Legislative Priorities for the 116th Congress

2018 ABA Legislative Priorities

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 provides the backbone for America’s pro bono system and serves every congressional district in the United States. In 2017, LSC benefited 1,739,324 people in all households served, notably including veterans, rural communities, women, aging Americans, disaster victims, and victims of the opioid epidemic. Currently, LSC is funded at $410 million. In the face of recurring calls from the Administration and Congress to eliminate LSC, advocating for increased funding for and reauthorization of LSC continues to be an issue.

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.

Oppose measures that limit access to, or redress by, the civil justice system

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 are likely to resurface during the 116th Congress include legislation to amend Rule 11 (Sanctions) and Rule 23 (Class Actions) of the Federal Rules of Civil Procedure, and legislation to fundamentally change diversity jurisdiction by eliminating the requirement of complete diversity among parties.

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.

Support federal sentencing reform

The ABA supports federal sentencing reform aimed at eliminating mandatory minimum sentences and expanding alternatives to incarceration, particularly for nonviolent offenses. The Sentencing Reform and Corrections Act (S. 1917) which was reintroduced this Congress, would recalibrate prison sentences for certain nonviolent drug offenders, narrow mandatory minimum sentences to target violent criminals, and grant judges greater discretion at sentencing for lower-level drug crimes. With sentencing reform declared a priority for Republican and Democratic leaders during the last two Congresses, GAO expects similar legislation to be introduced during the 116th Congress.

Support prison system reform

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, signed into law by President Bush 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. During the 115th Congress, House members introduced bipartisan reauthorization legislation (H.R. 2899), but the Judiciary Committee deferred action on it. Similar legislation has been introduced in the Senate during the Lame Duck session but is not expected to receive action.

Several bipartisan legislative proposals to help prisoners successfully reenter society have been introduced during the 115th Congress as part of the Sentencing Reform and Corrections Act (S. 1917), the CORRECTIONS Act (S. 1994), and the FIRST STEP Act (S. 2795 and H.R. 5682), but none has received a floor vote to date.

Support funding for juvenile justice and delinquency prevention programs

The ABA supports legislation to fund juvenile justice and delinquency prevention programs, as well as efforts to eliminate racial and ethnic disparities in the juvenile justice system. While juvenile crime rates in the United States are at low levels, youths in America—including youths charged with noncriminal misbehavior—are processed in the criminal justice system and imprisoned at much higher rates than in other comparable nations. Youths of color are significantly over-represented at all stages of the juvenile justice system.

The Juvenile Justice and Delinquency Prevention Act (JJDPA), established in 1974 and last reauthorized in 2002, provides crucial support for state programs that assist communities in taking a comprehensive approach to juvenile crime prevention. Reauthorization efforts have failed in recent congresses.

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 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 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) this Congress, and the ABA adopted policy in support of paid leave this past summer.

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 116th 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.

Support Protection of Voting Rights

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).”

While bills to amend Section 5 were introduced in the 115th Congress, most notably, the Voting Rights Amendment Act (S.1419/H.R.3239), no legislative action was taken on them. 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 116th 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 780,000 pending cases. The ABA supports restructuring the system into an Article I court, but immediate action is needed to reduce excessive delay in case resolution. 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.

Support efforts to improve the operations of the federal courts and oppose efforts that undermine the independence of judges

For the past six 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.

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 116th 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, an omnibus judgeship bill was introduced, but it was tied to numerous onerous provisions that are not supported by the ABA or the Judicial Conference.

Support the prompt filling of judicial vacancies

The 115th Congress commenced with 106 vacancies and is likely to end with more, despite the fact that there have been 84 confirmations to date. While the prevailing concern in the last Congress was with the purposeful slow-down in the pace of confirmations (only 22 judges were confirmed during the entire 115th Congress), other concerns over the nomination and confirmation process have arisen this Congress. These include a perceived decline in prenomination consultation between the administration and senators; an acceleration of the confirmation process that has resulted in the sense that senators are not being given enough time to fully and fairly vet each nominee for a life-time appointment; and a statistically verifiable loss in diversity of new appointments. The ABA has adopted policies that, among other things, advocate for the prompt filling of judicial vacancies, prenomination 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.

Oppose efforts to 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 efforts to 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 traditional state court regulation of lawyers

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 “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 establish companies, trusts, or certain other entities. In addition, the ABA is urging Congress to pass legislation that would preserve traditional state court regulation and oversight of the legal profession by clarifying that the Fair Debt Collection Practices Act and the CFPB’s regulatory authority under the Dodd-Frank Act do not apply to the litigation activities of creditor lawyers.

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 for its general assessments and peacekeeping expenses.

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 non-501(c)(3) nonprofit organizations.

Enhance cybersecurity

Cyber threats and vulnerabilities continue to be key components of U.S. economic policy and national security. Even though the 114th 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.