by Eric Kleiman

Support for federal legal aid has come a long way since 1995, when a groundswell of congressional discontent left the Legal Services Corporation on the precipice of extinction. Compromise was the salve that saved the day, even if LSC’s bipartisan resurrection came at a price. Today, with leaders like Pete Domenici, Tom Harkin, and newcomer John Cornyn standing up for equal justice in the Senate—and Reps. Frank Wolf and Deborah Pryce leading the way in the House—the grim realities of the mid-1990s have been replaced by a horizon filled with hope.

Still skeptical? This February, LSC received a $9.5 million increase from Congress as a looming war caused other domestic programs to be cut or forgotten all together.

Everything nearly came crashing down in 1995. It was the third year of Bill Clinton’s first term in office and the year that legal aid’s detractors would not be ignored. As summer turned to fall, high-ranking Members of both the House and Senate were on the airwaves, in the newspapers, and on the floor of Congress depicting the Legal Services Corporation (LSC) as a “Great Society” failure, a “renegade” agency run amok, and “the instrument for bullying ordinary Americans to satisfy a liberal agenda,” according to none other than Senate Majority Leader Bob Dole. “The impoverished individual who has run-of-the-mill, but important, legal needs,” Dole maintained, “is shunted aside by legal services lawyers in search of sexy issues and deep pockets.”

To hear a small handful of America’s leaders talk, public interest advocates could hardly find time to help domestic violence victims file restraining orders or seniors restore their unjustly terminated disability pensions. They were too busy pursuing their class action-oriented, welfare-centric, prisoner-defending, change-the-world-in-a-day activist agenda. Taxpayers’ money could be better spent elsewhere, the argument went. 

September rolled around, and the bottom nearly fell out. Phil Gramm of Texas submitted a bill in the Senate to disband LSC all together. His alternative: Halve the congressional appropriation for legal services (down to $210 million), send the money to the states in loosely regulated block grants, and let them worry about equal justice. It wasn’t the first time such a suggestion had been made in Washington, D.C. However, it was the first time the suggestion stood a reasonably good chance of becoming the law of the United States. 

Senator Pete Domenici (R-NM), a moderate’s moderate and the sage of all things budgetary in Congress’ upper chamber, was genuinely worried. He knew the political sentiment coursing through the capital in the mid-1990s was decidedly anti-government. The Republicans had taken the ’94 mid-term elections in a wash, and America met Speaker Newt Gingrich. Immediately, it became clear that House leaders planned to uphold promises made in the Contract with America to downsize the government. LSC was a primary target for elimination. 

Domenici also knew how to read the pulse of his Republican colleagues on the eve of a big floor debate, and when it came to LSC’s future, the GOP heartbeat was weak. But scrap the entire program? Gramm’s proposal was a disaster-in-the-making for the U.S. civil justice system, already increasingly backed up and bogged down by self-represented litigants unable to speak the language of the law (or the language of the land, in the case of many immigrants). The salaries of the country’s few thousand advocates who could help them seek justice, overwhelmingly, were paid by the federal government. LSC was (and is) the country’s largest funder of civil legal assistance, the last chance for millions of impoverished Americans who play by the rules and lose anyway—all because they can’t afford meaningful access to the system created to protect them.

Domenici, a politician reputed for exalting principle above partisanship, decided it was time to make his stand. If there were problems with the program, they could be fixed, he would argue. The September 1995 debate in the Senate quite clearly was to be a referendum on a 219-year-old nation’s commitment to the precious ideal of equal justice under law.

This was a fight America could not afford to lose. Domenici would not be ignored.

DAWN OF A NEW DAY

John Cornyn was not following the congressional wrangling over LSC’s future back in 1995. He was a Justice on the Texas Supreme Court. Cornyn would go on to become the state’s attorney general before being elected Senator—a position he has held since last fall when he won the election to fill the seat vacated by the retiring Gramm. Across a broad swath of issues, the two men share the same conservative values, but on one, it seems, they conspicuously diverge. 

When Senator Cornyn was interviewed in December 2002 by Equal Justice Magazine editors (page 41), he exposed a Gulf of Mexico-size canyon between his view of the federal responsibility to ensure civil justice and that of his predecessor. To Gramm, LSC was nothing more than “a renegade agency which has spent a tremendous amount of resources promoting a political agenda,” as he argued to his colleagues in ’95. To his successor Cornyn, equal justice “is part of our national creed and fundamental to what America is and what America should aspire to become.” 

