04.22.21

Whitehouse, Johnson Renew Effort to Strengthen Judicial Influence Rules Following Action by Federal Courts

House and Senate Courts Subcommittee Chairs encouraged by Subcommittee memo outlining need for changes to amicus disclosure rules

Washington, DC – The Chairs of the Senate and House Judiciary Subcommittees on the Courts, Senator Sheldon Whitehouse (D-RI) and Congressman Hank Johnson (D-GA), announced plans today to renew their oversight on the issue of lax amicus curiae disclosure rules in the federal courts and to update their bill, the AMICUS Act, to strengthen amicus rules. The announcement follows reporting this week on a memorandum by the AMICUS Subcommittee of the federal Judicial Conference’s Advisory Committee on the Federal Rules of Appellate Procedure, which recommended stronger rules for amicus filers in light of concerns raised by Whitehouse and Johnson.

“We are pleased to see the judiciary act on our concerns about weak disclosure rules and the growing problem of special-interest amicus influence in our courts,” Whitehouse and Johnson said. “The current rules and the manner in which they’ve been interpreted allow anonymous funders to lobby justices and circuit court judges from the shadows, and to multiply their voices into a false chorus of seemingly different amicus filers. This avenue of influence is a corrupting force within our judicial system that demands the kind of careful examination we see in this memorandum. We look forward to working with the Advisory Committee in its important work, and to supplementing the public record with hearings and further legislative actions, as needed. We encourage the Advisory Committee to move forward in a transparent and expeditious fashion.”

In February, Whitehouse and Johnson wrote a letter to the federal courts’ Committee on Rule of Practice and Procedure calling for stronger disclosure requirements for funders of amicus briefs. Whitehouse and Johnson detailed how the judiciary’s slack 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. The members pressed the judiciary’s 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 judiciary then responded to Whitehouse and Johnson indicating that the AMICUS Subcommittee, which was formed in 2019 in response to Whitehouse and Johnson’s bill, had taken up the matter.

Amicus curiae—or “friend of the court”—briefs were originally intended to 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, under existing court rules, 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.” In practice, 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.

In the memorandum that surfaced this week, the Subcommittee indicates the issues raised by Whitehouse and Johnson are “important and deserve further study.” “We do not believe that the [amicus disclosure] Rule was ever intended to be so narrow,” the Subcommittee observed. The panel points to the “fundamental” problem that “under the current regime . . . neither the courts nor the public may know who is supporting the position a particular amicus brief urges a court to adopt.”

The Subcommittee concludes, “The extent to which amicus briefs are controlled by, or represent the views of, undisclosed persons or entities, and the steps that might be appropriate to further greater transparency, are important and complex issues that deserve further investigation and consideration by the Subcommittee and the full Committee.”