ABA Legislative Priorities (Adopted 2020)
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 and funds hundreds of legal aid programs in every congressional district throughout the United States. LSC grantees provide essential legal services that directly benefit more than 1.8 million people each year. Constituents include veterans, older Americans, disabled individuals, rural Americans, domestic violence survivors, women, disaster victims, and many others. In Fiscal Year 2022, Congress increased LSC’s appropriation by $24 million to $489 million. The Senate Appropriations Committee proposed an FY 2023 amount of $539 million, while the House Appropriations Committee approved $675 million. Even at these proposed levels, LSC funding is insufficient to meet the legal needs of low-income Americans.
Support Efforts to Strengthen Cybersecurity
Countering cybersecurity threats and vulnerabilities is an ongoing high priority concern for individuals, businesses, and the U.S. government. In 2012, the ABA adopted its first cybersecurity policy, urging lawmakers to adhere to enumerated guiding principles when enacting laws to improve cybersecurity. Since then, the ABA has adopted policies that call upon all law firms to make sure they have adequate security measures in place to protect client confidentiality and that encourage private and public-sector organizations to implement and maintain appropriate cybersecurity programs. Even though Congress continues to consider multiple cybersecurity bills, such as the Quantum Computing Cybersecurity Preparedness Act and the Federal Cybersecurity Workforce Expansion Act, the ABA has not advocated on this issue during the 117th Congress because our policies are inadequate for meaningful input. The ABA will continue to marshal its expertise to help lawyers address the legal challenges posed by cybersecurity and identify policy development or engagement opportunities as they arise.
Note: See also Election Security under Election Integrity and Civic Education.
CRIMINAL JUSTICE SYSTEM IMPROVEMENTS
Eliminate Bias in the Criminal Justice System
The ABA is committed to eliminating bias in the justice system by reforming laws and practices that have a disproportionate and catastrophic impact on protected classes of individuals.
One segment of the criminal justice system vulnerable to bias is policing. The ABA supports a range of reforms to police training, practices, and accountability. Among other things, the ABA supports substantially curtailing or eliminating the legal defense of qualified immunity for law enforcement; the collection of data on the use of lethal force by officers; independent investigation and prosecution when a person dies while in police custody; and greater transparency concerning complaints or disciplinary action taken against officers. The ABA opposes the use of chokeholds or other forms of asphyxiation; no-knock warrants in drug cases; and racial, ethnic, or religious profiling. Efforts in this Congress to negotiate a comprehensive, bipartisan agreement on police reform have not yet succeeded. Even if legislation is passed, several ABA concerns – including our position against qualified immunity – are not likely to be included.
Support Federal Sentencing and Corrections Reform
The ABA supports federal sentencing reform aimed at eliminating mandatory minimum sentences and expanding alternatives to incarceration that promote rehabilitation, reduce recidivism, and increase public safety. The ABA supports compassionate release programs and “second look” legislation that would authorize the review of lengthy sentences after a substantial portion has been completed.
The ABA supports access to recidivism-reducing programs and restoration of civil rights and benefits that were denied upon conviction but are critical to becoming a productive member of society. The ABA opposes the use of private prisons.
Support Reevaluation of Mass Incarceration
Next year will mark 50 years of “mass incarceration” policies to combat crime in this country. These policies have substantially contributed to the U.S. having the world’s largest prison population and the highest rate of incarceration. They have left a generation of people unemployable and have torn apart families. They also have had a disproportionate impact on communities of color and along socio-economic lines. Planning is underway among organizations and on Capitol Hill to reevaluate these policies. In August of 2022, the ABA adopted two policy resolutions that prioritize strategies for reversing this trend.
Reduce the Impact of Collateral Consequences of Felony Convictions
There are more than 44,000 potential collateral consequences of criminal convictions, yet they too often are unknown to a person when pleading guilty or are not contemplated by the court at the time of sentencing. To make matters worse, many collateral sanctions are not rationally related to the underlying offense and, in essence, constitute a punitive “second sentence” that takes away fundamental rights, liberties, and access to certain forms of government assistance. The ABA opposes lifetime bans on basic subsistence support from governmental programs as a collateral consequence of a conviction and supports sunset or repeal of lifetime collateral consequences not rationally related to one’s conviction. The ABA also supports efforts to make every person aware of the collateral consequences of a conviction at the time of a guilty plea and at sentencing.
Oppose Money Bail and Sanctions Due to an Inability to Pay
The ABA supports reforms to bail and pretrial detention. The ABA opposes the use of money bail unless it is the only way to secure a person’s appearance in court and believes that persons who present no flight risk or harm to the public should not be detained pretrial. The ABA supports the view that fees and fines should be tied to an individual’s ability to pay and opposes incarceration and similarly harsh sanctions for the inability to pay fees and fines. We expect bail reform legislation to be reintroduced that would prohibit money bail in federal criminal cases and help states move away from money bail systems.