And what about the agency responsible for making it happen? Cornyn voices confidence in LSC’s direction and abiding concern for its mission. “You don’t want the viability of the program to depend on the election cycle—and there will be cycles,” he says. “I come from the perspective of a former district judge and a member of our Supreme Court down here, as somebody who believes that there is such an overwhelming need that it’s good to concentrate on those basic legal services that are non-controversial in nature. So I think that it’s very smart to build that consensus agenda…I’m glad to see the focus is on core legal services.”

And so in 1995 the compromise was written. LSC would be kept intact, but at a price: considerable restrictions on the agency’s grantees and a massive $122-million budget cut in 1996 that forced the closure of more than 100 legal aid offices nationwide and the layoffs of nearly one thousand advocates (out of a workforce of less than six thousand). Legal aid could hardly afford to lose the manpower, with less than 20 percent of low-income Americans who need free civil legal assistance able to get it, according to the American Bar Association.

The turn of events in the mid-1990s sparked a conflagration of controversy and discontent across the national legal services community that’s still evident today (witness last December’s filing of the New York University Brennan Center for Justice’s Dobbins lawsuit challenging, for the second time, Congress’ right to restrict the work of LSC lawyers). Many advocates who lived through the pain of the cuts, layoffs, and restrictions are still—perhaps understandably—concerned about them today. But how often do they hear the upside of the compromise? Eight years removed from near-Armageddon, LSC is in the midst of a genuine bipartisan renaissance in the halls of political power in the nation’s capital. Still championed by Democrats and now supported by a growing chorus of “compassionate conservative” Republicans, LSC is safely out of reach of the appropriators’ ax as support for federally funded legal aid gains real momentum in 2003. 

“Justice is not a place where partisan divisions should invade,” Oregon Republican Gordon Smith reminds his Senate colleagues. Increasingly, they seem to be getting the message. 

During this February’s appropriations process in Congress, as social programs were being cut deeply and few domestic initiatives dared to dream of additional dollars with the nation heading inexorably toward war, LSC received its first funding increase in three years. Congress anted up $9.5 million to help hemorrhaging legal aid programs being waylaid by state poverty population shifts reported in the 2000 U.S. Census. 

Who were the politicians most responsible for the increase? Senator Tom Harkin (D-IA) sponsored the bill, while crucial support came from Republican Senators like Domenici and Smith; Republican Representatives like Frank Wolf of Virginia, Deborah Pryce of Ohio, and Tom Latham of Iowa; and, yes, a Republican President like George W. Bush. Their backing this winter was hardly an overnight epiphany; it was the product of nearly eight years of change, growth, and a steady emergence of a bipartisan group professing a genuine conviction in legal aid’s worth and potential.

Today, America’s leaders are putting party affiliation aside and embracing the good works done by legal services in record numbers. They’re speaking out on LSC’s behalf. They’re supporting additional funding. They’re following the President’s lead. Federal civil justice resources are still scarce, but the harvest continues. And for anyone who knows how Washington works, that can only herald hope for the future.
“I don’t think American justice could be considered justice if the poor and those of moderate means had no real access to legal representation,” Domenici says today. “Since the reforms I helped push [in 1995], I think the federal government is on the right course for seeing that these Americans have recourse in our legal system. The impact legal aid can have on a poor, abused spouse can make all the difference in the world. They can get the legal help they need to start a new and better life.”

PRELUDE TO A FIGHT 

Equal justice means different things to different people, but on a few points most will agree: Courts are confusing, lawyers are expensive, and there are many injustices perpetrated in a free society that should not require a platinum card to remedy. Perceptive historians studying the introductory text of the U.S. Constitution have noted that our founding fathers foresaw that the struggle for fairness would be among the New World’s fundamental challenges. It’s why the framers pledged that the American government would “establish Justice”—a priority so important, it was placed in the Preamble ahead of imperatives like insuring domestic tranquility and providing for the common defense. Because of this history, legal aid lawyers would have been justified in believing that President Bush was speaking to them directly in addressing the nation in the week following the national nightmare of 9/11: “We are in a fight for our principles,” he said, “and our first responsibility is to live by them.”

