If the Right was really serious about liberty

If the Right was really serious about liberty

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What cuts to Legal Aid say about the conservative policy agenda

The inhabitants of conservative “think tanks” and advocacy groups love to lecture all who will listen on the wonders of “liberty.” You know how this goes: “If only we could get big government out of the way and unleash the private sector, Americans would have the liberty to rise as far as their talents and hard work would take them.”

On a superficial level, this all sounds great. Who could be against giving people the opportunity to compete and succeed based on their merits?

The problems begin, of course, when one starts to consider the playing field on which the competition will take place. While it’s obviously impossible to provide everyone with a truly equal opportunity (no amount of investment in public education will ever provide a child raised in poverty with the same opportunity enjoyed by the children of Bill Gates), it is clear that there must be some degree of equality for the concept of “liberty” to have any real meaning.

At the risk of using the dreaded sports analogy: not everyone in the game can run like an Olympic sprinter, but if the referees don’t treat every participant equally, the competition loses all meaning.

A distinctly un-level playing field

The real life corollary to the fairly refereed sporting contest, of course, is the importance of providing all citizens with equal treatment under the law. What good is “liberty” for an impoverished person struggling to lift him or herself up to a decent life if a predatory lender or cheating employer can literally steal all of that person’s property with no concern that the justice system will do anything about it?

If conservative proponents of “economic liberty” were really serious about what they preach, the fairly refereed playing field would be an important component of their policy agenda. After all, even if one were to subscribe to the theory that being raised in poverty is just bad luck and akin to a football player being born without Olympic speed, it would seem obvious that genuine access to the courts to enforce property rights and fair rules of competition would be a critical component of a “free” society. For liberty to thrive, clearly, the referees (the justice system and the various players that comprise it) must be strong, well-funded and well-positioned to enforce uniform rules in a fair and equitable manner.

Unfortunately and as you were probably already aware, most conservative policymakers are happy hypocrites when it comes to funding the justice system. Whether it’s public defenders for those accused of crime, civil legal aid lawyers to help poor consumers and domestic violence victims or simply the clerks, judges and other officials charged with running the system on a daily basis, our justice system is chronically and egregiously under-resourced.

As N.C. Policy watch reporter Sharon McCloskey reported about the budget adopted by the North Carolina General Assembly back in September:

“Expectations are so low when it comes to funding the state’s court system that a budget without obvious cuts is now lauded as a victory….[I]t [the courts budget] comes nowhere near full-funding of a court system that’s seen its operating budget slashed by more than 40 percent since 2008, more than 600 needed employees dropped from its payroll and successful programs like drug treatment courts eliminated.”

Scandalous cuts to Legal Aid

Nowhere is the failure to fund the referees of a free society better illustrated of late than in the area of civil legal aid – that is, the tightly stretched network of publicly and charitably-funded lawyers who seek to help some of the nation’s tens of millions of poor people with basic legal needs.

Right now, for instance, in North Carolina roughly 20% of the population – around 2.2 million people – lives close enough to the poverty line to be eligible for legal aid. When one considers all of the potential legal problems that such a group is likely to face (evictions, domestic disputes, predatory loans, employers who fail to pay worker wages, just to name a few) the amount of work facing legal aid lawyers is quickly rendered truly overwhelming.

Amazingly, however, conservative lawmakers in Raleigh and Washington are responding to this vast, growing and already unmet need by cutting funding for Legal Aid. This is from a recent article by reporter David Donovan in NC Lawyers Weekly:

“State budget cuts are forcing Legal Aid of North Carolina to lay off 15 percent of its workforce this month, cuts that Legal Aid’s director say will significantly reduce the number of low income clients that the organization is able to serve, at a time when federal budget negotiations raise the specter of potentially even deeper cleaving in the near future.

George Hausen, executive director of Legal Aid, said the organization has had to eliminate 48 positions as a result of cuts to funding inflicted by the state’s legislature in 2014. The laid off employees, 18 attorneys and 30 support staff, will finish their work with Legal Aid on Nov. 15.

Prior to the cuts, Legal Aid had about 320 employees, so the cuts represent 15 percent of its workforce. Many of the support staff workers being let go are paralegals. Hausen said that paralegals with Legal Aid take on a more active role than paralegals at traditional law firms and that much of their work will now have to be done by staff attorneys, which will cut into the number of clients attorneys can see.

In other words, an organization that was already so absurdly underfunded that it was attempting to provide an extremely complex service to a fifth of the state’s population with a total of 320 employees (only a fraction of whom were actually lawyers) is being subjected to massive cuts. What’s more, things could get worse. As Donovan also reported:

“The situation could soon get even more acute as a result of federal budget politics. In June, the U.S. House of Representatives approved legislation that would cut funding for Legal Services Corp., a nonprofit established by Congress to ensure equal access to justice, by $75 million, about 20 percent of its budget. LSC provides around half of Legal Aid’s funding, and cuts to LSC on the scale envisioned by the House could slash Legal Aid’s budget by about another $2 million.

Hausen said a cut of that magnitude would force Legal Aid to cut around 50 entry level attorney positions, or even more positions if cuts fell on support staff.”

What’s really going on here?

So, what gives? Why would conservative politicians be inflicting such draconian cuts at a time of rising poverty? How can they possibly justify tilting the already wildly uneven playing field so much further?

The answer, quite clearly and sadly, is that all the talk about “liberty” and “fair competition” is mostly just that: talk. Think tankers and activists may voice a good game about the “genius of the market” and some may even believe it. But when it comes down to hardball politics, the conservative lawmakers running the show in Raleigh and Washington are much more likely to consider the demands of well-heeled corporate lobbyists and their own personal business interests than the pontifications of libertarian theorists.

As UNC law professor Gene Nichol explained in an excellent essay back in October, the man driving the legal aid cuts in North Carolina is a senator who also happens to be a big player in agribusiness – a sector that has long crusaded against the existence of legal aid lawyers who assist farmworkers.

Similar stories are easy to find in Congress, where (surprise, surprise!) the lawmakers leading the charge to cut Legal Aid are invariably the same ones who champion the causes of predatory high cost lenders, used car dealers, slumlords, food processors and big agribusiness.

What’s going on here, in other words, is that people in power are grabbing what they can for themselves and their friends. They may convince themselves that what they are doing is about promoting “liberty,” “competition” and “unleashing the private sector,” but ultimately, it’s really just about rigging the game in favor of the rich and powerful.

In private moments, you can rest assured that many elected officials and lobbyists admit this truth. Would that their defenders and apologists were honest enough to do likewise.

Click here to learn more about Legal Aid of North Carolina and efforts to improve its funding via an effort known as the Equal Access to Justice Campaign.