Copyright 2000 P.G. Publishing Co.
Pittsburgh
Post-Gazette
October 10, 2000, Tuesday, SOONER EDITION
SECTION: EDITORIAL, Pg. A-10
LENGTH: 384 words
HEADLINE:
UNGAG THE ADVOCATES;
CONGRESS TRIES TO LIMIT WHAT POVERTY LAWYERS SAY
BODY:
"He who pays the piper calls the
tune." That phrase isn't in the U.S. Constitution, but the U.S. Supreme Court
has reached a similar conclusion in some cases dealing with the expenditure of
federal funds.
In 1991, the court ruled 5-4 that Congress could restrict
aid to family-planning clinics to those that did not "provide counseling
concerning the use of abortion as a means of family-planning or provide referral
for abortion as a method of family planning." The Clinton administration has
since revoked an onerous interpretation of that statute. But the court's
constitutional holding stands. According to Chief Justice William Rehnquist,
"The government can, without violating the Constitution, selectively fund a
program to encourage certain activities it believes to be in the public
interest, without at the same time funding an alternative program, which seeks
to deal with the problem in another way."
Now the court is being asked
to apply that principle to government-funded legal assistance to the poor. In
oral arguments last week, the Legal Services Corp. and the
Clinton administration defended an appropriations measure that prohibits
legal-aid attorneys from advancing legal arguments designed to "amend or
otherwise challenge existing law."
In the American system, a lawyer must
be free to raise all relevant arguments -- and, for better or worse, impugning
the constitutionality of an enactment is a frequent approach.
The
Clinton administration argues that there is no First Amendment problem in tying
the hands of poverty lawyers this way, because "the lawyer's speech is not
restricted or compelled" and, besides, the client can be steered to a
nongovernment-paid lawyer who would be free to make a constitutional argument.
Of course, by definition, someone who approaches a legal-services attorney has
difficulty paying for private counsel.
A federal appeals court
determined that this law did violate the First Amendment by engaging in
"viewpoint discrimination." That is one way in which the law subverts the
Constitution. Another is the unfairness it creates for welfare recipients and
other plaintiffs, a violation, it seems to us, of the Constitution's guarantee
of "due process of law." Either way, the Supreme Court should ungag legal-aid
attorneys.
LOAD-DATE: October 10, 2000
