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Legal Services Corporation v. Velazquez is a constitutional two-fer. The case, argued during the first week of the U.S. Supreme Court's 2000-01 term, requires examination of Congress' continuing assaults on both equal justice for the poor and the free-speech rights of government grantees.
A case out of the Second Circuit, Velazquez involves a challenge by a welfare recipient to the provision in the 1996 Omnibus Consolidated Recissions and Appropriations Act which prohibits Legal Services lawyers, even when using private funds, from challenging the constitutionality of restrictive welfare laws. Even though the statute specifically authorizes poverty lawyers to represent poor clients in the pursuit of benefits, it disallows any challenge to existing laws. In essence, the provision requires counsel to try such cases with one arm tied behind their backs and prevents them from zealously representing their clients' interests, as required by the canons of ethics.
The provision under review was too draconian even for a Second Circuit panel which upheld all of the other restrictions on Legal Services lawyers. The majority opinion by Judge Pierre Laval found that the provision was unconstitutional viewpoint discrimination in that it permitted the lawyers to argue in favor of upholding such laws, but not against them.
Unfortunately, the Court found that the general prohibition against advocacy of welfare reform was viewpoint neutral in that it prohibited arguments both for and against changes in welfare laws! Since it is clear to everyone that Legal Services lawyers have no commitment to or interest in supporting laws that undermine their clients' rights to collect benefits, such a provision is about as even-handed as the one that forbids both rich and poor to sleep under bridges. But the Supreme Court denied the plaintiffs' cross-petition for certiorari.
Of course, there is nothing unique about Congressional restrictions on the activities of Legal Services lawyers. They have been piling up almost ever since the legal-services-for-the-poor program was established as part of President Lyndon Johnson's war on poverty. The 1996 enactment also precludes the poverty lawyers from representing prisoners or aliens, participating in litigation involving abortion or reapportionment, and forbids them from filing class actions or seeking attorney's fees. But never before had Congress attempted to micro-manage allowable litigation by dictating the claims and issues that could be raised.
The Clinton Administration challenges the Second Circuit ruling on the basis of case law developed in recent years that government is not required to fund viewpoints with which it differs. The leading case is Rust v. Sullivan, upholding a provision that family planning agencies receiving federal funds cannot counsel patients with regard to abortion.
Acknowledging that the language of Rust seemed to support the dissenting opinion of Judge Jacobs, the majority of the Second Circuit panel expressed doubt that the Supreme Court would extend its Rust dicta to a case in which the law attempted to suppress criticism of government policy.
While the regulation in Rust merely denied funding to grantees who expressed a particular point of view, the Legal Services amendment forbids any challenges to government welfare policy. Relying on the Supreme Court's opinion in the Texas flag-burning case, Judge Laval wrote that "[t]he strongest protection of the First Amendment's free-speech guarantee goes to the right to criticize government or advocate change in government policy." Therefore, he predicted that "notwithstanding Rust's semantic endorsement of Congress's right to fund one activity to the exclusion of another, the Supreme Court would not approve a grant to study governmental policy, conditioned on the grantee's not criticizing the policy."
Thus, the Circuit seems to have thrown down a well-reasoned gauntlet to Supreme Court doctrine concerning the scope of restrictions on government-funded speech, reminding the high court that "criticism of official policy is the kind of speech that an oppressive government would be most keen to suppress."
Civil libertarians still believe that Rust was wrongly decided, especially since it prohibited family-planning counselors from using not just government funds to discuss abortion, but private funds as well. But in the face of Rust it is all the more important that government officials not be allowed to use the authority derived from Rust to suppress criticism of government policy itself. And this is especially important in a context in which the prohibition would blatantly interfere with the ability of a lawyer to provide proper representation to a client who has no other access to justice.
Furthermore, the Supreme Court has consistently recognized a critical distinction between cases in which the government itself is deemed the speaker and cases in which the government provides a subsidy to enable private speakers to deliver their own messages. In the latter instance -- such as the University of Virginia student forum case (Rosenberger) -- the government may not skew the terms of the debate by favoring some views over others. Thus, a central question in this case is whether Legal Services lawyers who are suing the government can plausibly be described as speaking on behalf of the government or whether, like all other lawyers, they are ethically bound to speak on behalf of their clients. To most members of the bar, the answer would seems clear -- and indeed, Justices of the Supreme Court are all lawyers. Indeed, Congress thought it clear as well when it established the Legal Services Corporation and expressly stipulated that "attorneys providing legal assistance must have full freedom to protect the best interests of their clients in keeping with the Code of Professional responsibility, the Canons of Ethics and the high standards of the legal profession." 42 USC Sec. 2996.
That principle seems to have been endorsed by the 1998 decision in National Endowment for the Arts v. Finley, where the Court strongly suggested that the government is barred from engaging in invidious viewpoint discrimination when awarding artistic grants because the private artistic expression supported by the NEA in not generally understood as the government's speech.
Thus, Velazquez offers a new opportunity to test the Supreme Court majority's jurisprudence on two subjects of importance to the functioning of a democratic society -- the right to criticize government and the right to equal access to justice.
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Frank Askin is professor of law and Robert Knowlton Scholar at Rutgers School of Law, Newark, a General Counsel of the American Civil Liberties Union, and author of "Defending Rights: A Life in Law and Politics" (Prometheus Books).
