In a significant victory for donor privacy, the federal judiciary recently withdrew a proposed donor disclosure rule for nonprofits that file amicus briefs. From Reuters:

The rule would have required the filer of an amicus brief to name any donor who provided more than $100 for the preparation of the brief if that person or entity had been ​a member of the organization filing it for less than 12 months.

In the March 10 letter, judicial rulemakers said they had recently ​learned of concerns by leaders of the U.S. Judicial Conference, the judiciary’s top policymaking body, that the disclosure requirement “could ⁠interfere with the privacy of those organizations and of their members.”

The Judicial Conference’s executive committee was concerned those groups then “may be chilled from contributing ​to their organization’s amicus briefs if they were required to announce their membership to the public,” the letter said.

If those objections sound familiar, it’s not déjà vu. The judges’ concerns mirror those long expressed by People United for Privacy Foundation (PUFPF) and other donor privacy advocates.

In fact, the proposed rule had already been previously narrowed following an outcry from the nonprofit community, including PUFPF, in 2023. A year later, we partnered with National Taxpayers Union Foundation (NTUF) to file comments warning that the amended proposal still failed the Supreme Court’s “exacting scrutiny” test. (Be sure to read NTUF’s analysis of the rule’s withdrawal as well.)

“The Supreme Court ardently protects our First Amendment rights, especially in public policy discussion. The Court has long held that ‘a major purpose of that Amendment was to protect the free discussion of governmental affairs,’” PUFPF and NTUF explained. “The Supreme Court has also recognized the need to protect the freedom of association from undue disclosure to the government and has consistently shielded organizational donors and supporters from the generalized donor disclosure found in campaign finance law.”

The Judicial Conference’s decision to withdraw the already amended proposal from further consideration is a vindication of the privacy concerns raised by nonprofits throughout the process. While the proposal could still be revived, the news is yet another blow to Senator Sheldon Whitehouse’s (D-RI) unrelenting crusade to strip donor privacy from amicus filers.

In addition to championing the failed rule change, Whitehouse has also proposed similar legislation called the “AMICUS Act” as well as the so-called “Supreme Court Ethics, Recusal, and Transparency Act” to require donor disclosure for amicus filers. Those bills have languished in the Senate since their initial introductions in 2019 and 2022, respectively.

Unfortunately, not all threats to donor privacy in the judicial process are in retreat. Some other proposals, such as federal and state legislation targeting third-party litigation financing, are a growing source of new disclosure obligations that could ensnare nonprofit advocacy groups and think tanks engaged in public interest litigation.

Keeping the courthouse doors open to Americans who value their privacy is essential for ensuring fair and impartial judicial proceedings. PUFPF will continue to monitor developments that threaten to undermine fundamental rights to donor privacy in the legal process.