America fully embraced the governmental duty to provide equal justice for all in 1974 when Congress established the Legal Services Corporation with broad bipartisan support under the Nixon Administration. Almost a century earlier, “legal aid” got its start in the United States in 1876 when the German Society of New York (later renamed the Legal Aid Society of New York) opened its doors. By 1965, most major cities had some type of program. There were 157 local organizations nationwide dedicated to equal justice then but still no federal commitment. The U.S. government first recognized its Constitutional responsibility to “establish Justice” in ’65, starting a national legal services program under the auspices of the Office of Economic Opportunity (OEO). 

Almost a decade later, Nixon set out to abolish the OEO but his advisers warned him that two programs were so popular that eliminating them would be tantamount to ingesting political poison. “One was a popular program known as Headstart,” recalls LSC President John N. Erlenborn. “The other was federally funded legal services.” Erlenborn, a former 20-year U.S. Congressman representing suburban Chicago, remembers the time well. In 1974, he was one of the GOP House floor managers who shepherded the LSC Act through the legislative process, creating for the first time a politically independent, nonprofit corporation to fund and oversee the federal investment in civil justice. The legislation was signed into law by Nixon, and responsibility for legal aid passed from the OEO to LSC the following year under President Ford.

Because the relationship between LSC and its grantees was historically that of funder to independent grantee, the Corporation—and Congress, by extension—had little say in the caseload priorities of the organizations it funded. As a result, legal aid attorneys had broad latitude to choose which clients to help and which legal problems to remedy in furtherance of LSC’s statutorily defined mission “to provide high quality legal assistance to those who would be otherwise unable to afford adequate legal counsel.” However, the LSC Act stated something else: “[P]roviding legal assistance to those who face an economic barrier to adequate legal counsel will serve the best ends of justice and assist in improving opportunities for low-income persons.” [emphasis added]

Somewhere along the way, a political rift was laid bare. The social upheaval of the 1960s and ’70s brought with it revolutions in American jurisprudence. Class action lawsuits emerged as a tool to help groups of victims plagued by a common injustice, such as hundreds of farmworkers being exploited by the same labor-law violation. In some instances, legal aid lawyers found themselves making civil claims on behalf of prisoners. In addition, because federal funding was never sufficient to meet the overwhelming need for civil legal assistance, a few poverty lawyers organized grassroots lobbying efforts for additional funding and, on rare occasions, even filed lawsuits to reshape the political system in ways that might help their disadvantaged clients.

Ironically, the advocacy that would come to enrage some conservatives by the mid-1990s always represented a miniscule portion of the overall cases handled by LSC-funded programs. For example, in 1978, some 85 percent of the more than 1 million cases closed by LSC grantees dealt either with consumer, housing, employment, family law, or government benefits issues. In 2000, the same case categories represented 84 percent of LSC’s work. Another snapshot: In 1995 (the year before the Great Senate Debate), out of the 1 million-plus national caseload, LSC lawyers litigated just 680 civil cases on behalf of prisoners.

But those were 680 examples the detractors could use to erode support for the national legal services program.

INTO BATTLE, EYES OPEN

Fortunately, LSC Board Chairman Douglas Eakeley saw it all coming. Before the Senate debate and before all the years of fighting in the House to follow, Eakeley knew that change was in the air. You don’t spend years of your life in New Haven as Bill Clinton’s law-school roommate without getting a feel for how to gauge political currents. The Republican takeover of Congress following the 1994 mid-term election brought a wave of federalism to the capital. On March 16, 1995, a young Ohio Congressman with presidential ambitions named John Kasich pushed a non-binding resolution through the House Budget Committee. It recommended a three-year, phase-out plan to scrap LSC all together. The federal equal justice investment was $400 million at the time. Rep. Kasich’s suggestion called for ratcheting it down to $278 million, then $141 million, then zero.

“Too often, lawyers funded through LSC grants have focused on political causes and class actions rather than helping poor Americans solve their legal problems,” Chairman Kasich wrote. 

In Congress, appropriators control the purse strings—not budget chairmen—so Rep. Kasich’s plan did not carry the force of law. But as tea leaves go, the reading in 1995 was bleak. Eakeley, a partner at Lowenstein Sandler in Roseland, N.J., holds the distinction of being the longest-serving Board Chair in LSC’s history. In March 1995, he was practically prescient, telling a reporter for the Legal Times, “This will probably be the greatest struggle the program has ever faced.”

