March 8, 2021

Whitehouse, Johnson Press Federal Courts to Strengthen Rules on Judicial Lobbying

In February letter, Courts Subcommittees Chairs detail how amicus filings allow anonymous special interests to push courts to rule in their favor; Courts take up amicus influence in response to Whitehouse-Johnson request

Washington, DC – Senator Sheldon Whitehouse (D-RI)—Chair of the Senate Judiciary Subcommittee on Federal Courts, Oversight, Agency Action, and Federal Rights—and Representative Hank Johnson (D-GA)—Chair of the House Judiciary Subcommittee on the Courts, Intellectual Property and the Internet—released today a letter they wrote to the federal courts’ Committee on Rule of Practice and Procedure calling for stronger disclosure requirements for funders of amicus curiae briefs. In the letter sent last month, Whitehouse and Johnson detail how the judiciary’s lax disclosure rules permit special interests to secretly lobby the courts, creating a system of influence that privileges the views of the wealthy and well-connected over those of everyone else.

Whitehouse and Johnson pressed the courts’ Rules committee to adopt a stronger system of disclosure for amicus filing funders, such as the reporting requirements of Whitehouse and Johnson’s AMICUS Act. The courts then responded to Whitehouse and Johnson indicating they have taken up the matter.

Amicus curiae—or “friend of the court”—briefs allow outside parties to provide knowledge and expertise to help a court understand litigation before it. To guard against conflicts of interests and unfair practices, like circumventing page limits for parties to litigation, amicus filers are required to disclose the sources of their funding.

The courts, however, use a narrow reading of those rules that effectively allows all amicus funders to remain anonymous. The rules require that an amicus filer must disclose whether “a party or a party’s counsel contributed money that was intended to fund preparing or submitting the brief,” and whether “a person . . . contributed money that was intended to fund preparing or submitting the brief and, if so, identifies each such person.” The courts interpret that rule to mean only funds used on the most basic outlays must be disclosed, such as the costs of formatting, printing, and delivering the specific brief in the specific case at issue. Even if a filer has accepted large donations to fund a legal practice focused on amicus advocacy, the sources of those donations can remain anonymous.

The result is a system where big corporations, wealthy ideologues, and other special interests can lobby the courts in secrecy. Often using trade associations, “impact litigation” groups, and other front organizations, these forces can channel anonymous “dark money” donations to fund briefs that are impossible to trace to their origin.

“[S]ophisticated parties, amicus groups, and their wealthy funders have successfully exploited this loophole to exert anonymous influence on our courts,” Whitehouse and Johnson wrote. “As a result, opposing parties, the public, and courts themselves are left in the dark about who is seeking to influence judicial decision-making, compromising judicial independence and the public perception thereof.”

In one example from Whitehouse and Johnson’s letter, the Internet Accountability Project—a 501(c)(4) “social welfare” organization that does not disclose its funders—filed an amicus brief supporting tech giant Oracle’s position in Google v. Oracle—a high-profile Supreme Court case—telling the Court that it wanted to “ensure that Google respects the copyrights of Oracle and other innovators.” Bloomberg later reported Oracle donated between $25,000 and $99,999 to the Internet Accountability Project in 2019 as “just one part of an aggressive, and sometimes secretive, battle Oracle has been waging against its biggest rivals,” including Google. Bloomberg also documented donations from Google to at least 10 groups that filed briefs in support of its position.

The lawmakers also cited the example of the Lynde and Harry Bradley Foundation—a conservative foundation with a long record of attacks against the labor movement. The Bradley Foundation bankrolled the nonprofit law firm bringing a major Supreme Court challenge to union organizing, Friedrichs v. California Teachers Association, while also backing 11 different organizations that filed amicus briefs supporting the plaintiffs in the case. None of the amicus filers disclosed the Bradley Foundation as a source of funding for their briefs, and none of the briefs were rejected by the Court for lack of disclosure.

To bring transparency to amicus-based judicial lobbying, Whitehouse has introduced the Assessing Monetary Influence in the Courts of the United States (AMICUS) Act. The bill would require repeat players—any entity filing three or more amicus briefs in the Supreme Court or 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, and 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.

Even with the option of legislation, Whitehouse and Johnson called on the courts to offer their own solution.

“It should not fall to members of Congress and investigative journalists to scrutinize court dockets and IRS forms to expose conflicts of interest that, left hidden, could undermine the legitimacy of the judiciary’s work,” the lawmakers write. “More than ever before, the judiciary should be vigilant about this threat, as political actors seeking to shape American law and public policy increasingly turn to the courts to achieve those goals, through multi-million dollar judicial confirmation campaigns, sophisticated amicus ‘projects,’ and the like.”

Read the full letter to the Chair of the Judicial Conference Committee on Rules of Practice and Procedure here.

Read the courts’ response here.

Press Contact

Meaghan McCabe, (202) 224-2921