The Brennan Center helps lead and support a campaign to repeal the legal services restrictions, particularly the non-LSC funds restriction, also known as the “poison pill restriction.”
Background. In 1996, Congress attached numerous restrictions to the federal funding distributed by the Legal Services Corporation (LSC) to local, independent, legal services non profits that provide free legal assistance to people across the country who are unable to afford a private attorney to handle civil legal matters. These restrictions limit the legal tools that clients of LSC-funded programs can rely on and also bar some categories of individuals from obtaining any legal assistance at all. The most startling aspect of the restrictions is the “poison pill restriction,” so-called because once a legal services program accepts even a dollar in federal funds, the restriction imposes the entire set of restrictions on all activities conducted by the nonprofit, even those financed with their own funds, raised from the state government, local government and charitable private donors. Read more about the harms caused by the restrictions in the Brennan Center’s white paper, A Call to End Federal Restrictions on Legal Aid for the Poor.
Recent Developments. For the 2010 fiscal year, the Obama Administration and Congress made significant progress on this issue:
- April 26, 2010 – In accordance with the statutory repeal of the attorneys’ fee restriction, LSC published a Final Rule repealing its regulatory prohibition on the claiming, collection and retention of attorneys’ fees by LSC grantees.
- December 10–16 – The House voted to pass the conference report on the omnibus spending package on December 10th; the Senate did so on December 13th. President Obama signed the bill into law on December 16th.
- December 9 – The Commerce-Justice-Science Appropriations bill was included in an omnibus package and the House-Senate Conference Committee released its report on the bill. For LSC, the Conference Committee included $420 million in total funding and repealed the restriction prohibiting LSC grantees from seeking attorneys’ fee awards, with either their LSC or non-LSC funds. The conference report does not include the Senate-approved language repealing the non-federal funds restriction. To become law, the conference report will need to be approved by the full House and Senate and signed by President Obama.
- November 5 – The full Senate approved its Commerce-Justice-Science Appropriations bill with a vote of 71–28. The bill includes language that would repeal the restriction on non-federal funds (but would keep intact the on LSC grantees participating in abortion-related litigation and representing prisoners with any of their funds). The Senate’s bill keeps in place all restrictions on federal funds. The House and Senate-passed CJS bills will now be considered by a conference committee, and their differences reconciled. While the full list of House conferees has yet to be named, the Senate conferees will be: Mikulski, D-Md., Inouye, D-Hawaii, Leahy, D-Vt., Kohl, D-Wis., Dorgan, D-N.D., Feinstein, D-Calif., Reed, D-R.I., Lautenberg, D-N.J., Nelson, D-Neb., Pryor, D-Ark., Shelby, R-Ala., Gregg, R-N.H., McConnell, R-Ky., Hutchison, R-Texas, Brownback, R-Kan., Alexander, R-Tenn., Voinovich, R-Ohio, and Murkowski, R-Alaska.
- October 8–9 – A New York Times editorial on October 8th made another appeal to legislators to repeal the “sweeping and unwarranted restrictions that continue to hamper the work of local legal services offices.” On October 9th, The New York Times chimed in with yet another editorial, making clear that lifting the legal serivces restrictions is key to addressing both the foreclosure crisis and the growing crisis in legal representation for the poor.
- October 5 – As the full Senate prepared to consider the Commerce-Justice-Science Appropriations bill, the Obama Administration released a “Statement of Administrative Policy” on the CJS bill passed by the Senate Appropriations Committee in June. The Statement commends the Committee for it’s modification of the restriction on non-LSC funds. The Administration also urges the repeal of the restrictions on attorneys’ fees and class actions and further increased funding for LSC.
- July 23 – In a presidential proclamation made in recognition of the 35th anniversary of LSC, President Obama repeated his call for the repeal of key restrictions and an increase in LSC funding, announcing “[t]hese changes are critical to the organization’s mission and work.”
