[Congressional Record Volume 155, Number 52 (Thursday, March 26, 2009)]
[Senate]
[Pages S3915-S3918]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. HARKIN (for himself, Mr. Kennedy, Mr. Leahy, Mr. Cardin, 
        Ms. Mikulski, Mr. Kerry, Mr. Durbin, Mr. Lautenberg, Mr. 
        Merkley, and Mrs. McCaskill):
  S. 718. A bill to amend the Legal Services Corporation Act to meet 
special needs of eligible clients, provide for technology grants, 
improve corporate practices of the Legal Services Corporation, and for 
other purposes; to the Committee on the Judiciary.
  Mr. HARKIN. Mr. President, today, I am proud to introduce the Civil 
Access to Justice Act of 2009, which will expand and improve vital 
civil legal services to our most vulnerable Americans.
  This is an issue that is very personal with me. Before I was elected 
to Congress, I practiced law with Polk County legal aid. I know first-
hand how crucial legal assistance is to struggling families who have no 
place else to turn

[[Page S3916]]

when they have lost a job and are facing a foreclosure. I know the 
invaluable assistance that legal aid provides to battered women trying 
to leave abusive marriages while fearing for their safety and the 
safety of their children. I know that, without access to an attorney, 
the poor are often powerless against the injustices they suffer. I can 
honestly say that the work I did with legal aid is some of the most 
rewarding work of my career.
  The type of assistance I was able to provide needy clients in Iowa 
occurs throughout the country every day. Much of that assistance is the 
direct result of a commitment the federal government first made over 
forty years ago. In 1965, the Office of Economic Opportunity created 
269 local legal services programs around the country. Ten years later, 
in 1974, Congress--with bipartisan support, including that of President 
Nixon--established the Legal Service Corporation, LSC, to be a major 
source of funding for civil legal aid in this country. LSC is a 
private, non-profit corporation, funded by Congress, with the mission 
to ensure equal access to justice under the law for all Americans by 
providing civil legal assistance to those who otherwise would be unable 
to afford it. LSC distributes 95 percent of its annual Federal 
appropriations to 137 local legal aid programs, with more than 900 
offices serving all 50 states and every congressional district.
  These LSC funding programs make a crucial difference to millions of 
Americans. Recipients help clients secure basic human needs, such as 
access to wrongly denied benefits including social security, pensions 
and needed health care. Just in the past decade, families of 9-11 
victims, flood victims, and hurricane evacuees have received crucial 
legal assistance in obtaining permanent housing, unemployment 
compensation and government benefits. Further, members of our Armed 
Forces and their families receive help with estate planning, consumer 
and landlord/tenant problems and family law.
  It is LSC-funded attorneys who help parents obtain and keep custody 
of their children, help family members obtain guardianship for children 
without parents, assist parents in enforcing child support payments and 
help women who are victims of domestic violence. In fact, three out of 
four legal aid clients are women, and legal aid programs identify 
domestic violence as one of their top priorities. Recent studies 
confirm, moreover, that the only public service that reduces domestic 
abuse in the long term is a woman's access to legal assistance.
  Unfortunately, as the economy continues to wane, those needing legal 
assistance increase. Yet, the Federal commitment to legal services and 
LSC is not as effective as it needs to be. LSC has not been authorized 
since 1981, and since 1995 Congress has slashed funding for legal 
services for the poor, from $415 million to $350 million in fiscal year 
2008, with only a recent increase to $390 million for fiscal year 2009. 
Further, severe restrictions on LSC funded attorneys impede the ability 
of legal aid attorneys to provide the most meaningful legal 
representation to low-income Americans. The result is that access to 
justice and quality representation has become far from a reality for 
too many of our citizens.

  In many parts of the country, more than 80 percent of those who need 
legal representation are unable to obtain it. Nationally, 50 percent of 
eligible applicants who request legal assistance from LSC funded 
programs are turned away largely because such programs lack adequate 
funding. That translates into over one million eligible cases per year.
  Bear in mind, to be eligible for Federal legal assistance, one must 
live at or below 125 percent Federal poverty level--an income of about 
$25,000 a year for a family of four. This means that we are turning 
away half of the families in America who need and seek civil legal help 
who make less than $25,000 a year. That is wrong and it makes a mockery 
of the principle of equal justice under the law.
