ABA Legislative Priorities (Adopted 2018)
ACCESS TO LEGAL SERVICES
Increase Legal Services Corporation funding
The Legal Services Corporation (LSC) is the nation’s largest provider of civil legal aid for low-income Americans. LSC funds hundreds of legal aid programs in every congressional district in the United States, and these LSC grantees provide essential legal services that directly benefit more than 1.8 million people. These constituents include many veterans, older Americans, disabled individuals, rural Americans, domestic violence survivors, women, disaster victims, and many others. LSC received funding of $440 million for Fiscal Year 2020 and an additional $50 million of emergency funding to help address the dramatic spike in evictions, foreclosures, domestic violence, employment and healthcare issues, and many other legal problems caused by the COVID-19 pandemic. In the face of recurring calls from the Administration and Congress to eliminate or defund LSC, the ABA continues to vigorously advocate for increased funding and reauthorization of LSC as a high priority.
The ABA is also urging the Federal Emergency Management Agency to promptly activate and implement the ABA Young Lawyers Division's Disaster Legal Services program in each requesting state and territory, a highly cost-effective program that helps provide essential pro bono legal services to disaster survivors--including those suffering from the COVID-19 pandemic--at minimal cost.
Strengthen legal protections and assistance for members of the military and veterans
The ABA supports state and federal efforts to improve access to legal services for military personnel, veterans, their dependents, and caregivers. The ABA also seeks to remove legal barriers to their benefits, services, and treatment, particularly for veterans experiencing or at-risk of homelessness. The ABA supports innovations to improve veterans’ access to justice, including the VA’s Veterans Justice Outreach Initiative, and the establishment and expansion of veterans’ treatment courts, law school clinical programs serving veterans, and medical-legal partnerships at VA health facilities.
Over the years, Congress has considered “tort reform” legislation opposed by the ABA that impedes access to the civil justice system, limits the ability of individuals to hold businesses responsible for wrongdoing, and interferes with the ability of victims to obtain redress. Supporters of tort reform allege that litigation abuse is rampant and have sought to control it through various methods, including amending the Federal Rules of Civil Procedure through legislation rather than following the Rules Enabling Act process, forcing the losing party to pay the fees and costs of the winning party, and preempting state medical malpractice laws. Areas of particular concern to the ABA that could resurface during the 117th Congress include legislation to amend Rule 11 (Sanctions) and Rule 23 (Class Actions) of the Federal Rules of Civil
Note: Recent discussions on the Hill, notably in the Senate, have turned to limiting COVID-related liability for businesses. The ABA does not have policy addressing this controversial issue. Enactment of such liability protection in the 117th Congress appears unlikely because of strong political disagreement on it.
Oppose legislation that discourages medical malpractice litigation and limits recovery
ABA-opposed legislation intended to discourage medical malpractice litigation and limit recoveries was introduced this Congress. The Protecting Access to Care Act of 2017, H.R. 1215, which would preempt state laws by setting a cap on noneconomic damages in medical malpractice cases, was passed by the House. We may see similar legislation in the 116th Congress.
The ABA is committed to eliminating racial and ethnic bias in the justice system by reforming laws and practices that have a disproportionate and catastrophic impact on Black, Indigenous, and People of Color. The ABA assesses racial or ethnic impact of legislation on which we engage, and through grants from the Department of Justice, the ABA identified points in the criminal justice process where bias can change outcomes, e.g., treatment of youth; use of force by law enforcement; charging decisions; pre-trial detention or cash bail determinations; probation violation determinations; and collateral sanctions that impact civil rights.
Following the death of George Floyd while in police custody in June 2020, both chambers of Congress conducted hearings and either introduced or consolidated already introduced legislation concerning policing practices, ranging from the use of body cameras to the use of lethal force and police training. However, no action has been taken on most of these bills. We anticipate police reform legislation to feature prominently in the 117thCongress.
