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Accordingly, this also is a good time for the ABA to take stock of its advocacy efforts on Capitol Hill during the past year. When the 110th Congress ended its business this fall, the ABA was able to add up some major legislative victories in a number of areas where association rep­resentatives and staff lobbyists focused their advocacy efforts. There also was progress on several other legisla­­tive fronts important to the ABA that likely will receive attention from the 111th Congress when it convenes on Jan. 3 and new President Obama after his inauguration on Jan. 20.

With a new administration in place and new alignments in the Senate and the House of Representatives, the first session of the 111th Congress promises to be particularly busy. And for the ABA, whose advocacy efforts are coordinated by Governmental Affairs Office Director Thomas M. Susman, there will be plenty of work to do on Capitol Hill.

In the meantime, what follows is a rundown, presented in scorecard fashion, on the work of the 110th Congress on some key policy priorities of the ABA. Each action was favored by the association. While there were no significant legislative defeats for the ABA, congressional work on some issues is still incomplete and likely to spill into 2009.

The Issue: Attorney-Client Privilege (1)

What Happened: Congress adopted Federal Rule of Evidence 502 to protect against accidental waiver of the attorney-client privilege and work product immunity in federal court litigation and federal agency proceedings (Public Law 110-322).

The Score: Win

The Issue: Attorney-Client Privilege (2)

What Happened: The Department of Justice on Aug. 28 issued new guidelines barring prosecutors from forcing companies and other organizations to disclose information during investigations that normally would be covered by the attorney-client privilege, the work product doctrine or employee legal protections.

The Score: Win

The Issue: Attorney-Client Privilege (3)

What Happened: The House passed a bill to prohibit any federal official from pressuring companies to waive attorney-client privilege, work product or employee protections, or to consider voluntary waivers when assessing a company’s cooperation during investigations. The Senate has not acted on its version.

The Score: Continuing

The Issue: Domestic Violence

What Happened: The Senate Judiciary Committee reported out a bill to provide grant funding to create a network of volunteer attorneys available to represent domestic violence victims. The network would be maintained by the ABA Commis­sion on Domestic Violence. The full Senate did not vote on the bill, and there was no action on the House version.

The Score: Continuing

The Issue: Equal Justice for Military Personnel

What Happened: The House passed a bill to allow a member of the U.S. military to petition the U.S. Supreme Court to review a court-martial in certain cases when review has been denied by the Court of Appeals for the Armed Forces. The Senate Judiciary Committee reported out the legislation, but the full Senate did not act on it.

The Score: Continuing

The Issue: Foreign Intelligence Surveillance Act

What Happened: Congress reaffirmed language in the original 1978 FISA stating that FISA and Title III of the U.S. Crim­inal Code provide exclusive governance over electronic surveillance conducted by the federal government (P.L. 110-261).

The Score: Win

The Issue: Foster Care and Adoption Reform

What Happened: The Fostering Connections to Success and Increasing Adop­tions Act encourages placement of foster children in homes of relatives, and expanded federal financial resources for programs assisting young people beyond the age of 18 as they transition out of foster care (P.L. 110-351).

The Score: Win

The Issue: Judicial Compensation

What Happened: Congress has not yet approved a 2009 cost-of-living adjustment for federal judges. The Judiciary Committee in both the House and Senate approved separate bills to increase judicial pay and to provide regular COLAs for judges without prior congressional approval.

The Score: Continuing

The Issue: Judicial Justice

What Happened: The Senate Judiciary Committee reported out a bill to amend and reauthorize the Juvenile Justice and Delinquency Preven­tion Act through federal fiscal year 2013. The bill would, among other things, phase out statutory authority for confining nondelinquent status offenders in detention centers. The full Senate did not act on the bill. The House held committee hearings but took no further action.

The Score: Continuing

The Issue: Legal Education

What Happened: Congress passed the College Opportunity and Affordability Act, authorizing four new loan forgiveness and repayment programs for public interest lawyers, and expanding the Thurgood Marshall Legal Educa­tional Opportunity Program, which provides assistance to low-income minority and disadvantaged law students (P.L. 110-315).

The Score: Win

The Issue: LSC Funding

What Happened: Although the appropriations committees in both the House and Senate approved $390 million for the Legal Services Corp., Congress adopted a temporary continuing resolution (P.L. 110-161) that maintains the program at its current level of $350.49 million at least through March 9, 2009 (P.L. 110-161).

The Score: Continuing

The Issue: Mental Health Insurance

What Happened: Congress passed legislation that includes provisions requiring that group health insurance plans provide the same level of treatment benefits for mental health and substance-related disorders as they do for other necessary medical care (P.L. 110-343).

The Score: Win

The Issue: Pay Discrimination

What Happened: Seeking to overturn the Supreme Court’s ruling in Ledbetter v. Goodyear Tire & Rubber Co., the House passed legislation clarifying that a 180-day statute of limitations for federal claims of pay discrimination runs from each paycheck reflecting the alleged disparity and not, as the court held, from the date of the first paycheck that reflected the discriminatory wage. A Senate cloture vote fell short of the 60 votes required for that chamber to take up the legislation.

The Score: Continuing

The Issue: Reporters Shield

What Happened: Although the House passed legislation that would establish uniform rules to determine when federal judges may compel journalists to reveal confidential sources, the Senate fell short of the 60 votes required to consider its bill.

The Score: Continuing

The Issue: Second Chance Act

What Happened: Congress reauthorized and amended state and local re-entry demonstration projects to provide expanded services to adult and juvenile offenders and their families (P.L. 110-199).

The Score: Win

The Issue: State Secrets

What Happened: The Senate Judiciary Committee reported out a bill to establish procedures and standards for resolving claims involving the state secrets privilege, and hearings were held on similar legislation in the House.

The Score: Continuing

The Issue: Terrorism Risk Insurance Act

What Happened: Congress extended the Terrorism Risk Insurance Act until 2014 to ensure availability of insurance against terrorist acts for U.S. businesses. Under the reauthorization act, federal coverage kicks in after a company has suffered at least $100 million in losses from a terrorist act; that also was the threshold amount under the reauthorization act passed in 2005. (P.L. 110-160).

The Score: Win

The Issue: Treaties

What Happened: The Senate agreed to ratification by the United States of two international agreements: the Hague Convention for the Protection of Cultural Property in the Event of Armed Con­flict, and an amendment and three protocols to the U.N. Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscrim­inate Effects.

The Score: Win


This column is written by the ABA Governmental Affairs Office and discusses advocacy efforts by the ABA relating to issues being addressed by Congress and the executive branch of the federal government.


Rhonda McMillion is editor of Washington Letter, an ABA Governmental Affairs Office Publication.


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