Disclosure Turns ‘Friends of the Court’ Into Suspects

April 22, 2024 | Brian Hawkins

The Judicial Conference of the United States’ Advisory Committee on Appellate Rules recently approved a new set of proposed rules for public comment requiring certain filers of amicus briefs to disclose their donors in the text of the brief.

The latest version of the proposal would require amicus filers in federal court to disclose any contributions over $100 that are specifically earmarked toward “preparing, drafting, or submitting” a friend-of-the-court brief. However, amicus filers would not be required to disclose earmarked contributions from members of its own organization, 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.

The rulemaking process was spurred by a February 2021 letter from U.S. Senator Sheldon Whitehouse (D-RI) alleging a conspiracy about the influence of amicus briefs in matters before federal courts. Senator Whitehouse pressured the Judicial Conference to propose and implement new rules requiring amicus filers to disclose their general donors to blunt what he calls an “armada of amici” supporting conservative causes.

In addition to the letter, Senator Whitehouse has repeatedly introduced legislation, short-titled the AMICUS Act, that codifies what he’s demanded of the Judicial Conference – namely, an unprecedented mandate for any nonprofit that files just one amicus brief in federal court per year to disclose the identity of its donors giving over $100,000 or 3% or more of gross annual revenue in the prior calendar year in the text of the brief.

The Judicial Conference ultimately succumbed, at least in part, to Senator Whitehouse’s pressure campaign when it launched a new rulemaking to broaden existing disclosures from amicus filers, culminating in the rule that was approved by the Advisory Committee on Appellate Rules on April 10, 2024.

The Judicial Conference has considered various drafts of the rule since the process began several years ago. PUFPF previously submitted public comment, reminding the Advisory Committee that the government’s interest in the donors of amicus filers is narrow. An earlier draft of the rule offered two competing provisions: Alternative A would have required amicus filers to disclose any earmarked contributions over $1,000, while Alternative B would have eliminated the monetary threshold but exempted from disclosure contributions from members of the filing organization. In our comment, PUFPF suggested increasing the threshold to $10,000 or greater and indexing it to inflation, reasoning that the transparency interest at stake is less relevant for small dollar donors who will likely have little editorial impact on the contents of the brief.

The U.S. Chamber of Commerce Litigation Center submitted a comment on the latest proposed rule objecting to the requirement to disclose earmarked funds from new members. The Chamber argued that the current version of the rule unfairly targets new members while the Committee expressed concern about temporary members who may briefly join an organization to evade the disclosure requirements. To better respect important privacy interests, the Chamber argued that the new member exception should be excluded altogether.

Considering the form of some earlier drafts of the rule and that the rulemaking was spurred by the conspiratorial and partisan claims of a longtime Member of Congress who is notoriously hostile to associational privacy, the proposed rule is in a better state than expected when the Advisory Committee launched the rulemaking process. Tying disclosure only to earmarked contributions and the general respect for membership organizations properly narrows the judiciary’s alleged disclosure interests.

Nonetheless, the monetary threshold is still too low. The Rules Committee established a threshold so courts could know if a single donor is placing undue influence on the drafting of a brief. Whether or not that argument has merit, the $100 threshold in the current proposal will lead to junk disclosure that captures more donors than is necessary for the government’s asserted interest. It’s hard to fathom a legitimate argument that a $100 donor to an organization has an outsized influence on the contents of an amicus brief. As PUFP asserted in our prior public comment, the court has an exceptionally narrow interest in the donors of amicus filers, and any interest should be properly balanced by the overriding implications for constitutionally protected rights to free speech and privacy in association.

The proposed rule now advances to the Judicial Conference’s Standing Committee on Rules of Practice and Procedure for final approval, which could take a year or more. Until then, however, the Standing Committee is accepting public comment on the Advisory Committee’s latest proposal.