ELECTION INTEGRITY AND CIVIC EDUCATION
Support Enhancement of Election Security
Ensuring the security of our elections involves protecting physical infrastructure, such as voting machines and computer systems, as well as combatting efforts sponsored by foreign individuals or entities to spread disinformation. The ABA supports federal funding to protect the security and integrity of the federal election process and authorization for the National Institute of Standards and Technology to define federal standards and develop a certification process for cybersecurity of election systems software, infrastructure, and hardware. The ABA also supports federal legislation to prevent the spread of disinformation that interferes with voting and other core electoral processes.
Support Protection of Voting Rights
The ABA has long supported measures protecting the right to vote, particularly for vulnerable and historically disenfranchised populations. This includes support for the enhancement of remedies under the 1965 Voting Rights Act, in response to Shelby County v. Holder, that would provide a new, flexible coverage formula and create nationwide transparency requirements to keep citizens informed about voting changes in their community. The ABA also supports efforts to remove barriers to voting for Native Americans and Alaska Natives, the homeless and disabled, and persons with criminal convictions.
Support Civic Education Initiatives
The ABA supports civic education to foster understanding of the Constitution and the rights and responsibilities of citizenship, including voting. Our policy supports federal initiatives to promote digital literacy, civic education, and public awareness to build societal resilience to domestic and foreign malign disinformation operations and to increase understanding of the importance of democracy, voting, and democratic institutions. Several bills were introduced in the 117th Congress related to enhancing civic education, including the bipartisan Civics Secures Democracy Act, which the ABA supports.
ELIMINATION OF DISCRIMINATION
Support Legislation to Prevent Discrimination in Public Accommodations and the Workplace
Gender-based wage discrimination remains a problem in the workplace, despite enactment of the Equal Pay Act of 1963, which made it illegal for employers to pay unequal wages to men and women in the same workplace who perform substantially equal work. The ABA adopted policy in 2010 that supports enhanced remedies and procedures to eradicate pay discrimination, including those proposed in the Paycheck Fairness Act. This legislation, which has stalled again this Congress, is likely to be reintroduced next year, along with legislation to mandate paid sick, family, and medical leave. Republicans and Democrats have introduced paid leave bills (using different funding mechanisms), and the ABA adopted policy in support of paid leave in 2019.
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 118th Congress. Another bill supported by the ABA that may resurface next Congress is the Equality Act, which would prohibit discrimination based on sex, sexual orientation, and gender identity in areas including public accommodations and facilities, education, federal funding, employment, housing, credit, and the jury system..
IMMIGRATION
Support Access to Counsel and Due Process Safeguards
There is a crisis with access to counsel in the immigration court system. Nearly 85% 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.
Support Strengthening the Independence of and Improving the Immigration Court and Adjudication System
The nation’s immigration courts continue to be overburdened, with the backlog at an all-time high of over 1.9 million 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 and Support Alternatives to Detention
The ABA opposes mandatory detention, except in extraordinary circumstances, and supports enhancing programs to provide alternatives to detention for those in the civil immigration system. Immigration and Customs Enforcement’s use of immigration detention has increased significantly from the 1990s to the present. Although the number declined in the past two years due to COVID-related restrictions, approximately 500,000 people were detained in 2019. 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 Restoring Access to Humanitarian Protection
The ABA supports ensuring access to legal protection for refugees, asylum seekers, and others deserving of humanitarian refuge. Numerous executive actions in recent years have severely restricted the ability of asylum seekers to access our nation’s asylum system and to receive the due process protections to which they are entitled. Such measures include requiring asylum seekers to stay in Mexico for the pendency of their immigration proceedings and barring persons who transit through a third country from seeking asylum in the U.S. In addition to violating fundamental notions of fairness, many of these policies and regulations do not comport with the United States’ international treaty obligations or domestic statutory and regulatory requirements. The ABA supports rescinding these programs and strengthening the asylum and refugee legal framework.
INDEPENDENCE OF THE JUDICIARY
Support Efforts to Preserve Judicial Independence and Increase Public Confidence in our Federal Courts; Oppose Efforts that Undermine the Independence of Judges
The ABA has long opposed actions that threaten the independence of the judiciary and undermine public confidence in the courts. The most pressing and serious threat to judicial independence today is the escalating violence directed at our judges. The horrific murder of a U.S. District Court judge’s son in 2019 renewed efforts within the ABA and on the Hill to enhance security for our federal judges so that they can decide cases without fear of reprisal or physical harm. This past year, legislation was enacted to enhance security for the Supreme Court, but more is needed. The ABA has worked vigorously during the 117th Congress to enact the Daniel Anderl Judicial Security and Privacy Act, which would restrict the disclosure and publication of personally identifiable information. If it fails to pass this year, the ABA will renew efforts next Congress.