Two months after Kasich’s suggestion that Congress begin the process of disintegrating federal legal aid, House appropriators enacted Phase 1 of the Kasich’s defunding plan. 

On July 19, 1995, the House Appropriations Committee voted to cut LSC’s budget from $400 million to $278 million. The 30.5-percent budget severing, signed into law by President Clinton the following year, was only half the blow. The legislation also “impose[d] real restrictions to end abuses by the LSC,” as the subcommittee chairman explained on the House floor. The funding cuts were coupled with a broad series of prohibitions. LSC lawyers could no longer file class action lawsuits, represent prisoners or most aliens, support political activities, engage in grassroots lobbying, solicit new clients, collect attorney’s fees, represent tenants evicted from public housing when drug allegations were involved, or make challenges to existing welfare laws.

“It was like an earthquake overnight,” recalls Don Saunders, Director of Civil Legal Services at the National Legal Aid & Defender Association (NLADA). “Everything shifted with that election.” In the mid-1990s, Saunders says “the long struggle” to combat restrictions and budget cuts brought him to Washington, where he has been ever since. “Those cuts did hurt us very much,” he remembers. “Those of us who made the case for legal aid were not at all sure that we would keep the program, whether the glide path to zero would become a reality.”

It never did. LSC survived, in large measure, because Eakeley, Erlenborn, and their colleagues on the LSC Board saw the political writing on the wall. As House appropriators moved to cut LSC’s budget in 1995, the LSC Board cast the first in a series of votes as part of its 13-month process to codify most of Congress’ restrictions into its own regulations before they became law. LSC’s actions were met with anger and resignation in the legal services community. Media rumors circulated that LSC had agreed to a quid pro quo for guarantees that Phase 2 and 3 of the defunding plan would not come to pass. Then-LSC President Alex Forger called the rumors “pure fantasy” in The Legal Times, dismissing outright the “specter of our corporation sitting at the bargaining table trading off Constitutional rights.” Indeed, what was presumed to be treasonous was, in fact, politically astute. 

The remaining years of the ’90s would bring innumerable attacks on LSC’s funding, its purpose, and its fidelity to its statutorily defined mission: “provide high-quality legal assistance” to the poor. However, as each congressional attack unfolded, LSC leaders could ward off the attackers with their history of good will and remind them: We acted to implement the reforms even before they became law.

VIRTUES OF COMPROMISE

Much has been written on the bans on class actions, prisoner representation, et al, but few have focused on the political currency reaped from the reforms. LSC’s detractors did not stop trying to kill legal aid in 1996; however, LSC’s leaders did learn from the past. “Compromise was seen as a necessary sacrifice to quell the intense conservative opposition fomented through years of partisan battles,” writes LSC Vice President Mauricio Vivero in a 2002 Fordham Urban Law Journal piece. “Although the sacrifice came at a steep price for national equal justice efforts, LSC today is a stronger, more politically stable organization capable of helping more low-income people.”

Domenici and Senator Ted Kennedy (D-MA) said much the same thing during the memorable Senate floor debate of 1995 when Gramm pushed his block-grant proposal with guns a’blazing. Kennedy, addressing his fellow Democrats, conceded “some restrictions are necessary to ensure support for the program,” while Domenici went even further: “While some may not like these restrictions, they are necessary…to protect LSC from negative perceptions of those who wish to see its termination.” When the “yays” and “nays” were tallied, the Senate vote was 60-39 to table Gramm’s amendment—a handful of GOP moderates, led by Domenici, saving LSC from oblivion.

“Congress failed to eliminate LSC only because an effective lobbying and media effort made it possible for a loose bipartisan coalition of ‘moderate’ Republicans and ‘blue dog’ Democrats to come together and join with other traditional Democrats to preserve funding for the program,” writes Alan Houseman, Director for the Center for Law and Social Policy and a leading scholar on legal services issues, in a 1998 Yale Law and Policy Review article. “The moderate support from both parties that was needed to form a majority to preserve the program was premised on substantial reforms.”

When the historians put away their pens, 1996 will be remembered as the Year of the Government Shutdown—an ideological crucible pitting Clinton’s progressive policies against a backlash of neoconservative opposition. Speaker Gingrich’s tenure was brief, but adequate civil justice resources were an unmistakable casualty of the 104th Congress. Legal services funding had peaked in 1980, when LSC briefly achieved so-called “minimum access” levels of two attorneys per 10,000 poor people. The drop to $278 million in 1996 was the low point. Today, LSC’s funding has inched back up to $338.8 million in FY03, though increases have been far outstripped by inflation. Current funding is roughly half of what it was in 1980 real dollars. The annual federal investment in civil justice today comes out to slightly more than four dollars per eligible poor person (that is, those making $11,225 or less a year).

