Legal Aid Funder Faces Existential Crisis Under Trump

By RJ Vogt | October 28, 2018, 8:02 PM EDT

In 2017, the Legal Services Corp. provided over a third of the budget for the Atlanta Legal Aid Society Inc. Above, ALAS attorney Jessica Felfoldi works with her clients. (Melissa Golden)

Anyone who's watched TV legal dramas probably recognizes the Miranda rights that police officers recite when making an arrest, which include the right to an attorney and the addendum that "if you cannot afford an attorney, one will be provided for you."

But free legal help is only guaranteed in criminal law. In most civil court matters, such as tenant-landlord housing disputes, domestic violence cases and child custody battles, no such right to an attorney exists. If you want representation in court, you have to pay for it — or represent yourself.

For those who can't afford lawyers in civil cases, Congress established the Legal Services Corporation in 1974, a nonprofit that grants federal legal aid money to service providers across the country. LSC President Jim Sandman said most Americans don't know the importance of the legal services his organization funds.

"They don't realize that you can lose your home, you can have your children taken away from you, you can be a victim of domestic violence in need of a protection order against an abuser — and you have no right to a lawyer if you can't afford to pay for one," Sandman said.

Following Donald Trump's election to the presidency, the LSC and its grantees face an existential crisis — for the first time since President Ronald Reagan left office, the executive branch has repeatedly called for LSC's elimination.

In proposed budgets for fiscal years 2018 and 2019, the Trump administration said Congress should "end the one-size-fits-all model of providing legal services through a single federal grant program" because state and local governments "better understand the needs of their communities."

Despite Trump's recommended budget cuts, bipartisan support led Congress to appropriate $410 million earlier this year. But according to Dan Glazier, executive director for the Legal Services of Eastern Missouri, the money LSC receives is not nearly enough to provide legal services for the more than 60 million Americans with family incomes at or below 125 percent of the federal poverty line, defined as $31,375 for a family of four or $15,175 for a one-person household.

LSEM, which relies on LSC money for over a quarter of its budget, was forced to turn away half of those who asked for help in 2017, primarily due to a lack of resources. If the LSC were eliminated, it would force Glazier to cut staff, leading to fewer people who receive help.

"When we are not able to serve people," he said, "these can often be life-and-death issues. We are absolutely talking about survival."

Dan Glazier, director of Legal Services of Eastern Missouri, says losing LSC would have forced him to cut staff. Above, he meets with Jeanne Philips-Roth, LSEM's associate director of client services. (LSEM)

In states like Alabama, Mississippi and Idaho, where local legal services support is thin, the effects of defunding the LSC would be far more drastic: grantees would lose two-thirds of their budget or more.

With at least two more years of Trump budget proposals, legal services providers know the issue of eliminating the LSC isn't going away. Even with Congress as a reliable backstop so far, Glazier doesn't take the threat lightly.

"We look at ways to find other funding sources each and every day ... to prepare ourselves for a situation where we might lose that Legal Services Corporation funding," he said.

A Perennial Issue

From the early days of federal efforts to provide legal aid, funding has been a perennial issue. Before the LSC was created, legal aid fell under the Office of Economic Opportunity and its Legal Services Program, established in the mid-1960s as part of President Lyndon B. Johnson's War on Poverty.

The OEO employed attorneys who brought actions against federal, state and local government agencies to pursue law reform for the indigent. As the ensuing cases led to landmark decisions on behalf of welfare recipients, poor tenants and consumers, they also earned the office enemies who felt federal funding was being improperly used for partisan reasons.

"Legal Services had a track record that was similar to the solicitor general's track record at the Supreme Court," said Alan Houseman, president of the National Equal Justice Library. "And a lot of these cases were cases where it changed policy in practice at the state and local level that some people didn't like."

One of those people was then-California Gov. Ronald Reagan, who took umbrage with the fact that government-funded legal services lawyers were successfully litigating against government agencies. In 1970, Reagan joined a wave of other governors who had vetoed OEO grants, calling out a California grantee for "gross and deliberate violations" of regulations.

That dispute, and other political controversies, led President Richard Nixon to propose nixing OEO in January 1973. In its place, and in keeping with recommendations from the American Bar Association, he called for the creation of an independent legal services entity, separate from the federal government but funded by Congress, whose directors would be appointed by the president and confirmed by the Senate.

The month before he resigned, Nixon signed off on the Legal Services Corporation Act of 1974, one of the last bills to cross his desk.

An organization funded at $71.5 million annually in 1975 grew to $300 million by 1980. At the time, lawmakers believed that sum would support "minimum access" in the form of at least two legal aid attorneys per every 10,000 indigent people.

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But when Reagan ascended to the presidency, his administration initially sought to eliminate LSC entirely. White House pressure eventually led lawmakers to slash 25 percent of the budget. Legal aid providers across the country closed offices: by 1983, more than a quarter of legal services attorneys had been cut.

Funding under subsequent administrations hasn't kept pace with inflation. The National Center for Access to Justice's most recent Justice Index data shows the current national average for legal aid attorneys per 10,000 indigent people is 0.64 — less than one-third of minimum access.

