People United for Privacy Foundation has partnered with National Taxpayers Union Foundation’s Taxpayer Defense Center to submit public comments on the Judicial Conference’s proposed amicus disclosure rule. 

In the comment, PUFPF and NTUF warn that the exposure of donors to amicus filers would violate First Amendment rights and that the rule is not narrowly tailored to achieve the government’s  interest. The comment asserts:

Under Americans for Prosperity Foundation v. Bonta, 594 U.S. 595 (2021) (“AFPF”) and other landmark cases dating back to the Civil Rights Era, the Judicial Conference must show the Proposed Amendments survive “exacting scrutiny.” Exacting scrutiny “requires that there be a substantial relation between the disclosure requirement and a sufficiently important governmental interest” and that “the disclosure requirement be narrowly tailored to the interest it promotes.” Id. at 611. Any expansion of the existing disclosure framework would need to meet this high standard of judicial scrutiny. This will be even more strenuous for any proposal for public disclosure of nonprofit supporters.

This sentiment echoes our previous comments to the Judicial Conference where we explained the judiciary’s narrow interest in amicus filers’ general donors.

The current proposed rule would require amicus filers in federal court to disclose any contributions over $100 that are made toward “preparing, drafting, or submitting” a friend-of-the-court brief. Amicus filers would not be required to disclose earmarked contributions from members of its own organization, however, unless that member joined within the preceding twelve months. Current rules already require amicus filers to disclose if a party to the case contributed to the brief, a requirement that remains unchanged.

While the changes are substantial, the Judicial Conference has been unable to articulate the court’s interest in the donors of amicus filers in the first place. PUFPF and NTUF write:

The Committee has thus far made no similar showing on why the Rule 29 disclosures should go from minimal certifications that the parties to the case have not interfered to on-page detailed donor disclosure of the organization writing the amicus brief.  Far from the 100,000-page record in McConnell [v. Federal Election Commission], the Proposed Amendments offer one paragraph of speculation and conclusory assertion that “the identity of an amicus does matter, at least in some cases, to some judges.” 

The committee’s inability to articulate a rationale for the proposed rule is unsurprising considering the history behind the rulemaking. The entire process started because Sen. Sheldon Whitehouse (D-RI), a longtime antagonist towards donor privacy rights, has been perpetuating conspiracy theories about undue influence in federal courts. Congress has repeatedly rejected his proposed legislation, the AMICUS Act, to address his allegations. Unable to pass his agenda in the Senate, Sen. Whitehouse has launched a campaign pressuring the Judicial Conference to pass through rulemaking what he’s been unable to enact via legislation. While  the Judicial Conference proposal has been significantly narrowed from Whitehouse’s vision, it nevertheless puts critical privacy rights at risk without justification. 

Amicus briefs are an essential avenue for nonprofit organizations to formally offer a presiding court unique expertise on a legal matter. The amicus disclosure rule risks curtailing that option for many organizations for fear of having their donors exposed. The Judicial Conference should reject the proposed rule and hold firm in defense of First Amendment associational rights.