Legislative Priorities for the 117th Congress

ACCESS TO LEGAL SERVICES

Increase Funding for the Legal Services Corporation

The Legal Services Corporation (LSC) is the nation’s largest provider of civil legal aid for low-income Americans, and LSC grantees serve every congressional district in the United States. In 2019, LSC directly benefited over 1.8 million people in all households served, including veterans, individuals in rural communities, aging Americans, disaster victims, victims of the opioid epidemic, women (who are over 71% of clients), and many others. Furthermore, LSC has helped many low-income Americans address their life-altering civil legal needs caused by the coronavirus pandemic.

The ABA has advocated vigorously over the years for increased and robust LSC funding. These efforts during the 116th Congress were successful and helped boost LSC funding by $50 million, despite the Administration’s repeated calls to eliminate LSC and opposition from some Members of Congress. After a record number of Senators and Representatives signed bipartisan letters of support, Congress increased LSC funding to $465 million for FY 2021, a 5.7% increase over the previous fiscal year. Congressional recognition of the program’s value was validated again with the passage of the 2020 CARES Act, which provided LSC with an additional $50 million of supplemental emergency funding to address the additional civil legal needs of low-income Americans caused by the pandemic.

During the 117^th Congress, GAO will continue to build and expand coalitions of support and seek innovative ways to explain the need for LSC to secure as high a level of funding as possible for FY 2022 and FY 2023.

Support Reauthorization of the Violence Against Women Act

The Violence Against Women Act (VAWA), which provides protections for victims of domestic violence, sexual assault, and dating violence, requires reauthorization every five years by Congress. The Act also provides funding for social service agencies and programs that support survivors of such violence, which must be renewed annually.

Authorization for VAWA expired on December 21, 2018. The 116^th Congress did not reauthorize the statute because of disagreement over the inclusion of new substantive provisions intended to strengthen protections for victims of violence, but it has continued to fund programs under VAWA designed to help victims. It is especially important to strengthen and fund domestic violence prevention programs now because of the additional strains on families and relationships caused by the pandemic. The ABA has supported VAWA since its enactment in 1994 and will vigorously support its reauthorization and full funding in the 117^th Congress.

Expand Broadband Access for Rural America

Over 20 million rural Americans lack adequate and affordable high-speed internet access -- commonly referred to as broadband – which also impedes their access to justice and legal services. The unavailability of broadband deters lawyers from setting up offices in rural towns, makes it difficult for established lawyers to practice law, and hampers pro se litigants from accessing the information and documents they need. As important, the lack of broadband also prevents rural communities from using educational and medical resources that are desperately needed during the coronavirus pandemic and readily available in other parts of the country. The coronavirus pandemic has brought this need into stark focus.

We recognize that the 116^th Congress appropriated $7 billion to fund broadband initiatives that will improve access and temporarily make it more affordable for low-income families, but much more needs to be done. In accordance with policy adopted in August 2019, the ABA will urge the 117^th Congress to include in any infrastructure legislation a comprehensive plan to ensure that rural America and indigenous communities have access to broadband.

CYBERSECURITY

Threats to cybersecurity consistently rank as one of the top global risks and as a high priority for ABA members. During the past decade, as threats have mounted, the U.S. government has increased its focus on cyber threats and vulnerabilities as key components of economic policy and national security. The Biden Administration has pledged to enhance funding for cybersecurity initiatives, consistent with longstanding ABA principles, and Congress is expected to swiftly act on cyber issues.

Legislation is expected to be introduced early in the 117^th Congress to address several areas of concern including clarifying or reorganizing federal agency cyber responsibilities and combatting ransomware attacks. ABA policy addressing cybersecurity calls upon all law firms to make sure they have adequate security measures in place, among other measures. As U.S. policy and law develops, 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; we also urge policymakers to adhere to guiding principles, such as enhancing privacy protections. The ABA will continue to monitor developments on the Hill and weigh in as needed. 

