Washington, DC – Today, the Chairmen of the Senate and House Judiciary Courts Subcommittees, Sheldon Whitehouse (D-RI) and Hank Johnson (D-GA), sent a letter to the federal courts’ Judicial Conference Committee on Rules of Practice and Procedure hitting back at the U.S. Chamber of Commerce’s efforts to keep secret the identities of special interests behind amicus curiae briefs. The Chairmen also called on the Committee to adopt a proposal by its subcommittee for amicus disclosure reform that would strengthen transparency for amicus filers. Whitehouse and Johnson had encouraged the Committee to take up the issue of amicus disclosure, which led to the creation of the amicus subcommittee.
The Chamber wrote to the Judicial Conference three weeks ago arguing against changes to the federal courts’ Rule 29 that would strengthen amicus disclosure requirements. In its letter, the Chamber addressed Whitehouse and Johnson’s previous correspondence with the Judicial Conference and the U.S. Supreme Court, where the lawmakers laid out in detail how special interests can influence judicial outcomes by multiplying and thereby amplifying their voice in a judicial proceeding.
In their letter today, the Chairmen note there has been no greater beneficiary from lax disclosure requirements than the Chamber itself. “The Chamber of Commerce opposes these proposed rules changes because it uses the loopholes in the current regime to obscure its members’ influence on the courts,” Whitehouse and Johnson write.
“Because the Chamber does not disclose its members, courts are blind to the Chamber’s connections to parties and other amici,” the lawmakers continue. “However, investigative reporting has revealed some of the companies who comprise the Chamber’s vast membership. Over the past two years, the Chamber filed amicus briefs supporting several of these companies at both the circuit court and Supreme Court levels, but it did not disclose these relationships in any of these briefs. Under the current rules, it would not need to disclose that information even if the member companies directly funded, wrote, approved, or even requested the brief.”
Amicus—or “friend of the court”—briefs are intended to allow outside parties to provide knowledge and expertise to help a court understand litigation before it. To guard against conflicts of interests and unfair practices, amicus filers are required to disclose the sources of their funding.
The federal courts, however, use a narrow reading of those rules that effectively allows all amicus funders to remain anonymous. The rules require that an amicus filer disclose whether “a party or a party’s counsel contributed money that was intended to fund preparing or submitting the brief,” and whether “a person . . . contributed money that was intended to fund preparing or submitting the brief and, if so, identifies each such person.” In practice, the courts interpret that rule to mean that amici must disclose only funds used on the most basic outlays, such as the costs of formatting, printing, and delivering the specific brief in the specific case at issue. Even if a filer has accepted large donations to fund a legal practice focused on amicus advocacy, the sources of those donations can remain anonymous.
As Whitehouse and Johnson note in their letter, the Chamber’s Institute for Legal Reform has spent almost $270 million on lobbying efforts since 2010 alone, and for decades has been considered “Washington’s Biggest Lobbyist.” The Chamber has filed over one hundred more amicus briefs than any other organization at the Supreme Court from 2005 to 2016.
In their letter today, Whitehouse and Johnson applauded the amicus subcommittee’s proposal to strengthen disclosure rules. “The subcommittee’s draft language would be a major step toward solving these problems and bringing more transparency to our courtrooms,” the members write. “Under the draft language, parties who fund briefs could no longer circumvent disclosure rules through unduly narrow readings of Rule 29 or by the simple fact of the party’s membership in the amicus curiae.”
Whitehouse and Johnson have led efforts in Congress to shine a light on amicus influence. They called on the federal courts to impose stronger disclosure requirements for funders of amicus briefs, and introduced legislation, the AMICUS Act, to adopt a stronger amicus disclosure regime.
Read Whitehouse and Johnson’s full letter to the Committee here.
Rich Davidson (Whitehouse), 202-228-6291
Andy Phelan (Johnson), 404-593-9126
