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 comment to the Judicial Conference on the agency’s proposed rules from 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 amicus briefs of his own. Whitehouse also wrote an essay for the Yale Law Journal in 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) Act would: 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.
Honorable John D. Bates
Chair, Committee on Rules of Practice and Procedure
One Columbus Circle NE
Washington, D.C. 20544
Dear Judge Bates:
Thank you for the Advisory Committee’s long and thorough deliberations on necessary amendments to Federal Rule of Appellate Procedure 29. 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. To further bolster the Committee’s proposal, we offer several additional recommendations for consideration.
It is important to understand the context that makes these improvements to the rule necessary. In brief summation, a campaign to influence our federal courts began some time ago, signaled by then-attorney Lewis Powell’s memorandum to the United States Chamber of Commerce urging the Chamber to join other groups in “exploiting judicial action.” According to Powell, “especially with an activist-minded Supreme Court, the judiciary may be the most important instrument for social, economic and political change,” making the courts “a vast area of opportunity for the Chamber . . . if . . . business is willing to provide the funds.” Industries familiar with the tactic of regulatory capture, sometimes called agency capture, had a ready template from which to proceed in this campaign.
The campaign had multiple vectors: one, to put amenably-minded judges and justices on the bench; two, to forge helpful legal doctrines in amenable think tanks and universities; three, to fund litigating and amicus groups to provide helpful court advocacy regarding those doctrines.
The legal groups operate in various ways. Sometimes they represent a party, often a party they have sought out or recruited; contra the ordinary process of injured parties choosing their lawyers. Although this practice, standing alone, is not always problematic, these groups have taken it to a new level. One nominal plaintiff even ended up on the payroll of the litigating group. Sometimes they swap out plaintiffs and swap in new ones for strategic reasons or to protect their claims to standing. Often, multiple legal groups file amicus briefs aligned with the litigating group, hence the importance of this rule. Sometimes they swap positions: in Friedrichs v. California Teachers Association, 136 S. Ct. 1083 (2016) (per curiam), petitioner’s counsel became an amicus when the same question returned to the Supreme Court in Janus v. AFSCME, 585 U.S. 878 (2018); a petitioner’s litigating group in Janus had been an amicus in Friedrichs. Often, they file in orchestrated and harmonized flotillas: the usual number in the chorus is around ten or twelve; in matters of particular impact and importance to the influence campaign, we’ve seen as many as fifty-five, even at the certiorari stage. In one such case, the petitioner was the 501(c)(3) twin of the 501(c)(4) right-wing political battleship Americans for Prosperity, which sits at the center of the political network that funded numerous of the amicus filers, but none of that was disclosed.
Some advocacy groups seem to have no business or function other than to interpose themselves between corporate interests and courts, screening from the judicial proceedings the corporate identities behind them (some perform that function in administrative proceedings too); some are well-established trade groups recruited to the cause (perhaps for compensation—trade associations like the U.S. Chamber of Commerce refuse to deny or disclose this); some are practically pop-ups, appearing for particular cases, as the Committee has noted with its less-than-twelve-months-of-existence provisions. In sum, 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.
Major corporations as parties have been caught funding amici that filed briefs in their case arguing positions helpful to their cause. Major funders of multiple amicus briefs in the same case have been caught “orchestrat[ing] . . . amicus efforts” in addition to helping fund “the actual, underlying legal actions.” Entities that are mere “fictitious names” for other entities have filed briefs that failed to disclose the actual corporate entity behind the fictitious name, and failed to disclose that entity’s other fictitious names and related corporate entities. We have filed amicus briefs describing for the Supreme Court undisclosed funding links we could find among multiple amici appearing in the case, but since so much of the funding of these groups is secret, the linkages we found are necessarily an incomplete picture.
In light of all the above, 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.
While “[t]he burdens of disclosure are far greater with regard to nonparties,” the relevant universe of “flotilla amici” and their major donors amounts to an extremely small list of individuals or entities in most cases, known to each other through coordination and common funding. Amicus organizations should have little difficulty tracking individuals or entities whose contributions amount to at least 25% of the organization’s prior year revenue—a number organizations need calculate only once per year. As the Committee notes, “top officials at an amicus are likely to be aware of such a high-level contributor without having to do any research at all.” Thus, this is a very simple requirement, and it can be made the responsibility of the lawyers filing the briefs to aver that they have done the necessary due diligence and made the necessary disclosures, subject to discipline by the court where they have failed or misled a court.
Because the nominal plaintiff or petitioner may be a “plaintiff of convenience” but not the real party in interest, requiring disclosure only of links to the nominal party will often be a vain effort. 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.
It would require minimal effort for amici to provide the court and the public with important information about the true interests behind the briefs. For instance, the Committee could require amici to disclose known links between them and other amici. An obvious part of this disclosure would be for amici that are part of a network of related corporate entities, as “fictitious names” of other entities or otherwise, to disclose the other entities in the network, including coordination of multiple amici by a third party, as was the case in Friedrichs and King v. Burwell, 576 U.S. 473 (2015).
Disclosure of links among amici is a burden easily managed, as no one knows better than the amici operating in coordinated flotillas how and why and how much they were coordinated. Unjustified burden is virtually nil. It is really just a matter of disclosing what the lawyers already know or can readily determine. The connected entities in the flotillas have a pretty good idea who they all are, and the number of amici on one side in these cases is usually around a dozen, so the burden of research and disclosure is not great. The importance of courts standing above and apart from the campaign of influence is paramount to public confidence in courts’ integrity; it creates a perilous situation when the public cannot tell where the influence campaign ends and the judiciary begins. Disclosure draws a good line. It is in the interest of judicial integrity that entities presenting themselves in judicial proceedings present themselves unmasked, for who they really are. Lawyers who facilitate masking operations degrade the institution of the judiciary, and it is not unreasonable to put them under a duty of candor about proper disclosure.
A related recommendation therefore is that, if the Committee requires disclosure of links among amici, it also require the lawyer presenting an amicus brief make a declaration in the brief that he or she has conducted a duly diligent effort to understand the connections among his or her client and other amicus filers, and has given the court a candid, thorough, plain and honest description of the amicus filer’s various funding and additional links with other amici. The requirement that a counsel knowing of a disclosure failure by any amicus must report it is a very good step, but an added requirement of due diligence as to the links with the amicus client would be advisable. In this context, the Committee may want to consider additional language accounting for creative funding structures intended to evade disclosure, such as promises of post-filing payments. This is an area where a lot of hiding is done, and closing off technical loopholes with broad language and broad lawyer candor responsibility would be advisable.
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. We are grateful at the steps you have taken and urge your favorable consideration of the above suggestions.