Yet while legal aid’s resource crisis continues, optimism is warranted that the drought may abate. The opinions of America’s leading lawmakers about legal aid have changed markedly since 1996. LSC took a major step in winning back Congress’ trust in the year after the restrictions were imposed. NYU’s Brennan Center for Justice mounted a major Constitutional challenge to the reforms, arguing before the Supreme Court that Congress should be limited in the strings it could tie to federal legal aid dollars. Leaders of LSC—the wounds of their existential struggle still fresh—defended congressional prerogatives in the Velazquez case, arguing that the government had a right to prohibit LSC-funded challenges to welfare laws. The Court disagreed, 5-4, with Justice Anthony Kennedy casting the swing vote to strike down the welfare ban. The case was “lost”—the one regulation in question was found to be unconstitutional (while the rest were upheld)—but LSC’s fidelity to its funders did not go unnoticed.

Congressional opinion was in flux then. Two letters written within 13 months of one another by Republican House members demonstrated the fast-growing support for LSC. In March 1996, fifteen conservatives wrote House Majority leader Dick Armey in support of Kasich’s phase-out plan: “Every additional dollar that we appropriate is another dollar that the LSC has to continue engaging in politically motivated litigation…. Experience has shown that legal services lawyers will exploit the smallest of loopholes to flout the will of Congress and pursue their radical agenda.” In April 1997, after LSC codified the restrictions and defended Congress in Velazquez, 27 Republicans wrote House Appropriations Subcommittee Chairman Harold Rogers (R-KY) asking him to back off: “We are convinced that LSC is vigorously defending [the legal] challenges and ensuring that all of its grantees are in full compliance with the law…. We intend to vote for adequate funding for the Legal Services Corporation because of our strong support for the rule of law.”

That spring, the LSC Board took another step to partner with Congress, hiring a dynamic, young Republican attorney from Seattle named John McKay to be the new LSC President. McKay launched LSC’s State Planning Initiative. It required grantees to implement local resource development efforts, integrate new technology, recruit more pro bono attorneys, create more efficient intake systems, enhance cooperation with local bar associations and nonprofits, and as a last resort, merge programs and streamline operations to reduce overhead. 

On the Hill, McKay stressed bipartisanship, holding hundreds of meetings with lawmakers to repair fractured relations. He also forced the national legal services community to come to terms with the reality of its potentially indefinite funding crisis. “It was so important to realize the political reality of the time,” says McKay, who today is President Bush’s U.S. Attorney in Seattle, prosecuting the War on Terror. “Many in the national legal services community were concerned about what Congress was doing, but it was our job to show them that the alternative was far worse: the federal government getting out of the equal justice business all together.”

MAKING FRIENDS

Some House appropriators did not give up their fight to fully enact Kasich’s phase-out plan. For five straight years, LSC’s appropriations subcommittee adopted Phase 2, cutting LSCs funding to $141 million. They may have gotten their wish had it not been for the cultivation of an unlikely ally. Republican John Fox, a second-term Congressman from Pennsylvania, swept into office during the GOP takeover but did not share the views of the House leadership when it came to phasing out LSC. For two consecutive years, Fox sponsored a bipartisan amendment on the floor to restore LSC’s funding after it was cut in committee. “Some said there was an agreement in the Republican Conference to phase out legal services,” recalls LSC’s Vivero, hired away from the American Bar Association by McKay in 1997 to make bipartisan inroads on the Hill. “Congressman Fox stood up and said, ‘I wasn’t in the room. I didn’t sign any deal. Legal aid is important to my constituents.’ ”

The consistent support of one moderate Republican, in particular, laid the foundation for Fox to step forward. In a 1995 House debate, Rep. Ralph Regula of Ohio called LSC “Legal Medicare” and told his collegues the political activities of the past were over. 