The ABA also seeks to strengthen the decisional independence of the administrative judiciary and, in accordance with recently adopted policy, will work with Congress to enact legislation to require agencies to use merit-based hiring principles that preserve the adjudicative independence of administrative law judges and administrative judges.
The loss of public confidence in the courts over the past few years is an issue of great concern to the ABA, as evidenced by the ABA President’s civic education initiative and the newly appointed Task Force on Law, Society, and the Judiciary. Congress has taken notice too, and is addressing the problem by considering legislation to tighten judicial disclosure loopholes and bring greater transparency to outside funding sources regarding amicus briefs, etc. GAO will engage should the ABA adopt policies with legislative components aimed at restoring public confidence in the judiciary.
Support Filling Judicial Vacancies Promptly and Providing Adequate Resources for the Federal Courts
The federal judiciary requires sufficient resources to perform the core functions assigned to it by the Constitution and Congress. This includes providing adequate funding for its day-to-day operations, increasing staffing as needed, filling judicial vacancies promptly, and authorizing a sufficient number of judgeships so that justice may be dispensed in an impartial and timely manner.
Congress generally has been respectful of the fiscal needs of the federal courts during its annual appropriations process, and there are signs that this will carry forward into FY 2023. The House Appropriations Committee approved the Federal Judiciary’s FY 2023 budget request for a 7.2% increase in discretionary funding. The increase would pay for needed improvements to courthouse security, cybersecurity, case management systems, and other important programs. The Senate Appropriations Committee has not yet acted. The ABA will advocate for increased supplemental funding, as needed.
As of October 20, 2022, there are 85 vacancies and 35 announced future vacancies in the federal courts. Every vacancy needs to be filled promptly and in a deliberative fashion. The ABA will advocate for its policies that, among other things, call for the prompt filling of judicial vacancies, the use of bipartisan judicial nominating commissions by senators, and increasing diversity on the federal bench.
The federal courts also need Congress to extend temporary judgeships and authorize new judgeships to manage rising caseloads in a timely manner. The Judicial Conference of the United States will submit a request for new judgeships to Congress this spring, and we will urge Congress to support the Conference’s request.
JUDICIAL OVERSIGHT OF THE LEGAL PROFESSION
Oppose Measures that Undermine the Attorney-Client Privilege and the Lawyer’s Ethical Duty of Confidentiality
The attorney-client privilege and the lawyer’s ethical duty of confidentiality are bedrock legal principles of our free society that enable clients to communicate with their lawyers in confidence and thus are essential to preserving the clients’ fundamental right to the effective assistance of counsel. Regulatory measures that undermine the privilege or a lawyer’s confidentiality obligations remain a concern of the legal profession and the ABA. The ABA monitors potential regulatory infringements and engages with the Treasury Department, Consumer Financial Protection Bureau, Department of Homeland Security, Legal Services Corporation, National Security Agency, Bureau of Prisons, and other federal agencies to ensure that their policies and practices do not weaken or undermine the attorney-client privilege or the lawyer’s ethical duty of confidentiality.Oppose Regulations That Conflict with and Undermine the State Supreme Courts’ Authority to Regulate and Oversee the Legal Profession.
Oppose Regulations That Conflict with and Undermine the State Supreme 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 or authorized to practice, not federal agencies or Congress, and the courts are in the best position to fulfill this important function. Currently, the ABA opposes legislation and proposed federal agency rules that would regulate lawyers as “financial institutions” under the Bank Secrecy Act and require them to report attorney-client privileged and other protected client information to the government. 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’ assessed dues and voluntary contributions to the United Nations and other critical international organizations. For the U.S. to retain its longstanding leadership role in the international community, we must devote adequate resources to our international affairs budget.
Support U.S. Engagement and Leadership in International Organizations and Agreements
In addition to funding support, U.S. engagement and leadership in multilateral and international organizations are critical to promoting the rule of law. The ABA supports robust U.S. engagement with key international bodies, such as the World Health Organization, UN Human Rights Council, and the UN Educational, Scientific and Cultural Organization. In addition, the ABA supports U.S. ratification of international human rights treaties such as the Convention on the Elimination of All Forms of Discrimination Against Women and the Convention on the Rights of Persons with Disabilities, as well as treaties that facilitate international business, including the Convention on International Settlement Agreements Resulting from Mediation. The ABA also supports U.S. ratification of treaties and other agreements regarding climate change.
LEGAL EDUCATION
Preserve Public Service Loan Forgiveness
The ABA supports federal actions that will strengthen and improve the 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 non-501(c)(3) nonprofit organizations.
Support Student Debt Relief
The federal government can provide additional student loan debt relief in a number of ways, such as by making it possible for student loan borrowers to refinance their federal loans at a more favorable federal rate and extending the student loan payment pause that Congress originally enacted in March 2020. The ABA supports these strategies.