December 14, 2021

AMICUS Act Introduced to Ensure Transparency in Judicial Lobbying

Bill would require filers of influential “friend of the court” briefs to disclose funders, restrict gifts to judges

Washington, D.C. – Senators Sheldon Whitehouse (D-RI), Bernie Sanders (I-VT), Richard Blumenthal (D-CT), Mazie Hirono (D-HI), Elizabeth Warren (D-MA), and Ben Ray Luján (D-NM) and Representatives Hank Johnson (D-GA), Steve Cohen (D-TN), Alexandria Ocasio-Cortez (D-NY), and Mondaire Jones (D-NY) today introduced the Assessing Monetary Influence in the Courts of the United States (AMICUS) Act to bring transparency to the lobbying of federal judges by big special interests. The bill would require disclosure of the identity of funders of amicus (or “friend of the court”) briefs, and block amicus filers from making gifts or providing travel to court of appeals judges or Supreme Court justices.

“The American people deserve to know who’s paying to influence their courts,” said Senator Whitehouse, Chairman of the Senate Judiciary Courts Subcommittee and a leading voice in the fight against special interest influence over the federal judiciary. “If a big-money special interest has a stake in a case, everyone ought to know that, from the judge rendering the decision to the people living with the precedent the case could set.”

“The uncomfortable truth is that our nation’s most influential courts are being secretly lobbied by dark-money special interests in the form of anonymously funded amicus briefs,” said Congressman Johnson, Chairman of the House Judiciary Subcommittee on Courts, Intellectual Property and the Internet. “The AMICUS Act would curb that practice by mandating disclosure of the identities of the corporate and partisan interests who pay for these briefs and prohibiting any gifts or free travel to the judges who are reading them. This bill would help restore the public’s confidence in our federal appellate courts, which is at an all-time low.”

Amicus curiae briefs are written by non-parties to a case for the purpose of providing information, expertise, insight, or advocacy. These briefs have increased in both volume and influence in the past decade. During the U.S. Supreme Court’s 2014 term, amici submitted 781 amicus briefs, an increase of over 800 percent from the 1950s and a 95 percent increase from 1995. In the Court’s 2019 term, amici filed 911 briefs, a rate of about sixteen per case; the recent 2020 term featured almost 940 amicus briefs filed at the merits stage.

Amicus briefs have become an increasingly influential tool for powerful 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 void undermines judicial independence; is detrimental to the adversarial process; and leads the public to view courts as political actors. In recent years, sophisticated repeat-players like Google and Oracle have exploited these loopholes by anonymously funding front groups to file amicus briefs in support of their positions—financial ties that were never disclosed in court.

“Organizations that engage in secretive, anonymous judicial lobbying are no friends of the court – they are enemies of equal justice,” said Senator Blumenthal. “I’ve filed hundreds of amicus briefs in my career, and I have always been proud to put my name on them. If you or your organization is trying to influence our courts at the highest level, you should be required to do the same. Basic disclosure in high-stakes litigation is simple common sense.”

“Right now, dark money groups are lobbying our courts with zero restrictions or transparency,” said Senator Hirono. “ I’m proud to join my colleagues in introducing this legislation to fight back against special interests and increase transparency and public confidence in our federal courts.”

“Our country cannot allow big money and special interest groups to continue to influence our courts with no transparency,” said Senator Luján. “I’m proud to join Senator Whitehouse and Congressman Johnson in introducing the AMICUS Act because the American people deserve to know what interest groups are seeking to sway the courts on matters that directly impact their lives.”

“Dark money special interest groups have infiltrated our politics and our judiciary for far too long, shaping outcomes without ever disclosing their identities,” said Congressman Mondaire Jones. “Enough is enough. The American people deserve to know who is influencing court decisions that impact our lives, and the AMICUS Act will help ensure they do.”

The AMICUS Act would bring transparency to amicus-based judicial lobbying by:

• Requiring amicus filers in the Supreme Court or federal courts of appeals to disclose the identity of all funders that contributed either 3 percent of the entity’s gross annual revenue, or over $100,000; and

• Prohibiting covered amicus brief filers from making gifts or providing travel to court of appeals judges or Supreme Court justices, similar to restrictions on legislative lobbying.

Janus v. AFSCME is a textbook example of a coordinated, dark-money judicial lobbying campaign in a case with sweeping political implications. The case garnered over 75 amicus briefs, including many opposing the right of public-sector labor unions to collect fees from non-union members for collective bargaining purposes. Many of these briefs stemmed from the same source: the conservative Lynde and Harry Bradley Foundation, which has a stated goal of “reduc[ing] the size and power of public sector unions.” Dark-money lobbying campaigns span the political spectrum: in McConnell v. FEC, for example, progressive organizations funded by the Jennifer and Jonathan Allan Soros Foundation filed amicus briefs in support of the campaign finance regulations in question.

In October, Whitehouse wrote an article for the Yale Law Journal detailing the growing problem of special interests using amicus filings to exert undue influence over judicial proceedings. Read Whitehouse’s article here.

Rich Davidson (Whitehouse), 202-228-6291

Josh Smith (Johnson),

Press Contact

Meaghan McCabe, (202) 224-2921