Oregon State Bar Bulletin — NOVEMBER 2002
| The Oregon Experiment |
At
first glance, you might think U.S. Senators Gordon Smith and Ron
Wyden of Oregon work together about as well as a plaid shirt and
a striped tie.
Smith wears a gorgeous wedding band with huge diamond studs, keeps his thick head of hair perfectly landscaped, and dons exquisitely tailored suits. He has the bearing of a corporate board member, speaking slowly and deliberately. During his first campaign for Senate, newspapers referred to him as a 'tycoon.' He owns and rides horses and posts photos of his picture-perfect family on his Senate website.
Wyden wears comfortable leather loafers and sports a somewhat wispy coiffure. He’s tall and lanky and attended the University of California at Santa Barbara 30 years ago on a basketball scholarship. Wyden’s words convey the earnestness of a close family friend, and when conversation turns to an issue dear to him, he speaks plaintively, like a Sierra Club doorknocker on the cusp of a big donation. On his website, he posts a simple black-and-white head shot next to his bio.
Like their outward appearances, the Oregon pair’s politics and backgrounds are night-and-day different. A Jewish Democrat with natural constituencies in the left-leaning cities of Eugene and Portland, Wyden has built his political career around protecting the environment, safeguarding government programs for seniors, and most recently, by staking out expertise in technology. Before he was a senator, he represented Oregon for 15 years in the House of Representatives. Before that, he pressed Medicare claims with the Gray Panthers, an Oregon senior citizens’ advocacy group. Wyden was elected to the Senate in 1996, narrowly besting a favored opponent in a special election to replace long-time Senator Bob Packwood. His foe in that ’96 race? An up-and-comer named Gordon Smith.
Smith is a conservative Mormon Republican from a prominent political and business family. He hails from small-town Pendleton, Ore., located far from Wyden’s base in the Willamette Valley. An attorney by training, Smith leaped into the state Senate in 1992 and quickly became minority leader and then Senate president. Prior to politics, he ran his family’s food business in Pendleton and today remains fond of self-deprecating jokes about being the 'frozen pea king.' Smith’s late cousin, the legendary Senator Morris 'Mo' Udall of Arizona, inspired him to pursue public office. Since his election in November 1996, Smith has staked out expertise in foreign policy and education and advocated forcefully for agricultural interests in eastern Oregon.
Yet despite their wildly disparate dossiers, the two men happen to comprise the only bipartisan delegation in the U.S. Senate that actively and consistently sticks its neck out for the rights of low-income Americans being denied access to civil justice. The pair has written forceful letters to Senate appropriations leaders for the past two years, emphasizing the urgent need for more resources for the Legal Services Corporation (LSC), the agency chartered by Congress in 1974 to fund local legal aid offices serving every U.S. county.
U.S. census data released earlier this year confirmed that poverty remains an imposing problem in America, with a record 43 million poor people eligible for federally funded legal services. With new funding hard to come by and the eligible client population growing, legal aid leaders across the country are struggling mightily to meet the overwhelming need for their services. The most recent American Bar Association survey found that an estimated 80 percent of Americans living at or below 125 percent of poverty guidelines are shut out of the civil justice system in times of legal strife.
The equal justice community has yet to recover from major federal budget cuts in 1996, when a group of conservative lawmakers bent on a smaller federal government led a push for LSC’s elimination. Their efforts failed, but in a compromise measure, the federal legal aid budget was cut from $400 million to $278 million – a 30.5 percent reduction that caused roughly 300 office closures and 900 attorney layoffs. Since then, LSC’s appropriation has steadily climbed back to $329.3 million. However, in real dollars, today’s funding equals only $152 million, when adjusted for inflation based on the 'minimum access' flashpoint of 1980, the year the federal government funded two lawyers for every 10,000 poor people.
Wyden and Smith argued for a hearty $110.7 million boost last year before modifying their request this spring for a more achievable $45 million bump. The proposed increase falls in line with a serious push being made in the Fiscal Year 2003 funding cycle by all 14 Democrats on the Senate Health, Education, Labor, and Pensions Committee to boost LSC’s appropriation to $375 million. In a May 3 letter to Senators Ernest Hollings (D-SC) and Judd Gregg (R-NH), leaders of the Senate Appropriations Committee, Smith and Wyden wrote, 'Without the LSC, millions of low income Americans would be denied critical legal help.'