Fox’s efforts to restore LSC’s funding were successful, but in 1998 he lost his re-election bid in Pennsylvania. Jim Ramstad, Republican from Minnesota, stepped in to become the lead sponsor of the funding restoration amendment. In 1998, some GOP leaders had plans to block Ramstad’s bill and try to force the House to adopt the $141 million figure. Ramstad’s response? In a session with the House Rules Committee, he told the heart-wrenching story of overcoming his own public battle with alcoholism, sharing his first-hand experiences of what it’s like to be down and out. Legal aid, he said, helps people get back on their feet. The speech made an impact. The House leaders relented. “When he finished the room was dead silent, and it was clear he would be allowed to offer his amendment,” recalls Vivero, who was in the room that day.

Many Democrats stepped to the fore as well in the late ’90s. As First Lady, Hillary Rodham Clinton—LSC Board Chair in 1980—weighed in each year to keep LSC funding an Administration priority. Her staff played a pivotal role in the Corporation’s gradual funding increases in the final years of the millennium, including a $17-million bump in 1999. 

Other Democrats also played a major role. In the Senate, Kennedy and Ron Wyden of Oregon championed federally funded legal services among their priority issues, and the late Paul Wellstone of Minnesota made a series of passionate speeches about equal justice that straightened the hairs on the necks of his listeners. On the House side, dozens of Democrats worked on LSC’s behalf, including  longtime supporters Reps. Howard Berman of California, William Delahunt of Massachusetts, David Obey of Wisconsin, José Serrano of New York, and Mel Watt (right) of North Carolina. Watt, the ranking Democrat on LSC’s Judiciary subcommittee, has stood up for legal aid for many years during the sometimes-contentious policy debates about LSC activities.

Legal aid made its most important strides when it worked across party lines. That’s just what Jim Wayne, executive director of Capital Legal Services, was doing in 2000 as co-chairman of the “Democrats for Bush” campaign committee in Louisiana. Wayne agreed to the post because he owed a big favor to “Old Man Bollinger” (a.k.a., Donald Bollinger), the elder statesman of the Louisiana Republican Party who had once intervened to preserve state legal aid funding in the Bayou State. “They gave me 15 minutes with [Bollinger] and it lasted six hours,” Wayne recalls. “I said, ‘Ya’ll trying to cut that program—legal aid—and we can’t let this happen.’” 

In the summer of 2000, Wayne got a chance to take his message to the one person whose opinion soon would matter the most. He was waiting his turn to shake hands with then-Gov. George Bush of Texas in a receiving line at a presidential campaign fundraiser at The Fairmont Hotel in New Orleans. Each attendee was granted three minutes to talk to the candidate about any issue of importance to them. When it was Wayne’s turn, he gave Bush a hearty handshake and said, “Governor, I don’t own no banks. I don’t own a big company. I am a legal services lawyer; I help poor people. Now, your daddy didn’t hurt us. But Newt Gingrich, he hurt us. I want you to promise me you won’t hurt legal services.”
The soon-to-be-President’s reply? “I won’t hurt you. You’ve got my word.”

THE RENAISSANCE

President Bush was indeed good to his word, going on the record in support of LSC after taking office. In his FY02 budget request to Congress, President Bush stated, “For millions of Americans, LSC-funded legal services is the only resource available to access the justice system.” President Bush’s support can hardly be described as surprising. In his own inner circle is a pair of Texans with a deep concern for equal justice. In 2000, White House Counsel Alberto Gonzalez chaired a 5K Race for Justice while serving on the Texas Supreme Court. White House Staff Secretary Harriet Miers served on the Board of Directors of her local legal aid program, LSC-funded Legal Services of North Texas in Dallas, before coming to Washington.

On January 27, 2000, the Texas Supreme Court held a public hearing on the state of civil justice, and LSC leaders testified that thousands of Texans were being systematically denied a voice by the legal system. Then-Justice Deborah Hankinson, who was appointed to fill the seat vacated by Cornyn before his Attorney General run, called the hearing an “awakening.” Hankinson has been a tireless advocate for legal services ever since that January day. In 2001, she approached Attorney General Cornyn and told him that domestic violence victims in the state needed help. Cornyn held the key to the state-run Crime Victims Compensation Fund and agreed to release $5 million from the Fund to legal aid programs helping abuse victims.

“He has been a judge, an attorney general, a Justice here in Texas, and now he’s our Senator,” Hankinson says of Cornyn. “He knows about the hardships that poor families in Texas face and he knows that legal aid is often the best way to fairly address them.” 

