Whitehouse and Johnson File Public Comment on Judicial Conference’s Proposed Amicus Brief Disclosure Rules

Top Democrats on the Senate and House Judiciary Courts Subcommittees applaud the Conference's effort and offer recommendations to bring greater transparency to amicus brief funding

Washington, DC- Senator Sheldon Whitehouse (D-RI), Chair of the Judiciary Subcommittee on Federal Courts, and Representative Hank Johnson (D-GA), Ranking Member on the House Judiciary Subcommittee on Courts, have submitted a public commentto the Judicial Conference on the agency's proposed rulesfrom August governing the disclosure of the identity of funders of amicus curiae (or "friend of the court") briefs. "Without taking a position on other provisions of the proposed amendment, we strongly encourage the Committee to adopt the provisions improving disclosures related to amici curiae. If adopted, the new rule would yield a long-overdue, if incomplete, improvement over existing amicus disclosure requirements," wrote Whitehouse and Johnson.

The lawmakers proposed several recommendations to strengthen the Judicial Conference's proposal, including potential ways to shine a spotlight on coordinated amicus filings.

"The chief recommendation we propose is that a subsection be added related to connections among amici. The Committee is justifiably attentive to the difference in burden between disclosing links between amici and parties versus disclosing links between amici and the world at large. Some disclosures by amici are easily managed, however. For example, the Committee should require amici to disclose at least major donors funding multiple amici. To ensure consistency, the Committee could adopt the same disclosure thresholds as it has with respect to amicus-party connections," wrote Whitehouse and Johnson.

Whitehouse and Johnson continued, "too often, cases are 'faux litigation'-the litigating group found the client, judge-shopped the court, and participated in an orchestrated campaign of judicial lobbying by an amicus flotilla. It is the flotilla of coordinated amicus filings and the common funders and orchestrators of the flotilla that need disclosing. Flotillas of coordinated amicus briefs add little beyond a false appearance of numerosity and a great many extra pages, so there is little added value to the court from all the filings. Redundancy is disfavored, and so should subterfuge be."

Amicus curiaebriefs are written by non-parties to a case to provide information, expertise, insight, or advocacy. Amicus briefs have become an increasingly influential tool for powerful special interest groups seeking to lobby the federal courts. While interest groups lobbying Congress face stringent financial disclosure requirements, no similar requirements exist for judicial lobbying. This secrecy undermines judicial independence, is detrimental to the adversarial process, and can lead the public to view courts as political actors.

"A robust and coordinated system operates to flood appellate court proceedings with covertly funded amicus encouragement, while denying courts, the parties, and the public essential knowledge to evaluate the true interests behind the briefing and any resulting conflicts,"wrote Whitehouse and Johnson. "In Congress, those who lobby the institution must make quite robust disclosures about their activities and payments. It is time to clean up this avenue of anonymous lobbying of the judiciary,"concluded the lawmakers.

For years, Whitehouse and Johnson have urged the federal courts to adopt a stronger standard of disclosure for interests filing amicus briefs.

• Letter from Whitehouse to Supreme Court (1/4/19).The letter explained several issues with the current amicus disclosure rule and requested feedback on Whitehouse and Johnson's AMICUS Act to improve amicus transparency. [FULL LETTER]

• Letter from Whitehouse and Johnson to Supreme Court (6/18/19). The letter requested information from the Supreme Court about its enforcement of its amicus disclosure rule. [FULL LETTER]

• Letter from Whitehouse and Johnson to the Supreme Court (5/13/20). The letter pointed to examples demonstrating why the current amicus disclosure rule is inadequate, including Google LLC v. Oracle America Inc. and Seila Law LLC v. CFPB. [FULL LETTER]

• Letter from the Supreme Court to the Judicial Conference (9/18/20). The Supreme Court Clerk of Court forwarded his correspondence with Whitehouse and Johnson to the Judicial Conference's Committee on Rules of Practice and Procedure, stating that the Committee "may wish to consider whether an amendment" to the lower court disclosure rule "is in order." The Clerk stated "[t]he Committee's consideration would provide helpful guidance on whether an amendment" to the Court's disclosure rule is necessary because the two rules are similar. [FULL LETTER]

• Letter from Whitehouse and Johnson to the Judicial Conference (2/23/21). The letter conveyed the members' concerns with the judiciary's inadequate disclosure rules and included recommendations for improving the rules, such as Whitehouse and Johnson's AMICUS Act. [FULL LETTER]

• Letter from Whitehouse and Johnson to the Judicial Conference (11/10/21). The letter responded to arguments made by the U.S. Chamber of Commerce in opposition to amicus disclosure. The letter noted that the Chamber is perhaps the greatest beneficiary of the judiciary's lax disclosure requirements. [FULL LETTER]

• Letter from Whitehouse and Johnson to the Judicial Conference (11/3/22).The letter brought to the Judicial Conference's attention Whitehouse and Johnson's amicus brief in Moore v. Harper, which documented the failure of multiple amici in that case to disclose their connections to one another, to efforts to overturn the 2020 election, and to spending to confirm multiple justices. [FULL LETTER]
• Letter from Whitehouse and Johnson to the Judicial Conference (10/26/23).The letter asked the Judicial Conference to finalize a robust rule that would strengthen transparency requirements for amicus curiae brief filers and brought to the Judicial Conference's attention how the judiciary's disclosure rules prevented timely exposure of multiple NRA-amicus connections in an important Second Amendment case at the Supreme Court. [FULL LETTER]
• Letter from Whitehouse and Johnson to the Judicial Conference (12/14/23).The letter brought to the Judicial Conference's attention an article detailing how amici in major Supreme Court cases have filed briefs without disclosing their common, ideological donors-including Leonard Leo and his network of organizations. [FULL LETTER]

Whitehouse has also called out the unhealthy phenomenon of secretive, coordinated flotillas of right-wing amicus briefs in Supreme Court amicusbriefsof his own. Whitehouse also wrote an essay for the Yale Law Journalin October 2021 showing how the Supreme Court and other appellate courts' funding-disclosure rules for filers of amicus briefs undermine basic fairness, and discussed potential improvements to Court rules to restore the public's faith in the judicial system.

Whitehouse and Johnson's comprehensive Supreme Court Ethics, Recusal, and Transparency (SCERT) Actwould: require greater disclosure of amicus curiae funding; require parties and amici curiae before the Supreme Court to disclose any recent gifts, travel, or reimbursements they've given to a justice; and require parties and amici curiae before the Supreme Court to disclose any lobbying or money they spent promoting a justice's confirmation to the Court. The SCERT Act was approved by the Senate Judiciary Committee in July 2023.

The text of the comment letter is below and a PDF is available here.

Public link

Please use the above public link if you want to share this noodl on another website.