CRIMINAL JUSTICE SYSTEM IMPROVEMENTS

Eliminate Racial and Ethnic Bias in the Criminal Justice System

The ABA supports efforts to eliminate racial and ethnic bias in the criminal justice system and to reduce the impact of unexplained or unjustifiable racial disparities in outcomes. Numerous bills were introduced in the 116^th Congress targeting points in the criminal justice system that are vulnerable to bias and produce outcomes that can fall disproportionately on protected classes of individuals. For instance, the George Floyd Justice in Policing Act of 2020 (H.R. 7120) and the JUSTICE Act (S. 3985), would have addressed the specific role of law enforcement and the use of force if enacted. We expect similar legislation to be introduced this Congress, on which we expect to advocate, that should help to restore public confidence in the justice system.

Promote Smart Sentencing, Corrections, and Re-Entry Reforms

The ABA supports federal sentencing reform aimed at eliminating mandatory minimum sentences and expanding alternatives to incarceration. The ABA also supports strengthening and expanding programs for people who are leaving prison at the conclusion of their sentence to help make sure their transitions back into society are successful. The ABA will continue to urge Congress to pass legislation that provides for alternative sanctions where incarceration is not the most effective strategy for promoting rehabilitation, reducing recidivism, and increasing public safety. We will also advocate to repeal mandatory minimum sentences entirely.

The ABA supports legislation that would improve the conditions of confinement—especially during the pandemic—to enhance, and not undermine, the ability of persons to survive their sentences and make successful transitions back into society. Examples of such legislation introduced in the 116^th Congress and expected to be introduced again include the Effective Assistance of Counsel in the Digital Era Act (H.R. 5546), which would extend attorney-client privilege protections to emails between prisoners and their lawyers to the same extent that the privilege already protects their regular mail, phone calls, and in-person visits; and the Correctional Facility Emergency Response Act of 2020 (H.R. 6414), which would bring desperately needed resources to American prisons and jails. The ABA will advocate for these and other bills that promote smart sentencing, corrections, and re-entry reforms this Congress.

Reduce the Use of Incarceration and Harsh Sanctions Based on Ability to Pay

The ABA believes that money bail should only be used when it is the only way to secure a person’s appearance in court and opposes incarceration and similarly harsh sanctions for the inability to pay fees and fines. For individuals of reduced financial means, losing a driver’s license for being unable to pay a fine undermines that person’s ability to meet basic family needs, let alone pay the fine. 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 too. During the 117^th Congress, the ABA will support these and other legislative proposals aimed at reducing the use of incarceration and harsh sanctions based on ability to pay.

Reduce the Impact of Collateral Consequences of Criminal Convictions

There are more than 44,000 potential collateral consequences of criminal convictions, yet they are too often unknown to a person when they plead guilty, or they 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 are merely a punitive “second sentence” that takes away fundamental rights, liberties, and access to assistance without due process or a process of review. The ABA supports sunset or repeal of lifetime collateral consequences not rationally related to one’s conviction and making all persons aware of collateral consequences of a conviction at the time of a guilty plea and at sentencing. The ABA also opposes lifetime bans on basic subsistence support from governmental programs as a collateral consequence of conviction when no comparable alternative is available. 

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 prohibit the use of false, deceptive, or misleading statements and acts by foreign principals regarding the regarding the time, place, or manner of voting, to interfere with voting, registering to vote, vote tabulation, or vote reporting. Numerous bills addressing election security and disinformation were introduced in the 116^th Congress, including H.R. 1, the For the People Act, which was passed by the House but not taken up by the Senate. H.R. 1 was reintroduced in the 117^th Congress on January 4, 2021. In addition, funding for election security measures is considered as a part of the appropriations process and likely to receive enhanced attention due to reports of foreign-sponsored efforts to interfere in the recent 2020 election.

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. Legislation to restore Sec. 5 preclearance provisions of the Voting Rights Act (H.R. 4, the Voting Rights Advancement Act), increase voter protection (H.R. 1694, the Native American Voting Rights Act), and restore voting rights for convicted persons (H.R. 196, the Democracy Restoration Act) were introduced as stand-alone bills in the 116^th Congress and are expected to be reintroduced this Congress. The Democracy Restoration Act and a provision addressing voters with disabilities were also included as provisions in H.R. 1, the For the People Act, referenced above.

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 116^th Congress related to enhancing civic education, including the bipartisan Educating for Democracy Act, which the ABA supported. This legislation is expected to be reintroduced early in the 117^th Congress. 

ELIMINATION OF DISCRIMINATION

Support Enactment of Laws to Eradicate Discrimination in Public Accommodations and the Workplace

Oppose LGBTQ⁺ Discrimination. Thirty years ago, the Association urged the federal government and state and local governments to enact legislation prohibiting discrimination based on sexual orientation in employment, housing, and public accommodations. Since that initial resolution in 1987, the House of Delegates has adopted close to 60 resolutions addressing the rights and interests of LGBTQ⁺ people.

Much progress has been made in the field of LGBTQ⁺ rights over the past two decades, mostly because of landmark Supreme Court decisions. Yet, while numerous bills have been introduced in the U.S. Congress to advance LGBTQ⁺ rights during this period, none has been enacted into law. A broad bill that was passed by the House in the 116^th Congress but died in the Senate was the Equality Act of 2019, which would comprehensively ban discrimination involving the workplace, public accommodations, housing, credit, and jury service. The ABA supports this legislation and will work towards its enactment in the 117^th Congress.

Oppose Gender Discrimination. Gender-based wage discrimination remains a pernicious problem in the workplace despite enactment over 60 years ago of the Equal Pay Act of 1963 (EPA), which made it illegal for employers to pay unequal wages to men and women in the same workplace who perform substantially equal work. The EPA is outdated and ineffective, and the government has failed to gather data on the extent of the problem. ABA-supported legislation to cure these defects has made some progress in past Congresses, only to die with adjournment. The ABA will continue advocating for this legislation in the 117^th Congress, where we expect more favorable consideration and support by the new administration. The ABA will also continue to support ratification of the Equal Rights Amendment. 

IMMIGRATION REFORM

Support Access to Counsel and Due Process Safeguards

The ABA supports measures to increase due process safeguards for those in removal proceedings. Persons in immigration proceedings do not have a right to appointed counsel even though they face serious consequences, such as detention and removal from the country. Representation rates are low – 37 percent of all noncitizens and only 14 percent of detained noncitizens are represented in their proceedings. The ABA supports measures to increase access to counsel and legal information, including advocating for increased funding for the Department of Justice’s Legal Orientation Program (LOP), which provides legal rights presentations and pro bono screening for detainees. We support government-appointed counsel for the indigent and particularly vulnerable populations, such as children and the mentally ill and disabled.

Oppose Mandatory Detention and Support Alternatives to Detention

The ABA continues to oppose the detention of individuals in immigration proceedings, except in extraordinary circumstances, and to support increasing the use of alternatives to detention. Immigration and Customs Enforcement’s use of immigration detention has increased significantly from the 1990s to the present. Although the number declined in 2020 due to COVID-related restrictions, approximately 500,000 people were detained in 2019. Detention conditions are often deplorable, and these facilities can be especially traumatic for vulnerable populations, such as children and asylum-seekers, and all persons in detention have a significantly decreased ability to access counsel. It will be important for the ABA to continue to advocate for the use of detention only in extraordinary circumstances and to support less costly but effective alternatives to detention programs.

Support Strengthening the Independence of and Improving the Immigration Court and Adjudication System

With more than 1.2 million cases pending and increasing delays due to the COVID pandemic, the immigration court system is in crisis. While there has been some progress in increasing resources for the courts over the past two years, the Department of Justice (DOJ) has also taken several actions that hamper the efficient handling of court dockets and impinge on the independence of immigration judges. Many of these issues stem from the structural flaw of having the immigration courts placed under the authority of the DOJ. The ABA supports restructuring the system into an independent, Article I court. However, given that such a major initiative will take time, the ABA also supports incremental improvements to the current immigration court system to reduce delays, ensure due process, and bolster the independence of immigration judges. To this end, the ABA supports increasing the number of immigration judges and support staff, implementing changes to address inefficiencies within the current adjudication system, and instituting improvements to the hiring, training, and disciplinary functions.

