concurring in part, dissenting in part:
I agree with the conclusions of the majority opinion except insofar as it holds unconstitutional a critical proviso in a subsection of the Omnibus Consolidated Rescissions and Appropriations Act of 1996 (“OCRAA”), Pub.L. No. 104-134, § 504(a)(16), 110 Stat. 1321, 1321-55 to 1321-56 (1996). That subsection
(i) denies Legal Services Corporation (“LSC”) funding to any entity “that initiates legal representation or participates in any other way in litigation, lobbying, or rulemaking, involving an effort to reform a Federal or State welfare system,”
(ii) creates an exception for the representation of “an individual eligible client who is seeking specific relief from a welfare agency,”
(in) subject however to the proviso that bars LSC grantees from taking eases that “involve an effort to amend or otherwise challenge existing law.”
The majority throws the section out of kilter by preserving the exception but striking the proviso, on the ground that under Rosenber-*774ger v. Rector & Visitors of the University of Virginia, 515 U.S. 819, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995), the proviso amounts to viewpoint discrimination.
I respectfully dissent because:
(A) The proviso, which helps specify the type of representation that a grant recipient may undertake, is part of Congress’s entirely appropriate — and necessary-specification of the services available in a program it created.
(B) The majority has not successfully identified a disfavored viewpoint of any person in any public forum. To the extent that this legislation funds a “viewpoint” at all, it is one that advocates the delivery of welfare benefits to claimants.
A. Program Definition
In creating a government program, Congress can of course specify the goods and services that will be provided and the goods and services that will be excluded. In so doing, Congress is permitted to fund the exercise of some constitutionally protected rights, but not others. See Rust v. Sullivan, 500 U.S. 173, 194-95, 111 S.Ct. 1759, 1773, 114 L.Ed.2d 233 (1991). Although Rosenber-ger curbs the government’s power to fund some viewpoints to the exclusion of others, that limitation operates only when the government creates a limited public forum for the expression of diverse viewpoints. A grantee of the Legal Services Corporation is not a public forum or the participant in a public forum in which it is invited to contribute its point of view; it is a contractor furnishing services that the government wants provided, and in that way it resembles the recipients of Title X funds in Rust, and any of the private agencies that carry out myriad other government programs that have limited and specified purposes.
1. Statutot'y Authority
From its inception, the purpose of the LSC has been to fund individual client services for indigent persons with legal problems. See 42 U.S.C. § 2996 (1994). Over the years, Congress has shaped and clarified the kind of legal services that LSC and, in some cases, its grant recipients may fund:
• No “fee-generating” cases. See 42 U.S.C. § 2996f(b)(l) (1994).
• No felony cases. See 42 U.S.C. . § 2996f(b)(2) (1994).
• No civil actions challenging a criminal conviction. See 42 U.S.C. § 2996f(b)(3) (1994).
• No cases seeking “to procure a nonthera-peutic abortion.” See 42 U.S.C. § 2996f(b)(8) (1994).
• No school desegregation cases. See 42 U.S.C. § 2996f(b)(9) (1994).
• No cases involving the Military Selective Service Act, 50 App. U.S.C. § 451 et seq. See 42 U.S.C. § 2996f(b)(10) (1994).
• No cases involving assisted suicide. See 42 U.S.C.A. § 2996f(b)(ll) (West Supp. 1998).
• No litigation (or other activity) regaining “the timing or manner of the taking of a census.” See OCRAA § 504(a)(1), 110 Stat. at 1321-53.
• No class action litigation. See id. § 504(a)(7), 110 Stat. at 1321-53.
• No legal assistance to certain classes of aliens. See id. § 504(a)(ll), 110 Stat. at 1321-54 to 1321-55.
• No litigation on behalf of someone incarcerated. See id. § 504(a)(15), 110 Stat. at 1321-55.
• No litigation on behalf of persons being evicted from public housing for selling drugs. See id. § 504(a)(17), 110 Stat. at 1321-56.
The majority opinion correctly rejects the constitutional challenges that the plaintiffs make to several of these program-shaping provisions. See Majority at [page 764] (rejecting challenge to prohibition on fee-generating eases); id. at [pages 764-67] (rejecting unconstitutional condition challenge to all the § 504 restrictions).
