The first session of the 116th Congress started in 2019 with a politically divided government and the longest federal government shutdown in history. It ended with the impeachment of the president by the Democratic-led House of Representatives.
The second session started in 2020 with the Republican-led Senate acquittal of the president, followed quickly by the arrival of the COVID-19 pandemic in the United States. The rapidly spreading virus compelled Congress to close its doors to the public, transformed daily life throughout the nation and dominated much of the legislative agenda for the remainder of the year. The 116th Congress ended with a presidential election, concerns over the peaceful transition of power, and a rush to fund the government for the remainder of FY 2021 and provide additional coronavirus relief prior to adjournment.
Despite these tumultuous and politically charged events, the ABA Governmental Affairs Office worked with ABA leadership, entities, and grassroots advocates to advance the ABA’s positions on policy issues affecting access to justice, the rule of law, and the legal profession. The ABA continued to be the voice of the legal profession on Capitol Hill and succeeded in advancing numerous policy issues during the 116th Congress, the most notable of which are summarized here.
Enactment of major COVID-19 relief legislation, including the following provisions important to the ABA:
• Economic relief in the paycheck protection program for 501(c)(6) nonprofit organizations, including bar associations, with 300 or fewer employees; who engage 15% or less in lobbying activities and receipts; and spend less than $1 million in lobbying activities.
• $50 million in emergency funding for the Legal Services Corporation to help address the increasing legal needs of low-income Americans impacted by the coronavirus.
• Suspension of federal student loan repayment obligations for borrowers beginning in March 2020 and now extended by the Biden administration through Sept. 30, 2021.
• Extension of the Centers for Disease Control and Prevention moratorium on housing evictions for renters through Jan. 31, 2021 and $25 billion for relief for tenants and landlords. (The Biden administration has called on the CDC to extend the moratorium until March 31, 2021.)
• $7 billion to expand broadband access to rural America and tribal communities and to respond to the pandemic by improving telehealth and remote learning programs.
Protection of judicial oversight of the legal profession by defeating legislative and agency proposals that attempted to regulate the profession. Two successes of this type included:
• Defeat of federal anti-money laundering proposals that would have subjected many attorneys to regulation under the Bank Secrecy Act and required them to file suspicious activity reports against clients and undermine the confidential attorney-client relationship.
• Persuading the Consumer Financial Protection Bureau not to include in its final Debt Collection Practices Rule, published in November 2020, a provision that would have greatly expanded its discretion to disclose confidential and privileged information received from regulated entities to many foreign and state agencies and other entities that exercise governmental authority.
Increased access to legal services for low-income Americans and veterans.
• Besides giving LSC emergency funding to help low-income Americans respond to the coronavirus, Congress increased LSC’s annual appropriations by a total of $50 million and gave LSC $15 million in supplemental appropriation to help victims of natural disasters nationwide (Disaster Relief Act of 2019, Pub. L. 116-20).
• The Servicemembers and Veterans Initiative Act of 2020 (Pub. L. 116-288) now allows the Department of Justice to support civil legal services to military and veterans’ families.
• The Legal Services for Homeless Veterans Act (Pub. L. 116-315) gives the VA authority to directly support and fund legal services for homeless veterans for the first time to help ensure they get the benefits to which they are entitled.
• Provisions in the National Defense Authorization Act (Conference Report, P.L. 116-283) require the VA to provide pro bono legal clinics in each state three times a year and authorize a pilot grant project to explore the feasibility of making those services available year-round.
Improvements for the federal judiciary included the following advocacy successes:
• Enactment of a FY 2021 appropriations that are $233.3 million above the FY 2020 level and include an increase of $24.8 million to the court security account, which is especially needed due to the increase in violence and threats to the judicial community.
• Enactment of the Bankruptcy Administration Improvement Act of 2020 (Pub. L. 116-325), which extends 25 temporary judgeships on the bankruptcy bench and changes the bankruptcy fee system.
• Reauthorization of the Security for Supreme Court Justices Act of 2019 (Pub. L. 116-75), which improves security for Supreme Court Justices by making the authorization permanent and assuring justices and their official guests receive security services wherever they travel.
• Enactment of the Fairness for Breastfeeding Mothers Act of 2019 (Pub. L. 116-30), which requires public buildings, including courthouses, to contain a lactation room available to the public.
Systemic improvements to the criminal justice system were prominent and significant. They included:
• Enactment of the Fair Chance Act of 2019, which requires federal employers to postpone criminal background checks until after they make a conditional offer to an applicant, ensuring that a criminal record is not an undue barrier to getting a job.
• Enactment of a $25 million appropriation to fund research into the causes of gun violence, marking the first time in over 20 years that federal funds could be used for this purpose.
• Defeat of an Office of Personnel Management proposal to ask federal job applicants whether they participated in a pretrial intervention or diversion program that led to dismissal of a criminal charge, thereby avoiding a collateral consequence of that decision.
• Repeal of a lifetime prohibition against persons with a drug conviction from accessing federal student aid, as well as repeal of a policy that made prisoners ineligible for education Pell Grants.
Key intellectual property developments included:
• Enactment of the Copyright Alternative in Small-Claims Enforcement Act of 2019, or CASE Act, which established a new Copyright Claims Board within the U.S. Copyright Office to decide copyright disputes on behalf of creators and artists.
• Enactment of the Trademark Modernization Act, which provides several legislative reforms, including amending section 46(a) of the Trademark Act of 1946 to restore the presumption of irreparable harm in trademark injunction cases.
Other key funding successes on which the ABA advocated include:
• $100 million to fund elder justice programs, including $50 million, the most ever to support state Adult Protective Services programs focused on preventing elder abuse and protecting victims.
• Reauthorization of the Court Improvement Program, which supports the state courts’ role in achieving stable, permanent homes for children in foster care; $30 million for FY 2021; and an additional $10 million in emergency funding for pandemic-related issues and tribal court improvement activities.
• $440 million for alternatives to detention in immigration proceedings; $120.9 million above the FY 2020 level; and $22.5 million for the Legal Orientation Program, an increase of $4.5 million over FY 2020.
Political tensions and major challenges face the new administration and the 117th Congress. To ensure the American legal profession has a seat at the table in Washington in 2021, the ABA Governmental Affairs Office will continue to focus on the ABA’s legislative priorities through its advocacy and grassroots lobbying. The ABA must continue its vigorous efforts to protect the profession, the courts, individual liberty, civil rights and the rule of law, and we will do so with commitment and enthusiasm.
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