Whitehouse has long led the push to bring greater transparency to special interest amicus funding
Providence, RI – Senator Sheldon Whitehouse (D-RI), Chair of the Judiciary Subcommittee on Federal Courts, today released the following statement applauding the Judicial Conference’s proposed changes to its rules governing the disclosure of the identity of funders of amicus curiae (or “friend of the court”) briefs.
“While I am still reviewing the details of this proposal, I welcome this promising effort by the Judicial Conference to bring greater transparency to amicus brief funding. More and more, flotillas of amici curiae appear in court to lobby judges to radically reshape the law without disclosing the coordinated billionaire and special interest money behind the briefs. Proper transparency would help root out the real interests behind these amici and arm judges, parties, and the American public with a clearer picture of who’s paying to influence the courts, particularly where the same billionaires funding the briefs are also funding lavish gifts to justices,” said Whitehouse. “I look forward to submitting comments to strengthen this proposal in due course.”
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.
Whitehouse 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.
For years, Whitehouse has specifically 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 Rep. Hank Johnson (D-GA) 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’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.