The leadership from Oregon’s top two federal officials on equal justice issues is not an isolated phenomenon in the state. There’s a noble experiment brewing in Oregon, with leaders from diverse backgrounds and political persuasions putting aside their difference to support the proposition that no Oregonian be denied basic access to civil justice. Democrats and Republicans, federal politicians and state legislators, legal services advocates, corporate counsels, bar leaders, private practitioners and a robust Campaign for Equal Justice have all joined the fight.
'Ever since the 1996 cuts, we have been telling state leaders that the best thing they can do is help themselves,' says Mauricio Vivero, LSC Vice President of Governmental Relations and Public Affairs. 'Our message to the field has been: ‘We know you need more help from Washington, but until that help comes, get the most out of what you have.’ And no state has done a better job than Oregon of understanding that message and rallying every imaginable stakeholder to formulate a statewide response.'
LEADERSHIP AT THE TOP
The response in Oregon begins with the state’s Felix-and-Oscar Senate delegation. Wyden has the deep credentials and long history of involvement. While a law student at the University of Oregon, he was the driver on former U.S. Senator Wayne Morse’s 1972 campaign to return to the Senate. The Medicare program was less than a decade old then, and seniors routinely approached Morse on the trail to ask for help with their benefits. Recalls Wyden: 'He would say, ‘We’re going to get right on it. Ron here is going to look it up for you.’ ' Wyden would think ‘I am?’ roll his eyes a bit, and wonder how one law student could help so many people in need.
Morse lost the Senate campaign, but the candidate may have been more prescient than his young protégé had believed. The Stanford graduate would soon help hundreds of Oregon seniors with their medical benefits. Wyden’s first job out of law school was working for an Oregon senior citizens advocacy group called the Gray Panthers, forming local pro bono coalitions and filing litigation to help seniors obtain Medicare relief. He eventually became co-director of the Gray Panthers, and Portland voters impressed with his record of service elected him to Congress in 1981 at the age of 31. Fifteen years later, he bested Smith for the Senate seat once held by his political mentor, Morse.
Today, Wyden has emerged as one of the Senate’s two most vocal advocates, along with Senator Ted Kennedy, for a strong federal role in supporting legal services. On April 12, Wyden delivered an impassioned speech at the National Equal Justice Library in Washington, D.C., calling on members of the legal profession to embark on a 'revolution of public service.'
Smith, meanwhile, has expended some serious political capital to follow his heart and support legal aid. Two years ago, he made a bold pledge to support a federal funding increase in a speech that left a roomful of 400 Oregon equal justice advocates on their feet cheering. Since then, his joint letters with Wyden have put him on record as endorsing the largest funding increase of any Republican in Congress – an especially bold stance, since his support hasn’t exactly won him points with Oregon’s agriculture community, one of his core constituencies. 'Justice is not a partisan issue,' Smith says. 'We should all care about making sure that the gates of justice are open to all people, regardless of income.'
Support for legal services has been codified into Wyden and Smith’s Bipartisan Agenda, the tandem’s composite of shared priorities aimed at putting Oregon-specific needs ahead of partisan politics. The two take pride in their partnership, which has received a fair amount of media attention. The Washington Post recently published a story celebrating their '100th consecutive weekly lunch together.' The two now regularly tour the state, holding joint town meetings where they rib each other and listen to constituents’ grievances.
The partnership seems all the more improbable when one recalls the rough-and-tumble special election of 1996 to replace Packwood, who resigned in disgrace amid sexual harassment allegations. Smith led in the polls as the campaign played out on Oregonians’ TV sets with the two exchanging barbed advertisements that left them estranged after the election. Bill Lunch, a professor of political science at Oregon State University and a state political analyst, says Wyden was able to pull off an upset victory, in part, because he succeeded in painting Smith as too conservative to represent the metropolitan corridor of Portland, Eugene and Salem. Smith won 33 of 36 counties but barely lost the state. Less than a year later, however, Smith ran for Oregon’s other U.S. Senate seat, reached out to moderates, and swept into office.
The upshot, says Lunch, was that 'the two Senators knew they’d never run against each other again because they held different seats.' Considering the closeness of their election and the quirkiness of the Oregon electorate, they also had good reason to pursue moderate agendas. To stay in office, Lunch says, 'They both needed swing voters in each other’s territories.'
That helps explain why one morning, a year removed from their acrimonious campaign, the two met for breakfast and quickly struck up a close working relationship, which has since evolved into a genuine friendship. Smith says the bipartisan work 'comes easy for us, and I think it has been warmly received by the state of Oregon.'
