Senator Whitehouse Promotes Anti-Privacy AMICUS Act in Subcommittee Hearing

June 13, 2023 | Luke Wachob

Lady Justice may be blind, but before you speak to her, Rhode Island Senator Sheldon Whitehouse wants to see your donor list.

On June 14 at 2 PM ET, a U.S. Senate Judiciary Subcommittee will hold a hearing on Senator Whitehouse’s “Supreme Court Ethics, Recusal, and Transparency Act of 2023” (S. 359). Tucked into the legislation is a provision from the AMICUS Act, a dangerous proposal that would force any nonprofit that files just one amicus brief in federal court per year to publicly expose the identity of its significant donors in the text of the brief. S. 359 also has a House companion bill, H.R. 926.

While the AMICUS Act’s disclosure requirements are limited to donors giving over $100,000 or 3% or more of a nonprofit’s gross annual revenue in the prior calendar year, this demand is nevertheless unprecedented and would impact causes of all stripes – and their supporters – indiscriminately and with likely devastating results. Donors may become less willing to fund worthy causes, nonprofits may choose not to share their expertise with the courts, judicial deliberations may suffer from a dearth of perspectives, and Americans may suffer harassment or other acts of retaliation for their giving.

Moreover, if successful, the sponsors of the AMICUS Act will almost certainly seek additional disclosures in the future involving less significant donors. Some politicians have an insatiable appetite for information about Americans who belong to groups that oppose their agendas, as demonstrated in other proposals like the DISCLOSE Act and the Honest Ads Act. At a time when free speech and donor privacy are facing an array of threats – not only from Congress but also from the states, leaks, hackers, and major financial institutions – the AMICUS Act is yet another attempt to divide and conquer Americans by forcing groups that take a stand on thorny issues to identify their individual supporters.

This spring, People United for Privacy Foundation filed comments with the Judicial Conference of the United States opposing a related effort by Senator Whitehouse to pressure the Conference into adopting broader disclosure rules for amicus filers. Current rules already require amicus filers to disclose whether any donor “contributed money that was intended to fund preparing or submitting the brief.” Senator Whitehouse believes the rules should go much farther, but his proposal threatens to bias court proceedings and undermine our tradition of judicial impartiality.

“…[T]he very notion that judges could decide matters on the basis of such considerations is wholly antithetical to our legal system. It is axiomatic in American law that judges are to decide matters based solely on the law and the facts of the case. Indeed, ‘Lady Justice’ is often depicted wearing a blindfold because judges are generally supposed to be indifferent to the identities of those who appear before them,” explained PUFPF Vice President Matt Nese and Counsel Eric Wang.

Brian Hawkins, PUFPF’s Senior Director of External Affairs, elaborated on Whitehouse’s clumsy campaign to force amicus filers to expose their general donors.

“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,” Hawkins noted.

Support for nonprofit donor privacy is robust and bipartisan. 17 states have recently adopted reforms to protect Americans’ personal information from unnecessary disclosures to government officials or political weaponization, frequently with strong bipartisan support. When the Supreme Court heard a major case on nonprofit donor privacy in 2021, nearly 300 nonprofits from across the political spectrum filed briefs urging the Court to protect their members’ privacy.

Despite these successes, the desire to build enemies lists and silence critics runs deep in politics. Only a sustained, committed defense of the constitutional rights of all nonprofits and their supporters will ensure that Americans continue to enjoy the benefits of the First Amendment.

You can watch Wednesday’s hearing in the Subcommittee on Federal Courts, Oversight, Agency Action, and Federal Rights live at this link at 2 PM ET: