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The Final Days of the 107th Congress. Work Agenda Includes Budget and COLAs
August recess is the lull before the final days of the 107th Congress. After Labor Day, Members of Congress are expected back in Washington, ready to resume work on a number of bills that will affect the federal Judiciary.
The Judiciary’s Budget
The financial demands of the war on terrorism, both at home and abroad, and the gloomy economic outlook may produce a tight fiscal year 2003 budget. It is doubtful Congress will be able to fund fully the Judiciary’s FY 03 budget request for $5.29 billion.
With a budget allocation insufficient to meet the needs of all the agencies in S. 2778, the FY 03 Commerce, Justice and State, the Judiciary and Related Agencies Appropriations Bill, the Senate Appropriations Committee placed a hard freeze at FY 02 enacted levels on all accounts. They then funded any increases related to homeland security and gave federal employees a 4.1 percent pay increase.
Considering these constraints, the Judiciary was treated well. In late July, the Senate Appropriations Committee favorably reported S. 2778, giving the Judiciary a 6.4 percent increase over FY 02 in the salaries and expenses account.
In line with the Committee’s funding priorities, the Court Security account was fully funded. Other accounts did not fare as well and the Defender Services account currently faces a shortfall. The Senate endorsed the $90 per hour rate increase for Criminal Justice Act attorneys, but did not provide sufficient funding for this rate in FY 03. It is hoped the shortfall can be rectified. The House is not expected to mark up its version of the bill until after the August recess.
Five appropriations bills have been passed by the House and three by the Senate. The bills must be conferenced before going to the President for his approval. As in past years, continuing resolutions are expected to keep the government running while work continues on the bills.
A 4.1 percent cost-of-living adjustment for General Schedule employees is included in H.R. 5120, the House-passed appropriations bill for the Treasury Department, the United States Postal Service, the Executive Office of the President, and certain Independent Agencies. S. 2778, the FY 03 Commerce, Justice, and State, the Judiciary and Related Agencies appropriations bill, as approved by Committee, also provides for a 4.1 pay increase.
Members of Congress and federal judges also may see an increase in their pay checks on January 1. The Treasury appropriations bill, in effect, includes what is likely to be a 3.1 percent COLA for them. The bill must still pass the Senate and any member could offer an amendment to nix their increase, but the bipartisan Senate leadership continues to be supportive. The 1989 Ethics Reform Act calls for automatic cost-of-living increases, but in many of the years following passage of the legislation, members introduced provisions denying the COLAs.
Federal Courts Improvement Act of 2002
H.R. 4125, the Federal Courts Improvement Act of 2002, was introduced by Representative Howard Coble (R-NC) with co-sponsor Representative Howard L. Berman (D-CA). Several provisions have been dropped from H.R. 4125 at the request of other congressional committees, including student loan forgiveness for federal defenders and delayed loan repayment for law clerks. A key provision provides for direct funding of certain "cafeteria" medical benefits for the first time. The House Judiciary Subcommittee on Courts, the Internet and Intellectual Property marked up the bill May 2. The bill was delayed in the House for nearly nine months, but is now on the calendar of the full committee. No companion bill has been introduced in the Senate.
Bankruptcy Reform Legislation
House and Senate conferees finally reached agreement on a bankruptcy reform legislation conference report, but passage by Congress is still uncertain due to a dispute among House Republicans over a provision regarding discharge of debts stemming from violation of the Freedom of Access to Clinics Entrances Act. The final bill must pass before the end of this Congress, or new legislation must be reintroduced in the 108th Congress.
The conferenced bankruptcy reform bill would create the first new bankruptcy judgeships since 1992—28 new temporary judgeships. In addition, terms of four existing temporary judgeships would be extended. The bill would require bankruptcy clerks to maintain and control access to federal tax returns filed by debtors, and require bankruptcy clerks and the Administrative Office to collect and report financial data of debtors, provisions opposed by the Judicial Conference.
The bill also includes provisions that would revise the appellate structure for bankruptcy cases to allow for an expedited appeal to courts of appeals in certain circumstances, and re-allocate a portion of revenues generated by filing fees from the Judiciary to the U.S. Trustee program.