- July 13 – In another editorial on the importance of legal services, The Washington Post congratulated the Senate, and Senator Mikulski, for the progress made on repealing the non-federal funds restriction. The Post also encouraged Congress to appropriate the House’s funding number to LSC, “given the tremendous need for these services and the fact that even the $440 million would essentially only restore LSC’s funding to what it was a decade ago.”
- June 25–29 – The Baltimore Sun applauded 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."
Senator Harkin (D-IA), who this year introduced legislation that would reauthorize LSC, and repeal the major 1996 restrictions and double LSC’s authorized funding level, released a statement expressing his support for the repeal of the non-federal funds restriction included in the Senate’s CJS appropropriation bill. Sen. Harkin also promised to fight for increased funding for LSC as the appropriations process progresses.
The New York State Bar Association and the State Bar of Wisconsin also voiced their support for the Senate’s move to unrestrict non-federal funds, while also urging for the LSC funding level to be set above the Senate’s original $400 million mark.
- June 25 – The Senate Appropriations Committee approved the FY 2010 appropriations bill of the CJS subcommittee with no additional changes to the LSC provisions.
- June 24 – The Senate Appropriations Committee’s Subcommittee on Commerce, Justice, Science and Related Agencies (CJS) passed its appropriations bill, which, if enacted, would appropriate $400 million in total funding for LSC in FY 2010, a $10 million increase from last year but $35 million below the President’s FY 2010 request. The Senate’s bill strikes the most startling aspect of the LSC restrictions, the poison pill restriction that imposes the full set of restrictions on state, local, and private funds possessed by LSC grantees. The bill left all restrictions on federal funds intact, and also left two pieces of the restriction on state, local, and private intact, specifically, prohibiting LSC grantees’ from using non-federal funds for: i) representation of people in prison on civil legal matters, and ii) abortion-related proceedings or litigation. The Senate bill was drafted by Senator Mikulski (D-MD), Chair of the Senate CJS Subcommittee. Removal of the non-federal funds restriction would increase access to justice for the poor by enabling clients of programs that receive LSC funds to rely on the same tools available to clients of private attorneys, and by increasing efficiencies in the delivery of legal services.
- June 23 – The New York Times also weighed in with an editorial, calling on the Senate to lift the three restrictions recommended by President Obama and to “support the cause of equal justice.”
- June 22 – The Washington Post called on the Senate to go further than the House did and lift the non-LSC funds restrictions, 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.”
- June 18 – The full House approved the CJS Subcommittee’s appropriations bill, with no changes to the LSC provisions.
- June 16 – The Administration, in a “Statement of Administrative Policy,” expressed frustration that the House did not vote to lift all three restrictions. The Administration again urged repeal of all the three major restrictions.
- June 9 – The full House Appropriations Committee approved the CJS Subcommittee’s appropriations bill, with no additional changes to the LSC provisions.
- June 4 – The House Appropriations Subcommittee on Commerce, Justice, Science, and Related Agencies (CJS) passed its FY2010 appropriations legislation. The House bill would lift the restriction that prohibits attorneys at LSC-funded programs from relying on either LSC funds or non-LSC funds to seek attorneys’ fee awards. The House bill left all other restrictions in place, including the non-LSC funds restriction. The House bill set total funding level for LSC at $440 million, $40 million above the FY 2009 level and $5 million above the President’s recommendation. Rep. Alan Mollohan (D-WV), Chair of the House CJS subcommittee, drafted the House bill. The House bill’s increased funding level would provide a vitally needed boost, especially because the economic downturn has increased legal needs while reducing the availability of other legal services funding.
- May 25 – The Charleston Gazette (WV) 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.”
- May 7, 2009 – The Obama Administration released its FY 2010 “detailed budget.” The budget called on Congress to lift three major legal services restrictions: the non-LSC funds restriction, the attorneys’ fee award restriction, and the restriction prohibiting LSC grantees from participating in class actions. The President’s budget also recommended a funding level of $435 million for LSC in FY 2010.