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 the last four years 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 will advocate to rescind these programs and urge Congress to strengthen the asylum and refugee legal framework.

INDEPENDENCE OF THE JUDICIARY

Support Efforts to Improve the Operations of the Federal Courts and Oppose Efforts That Undermine the Independence of Judges

The ABA has long opposed bills or actions that threaten the independence of the judiciary and undermine public confidence in the courts. Even though legislation will again be introduced this Congress to limit the discretion of federal judges in numerous ways, none is likely to receive serious attention in both chambers. A far more serious concern is the escalating threat to the safety of judges.

The horrific murder of a U.S. District Court judge’s son and critical wounding of her husband this past July has renewed focus on the need for enhanced security for our federal judges. Threats against federal judges and court officials have risen dramatically in recent years, from less than 100 in 2015 to 4,500 in 2019, according to the U.S. Marshals Service. We will urge Congress to carefully examine whether existing federal laws are adequate to protect the safety of all persons involved in the federal judicial process in light of recent events and the proliferation of credible physical threats circulating on social media and to take appropriate action to enhance security. The ABA adopted policies during the 1990s urging judicial security reforms, and additional, detailed policy will be deliberated during the Midyear Meeting.

The ABA also is concerned that recent actions have threatened the decisional independence of the administrative judiciary. Specifically, the ABA is concerned about the breadth of Executive Order 13843 issued on July 10, 2018, which removed ALJs from the Competitive Service. The ABA has urged the Biden administration to review the EO and will work with Congress to assure that safeguards remain in place that preserve the adjudicative independence of ALJs.

Support Filling Judicial Vacancies and Providing Adequate Resources for the 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, filling judicial vacancies promptly, and authorizing a sufficient number of judgeships so that justice may be dispensed in an impartial and timely manner.

While Congress has been respectful of the fiscal needs of the federal courts during its annual appropriations process, it has not been receptive to the judiciary’s urgent requests for supplemental funding to provide appropriate safeguards and pivot to a virtual environment in response to the coronavirus pandemic. The ABA will continue to advocate for supplemental funding for the courts. 

As of the date of this memo, there are less than 50 vacancies on the federal courts. While this low number is good news, every vacancy needs to be filled promptly and in a deliberative fashion. Consistent with the comments offered by dozens of survey respondents, the ABA will advocate for its policies that call for the prompt filling of judicial vacancies, pre-nomination consultation, the use of bipartisan judicial nominating commissions by senators, and increasing diversity on the federal bench.

The federal courts also need Congress to authorize new judgeships to handle ever-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 Erode the Attorney-Client Privilege and Work Product Doctrine

For years, the ABA has spoken out against federal agency policies that erode or undermine fundamental attorney-client privilege and work product protections of individuals, companies,

and other entities. For example, the ABA persuaded U.S. Customs and Border Protection to revise its border search policy in 2018 to increase protections for privileged information contained on attorney laptops and cell phones. The ABA also helped persuade the Consumer Financial Protection Bureau (CFPB) not to adopt a new rule in 2020 that would have greatly expanded its discretion to disclose confidential and privileged information it receives from regulated entities to many other foreign and state agencies and other entities that exercise governmental authority.

The ABA has also been successful in reversing various federal agency policies that pressure companies to waive their attorney-client privilege and work product protections during

investigations and other agency proceedings. Although the Justice Department, Sentencing

Commission, Securities and Exchange Commission, and other agencies have revised their policies to better protect the privilege and work product, many other agencies—including the CFPB, other federal banking regulators, and the Department of Housing and Urban Development—still have policies requiring entities to disclose privileged information. The ABA will continue to engage with these and other federal agencies as needed to protect the privilege and client confidentiality.

Oppose Regulations that Interfere with the Confidential Attorney-Client Relationship or

the Courts’ Authority to Regulate and Oversee the Legal Profession

The ABA has also consistently opposed legislation and regulations that would undermine the attorney’s duty to preserve client confidentiality or judicial regulation of the legal profession. On January 1, 2021, Congress enacted the Corporate Transparency Act (Title LXIV of P.L. 116- 283), which will require many small businesses to report detailed beneficial ownership information to the Treasury Department. Although the ABA opposed the CTA, it persuaded the bill’s sponsors not to include harmful language from previous versions of the bill that would require attorneys to report confidential client information to the government and regulate the attorneys as “financial institutions” under the Bank Secrecy Act.

