Two issues became particularly contentious during the late 1970s—legislative advocacy and representation of illegal immigrants. In 1978, Carlos Moorhead, a Republican Congressman from California, added a rider to the legal services appropriations bill that prohibited the use of LSC funds “for publicity or propaganda purposes designed to support or defeat legislation pending before Congress or any state legislature.” The Moorhead Amendment passed the House by a vote of 264 to 132 and was accepted by the Senate. However, LSC interpreted the Moorhead Amendment narrowly and found it consistent with the existing LSC Act’s provisions on representation before legislative bodies, an interpretation that was subsequently criticized by the Government Accounting Office, the investigative arm of Congress.
An alien restriction was added to the 1980 fiscal year (FY) appropriation. The provision prohibited LSC and legal services programs from using LSC funds to undertake any activity or representation on behalf of known illegal aliens. LSC also interpreted this rider narrowly as only prohibiting representation of those aliens against whom a final order of deportation was outstanding. Under this interpretation, LSC-supported representation of most aliens continued until 1983, when a much more restrictive rider was added to the FY1983 appropriations act.
The Reagan Era
The election of President Ronald Reagan in 1980 was a critical turning point in the history of federally funded legal services, ending the years of expansion and growth of political independence for LSC and its grantees. The Reagan Administration was openly hostile to the legal services program. Reagan initially sought LSC’s complete elimination and proposed to replace it with law student clinical programs and a judicare system funded through block grants. In response to pressure from the White House, Congress reduced funding for the Corporation by 25 percent, slashing the appropriation from $321 million in FY 1981 to $241 million in FY 1982.
The cut represented an enormous blow to legal services providers nationwide, which were required to go through a painful period of retrenchment planning to decide how to allocate the 25 percent funding cut.
Programs were forced to close offices, lay off staff, and reduce the level of services dramatically. In 1980, there were 1,406 local field program offices; by the end of 1982 that number had dropped to 1,121. In 1980, local programs employed 6,559 attorneys and2,901 paralegals. By 1983, those figures were 4,766 and 1,949, respectively. Programs also cut back significantly on training, litigation support, community education, and a host of other efforts. LSC was forced to eliminate the Research Institute and to significantly downsize the Office of Program Support, both of which had been invaluable resources for the legal services community. LSC also began a contraction of its regional offices, which had played a crucial role in the expansion of the legal services program during the late1970s and had served as a repository within LSC for much of the history of local program development and the knowledge about the critical actors on the state and local levels.
In the early 1980s, Congress also began an effort to impose new restrictions on legal services advocacy. In 1981, the House adopted an LSC reauthorization bill that would have severely limited lobbying and rulemaking activities, imposed significant restrictions on alien representation, prohibited class actions against government agencies, prohibited representation in abortion and homosexual rights cases, required the establishment of judicare programs, mandated that attorneys’ fees obtained by recipients be remitted to LSC, and required that a majority of local program boards of directors be appointed by state and local bar associations, in addition to other changes in the LSC Act. While this legislation died in the Senate and was never enacted, it established the basis for a number of restrictions that Congress later attempted to impose through the appropriations process. In 1982, Congress added new restrictions on the use of LSC funds for lobbying and rulemaking and expanded the alien restriction by explicitly prohibiting the representation of certain categories of aliens using LSC funds. Congress also required that state and local bars make appointments to program boards and imposed new procedural requirements for class actions. Those appropriations riders were in effect until1996 when more stringent restrictions were imposed.
At the end of 1981, President Reagan replaced a majority of the LSC Board, originally appointed by President Carter, with new recess appointees (appointments made when Congress is in recess and thus not available to confirm them). The balance of the Carter Board members was replaced in January 1982. The Senate refused to confirm these individuals when the Reagan Administration formally nominated them, and for much of the Reagan presidency, LSC was governed by a series of Boards consisting of recess appointees and holdover members.
Many of the Board members who served during that period, including William Harvey and Clark Durant who served as Board Chairmen, expressed outright hostility to the program they were charged with overseeing. Several sought to totally revamp legal services into a judicare-based program that did no significant litigation and did not engage in any policy advocacy. Others professed to support the concept of legal services for the poor, but advocated changes that would have eviscerated the program. For example, some board members advocated expansion of PAI allocations to 25 percent of a program’s LSC funding, elimination of all funding for national and state support services, lowering financial eligibility limits from 125 percent to 100 percent of the official poverty line and permitting service only to those individuals who had no assets.
