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Legislative Logjam: ABA-Supported Bills Bog Down in Partisan Congress

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This report 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.

A number of measures high on the ABA’s agenda of legislative priorities are caught up in the partisan gridlock that has brought legislative work on Capitol Hill to a virtual standstill. The public appears to be growing increasingly impatient with the stalemate on Capitol Hill. In early February, Congress received a 10 percent approval rating in a Gallup survey—its lowest mark since the polling company began asking the public’s views about Congress in 1974. Eighty-six percent of respondents told Gallup in February that they disapprove of Congress—also a record.

Nevertheless, there is little indication that Congress will break the logjam during this volatile election year. With very few exceptions, Congress—where Republicans control the House of Representatives while Democrats hold a slim majority in the Senate—has found it almost impossible to take action on legislation and judicial nominees proposed by President Barack Obama.

Although the president was able to achieve some legislative victories in 2011, there were few bright spots as legislators postponed appropriations decisions until the last minute and delayed definitive action on other legislation, kicking it down the road for future debate.

A crucial turning point with long-term implications was the failure in November of the bipartisan Joint Select Committee on Deficit Reduction to reach an agreement on budget cuts necessary to avoid an automatic $1.2 trillion across-the-board reduction in federal funding over 10 years that would kick in on Jan. 2, 2013. The cuts, known as sequestration, will affect spending throughout the federal government, including funding for the Legal Services Corp., rule-of-law initiatives and a wide range of criminal justice programs. The ABA opposes funding cuts in all those areas.

While sequestration might, in more normal times, loom as potentially devastating for important federal programs, it may actually offer salvation for many of the programs supported by the ABA. Rather than being targeted individually for deep cuts, each of those programs would share the reductions with all other federal discretionary spending, including defense programs. (On March 20, however, Republican leaders in the House released a budget plan that would slash domestic programs more deeply than the sequestration formula while preserving defense spending.)


Despite the congressional gridlock, the ABA achieved some legislative victories. In one notable action, Congress enacted landmark patent reform legislation that included some key provisions supported by the ABA. Under the Leahy-Smith America Invents Act of 2011, the United States will join the rest of the world by using a system in which a patent is awarded to the first inventor to file rather than using a more complex standard that has led to protracted legal battles. (The law is named for its sponsors, Rep. Lamar Smith, R-Texas, and Sen. Patrick J. Leahy, D-Vt.) Congress also passed the Child and Family Services Improvement and Innovation Act, which will help bolster legal representation in child welfare cases.

But on other fronts, the news has not been good for ABA legislative priorities on Capitol Hill. Here is a brief status report on three of them:

• The Violence Against Women Act was enacted in 1994 to strengthen responses to domestic violence by the justice system and to improve support services for victims. The law has been reauthorized twice since then, each time by overwhelming bipartisan votes in the House and Senate. (Reauthorization allows Congress to modify laws at regular intervals.) But this year, the reauthorization legislation was reported from the Senate Judiciary Committee along a straight party-line vote of 10-8. Reauthorization would signal continuing support for programs created under the act, which could help maintain funding levels.

• The National Criminal Justice Commission Act would provide for the first top-to-bottom review of the U.S. criminal justice system in 45 years. The bill was introduced in the last Congress, and it received bipartisan support in both chambers. The legislation, supported by a broad coalition of law enforcement agencies, criminal justice reform groups and community organizations, passed the House on a voice vote, but time ran out before the Senate could act during the 111th Congress. The bill was reintroduced in this Congress and scheduled for a vote in the Senate, but then it met an increasingly common fate: After a filibuster by Senate opponents, the measure fell three votes short of the super-majority required for it to be considered on its merits.

• When the Second Chance Act came up for reauthorization this year, it was expected to receive the same broad bipartisan support that supported its passage in 2008. The act is aimed at reducing recidivism among the nearly 800,000 people who are released from prisons in the United States each year by offering targeted job training, housing, drug and alcohol treatment, and family reunification programs. While the history of the act—President George W. Bush proposed it and signed it into law—suggested it would breeze through the reauthorization process, its consideration devolved into a straight party-line standoff in the Senate, and prospects for further action are not promising.

Finally, there is the matter of judicial nominees. While nominees to the federal appellate courts—and even the Supreme Court—occasionally trigger controversy and delays in the confirmation process, district court nominees reported out of the Senate Judiciary Committee without strong opposition historically have been virtually assured of relatively swift confirmation.

No more. Five district court nominees, for instance, were returned at the end of the first session of the current Congress, and the Senate’s confirmation in February of one district court nominee required a cloture vote to end debate. There was a 6 percent vacancy rate in the federal courts when President Obama entered office in January 2009, but it quickly rose to 10 percent, and it has hovered there since.

As of mid-March, 22 judicial nominees cleared by the Judiciary Committee were awaiting confirmation votes by the full Senate. At that point, Democratic and Republican leaders reached an agreement to act on 14 of them by early May.

The partisan impasse on Capitol Hill is unlikely to break this year—at least not before the Nov. 6 elections. Meanwhile, the ABA will continue its advocacy efforts on behalf of legislation and regulatory measures that will improve the public’s access to legal services, bolster the rule of law, and preserve the independence of the judiciary and the legal profession. Those efforts culminated April 17-19 at the ABA Day in Washington event, where ABA leaders and representatives of state and local bars from around the country made their way up Capitol Hill to remind federal legislators about key issues affecting the justice system and the legal profession. Even if the 112th Congress doesn’t respond on those issues, perhaps the 113th will.

Thomas M. Susman is director of the ABA Governmental Affairs Office in Washington, D.C.

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