Federal vs. State

The LSC faced another elimination bid in 1994, as part of conservative lawmakers' so-called "Contract With America" that outlined drastic budget cuts across the board. Some Republicans remained committed to the program, but funding was still slashed by a third and additional restrictions were imposed to narrow the scope of activities that federal money could fund.

By the end of 1996, LSC had been trimmed down to its current status as a funder of legal services focused on individual representation and day-to-day legal problems. Today, the financing battles over LSC are less ideological than they once were, according to Don Saunders, vice president for civil legal services at the National Legal Aid & Defender Association.

"Even on the right, we've heard that members of the Freedom Caucus have attended fundraisers that support legal aid," Saunders noted. "But there are many conservatives that feel the federal government should fund nothing but highways and defense. I think our fight and debate today is much more in that arena."

Brian Riedl, senior fellow at the Manhattan Institute and the former chief economist to Sen. Rob Portman, R-Ohio, noted that many legal services providers "are already funded" by state governments, private organizations and pro bono attorney groups.

More than 230 providers don't receive any money from LSC, which allows them to operate outside the confines of federal restrictions. And overall, support for legal aid has actually grown: Since 1982, state and local government funding has increased from a few million dollars to over $500 or more million, in keeping with a general shift from federal reliance to a more diversified revenue stream.

"There just isn't a federal role in such a local and privately funded priority," Riedl said.

But while state funding has increased, it hasn't increased uniformly. In terms of legal aid dollars per aid-eligible person, states differ widely, from a high of $102.59 to a low of $9.30, according to Houseman. The highest-funded regions include the Northeast, Mid-Atlantic, Midwest and West, while the lowest are in the Rocky Mountain states and the South.

Representatives for the Office of Management and Budget did not respond to repeated requests for comment on the suggested federal budget cut, or how it would affect states like Mississippi, Alabama and South Dakota — places with few non-LSC providers, where LSC grantees relied on federal funding for more than 74 percent of their 2015 budgets.

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Anne Milne, the executive director for Utah Legal Services, said LSC provides more than half of her group's budget. If LSC were defunded, the state's aid-eligible population of 438,985 people would feel the effects, she said.

"It would have an immediate impact on thousands of low-income Utahns, who would go without representation in cases involving basic needs including safety from abuse and having a roof over their heads and a decent place to live," Milne said.

Riedl suggested, however, that some states may be calculating their legal aid budgets based on the security of having the LSC as a "federal backstop."

"If there's no federal backstop, the political pressure could rise in these states to better fund these programs," Riedl said. "If Mississippi voters decide that this is not a priority for their state government and prefer that it be done with private funds, then the politicians will likely reflect that."

What Comes Next?

LSC Chairman John Levi said he was "surprised" when he heard the news that Trump wanted to eliminate a roughly $400 million program from a $4.4 trillion federal budget.

"But I also felt that this was a new administration," Levi added, "and they might not have all the facts that they need."

As LSC's Sandman put it: "The biggest problem that we face is ignorance of the issue."

LSC President Jim Sandman has seen the Trump administration call for the elimination of his organization twice in the last two years. Above, he speaks at an event for the New Hampshire Campaign for Legal Services in May 2017. (Kate Brindley)

Levi noted that even Congress' fiscal year 2019 budget, which marks the first $400 million-plus allocation since 2011, "is far short of what we need." The board had requested $564.8 million.

When asked whether LSC will ever reach 1980's "minimum access" peak funding again — equivalent to $893 million in today's dollars — Houseman took a long pause.

"Probably not," he said. "But I do think it's possible that funding will continue to incrementally increase."

Previous LSC leadership has responded to federal opposition by looking for other funding streams. Former LSC President Martha Bergmark, who experienced the 1996 budget cuts, called that year "an existential moment for federal funding for legal aid."

"It did persuade us, without a doubt, that diversifying the funding needed to happen," she said. "What we saw was that, in light of the general budget picture, looking to the federal government for everything that was needed for legal aid was just not going to pay the bills."

Back then, LSC aimed to drum up increased state support, encouraging the creation of state access to justice commissions. Washington was the first state to establish one, and today, more than 40 such commissions are working to ensure access to legal representation is widely available.

The current LSC leadership is following a similar path toward more varied revenue sources. Levi said his is the first LSC board to embark on a quest for private funding. He touted LSC's 2017 "Justice Gap" report, co-funded by the William and Flora Hewlett Foundation and the Kresge Foundation, as one of several initiatives recently undertaken without relying on federal dollars.

Levi's board is also tapping over 75 celebrities such as football coach Jim Harbaugh, baseball Hall of Famer Hank Aaron and author John Grisham to help raise public awareness about the crisis in civil legal aid across the country.

Whether Trump will call for LSC's elimination again remains to be seen. His next budget proposal is expected in February 2019.

If he manages to convince Congress to cut the program, South Carolina Legal Services Director Andrea Loney said her organization, which was 60 percent reliant on federal funds in 2015, would be "in absolute trouble."

"Unlike a lot of other states, we're not very successful with fundraising," Loney said. "We're a fairly poor state. Could we, in fact, function?

"The answer is no," she said.

RJ Vogt is the senior reporter for Access to Justice at Law360. Follow him on Twitter. Editing by Katherine Rautenberg.

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