This article is cross-published in the ABA Journal.
Three days after the 117th Congress convened, the U.S. Capitol was stormed to disrupt the electoral process and try to prevent the certification of the 2020 presidential election. A week later, the House of Representatives voted to impeach the former president; a week after that, the 46th president of the United States was inaugurated and the Democrats held a slim majority in each congressional chamber.
Throughout the year, President Joseph R. Biden and Congress were preoccupied and divided over how to respond to the ever-changing pandemic. Congressional relations continued to fray, both between political parties and within the parties. A congressional committee investigating the January 6th Capitol riot issued subpoenas, while legislative brinkmanship over raising the debt ceiling almost shut down the government.
Despite a tumultuous 2021, Congress passed another monumental coronavirus relief package (American Rescue Plan, Pub. L. 117-2) and a historic bipartisan infrastructure bill (Infrastructure Investment and Jobs Act, Pub. L. 117-58) that was years in the making. Other significant legislation and executive actions also advanced on issues advocated by the ABA, the most important of which are summarized below.
ABA advocacy on many of these topics began when we sent policy recommendations to the Biden-Harris Transition Team and the new Congress in early 2021. Grassroots advocates across the nation enhanced our efforts on the first five issues below by participating in various association-wide lobbying events, mainly focused on legislation and policies that would help the economy and individuals recover from the continuing effects of the pandemic. They included:
- Broadband access. Expanding broadband access and affordability to rural areas and other underserved communities became a clarion call during the pandemic, as our lives, schooling and livelihoods became more dependent on reliable internet access. Congress responded by allocating over $72 billion between the coronavirus relief package and the infrastructure bill that the president signed into law to expand broadband networks and provide subsidies for those who could not afford services.
- Student debt relief. Thousands of advocates across the country joined the ABA and its Governmental Affairs Office to urge the administration and members of Congress to provide student loan debt relief and reform and strengthen the Public Service Loan Forgiveness program. Two weeks after an ABA-led Student Debt Week of Action, the Education Department announced plans to overhaul PSLF to make it easier for borrowers to understand and access the program. President Biden ordered additional improvements when he issued an executive order in December that instructed federal agencies to further streamline PSLF to help eligible borrowers. (See fact sheet accompanying the order for more information.) He also extended the pause on student loan repayments that was set to expire at the end of January. Repayments will now resume beginning on May 1, 2022.
- Legal Services Corp. funding. The pandemic has created a surge in demand for civil legal aid, especially related to evictions, domestic violence and assistance with income maintenance. While Congress is still deliberating over the final FY 2022 appropriations package, LSC appears to be poised to receive a substantial increase in its budget. The House Appropriations Committee responsible for LSC recommended $600 million for FY 2022, a whopping increase over LSC’s FY 2021 budget, and the Senate counterpart includes an additional $50 million. Demonstrating its commitment to LSC, Congress also included $40 million in its stopgap FY 2022 funding for LSC to provide legal assistance to low-income individuals who suffered losses due to natural disasters. And in November, the Department of Housing and Urban Development announced $20 million in grants from its Eviction Protection Program that will be awarded to legal service providers to assist low-income tenants at risk of eviction.
- Eviction moratorium and rental assistance. The American Rescue Plan Act provided an additional $21.6 billion for the Emergency Rental Assistance program, which provides financial relief for both landlords and tenants. After Congress refused to extend its eviction moratorium past Jan. 31, 2021, the Centers for Disease Control and Prevention extended it three separate times, through October. However, the U.S. Supreme Court blocked enforcement of the latest CDC order pending appeal.
- Judicial security. S. 2340, legislation to enhance federal judicial security by prohibiting publication of personally identifiable information on the internet, was finally reintroduced and reported out of the Senate Judiciary Committee on Dec. 2 by unanimous vote after over a year of negotiations. This is a small but significant advancement, but our advocacy continues.
