The Passage of the Legal Services Corporation Act

In 1964, with the passage of the Economic Opportunity Act launching the War on Poverty, federal funds became available for the first time to fund legal services to the poor. But the new law did not specifically provide for legal services. In order to establish a federal financing niche within the Office of Economic Opportunity (OEO), the agency that administered the War on Poverty, it was necessary for several important factors to come together: commitment from the OEO leadership, support from the organized bar at the national level, and initiation of program proposals at the local level.

The design for local legal services programs was set out in the OEO Legal Services Guidelines, produced by the program?s National Advisory Committee, made up primarily of representatives of the organized bar. The Guidelines included a number of provisions that differentiated the new concept of "legal services" from traditional "legal aid." They required representatives of the poor be on the boards of local programs. They indicated that poor people's organizations would be eligible for services. They required programs to provide service in all areas of the law, other than criminal defense, and to advocate for reforms in statutes, regulations, and administrative practices. They identified preventive law and client education as essential activities. In the words of E. Clinton Bamberger, the first director of the program, legal services attorneys were to "do no less for their clients than does the corporation lawyer checking the Federal Trade Commission for sloppy rulemaking, the union lawyer asking Congress for repeal of 14(b), or the civil rights lawyer seeking an end to segregation in bus stations."

By the end of fiscal year 1966, OEO had made 130 legal services program grants. By 1968, the number had grown to 260 programs, covering at least part of every state except North Dakota. In addition to local programs, OEO funded "back-up centers," including a national information clearinghouse, a national training program, and specialized programs to work in areas of substantive law (such as welfare and housing) or particular client populations (such as Native Americans and the elderly). This unique national infrastructure of centers engaged in national litigation and legislative and administrative representation of eligible clients, while providing support, assistance, and training to local programs.

As its designers had intended, the new program soon resulted in major changes in the legal circumstances of low-income Americans. Major Supreme Court and appellate court decisions in cases brought by legal services attorneys recognized the constitutional rights of the poor and interpreted statutes to protect their interests in the areas of government benefits, consumer law, landlord-tenant law and access to health care, among others. Advocacy before administrative agencies assured effective implementation of state and federal laws and stimulated regulations and policies that helped shape programs that affected the poor. Advocacy before legislative bodies helped the poor redress grievances that were otherwise not addressed by the courts. Equally important, representation before lower courts and administrative bodies helped individual poor clients enforce their legal rights and take advantage of opportunities to improve their employment, income support, education, housing, and working and living conditions.

Inevitably, these successes led to efforts in Congress and within OEO to limit the activities of legal services programs. Even more threatening, however, was the continuous political interference in the operation of many local programs. The most serious fight occurred when Governor Ronald Reagan vetoed the grant to California Rural Legal Assistance, a program known for its advocacy on behalf of farm workers and its successful challenges to some of the governor's welfare and Medicaid policies. Although OEO retained the power to override the veto, it responded instead by appointing a blue-ribbon commission to investigate the charges of misconduct, most of which had been instigated by the California Farm Bureau. The commission's report concluded that the charges were unfounded, and Governor Reagan was persuaded to withdraw his veto in return for a $2.5 million grant to set up a demonstration judicare program.

The CRLA controversy, along with similar fights in other states, made it increasingly clear that political interference would continue so long as the program remained within the Executive Branch. Within the organized bar, the Nixon Administration, Congress, and the legal services community, the idea of an independent Legal Services Corporation began to take shape. In 1971, both a study committee of the ABA and the President's Advisory Council on Executive Reorganization (known as the Ash Council), recommended creation of a separate corporation to receive funds from Congress and distribute them to local legal services programs. A bipartisan group in Congress introduced authorizing legislation in February of 1971. In May of that year, President Nixon introduced his own version of the legislation, calling the Corporation a new direction to make legal services "immune to political pressures . . . and a permanent part of our system of justice."

The gestation of the Legal Services Corporation Act lasted until 1974. Controversy arose first over whether the President would have unrestricted power to appoint Board members. Meanwhile, conflict at OEO escalated. In 1973, Nixon proposed to dismantle the agency, and appointed Howard Phillips, a critic of the legal services program, to do the job. However, despite heavy lobbying from Phillips in favor of a revenue-sharing approach that would have delegated control of legal services to the states, Nixon again proposed legislation authorizing the Corporation in 1973. After protracted debate in both Houses and in conference, the Legal Services Corporation Act was finally enacted and signed into law on July 25, 1974.

The Act represented a compromise between two different approaches. One, adopted in the bipartisan bill that had been the basis of Congressional action in 1971 and 1972, favored a broad, generally unrestricted mandate for legal services. The other, embodied in the legislation introduced by the Nixon Administration, contained a variety of restrictions on case types and the activities that legal services attorneys could engage in on behalf of their clients. After lengthy debate, Congress agreed to a list of restrictions, with a number of them qualified by exceptions. One result of this approach was differing understandings among Members of Congress and others as to what was permitted and what was prohibited by the Act. These disagreements led to a number of controversies in the following years.

The debate in Congress also made clear a fundamental difference of opinion about what the mission of legal services should be- whether it should continue the very broad, anti-poverty approach that had characterized OEO legal services, with its focus on addressing the problems of the client community as a whole, using tools such as legislative and administrative advocacy and class actions, or whether it should revert to the older "legal aid" model, limited to resolving individual problems on a case-by-case basis.

As enacted, the Act endorsed the broader approach, allowing legal services programs to continue most of their previous work, with a few new restrictions - prohibitions on representation involving non-therapeutic abortions, school desegregation, the military draft, and some juvenile cases. The Act permitted legislative and administrative advocacy, although it contained a provision bringing in-house at LSC functions such as training, production of manuals, and the national information clearinghouse. It also included a requirement that the Corporation study alternatives to the staff attorney model, such as judicare. Ultimately, the study, concluded in 1980, proved inconclusive, although it determined that no model performed more effectively and efficiently than the staff attorney model. The underlying debate about the Corporation?s mission was not resolved, however, and has continued for the past twenty-five years.

Beyond this disagreement among the supporters of legal assistance to the poor was a steady ideological opposition to legal services on the part of the emerging "new right." Fueled by a well-funded effort to discredit the program through publicity about "horror stories," opposition to legal services was to become an article of faith in some conservative circles in the coming decades. The constant stream of attack, which escalated in the 1980s and 1990s and regularly flared up over particular cases, sought to create a perception of legal services as "controversial." Nevertheless, the program continued to earn mainstream support from Congress, the organized bar, and the public.