05.09.19

Whitehouse, Blumenthal, Hirono Introduce AMICUS Act to Bring Transparency to Judicial Lobbying

Bill would require influential amici to disclose funders, restrict gifts to judges; Legislation follows Whitehouse letter to SCOTUS Chief Justice requesting explanation for disparate treatment of anonymously funded briefs

Washington, D.C. – Senate Judiciary Committee members Senator Sheldon Whitehouse (D-RI), Senator Richard Blumenthal (D-CT), and Senator Mazie Hirono (D-HI) today introduced the Assessing Monetary Influence in the Courts of the United States (AMICUS) Act to bring transparency to amicus-based judicial lobbying for the first time.

“It defies reason that the branch of the federal government with the least direct accountability to the public is not subject to even the most basic lobbying disclosures.  The current system is a recipe for corruption of the judiciary,” said Whitehouse.  “The American people deserve to know which powerful interests are paying to influence federal judges with self-serving legal advice and extravagant gifts.”

Whitehouse sought comment on a draft of the AMICUS Act in a January letter to Chief Justice John Roberts.  The letter asked for clarification on what appears to be selective enforcement of the Supreme Court’s rule barring amicus briefs funded by anonymous sources.  While the Supreme Court rejected a brief on the grounds that it was financed by small-dollar donations on the crowdfunding website GoFundMe, the Court routinely welcomes briefs from organizations like the U.S. Chamber of Commerce that conceal their donors from the public.  A response has not been issued.

“Organizations that engage in secretive, anonymous judicial lobbying are no friends of the court – they are enemies of equal justice,” said Blumenthal.  “I’ve filed thousands 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.”

“Well-funded right wing donors are spending millions of dollars a year in secret to influence proceedings before the Supreme Court,” said Hirono.  “It is crucial that all Americans know exactly who is trying to influence the Court, and this bill will go a long way to ensuring that kind of transparency.”

The AMICUS Act would require any entity filing three or more amicus briefs in the United States Supreme Court or the federal courts of appeals during a calendar year to disclose the identity of all funders that contributed either three percent of the entity’s gross annual revenue, or over $100,000.  The disclosures would be public information.  In addition, the bill would prohibit 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.

Amicus curiae briefs, written by non-parties to a case for the purpose of providing information, expertise, insight, or advocacy, have increased in both volume and influence in the past decade.  Supreme Court opinions also often adopt language and arguments from amicus briefs.

Amicus briefs have become an increasingly powerful tool as advocacy documents for special interest groups seeking to lobby the federal judiciary.  While interest groups that lobby Congress face stringent financial disclosure requirements, no similar requirements exist for judicial lobbying.

Janus v. AFSCME  is a textbook example of a coordinated, dark money judicial lobbying campaign in a case with massive 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.” 

During the 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.  From 2008 to 2013, the Supreme Court cited amicus briefs 606 times in 417 opinions. 

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