  Unfortunately, a combination of limited federal funding, state budget 
cuts and an increased demand for services due to the recession has 
exacerbated the problem. As the Chief Justice of the Texas Supreme 
Court recently noted, legal aid programs have reached a ``crisis of 
epic proportions.'' This year, requests for services have risen by 30 
percent or more across the country while cutbacks in staffing are 
expected to reach 20 percent or more over the coming months. 
Connecticut Legal Services expects to lose as many as 150 legal 
positions. Boston's legal aid expects to lay off one-fifth of its 
lawyers. Two whole offices in New Jersey recently had to shut their 
doors. When legal aid lawyers lose their jobs and when offices close, 
unfortunately it is our most vulnerable citizens who suffer as their 
legal needs go unmet.
  The housing crisis highlights this problem. Today, millions of 
Americans are struggling to meet their housing needs, including making 
their mortgage payments, in many cases traceable to predatory lending 
practices. Foreclosures are at a historic high and continue to soar. As 
more and more people face the devastating prospect of losing their 
home--their most prized possession--legal assistance is necessary to 
help renegotiate terms of loans or enforce truth-in-lending protections 
in court. The result is that many legal aid offices have seen a drastic 
increase in those seeking help. Between 2007 and 2008, for example, 
Iowa Legal Aid saw a 300 percent increase in foreclosure related cases. 
The Legal Aid Society of San Diego saw a 250 percent increase. Yet, 
legal aid is too often unavailable. A recent study, for example, 
revealed that in New Jersey, 99 percent of defendants in housing 
eviction cases go to court without an attorney.
  Given these needs, the Civil Access to Justice Act of 2009, which I 
am proud to introduce today with Senators Kennedy, Leahy, Mikulski, 
Cardin, Kerry, Durbin, Lautenberg, McCaskill and Merkley, renews our 
commitment to equal justice for all Americans and will improve both the 
quantity and quality of legal assistance in this country.
  The bill is supported by, among others, the American Bar Association, 
Brennan Center for Justice, National Legal Aid & Defender Association, 
National Organization of Legal Service Workers and United Auto Workers.
  First, this bill authorizes funding for LSC at $750 million, which is 
approximately the amount appropriated in 1981, adjusted for inflation, 
the high water mark for LSC funding. That year, Congress allocated 
$321.3 million to LSC. At the time, that was seen as the level 
sufficient to provide a minimum level of access to legal aid in every 
county. Adjusted for inflation, this ``minimum access'' level of 
funding would need to be about $750 million in 2009 dollars.
  Second, this bill lifts many of the restrictions Congress imposed in 
1996 on federally funded attorneys. That year, Congress significantly 
limited whom federally funded attorneys could represent and the types 
of legal tools these attorneys could use in representing their clients. 
Proponents of these restrictions argued that LSC funded lawyers had 
overreached and were using federal funds to pursue what some considered 
an ideological political agenda through the courts, while neglecting 
basic legal work for poor Americans.
  I vigorously disagreed with this characterization of legal aid 
attorneys and opposed the restrictions at the time; and I continue to 
do so. The restrictions have harmed our neediest Americans and in many 
instances prevent legal counsel from doing what attorneys are ethically 
bound to do--provide zealous representation for their clients. Further, 
the restrictions, by limiting the range of tools that legal aid 
attorneys can employ compared to other members of the bar, have created 
a system of second-class legal representation. That is why this 
legislation lifts limits on the legal tools that LSC-funded attorneys 
can use to represent their clients--for example, prohibitions on 
attorneys seeking court-ordered attorneys' fees, lobbying with 
nonfederal funds or representing clients in class action law suits.
  With respect to attorney fees, Congress and state legislatures have 
recognized that such fees are an important remedy, and are critical in 
ensuring that civil rights and consumer protection suits are brought. 
As Congress stated in enacting the Civil Rights Attorneys' Fees Awards 
Act of 1976, ``fee awards have proved an essential remedy if private 
citizens are to have a

[[Page S3917]]

meaningful opportunity to vindicate the important Congressional 
policies which these laws contain.'' That is why Congress has enacted 
nearly 200 statutes, and states have enacted approximately 4,000 
statutes, that provide for attorney fees. The current restriction 
preventing LSC-funded attorneys from receiving attorney fees has the 
effect of weakening the effectiveness of these statutes.
