A Little Home Rule Could Go a Long Way

District of Columbia officials have good reason to be wary of Congress. Over the years, it has violated the spirit, if not the letter, of our putative home rule. We’ve been forced to do things we didn’t choose to do and barred from doing things we chose to do with our own local revenues.

For example, we had to have a referendum on the death penalty because a senior Republican Senator decided we should reinstate it. For 10 years, we were barred from formally recognizing domestic partnerships and from providing health insurance for the partners of D.C. employees.

Only this year did we gain, at least for the time being, the ability to implement laws passed in 2002 that fund elective abortions for low-income women and needle exchange programs to help control our egregiously high rate of HIV/AIDS. Our just-gained freedom to permit medical uses of marijuana gives life to a referendum passed in 1998.

But none of these intrusions seems to have scarred the memories of our elected and appointed officials so much as the 1995 imposition of a control board to manage the District’s financial affairs.

Last year, during budget deliberations, several Councilmembers repeatedly raised the specter of another control board–this in defense of balancing the budget mainly by tightening our belts and without tapping the cash reserves in the rainy day fund.

Use of those reserves, said Council Chairman Vincent Gray, would not be “prudent …, especially given the stringent pay back requirements.”

The reference here is to an amendment to the Home Rule Act that was attached to our budget 10 years ago. This amendment requires a rainy day fund of a specific size, mandates repayment of any funds withdrawn within two years and prohibits their use for “shortfalls in projected reductions in proposed District budgets.” Yet another instance of Congressional over-oversight.

We also heard worries last year about negative reactions from the bond rating agencies. They reportedly wanted to see spending cuts in core areas like education and human services. And the Council took heed, with cuts in these areas totaling more than $90 million.

But that was then. And this is now. We’ve got a $500 million budget gap to close. And no one, I think, could credibly assert that it reflects financial mismanagement. What member of Congress could flog us when so many states are grappling with enormous budget gaps?

So I think the DC Fiscal Policy Institute is right to recommend that our leaders seek relief from the unique restrictions on the use of our rainy day fund. As it says, no state has to replenish its fund so quickly. Indeed, most can wait until economic conditions improve enough to give them the needed revenues.

All but one of the states that have used their rainy day funds have the same bond ratings as before. The exception here is Illinois, which, as you may recall, had some big-time corruption issues at the top. Yet Councilmember Jack Evans, Chairman of the Finance Committee, still warns of risks to the District’s ratings.

Last year, Mayor Fenty and Council Chairman Gray testified in support of two related federal bills (H.R. 960 and H.R. 1045) that would give the District autonomy over its local budget and other legislation. These bills aren’t going anywhere fast.

So how’s about going back to Congress with a modest proposal to let us use our rainy day fund when it’s raining and replenish it when the sun shines again. That in itself wouldn’t close our budget gap. But it could make a big difference.

New Hope For Narrowing the Justice Gap

As I wrote awhile ago, civil legal services for low-income people are hobbled by two major impediments–inadequate funding and restrictions on what local legal services providers can do if they receive funds from the Legal Services Corporation.

The Corporation’s funding, in real dollars, has been declining since 1980, when its appropriation was sufficient to provide a “minimum level of access” to legal aid, i.e., two lawyers for every 10,000 low-income people in every county.

It was clear from the get-go that the Fiscal Year 2010 budget process wouldn’t do much about the funding problem. President Obama’s budget proposed $435 million for LCS–$45 million more than the Fiscal Year 2009 appropriation, but about $50 million less than LCS had requested.

The House of Representatives approved $440 million and the Senate $400 million. The negotiators ultimately split the difference. So LCS will have $420 million for the current fiscal year–about $345 million less than the Center for American Progress Action Fund estimated would be needed to restore minimum access.

But it did seem for awhile that this year’s budget process might significantly modify the restrictions. The President’s proposed budget included amendments to the Corporation’s authorizing legislation that would have allowed LCS grantees to seek attorneys’ fees in cases where they prevailed and to use non-LCS funds for activities that had been banned.

The House adopted the attorneys’ fees recommendation but left the remaining restrictions in place. The Senate lifted most of the restrictions on uses on non-LCS funds. On this matter, the House prevailed in the negotiations that led to the final bill.

But all is not lost. Congressman Bobby Scott (D-VA) and Senator Tom Harkin (D-IA) have introduced identical bills–the Civil Access to Justice Act (H.R. 3764/S. 718)–that would eliminate all restrictions on uses of non-LCS funds, except (wouldn’t you know it) participation in litigation related to abortion.