The restriction that § 504(a)(16) imposes— on the use of LSC money to fund political agitation concerning welfare policy — is another effort by Congress to define the types of services that LSC grantees may provide and to channel all the government’s funds (without substitution or displacement) to those services and no others. The exception *775for advocacy in suits to collect welfare benefits, as limited by the proviso barring expenditures to challenge existing law, serves the same purpose and operates in the same way.
The proviso on welfare litigation is not (as the majority appears to believe) an effort to weed out a certain class of arguments in cases in which LSC-funded lawyers appear. The statute nowhere contemplates or requires that an LSC-funded lawyer appear in a ease in which he or she must forbear from challenging a welfare statute on meritorious constitutional grounds; to the contrary, the proviso says that a lawyer or grantee may not take on such a representation in the first place. There is nothing remarkable about this. Lawyers often turn down representations that they cannot fulfill, either by reason of conflict or otherwise (such as availability of time and resources, or lack of expertise). For example, a public interest lawyer cannot file a claim for job discrimination against a charitable agency she organized or has represented; and a public interest lawyer representing a plaintiff who is pressing for school vouchers cannot be expected to take on a representation that entails the argument that school vouchers are illegal or unconstitutional. The LSC’s authorizing legislation as well as rules of legal ethics prohibit a lawyer from undertaking a representation in which that lawyer would be barred from pursuing a potentially fruitful avenue of argument.1 A grantee (or a lawyer employed by a grantee) is ethically obliged to decline such a case, and may refer the client to a lawyer who can handle it, see Velazquez v. Legal Seros. Corp., 985 F.Supp. 323, 343 (E.D.N.Y.1997), and in some instances, the client will be referred to an affiliated entity, see Majority at [pages 761-62],
The majority argues that as a “practical matter” an attorney will “often” not know what arguments may be needed in a given representation. See Majority at [page 771 n. 9]. Since this is a facial challenge, however, this Court may not base its invalidation of this statute on a hypothetical set of circumstances, even one it believes will “often” occur. See Majority at [page 762] (Plaintiffs “must establish that no set of circumstances exist under which the Act would be valid”) (quoting Rust, 500 U.S. at 183, 111 S.Ct. 1759 (emphasis added)). Moreover, as the majority points out, the LSC does not fund a traditional, all-encompassing lawyer-client relationship. It has always operated under significant restrictions, and it is required to advise prospective clients of these limitations. So there is therefore “no reason to fear that clients will detrimentally rely on their LSC lawyers for a full range of legal services,” Majority at [page 764], such as help in mounting a Constitutional challenge to a welfare statute.
2. Supreme Court Authority
On its face, this statute funds a program that provides certain services, and the restriction found in § 504(a)(16) (together with its exception and its proviso) prohibits grantees from rendering services that fall outside the scope of the program. The Supreme Court has recognized the undoubted power of Congress to do this. See Rust, 500 U.S. at 192-94, 111 S.Ct. at 1771-73; Harris v. McRae, 448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980).
In Rust, the Court considered a section of the Public Health Service Act prohibiting the use of funds appropriated for family-planning services “in programs where abortion is a method of family planning.” Rust, 500 U.S. at 178, 111 S.Ct. at 1764-65 (quoting 42 U.S.C. § 300a-6). The Court upheld the constitutionality of that prohibition because it *776ensured that grantees did not engage in activities outside the scope of the program:
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. In so doing, the Government has not discriminated on the basis of viewpoint; it has merely chosen to fund one activity to the exclusion of the other.
Id. at 193, 111 S.Ct. at 1772. The program definition upheld in Bust is therefore “not the case of a general law singling out a disfavored group on the basis of speech content, but a case of the Government refusing to fund activities, including speech, which are specifically excluded from the scope of the project funded.” Id. at 194-95, 111 S.Ct. at 1773. Of the present' case it is possible to say in paraphrase of Bust that the scope of the LSC project is the funding of certain individual client services, that the law does not single out any “disfavored group,” and that the government has simply “refus[ed] to fund activities, including speech, which are specifically excluded from the scope of the project funded.”
