This week the Daily Journal devotes its pages to a discussion of access to justice issues. Coincidentally, the Supreme Court of the United States has pending before it a case that will help define the federal government's role in providing legal services to the poor. At issue in Legal Services Corp. v. Velazquez is whether Congress may impose restrictions on the kind of cases the government-funded lawyers at the Legal Services Corporation bring on behalf of their clients. Oral argument in the case was heard on October 4th, so a decision in the case could be forthcoming any day, but perhaps as late as next June.
The Legal Services Corporation is the showcase of the federal government's efforts in providing the poor with access to our nation's legal system. The LSC was established in 1974 to provide legal assistance in non-criminal matters to "persons financially unable to afford legal assistance." Many representatives in Congress believe, though, that the organization had moved away from its core mission of providing "bread and butter services" to the poor and adopted instead a strategy designed to achieve through litigation certain policy reforms and expansions of welfare entitlements that its political allies had failed to achieve through the legislative process.
So politicized had the agency become that by the mid-1990s there was talk in Congress — credible talk — that the agency should be abolished altogether. Instead, the Congress imposed certain limitations on what kind of cases might be brought by the federally-funded lawyers at the agency and its local affiliates throughout the nation. Thus, since 1996, LSC recipients are precluded from participating in "litigation, lobbying, or rulemaking, involving an effort to reform a Federal or State welfare system." They are prohibited from participating in litigation related to any reapportionment of legislative, judicial, or elective districts. And that are barred from attempting to influence the passage or defeat of any legislation, constitutional amendment, or referendum, among other things. In short, LSC lawyers are barred from using the taxpayer funds provided to them as a result of the political process in order to influence that very political process.
A group of LSC lawyers and their indigent clients brought suit, asserting that the 1996 Congressional restrictions violate their First Amendment right of free speech in the public forum of the courtroom. Although the LSC lawyers prevailed in the Court of Appeals, there is something troubling about the underlying principles on which their claim is based. Essentially, the LSC lawyers contend that the courtroom — traditionally a place for the resolution of legal disputes between one individual and another or between an individual and the government — should be treated merely as an open forum for the expression of ideas or, more perniciously, as a place where law is made rather than just interpreted. That view would "come as a surprise to trial judges," noted the dissenting judge. "A courtroom is not a debate hall or gathering place for the public exchange of ideas," noted another court and cited by the United States in its petition for a writ of certiorari. "It is a forum for adjudicating the rights and duties of litigants."
More troubling still is the use of public funds not simply to ensure that individuals of insufficient means have access to the courts for their individual legal problems, but to alter the results of the political process itself. We do not allow government to participate in political campaigns or to fund one candidate over another because we recognize that such funding skews the political process and hence undermines the legitimacy of that political process. A recent example from Long Beach demonstrates the danger. On the November 7 ballot in Long Beach was a voter initiative that would cut the city's utility tax in half. The City paid for inserts in every utility bill mailed the month before the election, touting the city services that were supported by the tax and clearly advocating the rejection of the initiative. A local court recognized the impropriety of the city utilizing taxpayer funds to try to influence the outcome of the election, and enjoined the city from proceeding with a second planned mailing.
The use that the LSC lawyers would make of taxpayer funds gives rise to the same danger. When we treat courtrooms as political forums for changes in law and policy rather than the adjudication of individual disputes and the interpretation of existing law, we have to be particularly careful about the government's role in the process and especially about the use of taxpayer funds to lend a hand to one side in the process. LSC often crossed that line prior to the 1996 restrictions imposed by Congress. If the LSC lawyers succeed in having the Court invalidate those restrictions, the move to eliminate the LSC altogether will undoubtedly gain strength and the truly needy clients of the LSC will lose the support that facilitated their access to the courts.