  Lifting the restriction on attorney fees makes sense for additional 
reasons. First, because of the restriction, defendants who otherwise 
would pay attorney fees are unjustly enriched because they happen to 
face LSC-funded attorneys as opposed to a private counsel. Second, the 
potential for attorney fees is important leverage for attorneys as they 
negotiate settlements, leverage now not available to LSC-funded 
attorneys. Finally, by prohibiting collecting attorney fees, Congress 
has needlessly limited potential resources that can be used to provide 
legal aid to other clients.
  The bill also lifts the restriction on LSC-funded attorneys' ability 
to lobby with non-federal funds for changes in the law that would 
benefit disadvantaged clients. Legal service attorneys are immersed in 
the day-to-day legal issues faced by low-income communities and, as a 
result, are often most knowledgeable about the true impact of state and 
Federal laws on low income Americans. Yet, LSC-funded attorneys may not 
participate legislative and administrative efforts unless they are 
responding to a written request from a legislator or other official.
  When legal aid attorneys' input is requested, the results are 
telling. For example, Maryland Legal Aid Bureau was recently invited by 
the legislature to testify on an overhaul of state foreclosure and 
lending laws. Although the lending, mortgage and banking industries 
were well represented, the legal aid attorney was the only person there 
representing borrowers' views. While the attorney's voice was critical 
in ensuring appropriate consumer protections, it is significant that 
that voice was only heard because legislators chose to seek input from 
legal aid. Because of the current restrictions, absent an invitation, 
the experiences and knowledge of that attorney would be silenced, 
leaving a one-sided debate.
  Let me be clear, I disagree with those who advocated for and enacted 
the 1996 restrictions. However, in the spirit of compromise and 
bipartisanship, and with the intent to avoid a repeat of the 
contentious debates of the 1990s, this legislation does not lift all of 
the restrictions. Illustrative is the present restriction on LSC-funded 
attorneys pursuing class action suits. Such cases are often the most 
efficient and cost-effective lawsuits, not only for clients but for the 
judicial system. As Congress found in enacting the Class Action 
Fairness Act in 2005, ``class action lawsuits are an important and 
valuable part of the legal system when they permit the fair and 
efficient resolution of legitimate claims of numerous parties by 
allowing the claims to be aggregated into a single action against a 
defendant that has allegedly caused harm.''
  When the procedural requirements of State or Federal law are met, 
LSC-funded attorneys and their clients, like all others, should be able 
to utilize this essential litigation tool. That is why the bill lifts 
the restriction on the ability of legal aid programs to bring such 
suits. At the same time, again while I disagree, I acknowledge the 
concern that led to the restriction--that prior to the restriction some 
felt that LSC-funded attorneys were using class action suits to ``push 
the envelope'' and have courts establish ``new law.'' To allay this 
concern, the bill permits only class action suits that are grounded in 
``established'' law. This will enable, for example, LSC-funded 
attorneys to represent as a class multiple families who are victims of 
predatory lending, but will not permit LSC-funded attorneys to attempt 
to achieve a novel interpretation of the law that lacks statutory 
support or judicial precedent.
  Moreover, again in the spirit of compromise, the bill maintains many 
of the limits on who LSC-funded programs can represent, including the 
current exclusion of illegal immigrants, with limited exceptions, such 
as victims of domestic violence, prisoners challenging prison 
conditions, and people charged with illegal drug possession in public 
housing eviction proceedings. Also, consistent with current law, the 
legislation prohibits LSC-funded programs from participating in 
abortion-related cases.
  Third, this legislation lifts all the restrictions, except those 
related to abortion litigation, on the use of state and local funds and 
private donations to Federal funded legal services programs that 
Congress also imposed in 1996. That year, Congress determined that for 
programs that receive federal funds, the same restrictions applicable 
to federal funds apply to non-federal funds a program receives.
  The result is that millions of dollars in non-federal funds are 
encumbered by the same restrictions that drastically limit the tools 
available to legal aid attorneys, to the detriment of their clients. 
Through direct state and local funding, money from state Interest on 
Lawyers' Trust Accounts, IOLTA, and private sources, over $450 million 
in non-federal funds currently is provided for civil legal assistance. 
The restrictions place unnecessary and costly hurdles on the use of 
these non-federal funds. The only way a program and its donors can free 
themselves from federal restrictions is by diverting non-federal funds 
into a separate program--with separate staff members, offices and 
equipment. This is burdensome and wasteful.