Support federal corrections and sentencing reform
The ABA supports federal sentencing reform aimed at eliminating mandatory minimum sentences and expanding alternatives to incarceration, particularly for nonviolent offenses. In the 116thCongress, the ABA has supported the prompt implementation of sentencing provisions enacted under the First Step Act, including the retroactive review of sentences for offenses involving crack versus powder cocaine, and the expanded use of safety valves that would allow judges to depart from mandatory minimum sentences for nonviolent offenders based on the facts in a given case or the defendant’s actual culpability.
While many bills were introduced proposing sentencing reforms particularly for nonviolent drug offenses, no sentencing reform bills progressed in the 116th Congress. Such proposals are expected to be introduced and considered during the 117th Congress.
The ABA supports legislation to curb recidivism and ensure that collateral consequences of conviction are not an undue barrier to prisoners who are re-entering society. The Second Chance Act, enacted in 2008, provides resources to state and local governments and community-based organizations to improve efforts to help people released from prison or jail overcome collateral consequences of conviction. The ABA has supported Second Chance Act grant program funding and a range of bills to improve opportunities for those in prison to make successful transitions, including efforts to restore Pell Grant eligibility and to extend the attorney-client privilege to email communications between a prisoner and his or her attorney.
The ABA also supported several bills to improve conditions in prisons during the global pandemic, including for Congress to increase compassionate release authority of the Bureau of Prisons to transfer vulnerable prisoners to community or home detention, and for the Bureau to make greater use of its existing authority, with limited congressional action taken. Those bills will be reintroduced and considered during the 117thCongress.
The ABA supports limiting or eliminating collateral consequences of convictions that take away rights or impose other disabilities but that bear no rational relation to the underlying offense. Such sanctions can undermine societal objectives in helping people make successful transitions back as productive members of society at the completion of their sentence. The ABA believes that collateral sanctions can play a proper role, but that they should be stated at the time of a guilty plea or sentencing and there should be formal process to appeal for relief from a given collateral sanction. A range of legislative proposals were introduced to address expungement or sealing records and to grant a federal prisoner a certificate of rehabilitation to present to employers. No bills addressing these collateral consequences were passed during the 116thCongress but are expected to return next Congress as an area of consensus for criminal justice reform proposals.
The ABA supports reforms to bail and pretrial detention so that financial means only plays a role when it is the only way to secure a person’s appearance in court. Persons who present no flight risk or harm to the public should not be detained pretrial. The ABA similarly supports the view that fees and fines should be tied to an individual’s ability to pay and that courts should not revoke rights or impose jailtime for nonpayment.
A range of proposals to reform the money bail system at the federal and state levels were introduced during the 116th Congress, including legislation to prevent the loss of the right to vote for nonpayment of fines. None of these bills passed but are expected to return in criminal justice reform legislation in the 117th Congress.
ELIMINATION OF DISCRIMINATION
Support enactment, enforcement, and preservation of laws to prevent discrimination in public accommodations and the workplace
Gender-based wage discrimination remains a problem in the workplace, despite
The ABA also opposes discrimination on the basis of sexual orientation and gender identity and supports legislation prohibiting such discrimination in employment, housing, or public accommodations. The ABA supports legislation, such as the Juror Non-Discrimination Act, to prohibit potential federal jurors from being unfairly excluded from jury service because they are lesbian, gay, bisexual or transgender. This is likely to remain an active issue in the 117th Congress. Another bill supported by the ABA that may resurface next Congress is the Employment Non-Discrimination Act. It would prohibit employers from considering an individual's sexual orientation or gender identity in all aspects of employment.
In response to the 2013 Supreme Court decision in Shelby County v. Holder, the ABA has advocated for enhancement of remedies under the 1965 Voting Rights Act. ABA policy urges Congress “to preserve and protect voting rights by legislating a coverage formula setting forth the criteria by which jurisdictions shall or shall not be subject to Section 5 preclearance and/or by enacting other remedial amendments to the Voting Rights Act of 1965, including, but not limited to, strengthening the litigation remedy available under Section 2, or expanding the ‘bail-in’ provision under Section 3 (or some combination of these concepts).”
