11 ABA advocacy wins from the 118th Congress
While there were significant accomplishments for the ABA during the 118th Congress, there is plenty of unfinished business as the 119th Congress gets underway. (Image from Shutterstock)
Although the 118th Congress may be remembered as one of the turbulent and least productive in modern history, the ABA Governmental Affairs Office achieved notable legislative successes through close collaboration with ABA leadership, entities and advocacy partners. These efforts were further complemented by substantial progress on various policy issues before federal agencies, commissions and other administrative bodies in the last two years that impact the legal profession, access to justice and the rule of law.
When it opened, the 118th Congress, which convened Jan. 3, 2023, and ended Jan. 3, 2025, faced an unprecedented challenge in electing a speaker of the House of Representatives, requiring nearly a week and 15 rounds of voting. The speaker ultimately served only 10 months before being ousted amid internal conflicts within the caucus. The Republicans had won control of the House after the 2022 midterm elections with a 222-213 majority, while the Democrats retained control of the Senate with a close 51-49 majority, creating a divided and polarized government in which political consensus became the exception, rather than the rule.
Ultimately, the 118th Congress passed only 209 bills in two years, compared to 350 bills in the 117th Congress and 344 in the 116th, gaining the dubious distinction of becoming one of the least productive Congresses in over three decades.
The 118th Congress did, however, manage to address issues critical to maintaining government operations and national security. It reached bipartisan consensus to suspend the debt ceiling until Jan. 1, 2025, and passed three short-term funding resolutions for fiscal year 2025 to avert a government shutdown and secure funding through March 14, 2025.
The Congress also reached a bipartisan consensus Dec. 17, when the Senate voted overwhelmingly to pass the annual National Defense Authorization Act to authorize funding for the Defense Department for fiscal year 2025. Then-President Joe Biden signed the NDAA into law Dec. 22, despite a controversial provision banning the military health program from covering gender-affirming care for the transgender children of service members.
ABA advocacy and engagement helped drive many successes during the 118th Congress, the most notable of which are described below.
• Enactment of the Stop Institutional Child Abuse Act (Public Law No: 118-194) signed into law by Biden on Dec. 23. The ABA Commission on Sexual Orientation and Gender Identity, working in conjunction with the GAO, played a leading role in advocacy for the legislation, which will enhance the oversight and accountability of youth residential programs nationwide by requiring the Department of Health and Human Services to partner with the National Academies of Sciences, Engineering and Medicine to identify the nature, prevalence, severity and scope of child abuse, neglect and deaths in youth residential programs.
• Enactment of the Supporting America’s Children and Families Act (House Resolution 9076), marking a significant milestone in efforts to modernize the U.S. child welfare system. Working with the ABA Center on Children and the Law, the GAO advocacy included testimony to Congress, action by ABA members, and briefings with key staff and members from the House Ways and Means Committee and Senate Finance Committee over the last two years. Among other provisions, the law reauthorizes child welfare programs under Title IV-B of the Social Security Act, recognizes the importance of legal representation for all children and parents in child welfare cases, increases funding for the Court Improvement Program, enhances implementation of the Indian Child Welfare Act, and calls for states to prevent family separations that are due to child and family poverty by addressing concerns related to housing instability, transportation, food assistance and other basic needs through means other than foster care removals.
• Increased funding for the Legal Services Corp. In contrast to several other federal programs, which saw funding reductions because of fiscal constraints, the ABA played a key role in ensuring that Congress recognized the value of the LSC in the 118th Congress. The LSC received $560 million in fiscal year 2023, a $71 million increase over fiscal year 2022. In the second session, the LSC received $560 million for fiscal year 2024, again avoiding the reduced funding imposed on other important federal programs.
