Top Democrats on the Senate and House Judiciary Courts Subcommittees urge more transparency on the Conference’s treatment of its ‘personal hospitality’ clarification
Washington, DC – Senator Sheldon Whitehouse (D-RI), Chair of the Judiciary Subcommittee on Federal Courts, and Representative Hank Johnson (D-GA), Ranking Member of the House Judiciary Subcommittee on Courts, sent a letter to the Judicial Conference asking for further information on the Conference’s clarified policy on federal judges’ and Supreme Court justices’ obligation to report gifts of transportation that were previously omitted by some filers under the guise of “personal hospitality.”
Whitehouse and Johnson had previously written to the Judicial Conference for more information on the “personal hospitality” exception, which Supreme Court Justice Clarence treated as a new rule to avoid cleaning up years of false financial filings.
“The policy seems to acknowledge that the Ethics in Government Act always required disclosure of gifts of transportation, because such gifts do not fall within the plain language of the statute’s personal hospitality exemption limited to food, lodging and entertainment. Logically, the Conference’s ‘clarification’ on this point should apply retroactively, because that is what federal law has always required, and the word ‘clarification’ has that implication,” wrote Whitehouse and Johnson. “However, the policy adopts a provision excusing past non-compliant filers ‘due to confusion arising from past guidance.’ We do not see the confusion, and would appreciate an explanation of it.”
“Financial disclosures help ensure the honesty of public officials, weed out conflicts of interest, and bolster confidence in government. The judiciary should not excuse compliance because it is mildly burdensome; and judges responsible for deciding some of the most complex cases in federal court ought to understand clear rules,” addedWhitehouse and Johnson.
The Ethics in Government Act of 1978 requires certain government officials, including judges and justices, to complete financial disclosures each year. The Act includes limited exceptions to these disclosures, and allows each branch to define those exemptions more completely. Supreme Court practice for years followed financial disclosure requirements much weaker than other branches of government, especially with regard to the disclosure exemption for “personal hospitality.” Justices of the Supreme Court had accepted undisclosed “personal hospitality” on private jets, on private yachts, and at resorts after arranging “personal” invitations from the resort owner, and did not disclose it as required by law.
In a March 2023 letter to Whitehouse, the Judicial Conference made clear that the reporting exemption does not apply to, among other things, gifts of transportation that substitute for commercial transportation; gifts of hospitality at facilities owned by an entity, even if that entity is owned wholly or in part by an individual; gifts of hospitality paid for by any entity or individual other than the individual providing the hospitality or for which the individual is reimbursed; and gifts of hospitality extended at a commercial property.
Whitehouse and Johnson have worked across the aisle for years to illuminate the Supreme Court’s abuse of the “personal hospitality” loophole, and have written repeatedly to both the Supreme Court and Administrative Office of the Courts on the issue. Whitehouse first wrote to the Supreme Court in 2021 with Senator Lindsey Graham (R-SC) asking the Court to address its lax gift, travel, and “personal hospitality” requirements and urging the Court adopt a code of conduct.
Whitehouse and Johnson’s Supreme Court Ethics, Recusal, and Transparency (SCERT) Act would require Supreme Court justices to adopt a binding code of conduct, create a mechanism to investigate alleged violations of the code of conduct and other laws, improve disclosure and transparency when a justice has a connection to a party or amicus before the Court, end the practice of justices ruling on their own conflicts of interests, and require justices to explain their recusal decisions to the public.
The text of the letter is below and a PDF of the letter is available here.
December 23, 2024
The Honorable Robert Conrad
Director
Administrative Office of the United States Courts
One Columbus Circle, NE
Washington, D.C. 20544
Dear Director Conrad:
We write today to request additional information on the new financial disclosure policy adopted by the Judicial Conference’s Committee on Financial Disclosure in September 2024 and disclosed to the public last week.
Since 2019, we have worked to bring the judiciary’s financial disclosure polices into compliance with federal law under the Ethics in Government Act requirement that Supreme Court justices and federal judges file annual financial disclosure reports. The Act contains exceptions, including for “food, lodging, and entertainment received as personal hospitality of an individual.”
After evidence emerged that the late Supreme Court Justice Antonin Scalia abused this exemption to avoid disclosing lavish trips, Senator Whitehouse introduced legislation to ensure a full accounting of gifts, and we urged the judiciary to improve its financial disclosure rules to foreclose abuse of the personal hospitality exemption.
In March 2023, Director Mauskopf announced in a letter to Senator Whitehouse that the Judicial Conference’s Committee on Financial Disclosure had adopted revisions to “clarify” its policy. In the following months, public reporting documented how Supreme Court justices had accepted decades of lavish gifts from billionaire benefactors secretly, on the grounds that those gifts ostensibly fell within the personal hospitality exemption. The plain statutory text of the Ethics in Government Act always required disclosure of these gifts. However, justices and their defenders argued that they did not have to amend previous disclosure reports because the Conference’s clarification constituted a “new rule.” We repeatedly asked the Judicial Conference to resolve whether this was a clarification or a new rule.
Last week, the Judicial Conference report summarizing its September 2024 meeting stated that the Committee on Financial Disclosure agreed to a new policy regarding the personal hospitality “clarification”:
The Committee approved an addition to the Filing Instructions for Judicial
Officers and Employees (AO-10) (Filing Instructions) clarifying that, upon
discovery of errors or omissions, filers must promptly amend reports filed in the
past six years and may amend reports filed more than six years prior to the
discovery. The Committee determined that amendment is required for gifts of
transportation that were omitted or misreported in reports filed in 2023 onward
(for filing years 2022 to the present), but that due to confusion arising from past
guidance, amendment will not be required for gifts of transportation filed six
years ago through 2022 (for filing years 2018 through 2021).
The policy seems to acknowledge that the Ethics in Government Act always required disclosure of gifts of transportation, because such gifts do not fall within the plain language of the statute’s personal hospitality exemption limited to food, lodging, and entertainment. Logically, the Conference’s “clarification” on this point should apply retroactively, because that is what federal law has always required, and the word “clarification” has that implication.
However, the policy adopts a provision excusing past non-compliant filers “due to confusion arising from past guidance.” We do not see the confusion, and would appreciate an explanation of it. The text of the underlying law has always been clear about the limitation of personal hospitality only to “food, lodging, and entertainment.”
Financial disclosures help ensure the honesty of public officials, weed out conflicts of interest, and bolster confidence in government. The judiciary should not excuse compliance because it is mildly burdensome; and judges responsible for deciding some of the most complex cases in federal court ought to understand clear rules.
The Committee also reduced disclosure by enlarging the exemption for personal hospitality received at corporate-owned residences, without waiver of retroactive application of this “clarification.”
As a result, filers who failed to disclose lodging in a corporate-owned residence are granted fully retroactive expansion of this exemption.
As of today, the Conference’s updated Filing Instructions for this new clarification are not publicly available; whereas the Conference immediately published the new Financial Disclosure regulations adopted at the same September meeting.
We request that the Conference provide our offices with a briefing on this latest clarification at a date to be scheduled in January. Ahead of that briefing, please provide a copy of the most current version of the Financial Disclosure Filing Instructions for Judicial Officers and Employees.
Sincerely,
