By the early 1970s, this support structure was fully operational. It faced few threats from federal officials or from Congress.
1973: Nixon appoints Howard Phillips to head OEO
This changed in January of 1973 when President Nixon appointed Howard Phillips to head OEO. Phillips was a critic of the war on poverty and of the legal services program. Although Phillip was to preserve legal services for the eventual transition to the Legal Services Corporation, he declared: “I think legal services is rotten and it will be destroyed.” He put legal services programs on month-to-month funding, cancelled law reform as a program goal, and moved to defund migrant programs and back-up centers.
Marshall Boarman was put in charge of OEO research and development. He wrote several memos on back-up centers, arguing that they were duplicative, unaccountable, focused on social change, and unnecessary to providing legal services to the poor. The Boarman memos provided intellectual support not only to Phillips but also to Congressional critics such as Edith Green and later to opponents in the Reagan era.
The assault on legal services and the back-up centers by OEO was stopped when a federal court enjoined Phillips from acting as director of OEO because his name had not been submitted for Senate confirmation. See Williams v. Phillips, 360 F Supp. 1363 (D.D.C. 1973) and Government Employees, Local 2677 v. Phillips, 358 F. Supp. 60 (D.D.C. 1973). However, stopping OEO and Phillips did not end the threat to the support structure and back-up centers.
1973-74: During creation of LSC, Nixon forces adoption of Green Amendment
In June 1973, the House took up a bill to create the LSC. Floor debate on the bill got quickly out-of–hand. The House added a number of amendments to the Committee bill that would curtail many law reform activities by legal services programs. One of those amendments was by Congresswoman Edith Green, a Democrat from Oregon.
The Green Amendment modified §1006(a) (3) of the proposed Legal Services Corporation Act (42 USC §2996(c) (3)) to specify that LSC could undertake directly, and not by grant or contract, the following activities: (a) research; (b) training and technical assistance; and (c) information clearinghouse activities.
Congresswoman Green’s intent was clear. She believed her amendment described the back-up centers and that requiring the activities to be performed directly within LSC would eliminate the back-up centers as well as the National Clearinghouse, the National Paralegal Institute, the national training program, and possibly even state support centers.
However, she made a serious drafting error in amending only part of the LSC legislation. Because she was familiar with the OEO legislative provisions on research, under which the support centers had been previously funded, she assumed that the back-up centers would be funded under the research and technical assistance provisions of the LSC bill. She did not take into account the provisions in the legal services legislation that provided for funding of programs providing legal assistance including specialized legal assistance.
Ms. Green was not aware of the direct advocacy activities of the support centers and their professional relationships with poor clients. She assumed that the centers were primarily research organizations that developed new theories. In her view, the centers were the brains and the local program staff were the workers that carried out the orders of the back-up centers. This belief was never accurate and it assumed a role that the back-up centers never played. She used a series of examples provided her by conservative critics of the program. However, many of these examples involved the activities of local programs, the legal services training program or (in many cases) non-LSC-funded organizations.
In late 1973 and early 1974, the Senate took up consideration of the House passed bill. The Senate significantly modified what the House had done including fundamentally changing the Green Amendment. The compromise reached during the conference committee on the legislation also preserved the back-up centers and the fundamental support structure created by Earl Johnson in OEO. In May 1973, the conference report barely passed the House (190-183) after first defeating a recommittal motion to include the Green Amendment. The national centers became the focus of opposition to legal services because they were perceived as the brains behind the activism of legal services programs, or the “cutting edge of social change” as Congresswomen Green charged. At that point the legislation became embroiled in the politics of the impeachment process. Key conservative leaders in the House and Senate (and several conservative supporters of the President) made their continued support for President Nixon dependent upon his promise of a veto if national back-up centers were not eliminated. The President then demanded that the Green Amendment be added to the bill in exchange for his support. Ultimately the Senate agreed and a final compromise was passed by both houses. President Nixon then signed the bill on July 25, 1974.
The question then became: how would the new LSC interpret and implement the Green Amendment?