  Whatever one thinks of placing conditions on the receipt of federal 
funds, states, cities and private donors should have the ability to 
determine for themselves how best to spend their money to ensure access 
to justice for their citizens. It is one thing to attach conditions on 
the use of the federal funds, but to impose conditions on the use of 
non-federal funds is wrong.
  Fourth, in addition to providing further tools and support for LSC 
grantees, better corporate governance--something that is critically 
needed--is a central feature of this legislation. Last year, the 
Government Accountability Office, GAO, reported on troubling management 
practices and lack of oversight by LSC. The reports found that there 
had been questionable expenditures by LSC management and that LSC 
lacked a ``properly implemented governance and accountability 
structure'' needed to prevent problems. GAO included in its report a 
series of recommendations as to how LSC should address these 
shortcomings and prevent similar problems in the future.
  No one was more upset about the GAO reports than I. That is why I 
personally made it clear to LSC management, in no uncertain terms, that 
they needed to act immediately to address the GAO recommendations, and 
why a central feature of this bill is provisions to ensure better 
corporate governance. LSC acted quickly to address the issues GAO 
raised, and both LSC management and its Board of Directors have 
publicly accepted all of GAO's recommendations and have worked 
diligently to implement them. Nevertheless, I believe it is important 
to lock the recommendations into statute.
  Finally, the bill authorizes a grant program from the Department of 
Education to expand law school clinics. A recent study found that 
students in law school clinics serve approximately 90,000 civil clients 
every school year, excluding summer semesters, and provide over 1.8 
million hours of legal service. These legal clinics are a significant 
resource for legal services. But they are much more. For many students, 
these programs are stepping stones towards careers in legal service and 
public interest law following graduation. Recent studies demonstrate 
that law students who participate in law school clinics are more likely 
to work in public service jobs and do more pro bono than their peers 
who do not.
  We need to do all we can to encourage young lawyers to make legal aid 
a career. One important way of doing this is by exposing them to the 
challenges, and more importantly the rewards, of representing people 
who otherwise would not have the legal assistance they deserve.
  Our promise of ``equal justice under law'' rings hollow if those who 
are most vulnerable are denied access to representation. As former 
Justice Lewis Powell said, ``[e]qual justice under law is not merely a 
caption on the facade of the Supreme Court building. It is perhaps the 
most inspiring ideal of our society . . . it is fundamental that 
justice should be the same,

[[Page S3918]]

in substance and availability, without regard to economic status.'' 
Legal aid attorneys across the country protect the safety, security, 
and health of low-income citizens. When a senior citizen is the victim 
of a financial scam, when a family faces the loss of their home, or, 
all too often, when a woman seeks protection from abuse, legal aid can 
help--but only if it has the funds and the tools needed to do so.
  As our former colleague Senator Domenici once declared: ``I do not 
know what is wrong with the United States of America saying to the 
needy people of this country that the judicial system is not only for 
the rich. What is wrong with that? . . . That is what America is all 
about.''
  That is the aim of this bill. After years of grossly underfunding 
this essential program, denying legal representation to millions of 
low-income citizens, and denying legal aid lawyers the full panoply of 
tools they need to represent their clients effectively, this bill will 
fulfill the promise of our Constitution. ``Equal Justice Under Law'' 
will be more than an ideal chiseled on a marble facade, it will be a 
concrete reality for millions of our citizens, who, today, are denied 
it. I urge my colleagues to support this important bill.
  I am proud to join Senator Harkin, along with Senator Kennedy, 
Senator Kerry, Senator Mikulski, Senator Durbin, Senator Lautenberg, 
Senator McCaskill, and Senator Merkley on this important legislation to 
reauthorize the Legal Services Corporation, LSC. I thank Senator Harkin 
for his hard work and dedication to this issue. Along with 
reauthorizing the funding for the LSC, the bill also removes several 
restrictions that have encumbered the efforts of legal services 
providers around the country.
  The funding authorization in this legislation will help ensure that 
in future years, the Legal Services Corporation, and all of the state 
legal aid organizations it assists, will continue the critical work 
they do to help lower-income American citizens who need legal 
assistance. Similar to the Sixth Amendment's requirement that an 
indigent criminal defendant be provided counsel, the voice that legal 
aid attorneys give to the less fortunate among us is an indispensable 
component of a fair justice system. What Justice Hugo Black called the 
``noble ideal'' of a fair and impartial trial is extended through the 
work of those around the country who serve their fellow citizens in our 
courts. This reauthorization will continue the policy of the Federal 
Government to provide assistance to those who seek access to the courts 
in civil matters.
