On July 13 at 10 AM ET, the Senate Judiciary Committee will convene for an Executive Business Meeting. On the agenda is S. 359, Senator Sheldon Whitehouse’s “Supreme Court Ethics, Recusal, and Transparency Act of 2023,” which contains a proposal to force nonprofits to expose their major donors when filing an amicus brief in federal court. People United for Privacy has written before about the damaging impact this proposal, known as the AMICUS Act, would have on Americans’ privacy and free speech rights. Yet while the debate about ethics requirements at the Supreme Court has been well-documented, the AMICUS Act’s attack on the First Amendment has largely flown under the radar.

The AMICUS Act is yet another attempt by Senator Whitehouse to silence certain organizations he disagrees with, but the entire nonprofit community would be harmed by the bill’s extreme mandates. The proposal would force any nonprofit that files just one amicus brief in federal court per year to disclose the identity of donors giving over $100,000 or 3% or more of gross annual revenue in the prior calendar year in the text of the brief. This demand is unprecedented and would impact nonprofits of all stripes – and their supporters – indiscriminately with likely devastating results.

• The AMICUS Act would further divide Americans and fuel our out-of-control cancel culture. The bill would create new targets for harassment and retaliation whenever a controversial case is decided by publicly exposing the names and addresses of donors to groups that file amicus briefs with federal appeals courts and the Supreme Court. Partisan media outlets and political operatives will be empowered to use name-and-shame intimidation tactics to punish and silence Americans they disagree with. Even decisions on non-controversial issues could wreak havoc on supporters of organizations that argued for those rulings, so long as opponents of the opinion use the information in an amicus brief to act out.
• Transparency is for government. Privacy is for people. Whatever disclosure and ethics requirements may be appropriate for government officials or federal judges, the privacy rights of nonprofits and their members is a separate and unrelated issue. The AMICUS Act attempts to hijack conversations about judicial transparency to impose unwarranted disclosure requirements on amicus filers.
• Courts already have the information they need about amicus filers. Existing rules issued by the Judicial Conference of the United States require amicus filers to disclose whether any donor to the amicus “contributed money that was intended to fund preparing or submitting the brief.” The AMICUS Act would radically expand this standard for no purpose other than to paint targets on the backs of donors and make all groups think twice before filing an amicus brief. This disclosure demand would impact progressive and liberal nonprofit filers of amicus briefs as well as conservative organizations.
• The AMICUS Act violates our tradition of judicial impartiality and threatens to bias court proceedings. Unlike voters, who are encouraged to consider a candidate’s sources of funding when deciding how to vote, judges are asked to set aside their feelings about the parties before them and rule based on the facts and the law. For this reason, justice is often depicted as blind. The AMICUS Act wrongly shifts focus away from the merits of a group’s arguments and towards the identities of its supporters.
• The freedom to privately support a nonprofit is a First Amendment right. As recently as 2021, the Supreme Court reaffirmed and clarified that the Constitution protects Americans’ right to privacy when supporting nonprofit causes. The ability to support a cause privately is an essential protection for free speech.