their support to lift major restrictions and fully fund LSC.

 * Congressman Barr is consulting with the Brennan Center.