Congress’ Pre-election Adjournment Strands Consent Decree Bill

Further action has stalled on the “Consent Decree Fairness Act,” a troubling piece of legislation which NSCLC and a coalition of about 50 organizations have fought for the length of the 109th Congress.

One welcome casualty of Congress’ rush to adjourn is the Alexander-Blunt “Consent Decree Fairness Act,” a troubling piece of legislation which NSCLC and a coalition of about 50 organizations have fought for the length of the 109th Congress.  The bill, introduced  March 1, 2005, as S. 489 and H.R. 1229,  with considerable ballyhoo and powerful Republican sponsorship (Tennessee Senator Lamar Alexander and Missouri Representative and House Majority Whip Roy Blunt),  started off like gangbusters, with hearings in the House Judiciary Committee in June 2005,  and the Senate Judiciary Committee in July. 

The coalition opposing the bill included NSCLC, as well as the Leadership Council of Aging Organizations, the Leadership Conference on Civil Rights, the National Health Law Program, major disability rights groups, and numerous other organizations.  The coalition forcefully argued, through witnesses such as former 6th Circuit Judge Nathaniel Jones, that enactment would effectively end the use of consent decrees, hence voluntary settlements, in cases against state and local governments.  In response, Senator Alexander’s staff floated a modified draft bill, removing some of the most egregiously ill-conceived provisions.  However, the new “compromise” still would have effectively eliminated any incentive for plaintiffs suing states and local governments ever to settle without taking their case all the way through trial to final judgment. 

Yet, the bill seemed still primed for legislative action.  In early 2006, the bill appeared high on the agenda for mark-up of the Senate Judiciary Committee. Two important new allies weighed in.  In April the American Bar Association adopted a resolution strongly opposing the bill and began lobbying against it.  In June former Chief Judge John Gibbon of the 3rd Circuit Court of Appeals, a moderate Republican widely respected in Pennsylvania, home state of Judiciary Committee Chair Arlen Specter, wrote to Specter that “the bill will deprive courts of what is often, indeed, usually, the most practical tool for disposing of such cases in a just and efficient manner – a consent decree based on the terms of settlement negotiated by the parties themselves.” 

Specter’s staff had consistently warned that, due to pressure from Senator Alexander, the Committee was all but certain to mark up and report the bill at any time. Yet, in late Spring, the bill suddenly disappeared from the Judiciary Committee’s agenda.  Alexander remained intent on passing his bill, as evidenced by his nearly successful effort to stage a wholly one-sided panel “discussion” on the issue before the annual meeting of the National Conference of State Legislatures (NCSL) in mid-August.  Coalition members found out about this move, and persuaded the NCSL to permit College of William and Mary entitlement law expert and NSCLC Federal Rights Project Advisory Committee member Timothy Jost to present the case against the bill to the panel.  After hearing Jost, as well as Alexander’s staff, and the New York Law School professor who drafted the bill, the NCSL committee rejected a resolution endorsing the legislation.

After Congress returned from its August recess, no sign of life from the consent decree bill appeared in either the House or the Senate.  After the election, there will be a “lame-duck” session to enable Congress to pass appropriations bills essential to keep the government running into early next year.  Mischief frequently occurs in lame-duck sessions, so it will be necessary for the Coalition to remain alert to any attempts to attach the consent decree bill to one of the appropriations bills or some other “must-pass” vehicle.  But, especially if Democrats regain control of one or two houses in the election, prospects for passing this very bad bill in this Congress are now quite dim.

For further information, contact Si Lazarus in NSCLC’s Washington DC office.