In 2019, the House passed the Voting Rights Advancement Act (H.R. 4) to amend Section 5, but companion legislation received no action in the Senate. Generally, in the area of election law, recent attention has focused on other issues, including election security, deceptive practices and voter intimidation, and redistricting. It is unclear if there will be any movement to amend the Voting Rights Act in the 117th Congress.
Support access to counsel and legal information
There is a crisis with access to counsel in the immigration court system. Nearly 85 percent of immigration detainees do not have legal representation. Unaccompanied children often appear in court without a lawyer. The ABA supports increasing access to counsel for those in removal proceedings, including providing appointed counsel for children, mentally disabled, and indigent persons. The ABA also supports funding for the Department of Justice’s Legal Orientation Program, which provides legal rights presentations and pro bono screening for detainees.
Increase resources for and strengthen the independence of immigration courts
The nation’s immigration courts continue to be overburdened, with the backlog at an all-time high of over 1,000,000 pending cases. The ABA supports restructuring the system into an independent Article I court, but immediate action is needed to reduce delays and ensure due process in the adjudication system. To this end, the ABA supports increasing the number of immigration judges and support staff and addressing identified inefficiencies within the current system.
Oppose mandatory detention of individuals and families in removal proceedings
The ABA opposes mandatory detention and supports enhancing programs to provide alternatives to detention for those in the civil immigration system. Families should not be separated to allow indefinite detention of parents or legal guardians. Unaccompanied children should be held in the least restrictive setting available and for as short a period as possible.
Support improved conditions in immigration detention facilities
Treatment of detainees and conditions in detention facilities is also an important issue. The ABA helped to develop the first-ever detention standards to provide uniform and humane treatment for all immigration detainees and supports strengthening and promulgating the ICE National Detention Standards into enforceable regulations.
INDEPENDENCE OF THE JUDICIARY
Support efforts to improve the operations of the federal courts and oppose efforts that undermine the independence of judges
For the past seven Congresses, legislation has been introduced to curtail the jurisdiction of the courts, limit the discretion of federal judges, amend the Constitution to eliminate life tenure, enact federal rules changes by circumventing the Rules Enabling Act, create an inspector general for the courts, authorize the Judicial Conference to allow cameras in courts, and divide the Ninth Circuit. In addition, legislation has been introduced this Congress to require medical examinations of every federal judge over age 70, prohibit nationwide injunctions in non-class action cases, and impose a code of conduct and recusal rules on the justices of the Supreme Court. The ABA also is concerned with proposals that threaten the decisional independence of the administrative judiciary. The preservation of a strong and independent judiciary is a core responsibility of the legal profession.
Note: The recent attacks on a judge’s family and judicial personnel have renewed calls for strengthening judicial security. Legislation has been introduced in both chambers calling for increased funding, broad authority for judges to redact of personally identifiable information on government documents, etc. The ABA supports efforts to enhance security and will continue to advocate for it in the 117th Congress if needed.
Support adequate resources
Congress has provided the judiciary with adequate funding in every fiscal year since the enactment of across-the-board budget cuts in 2013, and we expect this to continue through the 117th Congress.
An omnibus judgeship bill has not been enacted since 1991, even though the Judicial Conference submits a biennial request to Congress. Congress rejects these requests because of disagreement over the need for additional authorized judgeships and concern about the cost. This Congress, a hearing was held on the need for additional judgeships and several bills were introduced to accomplish this, but none received attention.
Note: The Judicial Conference will submit to Congress its new biennial judgeship recommendation in March 2021. The ABA will continue to urge Congress to authorize new Article III and Bankruptcy judgeships that the Judicial Conference has determined are necessary to administer timely justice.
