September 2012: The Potential Fury of the Lame Duck

Washington Watch | September 2012
By Bruce Moyer

There are two major developments in Washington that could dramatically affect the federal courts in the months ahead. They involve funding and resources, testing whether the federal courts will remain operational—or find their activities considerably hindered in 2013.

The FY2013 funding picture is clouded not only by the usual uncertainty caused by divided government, but also by the overarching question as to who will control the White House and Congress next year. Even though FY2013 begins on Oct. 1, 2012, funding decisions for the courts and all other government operations likely will not be decided until after the outcome of the November elections—probably during the "lame duck" session of Congress in December or in the early months of 2013. The lame duck period refers to the time between the November elections and the start of the next Congress in January in which the Congress continues to conduct business, but with a membership comprised of some members who were defeated or will retire.

In the meantime, the FBA continues to urge Congress to approve the courts' budget request of $7.2 billion for FY2013. That request represents only a 3.1 percent increase—the smallest the judiciary has ever requested—and does not include any funding for additional support staff to address the court's workload needs, despite the fact that staffing levels are only at 80 percent of what the court considers necessary. Congress did not increase the court's funding last year, causing the courts to cut nearly 1,100 employee positions. If there is another flat budget next year, federal court officials believe they will have to shed another 1,000 positions.

The House and Senate appropriations committees already have arrived at starkly different FY2013 funding levels for the federal courts. The House bill cuts funding below this year's current figure. It provides only $6.5 billion, 10 percent less than requested by the federal judiciary. The House measure provides moderate funding increases for security requirements, but reduces funding for court and chambers operations. The Senate bill, which the FBA supports, increases funding for the courts and provides nearly 3 percent more than the current year's funding, which is just a fraction below the courts' budget request. The increases in funding are primarily earmarked for the courts' mandatory programs, increased rental payments, and base requirements. In a recent letter to Congressional leaders, FBA President Fern Bomchill pointed to the necessity for adequate funding for the federal courts, saying:

The Judiciary … does not distribute grants, and it certainly has no option to close the door to newly filed cases. New laws and the weakened economy have increased the Judiciary's workload. Over the past thirty years, hundreds of new federal laws have increased the jurisdiction of the federal courts, resulting in rapid caseload growth in both the civil and criminal arena; in fact, the workload relating to criminal filings, appeals and probation has more than doubled since 1980. Over the same period, bankruptcy filings have grown four-fold, criminal defense representations in the Defender Services program are five times greater, and pretrial services are six times larger.

… We recognize the hard choices that the Congress … must make in crafting the fiscal year 2013 budget and beyond. The members of our association join with all Americans in their concern about growing federal debt and the need to assure a sustainable fiscal path for our nation. However, deep spending cuts in the federal budget, especially across-the-board cuts, would have a devastating impact on the federal court system and the administration of justice …

Those across-the-board cuts, called "sequestration," are the second major funding uncertainty lying ahead for the federal courts; they are part of the dreaded default option Congress devised last summer in the wake of the debt ceiling standoff. Totaling $1.1 trillion, the cuts are set to take effect on Jan. 2, 2013, unless Congress and the President arrive at an alternative that finds cuts and/or revenues of equivalent size. Sequestration was envisioned to be so large and messy as to prompt Congress to "come to its senses" and arrive at a comprehensive deficit reduction package. So far that hasn't happened. (Remember last fall's "supercommittee" and how successful it was?)

During the upcoming lame duck session afterNovember's elections, Congress will grapple with a pile of financial challenges: the expiration of the Bush tax cuts, FY2013 funding decisions for the federal government (and the courts), and the avoidance of sequestration, potentially through a grand bargain on deficit reduction. The lame duck promises to be a wild, chaotic ride.

Bruce Moyer is government relations counsel for the FBA. © 2012 Bruce Moyer. All rights reserved.


Connect With Us...