Saturday, March 26, 2005

Post by Deborah Cantrell

As we gather to discuss visions of a progressive agenda for the Constitution, I wonder whether we should more overtly discuss issues that will arise with implementation. We have had some colloquy about whether it might be best to advocate through the courts, the federal or state legislatures, or in combination, but we have not thought about whether the current structure of the delivery of legal services will affect our ability to advocate. If one looks at the way public interest law is practiced in the United States, most advocates work outside private law firms, at federally-funded legal services programs, at independently-funded impact and policy nonprofits, and at independently-funded community-based organizations. Each of those three settings comes with restrictions and pressures that mold the way strategic agendas are set and the way in which advocacy is practiced. Those structural pressures have the potential for working in opposition to progressive agendas we might craft at our conference in April.

For example, as we all know, advocates at federally-funded legal services programs (LSC programs) are restricted in the kinds of work they may do and the kinds of clients they can represent. LSC programs cannot engage in any redistricting challenges, may not litigate abortion matters, may not bring class actions, nor recover attorneys’ fees, and may not represent prisoners, those evicted from public housing because of drug convictions, nor most non-citizens. LSC programs may not lobby. LSC programs cannot avoid the restrictions by garnering other funding – once a program receives as little as one dollar in federal funding, the federal restrictions apply (although this provision is currently being litigated in New York).

The reason that the above restrictions matter for our own agenda-planning is that LSC programs are still the primary way in which the poor and underserved receive civil legal services in this country. Every state has at least one LSC program, and in many smaller or more rural states, the LSC program may be the only source for most civil legal services. Almost all states now have a “spin off” advocacy organization – generally some subset of attorneys from the state’s LSC program who were severed from that program so that they would be free of the federal restrictions, but many spin-offs are tightly-staffed (one to three attorneys) and miserably funded. Thus, to the extent that our progressive agenda envisions advocacy that would be prohibited by federal restrictions, who will do the work?

Some of the work, of course, will be handled by the national and regional impact and policy nonprofits – the Legal Defense Funds, the National Centers, and the like. But they, too, face challenges. To the extent those programs underwrite their work with attorneys’ fee awards, those awards have been undermined by the Supreme Court’s decision in Buckhannon eliminating the catalyst theory of fee awards (the plaintiff was a “prevailing party” even when the plaintiff’s lawsuit brought about the defendant’s voluntary change in practice). Lower courts have liberally applied Buckhannon. Further, state courts have begun applying Buckhannon to state fee-shifting statutes. Thus, litigation as a means of doing good as well as generating operating income is a sketchier proposition now. The impact nonprofits have felt the resulting pressure on their budgets. To the extent that our progressive agenda will need to be implemented by litigation, the impact nonprofit’s decision to take on the case will have to consider not only the merits of the litigation, but the budget consequences as well.

Impact nonprofits, and every other kind of public interest advocacy program, have also turned to foundations for funding. With some notable exceptions, foundations have not been willing to fund litigation or legislative advocacy. Foundations have preferred to fund targeted projects, often those where several types of public interest groups collaborate. For example, a foundation will fund an LSC program and a community center to create a “know your rights” program for center members regarding Medicaid benefits and coverage. Foundations set their substantive priorities and public interest law programs must pitch projects within those priorities. Thus, foundation funding can sometimes match the priorities that the public interest program has set, but may not. While public interest programs know they shouldn’t “chase the money,” that is hard advice to heed when faced with the possibility of laying off staff. To the extent a nonprofit knows it can get foundation funding and protect its staff, why would it opt to take on part of our unfunded progressive agenda?

Private firms have stepped up to handle and underwrite public interest advocacy and have garnered some high-profile wins. Private firms have the advantage of working free of any restrictions and the possibility of deep pockets if partners are generous. But private firms will never choose, or be able, to handle the bulk of public interest law advocacy. Similarly, law school clinics have admirably soldiered on, even in the face of political criticism and pressure (think of Tulane’s environmental law clinic). But, they too, could never pick up a substantial amount of any large-scale advocacy agenda.

So, at the end, we must acknowledge that our progressive agenda for the Constitution in 2020 will be implemented by LSC and non-LSC programs, impact nonprofits, and community-based organizations. When we think about general framing concepts or tropes for our agenda, we should be mindful of restrictions and the like. For example, if we think about “citizenship” as a framing concept, what does that mean for LSC programs who cannot work with most non-citizens. The same when we think about strategies for redistricting or work that involves prisoners. Or, when we push for a particular interpretation of the Constitution that will have to be created through litigation, what does that mean for a tightly-funded impact nonprofit that might already be carrying a litigation docket that will not bear much in attorneys’ fees. We certainly will not be able to resolve all the tensions I have noted, but at least we should require ourselves to consider these structural barriers.

-- Deborah Cantrell