General Practice, Solo & Small Firm DivisionTechnology & Practice Guide

The Compleat Lawyer, Spring 1996, Vol. 13, No. 2

Legislative Update

E. E. Anderson

E. E. Anderson, a retired general in the U.S. Marine Corps, is a Section Council Member and Chair of the Federal Legislation Committee.

When the 104th Congress convened, Speaker Newt Gingrich (R-GA) promised to make the House "family friendly." A family room was established where members could meet with their families. The Speaker appointed a House Family Quality of Life Advisory Committee, co-chaired by Rep. Tim Roemer (D-IN) and Frank R. Wolf (R-VA).

However, with the GOP's undivided attention being given to the "Contract with America," quality of life has suffered. Members of Congress, including Roemer, have complained bitterly about the late adjournment hour, and overtures have been made to the leadership asking them to not call for floor votes after 8:00 p.m., and to use modern-day methods of scheduling. To date, not much has been done to placate complaining members and not much should be expected as we enter an election year. But as Roemer has said, "You don't just talk about family values and vote on family values in Congress. You need to also practice family values."

Senior Housing Protection
On December 6, 1995, the Senate passed a bill to amend the Fair Housing Act, H.R. 660, H.Rept 104-91 and S.Rept 104-172, by a vote of 94-3. This bill is designed to tighten the definition of "seniors only" (people 55 or older) housing and to protect managers of senior housing complexes from discrimination lawsuits. The fair housing law prohibits landlords from discriminating against families with children but allows exceptions for senior citizen housing. This type of housing is defined as housing in which at least 85 percent of the units are occupied by at least one person who is 55 or older. The Senate adopted the bill after approving an amendment by Sen. Jon Kyl (R-AZ) that stated that real estate agents or other landlords would not be personally liable in a discrimination suit if the complex had formally stated that it qualified for the exception and they had no contrary knowledge.

Congress adopted this legislation because of the vagueness of the HUD regulations that were used to deny senior citizen status to some housing complexes and to foster lawsuits alleging discrimination on the basis of age or family status. On December 18, 1995, the House agreed by voice vote to the Senate amendment to H.R. 660, and on December 28, 1995, the president signed H.R. 660 (P.L. 104-76) to amend the Fair Housing Act.

Other Pending Legislation Affecting Seniors
The Older American Act of 1965 (OAA) is the subject of reauthorization in H.R. 2750, which is sponsored by Rep. Randy Cunningham (R-CA). The existing act is due to expire in September 1996; H.R. 2750 would reauthorize it for five years. As proposed, the legislation would consolidate 23 programs into nine and would eliminate funding for grants to national organizations under the Senior Community Service Employment Program. This program subsidized part-time community service jobs for unemployed low-income seniors.

The ABA has expressed its concerns over the passage of H.R. 2750 as presently written. The ABA's Governmental Affairs Director, Robert D. Evans, wrote to subcommittee chair Cunningham on November 7, 1996, asking that Congress not pass legislation that reduced the federal deficit "at the expense of justice for the elderly poor." Mr. Evans pointed out several proposals in the bill that were of great concern to the ABA in its quest to ensure adequate legal assistance for the elderly. He mentioned that older people regularly encounter staggeringly complex and diverse legal problems--issues involving abuse and neglect, financial exploitation, economic security, wills and estates, housing, health and long-term care, guardianship, and alternatives to guardianship ( Washington Letter, Vol. 3, No. 12, December 1, 1995, page 6). He also said that the legal assistance available under OAA is critical to preserving the autonomy of older persons. Another contentious portion of the proposal is that it would replace the words in the existing law that require low-income minorities to receive assistance with words referring to those with "the greatest social need." Full committee action has not yet been scheduled.