The error of the majority opinion arises from its inapt (and complete) reliance on Bosenberger, a case in which the purpose of the government program was to fund the expression of politically diverse views. The University of Virginia was defraying part of the printing costs of student publications, but denied funding to journals that promoted a religious viewpoint. The Supreme Court held that such content-based funding decisions are impermissible when the expenditure of funds is intended to facilitate private speech and thus to “encourage a diversity of views from private speakers.” Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 834, 115 S.Ct. 2510, 2519, 132 L.Ed.2d 700 (1995). The holding of Bosen-berger is that when government subsidizes private speakers to express their own viewpoints, it cannot discriminate among potential recipients on the basis of viewpoint. The LSC, which supports a defined program of legal representation to indigent clients, of course does not underwrite the expression of the private speech or viewpoints of its grantees or their lawyers, or (for that matter) their clients.
Bosenberger does not impair the principle — explicitly announced in Bust and not implicated by the facts of Bosenberger — that when the government funds specific services it deems to be in the public interest, it may require grantees to get with its program. The majority’s surprising, short answer to this argument is that the passage from Bust on which I rely cannot “reliably be taken at face value.” Majority at [page 770]. This approach to Supreme Court opinions is not one previously employed in this Circuit. I think the Supreme Court meant what it said, and that it bears, repeating:
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. In so doing, the Government has not discriminated on the basis of viewpoint; it has merely chosen to fund one activity to the exclusion of the other.
Rust, 500 U.S. at 193, 111 S.Ct. at 1772. Recently the Supreme Court itself invoked Bust — and quoted that passage — to uphold restrictions on the disbursement of funds by the 'National Endowment for the Arts. See National Endowment for the Arts v. Finley, — U.S. -, -, 118 S.Ct. 2168, 2179, 141 L.Ed.2d 500 (1998) (quoting Bust, 500 U.S. at 193, 111 S.Ct. at 1772).
There is one sure fire way to find out whether the Supreme Court meant what it said in Bust and Finley, and now that the majority has split with the Ninth Circuit on this issue, we may not have long to wait. Relying on Bust, the Ninth Circuit rejected a viewpoint discrimination challenge to the LSC restrictions that are at issue on this appeal. See Legal Aid Soc’y of Hawaii v. Legal Servs. Corp., 145 F.3d 1017 (9th Cir.), cert. denied, — U.S. -, 119 S.Ct. 539, — L.Ed.2d - (1998). Justice White (part of the Bust majority), sitting by designation on the Ninth Circuit, wrote: “Like the Title X program in Bust, the LSC program is de*777signed to provide professional services of limited scope to indigent persons, not create a forum for the free expression of ideas.” Id. at 1028.
In an attempt to distinguish the Rust opinion from the Rust result, the majority offers the hypothetical of government-financed think tanks commissioned to study American foreign policy, but forbidden to criticize it. This hypothetical is far removed from any program to furnish legal services; tellingly, it looks very much like the University of Virginia’s student-publication program in Ro-senberger.
A closer analogy would be presented if Congress (i) decided to out-source the advice that the Internal Revenue Service now gives taxpayers on how much taxes they owe and how much they can shelter or deduct, (ii) underwrote accountants and tax lawyers to counsel and represent qualifying middle-class taxpayers, and then (iii) discovered that the outside contractors were expending appreciable grant resources on agitation for tax reform along lines favored by the contractors and deemed by them to be in the interest of the middle classes. Congress could certainly plug that drain by specifying that the representation be limited to achieving the accurate computation of amounts due under the present tax code, and by barring advocacy aimed at, inter alia, tax reform, establishing the single tax or flat tax, or organizing constitutional litigation to challenge particular revenue provisions or the ratification of the 16th Amendment. Congress could do this, and if it did, the legislation would look like the restriction that the majority here holds unconstitutional.
The LSC restrictions, like my hypothetical statute to assist taxpayers, is not a promotion of advocacy for the good old status quo, or a suppression of a point of view. Both programs channel money to an identified public purpose, which is the administration of a complex existing statute so that everyone can get what the statute provides. I cannot imagine a more viewpoint-neutral legislative scheme.