Permissible uses of LCS funds would also be broadened to permit collection of attorneys’ fees and participation in class action suits “grounded in existing law.” The prohibition on representing prisoners would be modified to permit litigation on issues related to a prisoner’s “ability to reenter society successfully.” And some non-citizens now denied representation could be served.

H.R. 3764 and S. 718 are technically bills to reauthorize LCS–something that should have been done 30 years ago. In addition to addressing the restrictions, they would also raise the permissible ceiling on appropriations to $750 million. This, the sponsors say, would be the equivalent, in inflation-adjusted dollars, to the last appropriation that met the minimum access standard.

Of course, authorizing this much doesn’t mean that LCS will get it. But the figure establishes a reasonable target and a benchmark for the next five years.

The bills aren’t perfect. But they would bring civil legal services for low-income people into much closer alignment to what other Americans can receive. And they would enable LCS-funded nonprofits to engage in actions that would effectively and efficiently address the needs of large groups of clients.

So I think they deserve our support. And they’re going to need it because it’s obvious that our elected leaders can’t deal with more than a couple of controversial issues at a time. And if past is prologue, “equal access to the system of justice in our Nation” won’t be one of them.

Lawyers For Low-Income People In Short Supply

Anyone who hasn’t led a charmed life knows how important it can be to have an attorney. They also know that private legal help doesn’t come cheap.

In 1974, Congress established the Legal Services Corporation to help provide free legal assistance in civil matters to those who otherwise couldn’t afford it. The Corporation receives federal funds through annual appropriations.

Most of these funds go to nonprofit local legal aid programs. Many of these programs also receive funds from state and local governments, private donors and/or their state’s Interest on Lawyers’ Trust Accounts program. This program gives them the interest on clients’ funds deposited in a separate account when the costs of investing them otherwise would exceed the return.

But there’s a large and growing gap between low-income people’s needs for legal services and the capacity of the programs to provide them. According to a recent LCS report:

• For every client served by an LCS-funded program, another is turned away because of insufficient resources.
• Fewer than one in five legal problems low-income people experience is addressed with help from an attorney.
• There’s only one legal aid attorney for every 6,415 people below 125% of the federal poverty line, as compared to one attorney for every 469 people above it.
• State courts, especially those that deal with issues affecting low-income people, are handling more cases involving a litigant without an attorney. A high percentage of these litigants qualify for legal aid.

The problem here begins with the federal budget. Like many well-intentioned programs, LCS has never been adequately funded. But up until 1981, it received enough to meet a minimum access standard, i.e., two lawyers for every 10,000 low-income people, in every county in the U.S.

Then came deep cuts, prompted by the Reagan administration’s hostility to the program. Though the budget has since been increased, it’s never recovered to minimum access level. According to a Center for American Progress brief, it would need about $765 million to do so–about double the current appropriation.

A second budget-related blow came when the Republicans gained control of Congress in 1994. Programs receiving LCS funds were prohibited from engaging in class actions or advocating for legal reforms, even with funds from other sources. This left them no choice but to litigate similar cases one at a time, rather than seek systemic remedies. They were also prohibited from seeking attorneys’ fees that could otherwise be claimed.

The recession has exacerbated the funding problem in various ways.

• IOLTA revenues have plummeted because the Federal Reserve Board has slashed interest rates to unfreeze credit markets and stimulate spending.
• Some state and local governments have cut their support for legal aid programs to help close their budget gaps.
• Rising unemployment and cutbacks in hours have made more people eligible for free legal services.
• More eligible people need help with problems like foreclosures, debt, access to public benefits, domestic violence and child support.

For Fiscal Year 2010, LCS requested $485.1 million–about $295 million less than would be needed to serve all those currently seeking help from the local programs it supports.

The House appropriations bill would provide $440 million. It would lift the restriction on attorneys’ fees, but leave the rest of the restrictions intact.

The Senate version would provide $400 million–just $10 million more than in Fiscal Year 2009. But it would lift most restrictions on grantees’ uses of non-LCS funds. Prisoners and (surprise!) women needing help with abortion issues would still be out of luck.

The Washington Post recommends that House-Senate negotiators adopt the best of both–the House funding figure and the flexibility afforded by the Senate. This won’t close the justice gap. But it’s probably the best we can hope for until the vital, unmet legal needs of poor people become a higher priority.