  As part of this reauthorization, and in an effort to support the 
integrity of the LSC, the bill codifies recommendations made by the 
Government Accountability Office, GAO, related to the LSC's corporate 
governance. The Senate Judiciary Committee held a hearing in May 2008 
in part to shed light on these recommendations, and to give the LSC an 
opportunity to respond about plans to address the problems identified 
by the GAO. The LSC's leadership has been open and responsive to making 
improvements, and including these recommendations in the bill will 
assist the LSC in strengthening its governance practices for the 
future.
  This legislation also takes the long-overdue step of removing several 
of the restrictions that have hindered legal aid organizations for too 
long. But I wish to make clear that the restrictions on both state and 
Federal funds prohibiting litigation involving reproductive rights 
remain in place. Several restrictions on Federal funds remain: the use 
of Federal funds for litigation concerning unlawful immigrants, prison 
conditions, and certain eviction cases involving the sale of illegal 
drugs in public housing, will remain prohibited. But many of the 
restrictions this bill finally lifts are the product of an ideology 
long since rejected by the American people. It is time for Congress to 
reconsider the usefulness of these restrictions in providing the 
services that so many Americans desperately need.
  All Americans should understand the effects of these restrictions on 
the provision of legal services for lower-income citizens. Chief among 
them is the overarching requirement prohibiting the use of non-Federal 
funds for enumerated purposes when legal aid organizations accept 
Federal funding from the LSC. Currently, non-federal funds received by 
legal aid providers that also accept LSC funding are subject to the 
same restrictions that Federal funds are. This has resulted in a waste 
of resources that providers can ill afford. For example, a legal aid 
provider that wishes to use state, foundation, or other private funding 
as it sees fit must physically segregate its operations so that funds 
from the two sources are administered separately through duplicated 
processes. In this era of economic difficulty, the impact of every 
Federal and state dollar provided to help Americans must be maximized. 
This requirement has resulted in little more than wasted resources. 
Legal aid providers are capable of honoring Federal restrictions 
without the necessity of such an onerous approach.
  The legislation also removes restrictions that currently prohibit 
legal aid attorneys from receiving attorney's fees, as authorized by 
law, in cases in which they prevail. Contrary to arguments that claim 
such a practice would cause legal aid attorneys to act unethically or 
out of an interest divergent from the legitimate needs of their 
clients, allowing these fees to be retained would help shift the cost 
of wrongdoing from the Federal Government to the wrongdoer. Moreover, 
allowing legal aid attorneys to retain these fees when merited would 
provide increased assistance to the organizations for which they work. 
In an effort to monitor the effect of removing this restriction, the 
legislation requires all fees received to be reported to the LSC.
  The bill removes restrictions on class action suits by legal aid 
providers. Contrary to the popular rhetoric, in some cases class action 
suits can maximize the benefits provided by legal aid organizations by 
allowing similarly situated plaintiffs to pursue their rights in a 
single case. The legislation does restrict class action suits to 
actions based on established law, and thus is intended to discourage 
truly frivolous suits. Additionally, the legislation removes the 
restriction prohibiting legal aid providers from lobbying their elected 
officials. Allowing legal aid providers to advocate on behalf of those 
they serve will advance civil justice issues and raise the awareness of 
lawmakers in matters affecting many Americans. And I would remind those 
who would disparage this practice on the part of legal aid providers 
that many of the financial institutions that the American taxpayers 
have recently bailed out continue to lobby extensively in Washington. 
If banks that have been bailed out with taxpayer money can freely 
access their elected officials, so too should those who represent the 
least politically powerful among us.
  I hope all Senators will give serious consideration to reauthorizing 
the Legal Services Corporation and ending many of the restrictions that 
have burdened the provision of legal services to so many American 
citizens. Lawyers across the U.S. have dedicated their lives to helping 
the least fortunate among us gain access to the courts that serve us 
all. These lawyers play a critical role in ensuring that justice is 
carried out in a manner consistent with the Constitution's promise, and 
when justice is served fairly, it benefits us all. I hope all Senators 
will join us in support of this legislation.
                                 ______