The 116th Congress commenced with 133 vacancies and is likely to end with less than 50. The pace of the nomination and confirmation process this Congress has been unparalleled in recent history. In fact, there is concern that the rapid pace has deprived the Senate of the time needed to carefully deliberate over each nomination to a lifetime appointment to the federal bench. The ABA has adopted policies that, among other things, advocate for the prompt filling of judicial vacancies, pre-nomination consultation, the use of bipartisan judicial nominating commissions by senators, and increased diversity on the federal bench. These are issues of enduring concern to the ABA.
INDEPENDENCE OF THE LEGAL PROFESSION
Oppose measures that erode the attorney-client privilege and work product doctrine
The attorney-client privilege is a bedrock legal principle of our free society that enables clients to communicate with their lawyers in confidence and thus is essential to preserving the clients’ fundamental right to effective counsel. Regulatory measures that erode or impede this privilege remain a concern of the legal profession and the ABA. The ABA monitors potential regulatory infringements and engages with the Consumer Financial Protection Bureau, Department of Homeland Security, Legal Services Corporation, National Security Agency, Treasury Department, and other federal agencies to ensure that their policies and practices do not erode or undermine the attorney-client privilege or the work product doctrine.
Oppose regulations that interfere with the confidential lawyer-client relationship or the courts’ authority to regulate and oversee the legal profession
In recent years, Congress and federal agencies have sought to apply a number of new business and service-provider regulations to lawyers engaged in the practice of law. The ABA is concerned about this growing trend because, in its view, primary regulation and oversight of the legal profession should continue to be vested in the highest court of the state in which the lawyer is licensed, not federal agencies or Congress, and the courts are in the best position to fulfill this important function. Currently, the ABA opposes legislation that would regulate lawyers as “formation agents” (and hence a new category of “financial institutions”) under the Bank Secrecy Act and subject them to the anti-money laundering and suspicious activity reporting requirements of the Act when they help clients to form new companies. The ABA is also urging Congress to pass legislation that would protect the courts’ exclusive authority to regulate and discipline lawyers engaged in litigation and prevent federal agencies from undermining the courts’ proper role.
INTERNATIONAL RULE OF LAW
Support programs that promote the rule of law and human rights
The ABA supports adequate funding for the overall U.S. international affairs budget and increased funding specifically for programs within the Department of State and USAID that promote democracy, human rights, and the rule of law, including through the ABA Rule of Law Initiative. The ABA also supports the prompt payment of the United States’ obligations to the United Nations and supports the U.S. rejoining or remaining engaged with key UN bodies, such as the Human Rights Council and the UN Educational, Scientific and Cultural Organization.
Preserve Public Service Loan Forgiveness
The ABA supports the preservation of the federal Public Service Loan Forgiveness program (PSLF), which provides loan repayment assistance in exchange for a minimum of 10 years of service in certain jobs in government and many nonprofit organizations. Amid efforts by Congress and the Administration to cap and repeal PSLF, the ABA opposes actions by the Department of Education to disqualify from PSLF eligibility lawyers at appropriate
Note: The ABA expects federal student loan debt relief to be a concern in the 117th Congress due to the ongoing economic impacts of the COVID-19 pandemic. The ABA adopted policy on this issue in 2020.
NATIONAL SECURITY AND CIVIL LIBERTIES
Cyber threats and vulnerabilities continue to be key components of U.S. economic policy and national security. Even though Congress passed the “Cybersecurity Information Sharing Act,” which included principles advocated by the ABA, more congressional activity is expected including legislation clarifying or reorganizing federal agency cyber responsibilities and encryption. As U.S. policy and law develop, the ABA is marshaling its expertise and resources to help lawyers and clients in both the private and public sectors address the myriad of legal issues surrounding cybersecurity and to urge policymakers and legislators to consider overarching guiding principles such as enhancing privacy protections and increasing information sharing.
Note: The ABA recently adopted policy calling for enhanced cyber security measures related to elections, and seeking further restrictions and penalties for perpetrators of election disinformation.