Criminal justice system improvements advanced during the first session due to administrative and congressional action. Among President Biden’s first official actions were the issuance of two ABA-supported executive orders:
- Executive Order 13985, addressing racial justice and equity, orders the coordination of a comprehensive approach among all federal agencies to address policy and regulatory barriers that contribute to historical inequity and poverty endured by people of color and others in underserved communities.
- Executive Order 14006, which terminates the use of privatized criminal detention facilities.
The House of Representatives also passed three important criminal justice initiatives that now await Senate action:
- H.R. 546, the Effective Assistance of Counsel in the Digital Era Act, which would ensure email messages between lawyers and their incarcerated clients are protected as confidential, just as with regular mail.
- H.R. 1280, the George Floyd Justice in Policing Act of 2021, which would restrict the use of qualified immunity in federal lawsuits against police officers; improve the ability of the federal government to prosecute police misconduct; end racial profiling; and ban the use of no-knock warrants in drug cases and chokeholds.
- H.R. 1693, the EQUAL Act, which would equalize the treatment of powder and crack cocaine in calculating federal sentences.
GAO advocated successfully for other bills and administrative actions that advance the association’s antidiscrimination and foster care policies. The following bills passed the House and are teed up for Senate action during the second session:
- Non-discrimination in foster care. In a move supported by the ABA, the Biden administration has rescinded waivers granted by the prior administration that allowed states to use federal funding for contracts with social service providers that discriminate on the basis of gender identity, sexual orientation and religion.
- H.R. 7, the Paycheck Fairness Act, passed the House on April 15. The legislation would update the Equal Pay Act of 1963, enacted by Congress almost 60 years ago to prohibit gender-based pay inequality.
- H.R. 5, the Equality Act, passed the House on Feb. 25. This bill would prohibit discrimination on the basis of sex, sexual orientation and gender identity in public accommodations, education, the jury system and other areas of public life.
- H.R. 1620, the Violence Against Women Reauthorization Act of 2021, passed the House March 17. The bill would modify and reauthorize through FY 2026 programs and activities under the Violence Against Women Act that seek to prevent and respond to domestic violence, sexual assault, dating violence and stalking. The bill would also authorize new programs, some of which are controversial. The Senate is poised to introduce its version of the bill early in the second session. Senate appropriators are recommending a significant increase in funding for VAWA programs in FY 2022.
There also were some important ABA-supported advancements in the immigration arena with more potentially to follow, should Congress enact a final FY 2022 appropriation bill. For example, on his first day in office, President Biden issued the following:
- Proclamation on Ending Discriminatory Bans on Entry to The United States, which lifts certain restrictions on immigrant visas for nationals primarily from Muslim-majority countries and select African countries.
- Executive Order on the Revision of Civil Immigration Enforcement Policies and Priorities, which required federal agencies to issue new guidance about immigration enforcement.
- Memorandum on Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA).
In addition, on April 27, the Department of Homeland Security issued a memorandum prohibiting civil immigration enforcement in or near a courthouse under most circumstances.
Some significant advancements were made regarding U.S. engagement in international organizations during the 1st Session too. The United States announced its intention to remain with the World Health Organization, the Paris Climate Accords and the United Nations Human Rights Council.
Finally, the GAO and ABA members persuaded an ad hoc committee of the Administrative Conference of the United States to add language to its recommendations on Regulation of Representatives in Agency Adjudicative Proceedings clarifying that an attorney representing a client in such a proceeding will not be required to act in contravention of any rules of professional conduct of the state in which the attorney is licensed or authorized to practice.
The advocacy of the GAO and ABA members advanced several important policy goals of the association over the last year, but much more needs to be done during this second session of the 117th Congress. Midterm elections scheduled for November may make progress even more difficult this year, but our GAO team is ready for the challenge and already working with ABA leaders and entities to identify opportunities to make progress where we can.
Follow us @ABAGrassroots on Twitter to monitor developments as they happen or to join our advocacy efforts.