B. Viewpoint Discrimination
Considering that the majority has invalidated a statute on the ground that it constitutes impermissible viewpoint discrimination, it is odd that the majority only vaguely articulates the viewpoint that is supposedly disfavored by this legislation and (reciprocally) never states what viewpoint is favored. The fact is, the LSC subject-matter restrictions do not lend themselves to analysis in these terms. One subsection bars funding “to provide legal assistance in civil actions to persons who have been convicted of a criminal charge ... for the purpose of challenging the validity of the criminal conviction.” 42 U.S.C. § 2996f(b)(3) (1994). Does the statute thereby “discriminate” against the “viewpoint” that prisoners have constitutional rights? Another provision bars funding “to provide legal assistance with respect to any proceeding or litigation relating to the desegregation of any elementary or secondary school.” 42 U.S.C. § 2996(b)(9) (1994). Does the statute thereby “discriminate” against the “viewpoint” that schools ought to be desegregated? If limitations on classes of cases eligible for representation by LSC-finaneed lawyers constitute impermissible discrimination against the people who may want to advance theories in such cases, then it is hard to see how any of the many statutory limitations on LSC funds are constitutional.
By the same token, I cannot agree that the statute promotes one favored view over others in a supposed public forum. Whose viewpoint? What forum? According to the majority opinion: the government-funded lawyers possess the protected expressive interest; and the public forum is the courtroom (an idea that may come as a surprise to trial judges). See Majority at [pages 770-71]. But the proviso stricken by the majority bars representation in lawsuits. The viewpoints of litigating lawyers in a courtroom cannot matter for present purposes, because (among other things) the advocacy of' a lawyer in litigation is at the service of the client; it would be inaccurate (and unfair) to assume that a lawyer’s advocacy expresses that lawyer’s personal view *778on polities or morals. See Model Rules of Professional Conduct Rule 1.2(b) (1995).
It also cannot be said that the proviso disfavors the speech of the clients; the only litigants who are funded are those who seek benefits. There are certainly people on the other side of welfare .issues, such as those who favor narrowing welfare eligibility, or reduced benefits, or abolition of the welfare system. But the statute gives them nothing. Where then is the viewpoint discrimination, even if one assumed (as I do not) that the LSC makes every courtroom into a public forum?
The statute bars constitutional and other challenges to the welfare laws, but it certainly does not fund the view that the welfare laws are constitutionally impregnable. The proviso invalidated by the majority does not promote or favor any message. It lays down specifications for services to be provided to favored beneficiaries. And it excludes some of the most expensive services — constitutional litigation and statutory challenges — in the same way that the statute elsewhere bars the expenditure of LSC funds for class actions. In excluding these expensive initiatives, the statute maximizes the expenditure of limited available funds for less expensive benefit-collection lawsuits.2 Congress is able to do that; and a statute in which Congress does that should be able to withstand a facial challenge.
. See 42 U.S.C. § 2996e(b)(3) (1994) (requiring the LSC to "ensure” that the activities it finances are carried out in accordance with attorneys' ethical obligations); 42 U.S.C. § 2296f(a)(l) (1994) (requiring the Corporation to "insure the maintenance of the highest quality of service and professional standards”); Model Rules of Professional Conduct Rule 1.1 (1995) (requiring attorneys to utilize the "legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation"); id. Rule 1.2 cmt. 5 (noting that a "client may not be asked to agree to a representation so limited in scope as to violate Rule 1.1”); id. Rule 1.2 cmt. 4 ("Representation provided through a legal aid agency may be subject to limitations on the types of cases the agency handles.”); id. Rule 1.16(a)(1) (barring attorney from taking case that would result in violation of any ethical rule); id. Rule 1.16 cmt. 1 ("A lawyer should not accept representation in a matter unless it can be performed competently, promptly ... and to completion.”).
. By striking the proviso, the majority essentially appropriates money for the precise category of expensive (and often politically oriented cases) that Congress chose not to fund.