Whitehouse, Johnson Urge Judicial Conference to Finalize Strong Rules Governing Amicus Brief Disclosure

Washington, DC – Senator Sheldon Whitehouse (D-RI) and Representative Hank Johnson (D-GA) wrote to the Judicial Conference Committee on Rules of Practice and Procedure and the Advisory Committee on Appellate Rules to ask the Judicial Conference to finalize rules that would strengthen transparency requirements for amicus curiae brief filers.  Whitehouse and Johnson are Chairman and Ranking Member of the Senate and House Judiciary Courts Subcommittees respectively.

Whitehouse and Johnson have regularly called out the unhealthy phenomenon of coordinated flotillas of right-wing “amici curiae” filing amicus briefs that hide their funders and the coordination.  Whitehouse has even called out this conduct in Supreme Court amicus briefs of his own.  The right-wing amicus flotillas have a statistically astounding record of success with the Federalist Society-linked justices, and Whitehouse and Johnson have identified this as a key part of the right-wing billionaires’ Court capture operation.  Recently, after much urging, a committee of the Judicial Conference indicated its intention to recommend improvements to the amicus disclosure rule.  Whitehouse and Johnson’s letter highlights pitfalls the committee should watch out for in drafting the improved disclosure requirements.

“We are grateful to hear of action on our request, first referred to this body three years ago, that the federal judiciary strengthen its rules governing the disclosure of who funds amicus curiae briefs—a worsening problem as front-group amici increasingly appear in coordinated squadrons and flotillas,” wrote Whitehouse and Johnson.

Amicus curiae briefs 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.

“The problem with current interpretations of Rule 29 of the Federal Rules of Appellate Procedure and the Supreme Court’s Rule 37.6 is illustrated in New York State Rifle & Pistol Association v. Bruen, decided by the Supreme Court last year,” wrote Whitehouse and Johnson.  “The National Rifle Association (NRA) appeared as an amicus supporting the petitioners without disclosing any connections to the petitioners or other amici.   Investigative reporting later revealed that at least twelve Bruen amici had funding connections to the NRA, and that the NRA funded the underlying litigation at the Supreme Court.”

“Proper transparency would help root out this misconduct, by providing judges, parties and the public with much-needed information about who is actually present in the courtroom and how they connect to other parties and amici,” added Whitehouse and Johnson.

The key recommendations in Whitehouse and Johnson’s letter are to prevent intermediary identity-laundering groups from being allowed to screen the true donors, and to prevent coordinated “structuring” of donations by related entities to avoid the rule’s effect. 

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.

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 about 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]

Full text of Whitehouse and Johnson’s latest letter is below.  A PDF copy of the letter is available here.

October 26, 2023

Honorable John D. Bates

Chair, Judicial Conference Committee on Rules of Practice and Procedure

U.S. District Court for the District of Columbia

333 Constitutional Avenue N.W.

Washington, D.C. 20001

Honorable Jay S. Bybee

Chair, Advisory Committee on Appellate Rules

Lloyd D. George U.S. Courthouse

333 Las Vegas Boulevard South

Las Vegas, Nevada 89101

Dear Judge Bates and Judge Bybee: 

We are grateful to hear of action on our request, first referred to this body three years ago, that the federal judiciary strengthen its rules governing the disclosure of who funds amicus curiae briefs—a worsening problem as front-group amici increasingly appear in coordinated squadrons and flotillas. 

The problem with current interpretations of Rule 29 of the Federal Rules of Appellate Procedure and the Supreme Court’s Rule 37.6 is illustrated in New York State Rifle & Pistol Association v. Bruen, decided by the Supreme Court last year.  The National Rifle Association (NRA) appeared as an amicus supporting the petitioners without disclosing any connections to the petitioners or other amici.^[1]  Investigative reporting later revealed that at least twelve Bruen amici had funding connections to the NRA,^[2] and that the NRA funded the underlying litigation at the Supreme Court.^[3]

Even what we know so far—that one organization funded the litigation, appeared as an amicus, and funded multiple other amici—merits concern, indeed merits disclosure.  The director of the NRA state affiliate credited this effort for persuading the Court to grant certiorari.^[4]  When these coordinated political projects succeed, and are later exposed, it erodes public confidence in both the process and the outcome.    

Proper transparency would help root out this misconduct, by providing judges, parties and the public with much-needed information about who is actually present in the courtroom and how they connect to other parties and amici.  As you pursue reforms to enhance this transparency, we offer two thoughts on pitfalls to avoid.   

The operations generating these flotillas of false-front amici will obviously continue to try to obfuscate their connections.  Two predictable ways are:  (1) strategic structuring of donations through multiple groups to keep each under the Committee’s proposed 25% gross annual revenue threshold, and (2) using intermediary groups to stymie inquiry into the ultimate source of donations. 

In the first scenario, consider a group such as Marble Freedom Trust, which operates a $1.6 billion fund on behalf of Republican political operative Leonard Leo, and whose advocacy network regularly files amicus briefs in the Supreme Court.  Marble Freedom Trust could structure funding to an amicus through four of Leo’s groups that each fund 24.9% of the amicus, and—with minimal other outside funding—stay below the reporting level, even where Marble Freedom Trust was responsible for 99.6% of the amicus group’s annual revenue.  The rule should put the onus on amici to disclose such structured and coordinated funding and affiliations.   

Second is what might be called the “superPAC problem.”  SuperPACs are obliged to disclose only their immediate, not their actual, donors. This has led to the proliferation of identity-laundering entities such as 501(c)(4) organizations. Only the intermediary is disclosed, not the true donor, defeating the purpose of the exercise.

Congress has addressed the problem of shell intermediaries in campaign and illicit finance contexts, with bills like the DISCLOSE Act and the Corporate Transparency Act, which are designed to trace an ultimate beneficial owner or donor through multiple layers of shell groups.  We commend those examples to you.  

Again, we thank you for the progress the Judicial Conference is making to clean up the front-group amicus problem and, as Judge Patricia Millett put it, reveal the “real power behind the throne.”^[5]  An honest and effective judicial process requires no less.

Sincerely,

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Meaghan McCabe, (202) 224-2921