• Increased funding for federal public defense services in fiscal year 2024 and 2025. Following notice in fall 2023 of substantial cuts proposed to fiscal year 2024 appropriations for federal defense services that had already triggered a damaging hiring freeze and threatened hundreds of layoffs, the ABA mobilized to oppose the cuts for fiscal year 2024 and increase defense services funding for fiscal year 2025. The federal indigent defense system, comprised of full-time public defenders and private attorneys who take cases for below-market rates, is run and funded through the Defender Services Office of the Administrative Office of the U.S. Courts. The ABA’s advocacy efforts included a central focus at ABA Day 2024. Funding for defense services for fiscal year 2024 was increased, and proposed funding for fiscal year 2025 was modestly increased in the House and Senate when many federal programs were being cut.
• Advocacy to prevent significant reductions or the elimination of the Public Service Loan Forgiveness program. In the past decade, the ABA has played a leading role in advocacy efforts on behalf of the PSLF program, resulting in a milestone this year. For the first time since 2014, neither Congress nor the administration proposed measures to end or scale back the program. Signed into law by Then-President George W. Bush in 2007, the PSLF program encourages new graduates to consider rewarding but lower-paying careers in public service by offering loan forgiveness after 10 years of public service and 10 years of loan repayments.
• Continued ABA advocacy, along with state and local bar allies, to prevent the ENABLERS Act from being reintroduced or advancing in the 118th Congress. If enacted, the legislation would harm many lawyers and law firms by regulating them as “financial institutions” under the Bank Secrecy Act and requiring them to report privileged and other protected client information to the government.
Additional successes were achieved through agency action and executive order.
• Improved federal sentencing guidelines by the U.S. Sentencing Commission in 2023 that now allow a person to seek and a judge to grant reductions in federal sentences based on “extraordinary and compelling circumstances.” The ABA president called for such changes in a March 10, 2023, letter to the commission, citing the ABA’s recently adopted Ten Principles on Reducing Mass Incarceration.
• Strengthened due process rights of unaccompanied immigrant children. In response to some of the ABA’s comments, the Office of Refugee Resettlement included in its final Unaccompanied Children Program Foundational Rule a measure to strengthen a child’s due process rights while in a restrictive placement. The Unaccompanied Children Program Foundational Rule is a set of regulations established by the ORR outlining comprehensive standards for the care of unaccompanied immigrant children in its custody. The agency also clarified its definition and minimum standards of a “standard program,” a typical facility or care setting where unaccompanied children are housed, after comments by the ABA urging the addition of language to ensure that programs must be either state licensed or meet the requirements of state licensing.
• Successful ABA advocacy, through the Intellectual Property Law Section, to a proposed rule by the U.S. Patent and Trademark Office, announced by the Biden administration in May 2024. The proposed rule, known as the Terminal Disclaimer Practice to Obviate Nonstatutory Double Patenting, sought to introduce significant changes to how inventors, startups and innovative companies navigate the patenting process that would have significantly curtailed an applicant’s patent rights and made the application process more costly for inventors. In December 2024, the Patent and Trademark Office announced its decision to withdraw the rule.
• Effectively advocated for the Food and Drug Administration to drop blood donor restrictions that excluded people based on sexual orientation and replaced them with neutral ones that focused on specific risk factors. In March 2023, the ABA president sent a letter to the FDA supporting the proposed change, based on policy adopted in 2017.
• Successfully urged Russian accountability for Ukrainian war crimes. In July 2023, Biden ordered U.S. agencies to begin to share evidence of Russian war crimes in Ukraine with the International Criminal Court. Then-U.S. Attorney General Merrick Garland expanded on the Department of Justice’s plans to share this evidence in an address to the ABA House of Delegates at the ABA Annual Meeting in August 2023. The ABA president had urged this in a letter to Biden and in a statement to the Senate Judiciary Committee.
While there were significant accomplishments for the ABA during the 118th Congress, there is plenty of unfinished business as the 119th Congress gets underway. The GAO team is continuing to work with ABA leaders, entities and partner organizations to explore opportunities within Congress and the executive branch to champion ABA policy priorities related to the legal profession, access to justice and the rule of law.
Follow us on social media platforms @ABAGrassroots to learn more about significant legislative and governmental developments of interest to the ABA as they happen.
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 U.S. government.
