Keeping the Courts Open to Americans Who Prize Their Privacy

April 3, 2023 | Brian Hawkins

For over two years, the Judicial Conference has deliberated potential rules requiring amicus brief filers to disclose their donors. Though the scope of a potential rule has evolved over the years, People United for Privacy Foundation (PUFPF) has jumped into the discussion to offer suggestions. PUFPF Vice President Matt Nese and Counsel Eric Wang submitted a comment on the latest draft proposal, encouraging a subcommittee tasked with proposing a rule to uphold its respect for privacy and speech in forthcoming iterations of a prospective proposed rule.

Like many recent threats to free speech and citizen privacy, the origins of the rulemaking begin with Rhode Island Sen. Sheldon Whitehouse (D). In his eternal crusade against political speech, Sen. Whitehouse has repeatedly introduced legislation, known as the AMICUS Act, to require organizations filing amicus briefs before the U.S. Supreme Court and federal appeals courts to expose their donors. Upon introducing the legislation in 2021, Sen. Whitehouse hosted a hearing in a Senate Judiciary Subcommittee to promote noxious claims that nefarious forces use anonymous donations to influence the U.S. Supreme Court. The AMICUS Act is Sen. Whitehouse’s antidote to these alleged offenses.

The proposal is an aggressive infringement on First Amendment freedoms. The result – and the intent – of the bill is to silence groups the Senator disagrees with from having a voice before federal courts, as nonprofit groups would be forced to choose between exercising their right to speak to the courts and shielding their members’ privacy. Soon after Sen. Whitehouse introduced the bill, the U.S. Supreme Court ruled in Americans for Prosperity Foundation v. Bonta that California’s dragnet collection of nonprofit donor lists violated free speech rights, indirectly repudiating Sen. Whitehouse’s proposed disclosure regime.

Perhaps sensing inevitable failure in Congress, Sen. Whitehouse also pushed his assault on the integrity of federal courts on the Judicial Conference of the United States, prompting the organization to review its rules regarding amicus briefs. The Judicial Conference is the federal judiciary’s policymaking panel that issues codes of conduct, rules, and guidelines to govern the federal courts. Responding to a 2021 inquiry from Sen. Whitehouse critiquing current amicus disclosure rules, the Judicial Conference tasked its Rules Committee with reviewing current rules governing amicus briefs to determine if further disclosures are necessary. Though the Rules Committee has not yet formally issued a proposed rule, they have shared draft language and welcomed public feedback on those drafts.

Despite the pressure from Sen. Whitehouse and the anti-privacy lobby, the most recent draft language shared by the Conference is promising. The very first draft from April 2021 embodied the worst impulses of the AMICUS Act in regulatory form. Fortunately, the committee considered feedback from interested parties and revised the draft accordingly in a direction more accommodating to free speech and personal privacy.

With respect to non-parties in a case, the existing rules regarding amicus briefs require filers to disclose whether any donor to the amicus “contributed money that was intended to fund preparing or submitting the brief.” Following the approach of the AMICUS Act, a Judicial Conference advisory subcommittee previously issued a proposal to expand this disclosure to all donors who met certain thresholds, regardless of whether they earmarked their funds for a particular brief. However, the subcommittee has since issued two revised rule amendment drafts. The latest drafts revert to the current approach of requiring non-party donors to be disclosed only if they earmark their funds for their brief. One current proposed alternative would additionally set a $1,000 threshold for donor disclosure in this scenario.

Generally, PUFPF’s comment favors the latest draft proposals, noting how they are narrowly focused on earmarked funds and consistent with donor privacy jurisprudence. Moreover, PUFPF suggests a higher $10,000 threshold for donor disclosure that is also indexed for inflation in an effort to avoid capturing insignificant donors to a brief. Though disclosure of a non-party’s earmarked contribution burdens a non-party’s privacy – as the subcommittee itself tacitly acknowledges – the burden is similar to those placed on funders of particular independent expenditures and electioneering communications in campaign finance law, thus reasonably meeting exacting scrutiny standards.

Nonetheless, the comment reminds the subcommittee of the judiciary’s narrow interest in disclosures in the first place. As Eric and Matt write, “[t]he Supreme Court has long recognized that organizations and their donors have a constitutional right to associational privacy. Organizations that have valuable insights to share with a court in a proceeding should not be forced to shed that right at the courthouse door when they file amicus briefs.” As their comment explains, the judiciary has no interest in disclosure of amici’s non-party general donors, and any purported benefits in broader disclosure are outweighed by the resulting harms and run contrary to donor privacy jurisprudence, most notably the Supreme Court’s recent AFPF ruling.

PUFPF is pleased with the direction of the draft rulemaking to date. The Judicial Conference is facing unprecedented external pressure challenging the integrity of the courts. Despite this pressure, they’ve remained faithful to protecting citizens’ right to privately support groups engaged in federal judicial proceedings. PUFPF commends the Conference’s efforts and encourages its members to vigilantly protect privacy and speech in the courts as they move forward with deliberations on issuing a proposed rule.