During the 116th Congress, the ABA also worked with its congressional allies to draft legislation that would protect the courts’ exclusive authority to regulate and discipline attorneys engaged in litigation and prevent federal agencies from undermining the courts’ proper role. The ABA will continue its efforts to advance similar legislation in the new 117^th Congress and will also continue to oppose any new proposed measures that would impose burdensome regulations on attorneys or undermine the attorney-client privilege, the confidential attorney-client relationship, or the courts’ inherent authority to regulate and oversee attorneys engaged in the practice of law.

INTERNATIONAL RULE OF LAW

Support Funding for Domestic and International Agencies and Programs that Promote Democracy, Human Rights, and the Rule of Law

Promoting the international rule of law through both U.S. governmental policies and the ABA’s international technical legal assistance programs is important to ABA members and the international community. The international affairs budget is a key component in that effort. The ABA supports adequate funding for the overall U.S. international affairs budget and increased funding specifically for domestic and international agencies and programs that promote democracy, human rights, and the rule of law, including through the ABA Rule of Law Initiative and Center for Human Rights.

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 renew 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 the U.S.’s rejoining or remaining engaged 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 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.

These organizations and agreements act as critical force-multipliers in promoting international peace and security, strengthening democratic governance, promoting sustainable development, and protecting human rights. While none is perfect, the United States can lead reforms from a stronger position when we actively engage and fully meet our financial commitments.

LEGAL EDUCATION

Support Affordable Student Loan Options and Repayment Assistance Programs

The ABA supports student access to sufficient financial assistance to pay for law school and encourages law schools to offer comprehensive debt counseling education. The average debt of a law school graduate is around $145,000 according to report cited in the 2020 Law School Student Debt Survey published by the ABA Young Lawyers Division, an increase of 77% from 2000 - 2016. The vast majority of students attending law school require loans to pursue their legal education. The monthly repayment obligations on these loans can present significant financial problems after graduation, including interfering with the ability to meet basic living needs. Flexible repayment options, in addition to accessible and free financial counselling, are critical tools to help assure the future success of graduates who have borrowed significant sums to attend law school. This is especially true now, given challenges in taking the bar exam in some states, hiring delays imposed by law firms, and other economic challenges caused by the ongoing pandemic.

Federal student loans are authorized under Title IV of the Higher Education Act (HEA), which technically expired in 2013. Reauthorization of the HEA will likely be a priority for the 117^th Congress, and proponents may have greater success overcoming the obstacles that have frustrated prior attempts due to same-party control in each chamber of Congress. HEA reauthorization will likely act as the vehicle through which Congress will make reforms to student loan programs, repayment options, and the kinds of support that schools may offer to their students. ABA advocacy will focus on ensuring flexible and affordable terms for law student borrowers and supporting the ability of schools to provide robust financial counseling for students.

Support Preservation of the Public Service Loan Forgiveness Program

The ABA is credited with the creation of the federal Public Service Loan Forgiveness program (PSLF) in 2007, which provides loan repayment assistance in exchange for a minimum of ten years of service in certain governmental and nonprofit organizations. The ABA has defended the existence of the program in the intervening years and fought back against efforts to reduce its benefit for law graduates.

A 2019 Government Accountability Office (GAO) report found that the U.S. Department of Education routinely denies about 99% of completed applications for the PSLF program and has failed to provide a definitive source of information for determining which employers qualify. A 2016 ABA lawsuit against the Department of Education exposed that the Department was relying on secret standards to retroactively render ineligible many jobs that had previously been eligible for PSLF. During the 117^th Congress, the ABA will continue to oppose any legislative attempts or executive actions to cap and repeal PSLF, as well as any efforts to modify eligibility standards in a manner that would unfairly restrict access to the program.