This year, the Texas legislature—in the throes of a budget crisis—had proposed taking $4 million in state equal justice money and funneling it to the Court for administrative expenses. “Chief Justice Tom Phillips went before the appropriations committee in the House and said, ‘We’d rather lay off two Justices,’” says David Hall, director of Texas Rural Legal Aid. Legal services funding in Texas was left alone.

Across the country, advocates have come to see the upside of the compromise of 1996. The ban on class actions, in particular, assuaged the concerns of many conservative lawmakers worried that LSC was more interested in effecting social change than delivering access to justice. “At the state legislative level, we’ve seen less resistance to funding, and perhaps that’s because of the certainty that it’s not going to be used for class-action advocacy,” says Nan Heald, director of Pine Tree Legal Assistance in Portland, Maine. “I know there were some conservative members for whom that was an important issue.”

In Seattle, Patrick McIntyre, director of the Northwest Justice Project, says, “I have spent a lot of time and effort trying to be sure that the misunderstandings and mischaracterizations about what legal aid is all about were corrected. When the head of LSC is a Republican willing to go into the field to see the plight of the clients we serve, it goes a long way toward dispelling a myth—that legal aid is a bunch of social engineers with their own agenda…as opposed to what it actually is, lawyers helping clients with real-world problems.” 

WARTIME ENDORSEMENT

This winter—buried in the reams of paperwork otherwise known as Congress’ $397.4 billion FY03 omnibus spending bill—could be found the first irrefutable proof of legal aid’s renaissance in Washington. By law, LSC must redistribute its funding every 10 years based on the most recent census data on state poverty populations. Twenty-six states and Puerto Rico were slated to lose federal funding this year, and many jurisdictions were poorly situated to absorb the budgetary blow. 

With Iraq and Al Qaeda dominating the news and Congress’ attention, a funding increase for legal services seemed like a non-starter. Big-ticket items for homeland security and anti-terrorism left room for little else. Nonetheless, Senator Tom Harkin (D-IA) introduced an amendment in the Senate to increase LSC’s funding in the wake of the new census realities. Senators Smith and Domenici soon broke ranks to sign on to Harkin’s bill (page 61), making the increase a bipartisan measure in the upper chamber.
“Regardless of political party, I believe we all strive to preserve the rights in the Constitution,” Harkin says today. “But those rights are just an empty promise for the millions of Americans who are too poor to hire a lawyer and who lack access to one to assist them in protecting their legal rights. LSC helps fill that gap, and we should do all we can to make sure they’ve got the resources they need to protect the legal rights of the poor.”

The Senate passed the amendment and the bill went to a House-Senate conference committee. Vice President Dick Cheney, overseeing the FY03 appropriations process for the White House, told GOP lieutenants in the House to adhere to funding levels prescribed by the Office of Management and Budget (which, in LSC’s case, was a static $329.3 million). Heeding the Vice President’s directives, domestic funding levels were frozen or cut almost across the board …with the notable exception of a certain program, for which an increase was approved. 

Congress passed a $9.5-million increase for LSC, the first funding boost for the Corporation in three years. LSC received crucial support from Republican allies such as Rep. Lincoln Diaz-Balart of Florida, Judy Biggert of Illinois, and Frank Wolf of Virginia (page 43). The composition of the House leadership has changed since the mid-1990s; Conference Chair Deborah Pryce, the highest-ranking GOP woman in the history of the House of Representatives, could be found lobbying on LSC’s behalf. At an August 2002 press conference in Columbus, Ohio, Pryce noted that “for far too many, justice is prohibitively expensive.” Last month, she pushed for an increase to spare Ohio painful losses of almost $2 million due to the census, which would have made justice “prohibitively expensive” for thousands more.

The decision to include an increase for LSC in the annual spending bill prompted Judy Sarasohn of the Washington Post to write, “In the big-money world of federal appropriations, sometimes relatively small amounts are nothing to sneeze at.” LSC’s Vivero is the last to sneeze at what has transpired. As one of the principal architects of the Corporation’s turnaround, he feels legal aid’s growing momentum has everything to do with LSC’s bipartisan path. 

Vivero wrote as much in his Fordham piece last year, stating, “Since 1995, LSC has experienced near-death, a significant transformation, and a re-birth. The road from virtual extinction to bipartisan renewal is filled with lessons about LSC’s reformed focus and the best way to advocate for the legal rights of poor Americans.”