Wyden says the key to cultivating support for legal services is to do a better job of explaining to politicians what advocates actually do. 'I don’t think that most members of Congress know that legal services is a safety net for battered women,' Wyden offers. 'For women whose husbands are beating them to a pulp on a regular basis, it really means a chance to get a new start on life, to be safe and to get help for their children. Gordon and I think that to succeed on a bipartisan basis, you have to use these examples and open a lot of eyes. How in the world can helping battered women be a partisan issue?'
Smith agrees, noting, 'There are needy people in the Democratic party and in the Republican party. Justice isn’t a place where partisan divisions should invade.' Smith says that enlisting the support of other Republican lawmakers has gotten easier since Congress enacted a set of activity restrictions on federally funded programs. In 1996, when Congress cut LSC’s budget from $400 to $278 million, it also banned federal recipients from filing class action lawsuits, collecting attorney’s fees, representing prisoners and most aliens, and engaging in many types of controversial litigation.
In the House of Representatives, four of Oregon’s five House members (Reps. Earl Blumenauer, Peter DeFazio, Darlene Hooley and David Wu) are leading a companion effort to restore the 1996 cuts and make adjustments to account for inflation. The House quartet called for an FY03 increase to $440 million in a May 8 letter to Rep. Frank Wolfe (R-Va.), chairman of the House appropriations subcommittee with funding jurisdiction over LSC. They wrote, 'LSC has become an institution of which all members of Congress can be proud – one that reinforces America’s core principles such as the rule of law, and one that provides a real mechanism for low-income individuals to access the courts.'
A STATEWIDE RESPONSE
Yet with the war on terrorism making reduced discretionary spending the order of the day in the nation’s capital, a federal funding boost may not be in the cards this year. Fortunately, Oregon enjoys what might be the most energetic grassroots support for legal services of any state in the country – a 'model of coalition-building and innovative fundraising that other states would do well to emulate,' LSC’s Vivero says. In Oregon, the federal investment makes up less than 30 percent of the state’s $11.5 million legal aid budget. 'They have excelled at leveraging their federal investment to secure more private and state funding,' Vivero says. 'The breadth of their coalition is impressive.'
Smith jokes that there must be something in the Oregon water that brings out support on issues such as justice for all. 'Oregonians have big hearts,' he says. 'Our traditions are very inclusive and democratic.' To illustrate his point, Smith tells the story of 'the only election a Kennedy ever lost' – Robert Kennedy’s 1968 presidential primary defeat in Oregon at the hands of Eugene McCarthy. Says Smith, '(Kennedy) said that he lost because there were no slums in Oregon and no oppressed who were responsive to his message.'
Linda Clingan, executive director of the Lawyers’ Campaign for Equal Justice, agrees that Oregon has many progressive voters who care deeply about the problems of the poor. But she points to pressing poverty-related problems, particularly in rural parts of the state, that would seem ripe for a Kennedy campaign. Oregon’s 7.5 percent unemployment rate in April tracked 1.5 points above the national average. And the state was deemed to have the worst hunger problem of any state in America, according to a 1999 survey by the Oregon Center for Public Policy, a statewide think tank. The state’s poverty population increased by nearly 44,000 people during the 1990s, according to U.S. census data. Nearly 400,000 low-income Oregonians are eligible for federally funded legal assistance, and roughly half of them reside in rural areas.
In 1991, Clingan was hired to spearhead the Campaign for Equal Justice’s resource development efforts. 'It was starting from zero,' she recalls. 'We had nothing. There was no fundraising at all for legal services. Many people did not believe that lawyers would give.'
Clingan, however, believed they would. She market-tested her idea to solicit personal contributions from every member of the Oregon bar, and her research suggested that most attorneys could be persuaded to reach into their own pockets – if a compelling need was demonstrated.
The Campaign benefited from a huge media splash in October 2000 when 'open houses' were held at legal aid offices across the state. (The events coincided with the release of a comprehensive legal needs study in Oregon.) Oregon legislators were invited to pay a visit to their local offices to get a first-hand look at how advocates help clients. More than two dozen articles covering the open houses appeared in newspapers across the state; the TV affiliates and local radio stations showed up as well.
