Court Ruling Upholding Political Advocacy Should Be Seen as a Warning to Charities

By LESLIE LENKOWSKY

Last month’s U.S. Supreme Court decision upholding the right of federal grantees to challenge welfare laws has been widely hailed as a victory for nonprofit groups that seek to influence public policy. But it may turn out to be a Pyrrhic victory that only underscores the difficulties created when nonprofit groups mix political activity and providing services to their clients — a subject of much importance at a time when the role of faith-based groups and government is a prominent topic of national discussion.

The court’s decision, in Legal Services Corporation v. Velazquez, struck down a provision of the 1996 welfare law. When Congress overhauled the welfare law, it realized there would be much controversy, and it did not want any legal opposition coming from government-financed lawyers for the poor. To prevent the possibility of such challenges, Congress barred the hundreds of local organizations supported by the federally financed Legal Services Corporation from contesting the law in court. The local groups were allowed to represent their low-income clients in cases involving benefits or other administrative rulings by welfare agencies. But the organizations had to stop short of raising questions about the legality of the welfare system itself — and were explicitly prohibited from using funds from foundations, individuals, or other private sources to finance such challenges.

That kind of restriction was nothing new for the Legal Services Corporation. Since its creation in the 1970s, it has been barred from participating in a variety of political activities, as well as in litigation on controversial issues, such as abortion and school desegregation.

Moreover, a 1991 Supreme Court decision had given Congress the legal authority to limit advocacy by federal grantees, sending a shiver down the backs of those who believed the First Amendment offered broad protection to those who received government money. The 1991 case, Rust v. Sullivan, prevented doctors in family-planning clinics from counseling patients about abortion, and it seemed to set a precedent for a ban on government-financed lawyers arguing against welfare policy.

However, in the 5-4 decision in last month’s case, the Supreme Court’s majority said an important difference existed between the doctors in the family-planning clinics and the lawyers in the legal-services agencies. The former carried out government policies on birth control. As the Rust decision held, Congress was within its constitutional rights to specify what those policies should be.

On the other hand, the Legal Services lawyers represent low-income people whom Congress had deemed eligible for government-financed legal help. And while Congress could decide that such help was not necessary (or desirable), the court said that once legislators had allowed the lawyers to handle cases on a particular issue, such as welfare, it could not restrict what the lawyers did in connection with the cases. Justice Anthony Kennedy, writing for the Supreme Court majority, said it would be unconstitutional to deprive a Legal Services client of his or her rights to a full and complete legal defense, which might well happen if a lawyer couldn’t challenge the legitimacy of the welfare law.

Writing on behalf of the four other members of the court, Justice Antonin Scalia disagreed.

In Justice Scalia’s view, there was no distinction between the doctors and the lawyers. While the former were, in a sense, government agents, they also were physicians, bound by the ethics of their profession to provide the best medical advice they could to their patients. Yet, if Congress had the power to limit what they could do, it also could curtail how far federally financed lawyers could go to represent their clients, Justice Scalia contended.

To be sure, as the court’s majority noted, more private alternatives to government-supported family-planning clinics probably exist than do for legal services. Hence, restricting what the lawyers could do would potentially be more harmful than the limits upheld in the Rust case. Even so, argued Justice Scalia, the low-income clients would still be better off than if they had no representation whatsoever, and might not be hurt at all if their cases could be resolved without challenging the welfare system itself.

By rejecting this reasoning, the Supreme Court decision seems to give a lift to government-financed advocacy, especially on behalf of the poor. But it may actually have the opposite effect.

When it prohibited litigation to change policy, Congress hoped to draw a line between what it considered appropriate — providing low-income people legal assistance in dealing with a complex new welfare program — and what it considered inappropriate, such as bringing lawsuits to overturn the will of elected representatives. In essence, the Supreme Court majority decided that making such a distinction is impossible (and unconstitutional to boot).

With the welfare system due to be reviewed again by Congress later this year, lawmakers may decide to take up the invitation offered by the Supreme Court and prohibit all Legal Services Corporation involvement in welfare cases since they were not able to limit political advocacy.

Perhaps more important, the Supreme Court ruling keeps in place the precedent created by the Rust case. That means people who work for nonprofit groups that receive government funds are still government agents in the eyes of the law, and they give up their First Amendment rights merely by agreeing to accept federal grants or contracts. And while it is not beyond the ability of clever jurists to invent new exceptions to Rust, the Legal Services Corporation decision amounts to a reaffirmation of it.

With the Bush administration poised to expand government support to faith-based charities, the Supreme Court’s action is likely to heighten the anxieties many religious groups already feel about taking government money.

Such groups now face limits on proselytizing if they accept federal funds, and the Supreme Court ruling makes clear that churches and other religious bodies also will face restrictions on their political advocacy. In the past, religious groups have managed to avoid compromising their political involvement by distinguishing between providing social services and performing other congregational duties, including what some traditions call “bearing witness.” But that will be harder to do once government money starts going directly to religious charities, and not just their secular affiliates.

Nonetheless, with the Supreme Court having spoken again, all nonprofit groups (except, for now, legal-services programs) will have to do what the faith-based ones have been doing if they want to speak freely on political issues: clearly separate their government-financed programs from their advocacy activities, or create separate organizations to house advocacy work.

Leslie Lenkowsky is professor of philanthropic studies and public policy at the Center on Philanthropy at Indiana University and a regular contributor to these pages. His e-mail address is llenkows@iupui.edu.