S.J. Res. 35 in the Senate and H.J. Res. 91 in the House propose an amendment to the Constitution to protect the rights of crime victims. Hearings on this legislation have been held before the House Judiciary Subcommittee on the Constitution and the Senate Judiciary Subcommittee on the Constitution. Both the House and Senate versions of the amendment state that the "rights of victims of violent crime, being capable of protection without denying the constitutional rights of those accused of victimizing them, are hereby established and shall not be denied by any State or the United States and may be restricted only as provided in this article."
The Judicial Conference has taken no position regarding the adoption of a victims’ rights amendment at this time. However, the Conference would strongly prefer that Congress pursue a statutory approach to this issue as opposed to a constitutional amendment.
Cameras in the Courtroom
S. 986, the Sunshine in the Courtroom Act, and a companion bill, H.R. 2519, would allow media coverage of court proceedings—although it would be at the discretion of the presiding judge to allow the coverage. The Judicial Conference would have the authority to establish guidelines for the implementation of the policy. S. 986 was reported out of the Senate Judiciary Committee and is currently pending before the Senate. No action has occurred on the House bill.
In the 106th Congress, the Judicial Conference opposed S. 721, a bill similar to S. 986. The Conference has consistently expressed the view that the intimidating effect of cameras on litigants, witnesses, and jurors has a profoundly negative impact on the trial process.
Federal Judiciary Protection Act of 2001
The House Judiciary Committee is now considering S. 1099, the Federal Judiciary Protection Act. The bill, passed by the Senate in the last session, would increase criminal penalties for assaulting or threatening federal judges, their family members, and other public servants.
Article III Judgeships
Despite Judicial Conference urging—including letters to congressional leaders as recently as June— to introduce and pass omnibus judgeship legislation, most talk on the Hill is about filling vacancies, not creating new judgeships.
No bill incorporating all of the Judicial Conference recommendations on 54 judgeships has been introduced in either House. Other bills creating judgeships for specific regions or districts of the country are waiting at the committee level. Among these are H.R. 272, the Southwest Border Judgeship Act of 2001, which has awaited action in the House Judiciary Subcommittee on Courts, the Internet, and Intellectual Property since the first session. S. 147, the identical Senate bill, is also stalled in committee. The bills would give new judgeships to district courts on the U.S.-Mexico border with the heaviest caseloads.
Only the Senate version of the Department of Justice authorization bill, S. 1319, has an amendment that would create five permanent judgeships for the Southern District of California, two permanent judgeships for the Western District of North Carolina, and two permanent judgeships for the Western District of Texas. It also would make permanent temporary judgeships in the Southern and Central Districts of Illinois and extend a temporary judgeship in the Northern District of Ohio. The House version of the bill does not contain the judgeships. To secure the judgeships, the conference committee must approve them, and both Houses must pass the bill in the remaining weeks of the 107th Congress.
|Supplemental Funding for Judiciary Cut |
P.L. No. 107-206, the 2002 Supplemental Appropriations Act for Further Recovery From and Response to Terrorist Attacks, was signed by the President on August 2. This would have ensured that the Judiciary receive $17.1 million in additional funding for security needs. The bill also permits victims of crimes associated with the terrorists acts of September 11, 2001 to view trial proceedings in the criminal case against Zacarias Moussaoui. The proceedings would be televised to locations determined by the trial court.
However, certain funds in the Act were included on a contingent basis—contingent on the President submitting an official budget request designating those funds as an emergency requirement. The President has declined to take that action. This cuts the Judiciary’s security funding to $13.1 million, $10 million of which will fund security upgrades to the Supreme Court building.
"On August 6, I wrote to the President on behalf of the Judicial Conference," said Administrative Office Director Leonidas Ralph Mecham, "urging him to move expeditiously to submit an official budget request for the contingent funds. The Judiciary was particularly concerned with the costs associated with enhanced security for upcoming terrorist trials. The contingent funds were needed to pay for the extensive security, as well as the cost of closed circuit transmission of the trial to victims, as mandated in the supplemental appropriations bill. The added security was to ensure the protection of judges, court staff, attorneys, witnesses, jurors and general public affected by the war on terrorism. Ultimately, the President determined that other considerations outweigh the Judiciary’s needs."
The U.S. Marshals Service also was adversely affected by the President’s decision. The USMS had been slated to receive $37.9 million that could fund up to 250 new deputy U.S. marshals positions. The need for deputy marshals was addressed in Mecham’s letter to the President. A serious shortfall of deputy U.S. marshals is adversely affecting the judicial process in districts throughout the country. The demands placed on the USMS by high threat terrorist trials has exacerbated this problem.