August2013: Adequate Funding or Continued Cuts for the Federal Courts?

Washington Watch | August 2013
By Bruce Moyer

The U.S. Congress will likely fail once again to fulfill its responsibility to put in place a government spending plan for the government’s new fiscal year, which commences on Oct. 1. This comes as no surprise for an institution that continues to underwhelm the country, with public approval ratings at historic lows. Americans are frustrated over the unwillingness of Washington lawmakers to compromise, to reach across the center and find common ground, to make legislative deals that move the country forward.

A prime example of Congress’ inability to compromise involves the failure to achieve a government spending plan for FY 2014. House Republicans and Senate Democrats are so far apart in their FY 2014 funding bills that compromise remains dramatically out of reach. A government shutdown, at least for a short period in early October, is a distinct possibility.

Ultimately, both chambers will likely come to their senses at some point and approve a short-term spending measure that extends government funding until later in the fall, when Congress takes up the politically volatile matter of raising the debt limit. And eventually a deal on the debt limit could contain an agreement on spending for the rest of the fiscal year, or even several years. (For historical parallels, the debt ceiling deal reached in the summer of 2011 spawned the 10-year budget cut process called sequestration.)

The federal judiciary—though an independent branch of the federal government—remains vulnerable to the budget wars of Capitol Hill because only Congress, of course, can fund the government and the courts. And the federal judiciary’s budget is so small, compared to most executive branch agencies, that it is hardly a “player” in the dynamics of the federal budget. Only two-tenths of one penny of every taxpayer’s dollar goes to the federal courts. The miniscule size of its budget, in fact, has compounded the impact of sequestration for the federal judiciary.

Sequestration has reduced funding for the federal courts by $300 million during the current 2013 fiscal year. In response, the courts have continued to cut costs, on top of significant cost containment over the past several years. Because the courts are so labor-intensive, there is little besides payroll that can be cut to achieve significant savings. That’s why the federal judiciary has requested a $73 million emergency supplemental appropriation from Congress to permit the courts and court services to continue to operate normally for the remainder of the current fiscal year.

The vulnerability of the federal courts to the partisan budgetary battles were underscored during a Senate hearing on July 23, examining the impact of the sequester’s budget cuts on the federal court system. The hearing, titled “Sequestering Justice: How the Budget Crisis Is Undermining Our Courts,” was held by the Senate Judiciary Subcommittee on Bankruptcy and the Courts, chaired by Sen. Chris Coons (D-Del.). Sen. Coons invited West Allen, chair of the FBA’s Committee on Government Relations to share its views, along with a federal judge and a federal defender. West Allen’s testimony spotlighted the impact of new delays in civil and criminal proceedings, contributing to higher litigation costs and added uncertainty for litigants.

“Lawyers and the people they represent, who turn to our federal courts for justice, fear that the curtailment of court operations and services by the budget cuts of sequestration are diminishing the ability of the courts to timely and effectively render justice,” West Allen testified. “The long tradition of excellence in the American Judiciary is in jeopardy.”

Sixth Circuit Appeals Court Judge Julia S. Gibbons, chair of the budget committee of the Judicial Conference of the United States, also testified how “devastating” sequestration has been. She warned of the impact that a Continuing Resolution extending government funding into the new fiscal year, starting Oct. 1, would have on the courts. “If the funding disputes cannot be resolved and Congress instead chooses to pursue a continuing resolution, we would appreciate this subcommittee’s support of a funding anomaly or exception that would fund us above a hard freeze in 2014,” Gibbons said. “Flat funding at sequestration levels would … irreparably damage the system that is a hallmark of our liberty around the world.”

Chief among the areas significantly hurt by the budget cuts is the federal public defender system, which provides court-appointed representation to indigent defendants. Michael Nachmanoff, federal public defender for the Eastern District of Virginia, said in testimony at the July 23 hearing that the nation’s federal defender system has lost more than 200 employees and will be even worse off when the new budget year starts in October 2013. Federal defenders will be forced to terminate up to half their employees and close branch offices if funding stays at the same level, Nachmanoff warned. “If action is not taken immediately to save the program, the federal defender system will be devastated.”

You can read the FBA’s Senate testimony on the FBA website, along with other information about the impact of sequestration on the federal courts and federal litigants.

Bruce Moyer is government relations counsel for the FBA. © 2013 Bruce Moyer. All rights reserved.

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