More Income for Seniors
In the "Contract with America," the House Republicans promised seniors that they would provide relief for them from the onerous earnings limit currently applied under Social Security. Under H.R. 2684, introduced by Rep. Jim Bunning (R-KY), the annual earnings limit for seniors would be increased from $11,280 to $14,000 next year and to $30,000 by the year 2002. Under current law, social security benefits for those individuals between the age of 65 through 69 is reduced by $1 for every $3 earned above $11,280. H.R. 2684 passed the House on December 5, 1995 by a vote of 411-4. Sen. John McCain (R-AZ) introduced legislation (S. 1470) that is almost identical to H.R. 2684. This bill was sent to the Senate Finance Committee for review; on December 14, 1995, the committee approved S. 1470 and sent it to the floor.

Additional Income for Certain Retirees
H.R. 394, H.Rept 104-389 passed the House on December 18, 1995. Prior to the passage of this legislation, California, New York, Oregon, and other states had reserved the right to tax pension income of nonresidents who established tax-deferred pensions and retirement accounts while working in their states, and then upon retirement, moved to states without income taxes. Proponents called payment of such taxes "taxation without representation," while opponents contended that it was unfair of those former residents who shielded their income while working in their states to move to another state when they are about to pay taxes on their retirement income. On January 10, 1996, the president signed H.R. 394 into law (P.L. 104-95).

Direct Student Loan Program in Jeopardy
The direct student loan program began in 1992 during the Bush administration. At the time, it was a demonstration project involving only 5 percent of the nation's postsecondary schools. After Clinton became president, supporters saw a grand opportunity to expand the program and make significant changes. The 1993 budget reconciliation bill authorized an increase in the program from the original 5 percent to 60 percent by academic year 1998-99. The Clinton budget of December 7, 1995, called for the removal of all limits in direct or guaranteed lending.

Direct lending has been called the keystone of Clinton's education program, and Democrats contend that by expanding the program, $1 billion could be saved in annual subsidies and fees. The Republicans, using estimates by the Congressional Budget Office, contend that $1.5 billion could be saved over seven years if the program were eliminated. The CBO was asked by the Republicans to include all administrative costs in their calculations, which had previously been excluded. Sen. Nancy Landon Kassenbaum (R-KS) argues that it makes no sense to add people to the Department of Education to make loans when loans are already available in the private sector. So where does the program stand today?

Initially, the House version, contained in the deficit-reducing budget reconciliation bill (H.R. 2491), called for the elimination of the direct loan program. The Senate version of H.R. 2491 suggested a 20 percent ceiling. The budget reconciliation conferees placed a 10 percent ceiling on the program. With Clinton insisting on greatly expanding the program and the Republicans calling for an elimination, or at most a 10 percent ceiling, this matter will become a very contentious issue during the ongoing budget negotiations.

Affirmative Action Programs Threatened
Rep. Charles Canady (R-FL) introduced H.R. 2128, which would virtually eliminate all federal affirmative action programs. He has held hearings on the bill and plans to mark it up in the constitutional subcommittee in early 1996. Senate Majority Leader Robert J. Dole (R-KS) has introduced S. 1085, which is identical to H.R. 2128. These bills would prohibit the federal government from using racial or gender-based preferences in awarding contracts and from requiring or encouraging contractors to use such preferences. Goals, set-asides, and timetables to remedy discrimination would be banned. President Clinton appointed a review commission to examine all federal affirmative action programs, and the results of this review called for some changes in the program, but as he said, "Mend it but don't end it."

In the House, Speaker Newt Gingrich (R-GA) wants to consider H.R. 2128 in tandem with a bill that Rep. James M. Tallent (R-MO) is developing that will be concerned with initiatives to create advantages for the disadvantaged. No committee action has been completed on S. 1085, and Dole forestalled Senate action during 1995, but he is expected to move on his bill in 1996.

The ABA's position on these bills is clearly stated in a letter to all House and Senate Judiciary members by its Government Affairs Director, Robert D. Evans. Mr. Evans pointed out that the proposed legislation would "effectively end the federal government's leadership in efforts to achieve a society where equality of opportunity is a reality rather than an aspiration." His letter stated that the ABA opposes any legislation that would eliminate federal affirmative action programs involving employment and federal contracting.

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