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Thirty-seven years ago, the Supreme Court made history when it ruled in Gideon v. Wainwright that poor people facing criminal charges have a constitutional right to a lawyer paid for by the state. Justice, the Gideon Court ruled, should not turn on whether one can afford a lawyer. This year, a very different Supreme Court once again takes up the question of state-subsidized lawyers for the poor. In Legal Services Corp. v. Velazquez, argued today, the Court will decide whether Congress can, as a condition on funding counsel for the poor, radically restrict the arguments those lawyers make on their clients’ behalf. No case better tests the commitment of today’s Court to the principle of equal justice for the poor. Velazquez involves lawyers in civil, not criminal, cases. In such cases, the Constitution does not afford the poor a right to a state-appointed lawyer. Nonetheless, the notion that justice should not be for sale carries some weight, and since 1974, Congress has provided funding through the LSC for lawyers who serve the poor. The funding has never been sufficient, however, and has always come with strings attached. In 1996, Congress enacted the most restrictive conditions it has ever imposed on legal services lawyers: They could no longer bring any class actions, seek attorney fees for vindicating civil rights against government misconduct, or represent prisoners and most noncitizens. They could not lobby on any issue, represent the poor in any redistricting or abortion litigation, or litigate for welfare reform. These restrictions did not stand alone. The same Congress placed unprecedented limits on federal courts’ ability, even in cases not funded by the government, to redress illegal prison conditions, review criminal convictions, and review actions by the Immigration and Naturalization Service. No Congress before or since has ever done so much to limit access to the courts. And not surprisingly, the targets of Congress’ restrictions were those groups most in need of judicial protection — the poor, prisoners, and noncitizens. Last year the 2nd U.S. Circuit Court of Appeals in Velazquez upheld virtually all of the 1996 legal services law, on the theory that Congress has broad discretion to dictate what types of legal services it wants to provide. By a divided vote, however, the court struck down a single provision, which barred challenges to welfare laws. It is this provision that is now under review in the Supreme Court. CRITICISM ALLOWED The provision’s flaw, according to the 2nd Circuit, is that it discriminates on the basis of viewpoint. It authorizes legal services lawyers to represent clients in welfare matters only if their representation “does not involve an effort to amend or otherwise challenge existing law.” Lawsuits are permitted, in other words, only if they do not challenge the status quo. This is a particularly suspect form of discrimination, the court added, because it disfavors speech critical of the government, and such speech is at the core of the First Amendment’s protection. The 2nd Circuit was right that viewpoint discrimination is generally impermissible, even in the allocation of government funds or subsidies for speech. The National Endowment for the Arts, for example, may constitutionally decide to fund films about dogs and not films about cats (a subject matter distinction). But it cannot decide to fund films that praise leash laws and not films that criticize them (a viewpoint distinction). The only exception to the rule against viewpoint discrimination arises when the government itself speaks or hires private persons to express a government message. Then it may specify not only content but also viewpoint. In Rust v. Sullivan (1991), the Court held that the government could require federally funded Title X family planning clinics to express the government’s pro-childbirth, anti-abortion position, because the clinics were speaking for the government. Whatever else one might say about a legal services lawyer, she certainly does not speak for the government — particularly when she is suing the government on behalf of a client who claims his rights were violated in the provision of welfare benefits. Thus, viewpoint discrimination should be forbidden here. But will the Supreme Court see the welfare reform ban as viewpoint discrimination? The government maintains that the statute simply reflects a neutral decision that limited tax dollars are better spent getting individuals their benefits under existing law than on pursuing litigation to change the law. The latter cases, the government says, are likely to be more expensive. They’re also more likely to attract alternative pro bono help, says the government. That’s a hard argument to make with a straight face, especially when the restriction is viewed in context. Congress in 1996 was much less interested in saving money than in insulating government practices from judicial challenge. The legislative history illustrates that the 1996 law was driven by a belief that the LSC was controlled by “liberal activists who favor a militant agenda.” The law does not carve out the entire subject of welfare as off-limits, but selectively prohibits expression of one particular viewpoint on that subject. It is no more expensive to argue that a regulation is inconsistent with a governing statute than it is to argue that the regulation was erroneously applied. And there are no legions of private pro bono lawyers waiting to pick up the slack. BETWEEN COUNSEL AND CLIENT If the challengers prevail, however, it will probably be because the First Amendment prohibition on viewpoint discrimination is especially important in the lawyer-client setting, where selective government funding has the potential to undermine the adversarial process. If lawyers for the poor have to argue with one hand tied behind their back — because they can’t challenge the status quo — the legal process will be fatally compromised. The Court has extended heightened protection to other areas of government-subsidized speech out of similar concerns about skewing debate. In allocating access to public forums like parks and streets, the government is constitutionally required to be content-neutral. In public universities, the government is constitutionally mandated to respect academic freedom; it may not deny a job to a professor because it disapproves of his political views. In these spheres, the First Amendment sharply limits the conditions that the government may attach to subsidies. A similar rule ought to apply to legal services lawyers and their clients. The state should not be permitted to fund litigation on a given subject on the condition that the parties suppress expression of proscribed arguments within that litigation. Surely it would be unconstitutional for the government to fund lawyers for death row inmates on the condition that those lawyers not assert any constitutional violations on their clients’ behalf. Yet that is, in essence, what the LSC provision does. It says to a poor person: You can have a free lawyer as long as you do not challenge the validity of our laws. That is an unconscionable bargain, especially with respect to indigent persons with no other real options. Moreover, it puts legal services lawyers in an ethical bind. How is one to know whether one’s representation of a frustrated welfare client will ultimately require challenging an existing welfare law? It’s often far from clear at the outset of a case what arguments one will need to make. In many circumstances, it is not even clear where to draw the line between “enforcing” and “challenging” a law. In enforcing a law, it’s common to argue that the law must be construed and applied to avoid rendering it unconstitutional. Can the legal services lawyer make such an argument? And can she represent her client in good faith if she is unable to back up such a statutory construction argument with the further contention that if the statute is otherwise construed, it should be invalidated as unconstitutional? What if, in the midst of a routine welfare case, the judge herself asks whether a regulation is valid? The government maintains that when in doubt, the legal services lawyer should simply refer the matter to another lawyer who is not restricted. But what happens when a seemingly simple case develops into a constitutional dispute? Does the lawyer then bow out? And who will step in? In most cases, the government’s offer of a lawyer who can’t fully advocate a person’s interests is the only game in town, and poor litigants have no choice but to accept the hampered help.

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