Tom Matsuda, executive director of Legal Aid Services of Oregon (LASO), whose 55 attorneys represent three-fourths of the state’s eligible poor, says, 'Over the course of the past 12 years, the level of support from (members of) the private bar would make anyone in a position of power pay attention.' One group of powerful people paying attention is the state’s foundation community. The Campaign kicked off its fundraising efforts in 1991 by securing a $750,000 matching grant from the Meyer Memorial Trust, Oregon’s largest foundation. In all, the Campaign has raised $2.3 million in foundation grants since its inception.
The Oregon State Bar has also played a pivotal role, joining the Campaign’s fundraising push in 1995 and launching an active Access to Justice Committee three years later. The bar also organizes a biannual conference to unite advocates from all of the state’s legal services offices. But bar leaders’ most important contribution may have been their decision to partner with the Governor’s Office, the Oregon Supreme Court, and a consortium of funders in 1999 to commission a statewide legal needs survey. Researchers from Portland State University conducted 1,080 personal interviews with income-eligible clients. The survey results were released in the fall of 2000, showing that 82 percent of low-income Oregonians were being left unrepresented in times of legal crisis. This prompted contributors to open their wallets even wider. The Oregon State Bar was presented with the prestigious ABA/NLADA Harrison Tweed Award in 2001 for the 'establishment of a comprehensive state equal justice network to build resources and support for the provision of legal services to the poor.'
Support from lawyers and the business community is only part of the puzzle, though. Last year, the legislature passed legislation creating a pro hoc vice fee – a charge for out-of-state lawyers seeking to try cases in Oregon courts – which Clingan estimates could bring in as much as $100,000 annually. But the big push will be for a combination of an annual state appropriation and other fees totaling $4 million. The legislature nearly passed its first-ever legal services appropriation last winter before compromise negotiations broke down, but state leaders are optimistic about their prospects in the upcoming 2003 legislative session.
State legislative leaders have been receptive to the legal services community’s entreaties in the past. After the 1999 funding cuts, the legislature raised the state court filing fee to account for most of the $1.2 million in lost federal funding. Neil Bryant, then the Republican chairman of the Senate Judiciary Committee, was instrumental in pushing through the increase. Bryant, who shares a friendship and roots in the Oregon agricultural community with Smith, also played a pivotal role in enlisting the support of the 'frozen pea king.'
'The agricultural community is not very excited about legal services,' Bryant says candidly, explaining that state legal services attorneys have represented laborers in cases against farmers and labor contractors. Bryant says his former state Senate colleague was brave to take a stand. 'In the long term, they will disagree with him but do so politely because not that many senators understand agriculture as well as Gordon. He harvests and freezes vegetables for a living. I tell the agricultural community, ‘If the shoe were on the other foot, you would want representation.’'
Smith reminds his farming friends about the good work that legal aid does for them as well, saying advocates have been known to help 'a group of people really down on their luck: the American farmer.' His joint letter with Wyden in July 2001 emphasized the damaging effects of the ’96 funding cuts, which, they wrote, caused 'people living in many largely rural areas of the state and the country (to) have no access to legal services.'
The Oregon media has lauded the Senators for their partnership on equal justice issues. After the July 2001 funding letter became public, editorial writers at The Bulletin in Bend, wrote, 'Wyden’s support may not be a surprise: After all, he got his start [with] Legal Aid… For Smith, the path to support has been less direct. Reared in a church with a strong ethic of caring for those who cannot help themselves, he believes society has a moral obligation to provide legal assistance to all who need it. Our Senators have been public and vocal in their support of the increase. Theirs is assistance the state’s poor cannot do without.'
Wyden takes the plaudits in stride, making clear his belief that standing up for legal services isn’t merely good politics. Advocating for urgently needed civil justice resources, he says, goes to the heart of why he ran for public office in the first place.
'I don’t come to Gordon and say, ‘We need a Democratic response or a Republican response,’ ' Wyden says. 'In Oregon, legal services is seen as good government. This is what we want our state to be on our watch. In this little chunk of time, on this piece of our planet, we want to be able to say we stood up for people.'
This article, in a longer form, first appeared in Equal Justice magazine, a quarterly publication of the Legal Services Corp. LSC is an independent, non-profit organization chartered by Congress in 1974 to promote equal access to the civil justice system for low-income Americans. Additional information or subscriptions to Equal Justice magazine may be obtained at www.ejm.lsc.gov or by writing to the LSC Office of Government Relations, 750 First St. N.E., 11th Floor, Washington, D.C. 20002.
© 2002 David Whelan