Several Board members wanted to preclude programs from engaging in any legislative and administrative advocacy. Many LSC Board members, including Operations and Regulations Committee Chairman Michael Wallace, expressed open disdain for the organized bar, particularly the ABA, which had emerged as a vigilant protector of the legal services program. Despite the hostility of the majority of the Board, throughout the Reagan Administration, several Board members remained steadfastly supportive of the program they had been appointed to oversee, although they were almost always outvoted by their more hostile colleagues. Thomas Smegal, who served on the Reagan Board and was later reappointed by President Clinton, was a consistent voice in the wilderness in support of the program during the darkest days of the Reagan Administration.
The Corporation’s management and staff also became increasingly hostile to the programs they funded. Dan Bradley had resigned as LSC President and was replaced on an interim basis by Gerald Caplan, a prominent Republican law professor with prior experience in the Justice Department. Caplan was supportive of effective legal services. He was replaced on a temporary basis by Clinton Lyons, the former Director of the Office of Field Services. The Reagan Board soon dismissed Lyons and appointed a series of shortlived presidents who were generally antagonistic to the idea of federally funded civil legal assistance and who brought in senior staff members who were similarly opposed to the basic mission of the program. Regional office staff was marginalized—many staff members were dismissed, and several of the offices were closed.
The new LSC staff began a highly intrusive and exhaustively detailed program of monitoring for compliance. Monitoring visits were conducted in an extremely adversarial atmosphere and required the local programs to expend extraordinary amounts of time and resources during the visits and in responding to the findings of the monitoring teams. LSC monitors often demanded access to client files and other confidential information,placing program attorneys at odds with their ethical obligations to their clients. There was no emphasis in the program monitoring on the quality of client representation or program performance. In some instances, LSC withheld funds from programs or provided only short-term funding because of minor technical violations, such as board vacancies, and attempted to reduce funding levels for a number of programs that LSC found were out of compliance with new and often unannounced policies and previously unarticulated interpretations of the LSC Act and regulations.
Throughout the 1980s there was constant hostility and friction between the LSC Board and staff and supporters of legal services, including legal services providers, the organized bar,national organizations concerned about and supportive of civil legal aid, including NLADA and PAG, and key members of Congress from both parties. As a result of this dynamic, efforts by the LSC Board to make major policy changes, to pass restrictive new regulations, and to eliminate key components of the national program, such as national and state support centers and training entities, were repeatedly thwarted by Congress or, in some instances, by the courts.
On the legislative front, LSC staff members actively lobbied Congress and paid others to lobby against LSC appropriations. LSC hired a consultant to write a legal opinion expressing the view that the Corporation was unconstitutional.
LSC staff and Board members developed a series of new regulations and policies designed to restrict legal services activities far beyond the Congressionally imposed limitations of the LSC Act and subsequent appropriations riders. Despite these efforts by LSC and the continued hostility of the Reagan Administration and some members of Congress,bipartisan support for the mission of LSC continued to grow, and by the mid-1980s,Congress, which earlier in the decade had cut LSC funding and imposed new restrictions,had become the protector of the legal services program.
Led by Senator Warren Rudman, a conservative Republican from New Hampshire, along with Senators Fritz Hollings (D-SC) and Edward Kennedy (D-MA) and Congressmen Neal Smith (D-IA), Bruce Morrison (D-CT), Robert Kastenmeier (D-WI), Barney Frank (D-MA),Howard Berman (D-CA), and others, Congress frequently interceded to block actions by the Corporation. As its very first formal action, the first Reagan recess Board passed a motion instructing the LSC staff to not make funding awards for 1982 (a move that had no effect, as the LSC staff had already issued the 1982 grants before the Board members were appointed)and later in 1982 attempted to impose new conditions on funding. Congress then enacted an appropriation rider that required LSC to refund all existing grantees under the terms of their current grants. Later, Congress enacted appropriation provisions that precluded LSC from implementing a number of its initiatives, including changes to migrant programs and support entities. Congress required LSC to award 12-month grants; prohibited the use of competitive bidding and a proposed timekeeping system; overturned regulations on fee-generating cases, lobbying, and rulemaking; and eliminated restrictions on the use of private non-LSC funds.
Congressional supporters also led an unprecedented effort to prevent the Reagan Administration from eliminating LSC and replacing it with funding through social services block grants. Legal services supporters adopted provisions that limited LSC’s rulemaking authority. By 1994, there were 22 riders on the LSC appropriation, most of which limited LSC’s authority to take action.
The hostility and mistrust toward the LSC Board and staff during the 1980s, felt by Senator Rudman and other legal services supporters in Congress, are perhaps best expressed by Senator Rudman’s statement during the Congressional debate in December of 1987:
“I do not trust the board of the Legal Services Corporation farther than I can throw the Capitol. They have double-crossed the Senator from South Carolina (Senator Hollings) and the Senator from New Hampshire at every possible opportunity. Frankly, I am sick of it…. I find[in] dealing with this group of people that nothing they tell me can I believe.”