Supreme Court strikes down welfare 'gag order'

WASHINGTON -- Ruling in a free-speech case that made for strange political bedfellows, the Supreme Court said Monday that poor people may use federally funded lawyers to sue over the loss of welfare benefits.

The court decided by a 5-4 vote that barring Legal Services Corp. lawyers from fighting the 1996 welfare overhaul was an unconstitutional gag order imposed by Congress.

The majority agreed with a coalition of advocates for the poor that the 1996 restrictions imposed by a Republican-led Congress handicap federally subsidized LSC lawyers as they represent poor clients.

"The Constitution does not permit the government to confine litigants and their attorneys in this manner," Justice Anthony Kennedy wrote for the majority.

Kennedy was the key swing vote in the decision. He sided with the court's more liberal wing, which includes the two justices President Clinton named to the court. The other traditional swing vote, Justice Sandra Day O'Connor, joined the three most conservative justices in dissent.

Although the wrenching political fight over Clinton's pledge to "end welfare as we know it" has faded, the ruling opens the door to new challenges from the left to one of Clinton's most divisive policies.

Congress did not have to fund the LSC, and once the LSC was in place Congress was under no obligation to pay for all of its activities, Kennedy wrote.

That said, the government cannot step on the First Amendment in order to protect itself from court challenges, Kennedy wrote.

"The LSC and the United States ... in effect ask us to permit Congress to define the scope of the litigation it funds to exclude certain vital theories and ideas," Kennedy wrote.

Justice Antonin Scalia accused the majority of adopting "a novel and unsupportable interpretation" of previous Supreme Court rulings on the First Amendment.

"The LSC subsidy neither prevents anyone from speaking nor coerces anyone to change speech," Scalia wrote on behalf of himself, O'Connor, Chief Justice William Rehnquist and Justice Clarence Thomas.

The case has parallels to the debate over federal funds for family-planning clinics. The Supreme Court ruled 5-4 in 1991 that Congress could bar doctors from talking to patients about abortion if the doctors received federal funds for a family-planning program.

Along with the broad, 1996 welfare overhaul, Congress restricted the federally subsidized LSC from any "effort to amend or otherwise challenge existing law" in welfare cases.

Congress reasoned then that it had the power to block federal money from being used to fight a federal policy, although the order also barred LSC lawyers from using even private money to make welfare challenges.

The legal challenge before the Supreme Court had the LSC, which often represents populist and left-leaning causes, and the Democratic Clinton administration together defending the policies of the GOP-led Congress.

On the other side is a New York City grandmother who lost welfare benefits, a group of individual legal aid lawyers and a coalition of nonprofit groups that align with Clinton and the Democrats on other issues.

Clinton angered many in his own party by joining Republicans to press the welfare bill, which ended benefits for millions of poor people. Clinton defends the policy as a successful jobs program.