WASHINGTON (CN) — Lawmakers who for years have demanded that the federal judiciary prevent organizations from swaying judges by gaming a common court practice urged the U.S. Judicial Conference this week to wrap up proposed rulemaking that would serve as a major check on such activity.
Members of Congress, particularly Democrats, have long raised concerns that lobbying groups and other organizations use coordinated groups of amicus briefs to push courts toward favorable rulings. An amicus brief is typically filed by a party not directly involved in a case, but who may be affected by its outcome. People and groups that file amicus briefs can also usually provide subject matter expertise on issues that may prove useful to judges.
For lawmakers, however, problems arise when organizations bankroll enormous armadas of amicus briefs in an attempt to push courts toward a desired outcome — campaigns that, under current judicial rules, can be done outside of the public eye.
That concern isn’t without some merit. A 2022 Politico investigation revealed that the National Rifle Association had quietly funded roughly a dozen amicus briefs backing the Supreme Court’s ultimate decision in New York State Rifle & Pistol Association v. Bruen, decided that same year. NRA cash also underpinned the petitioners in the case, fighting to roll back a New York concealed carry law.
Conservative groups aren’t the only ones taking advantage of comparatively opaque amicus disclosure guidelines. The progressive Jennifer and Jonathan Allan Soros Foundation bankrolled flotillas of amicus briefs backing campaign finance regulations at issue in the 2003 Supreme Court case McConnell v. Federal Election Commission.
“It’s sort of a wholesale cynical re-imagination of the amicus process,” said Gabe Roth, executive director of reform-minded Supreme Court advocacy group Fix the Court. Instead of being a method for experts to provide context to judges who are largely generalists, he said, lobbyists see amicus briefs as an opportunity to put their thumb on the scale.
And amici aren’t just taken into advisement, Roth said. “There’s this sense that if you have 80 amicus briefs siding with one side of the case, and only 40 amicus briefs supporting the other side of the case, that the side with 80 must be doing something right.”
The lack of transparency in existing guidelines for filing amici means that organizations can take advantage of that dynamic.
“The rules are vague and pretty easy to avoid,” Roth said. “It makes it look like there is this overwhelming support for one side of the case, when I think it’s a lot closer to three men in a trench coat.”
Amid advocacy from Congress to clamp down on this perceived abuse, the country’s premier judicial policymaking organization is poised to take action.
During an Oct. 19 meeting of the U.S. Judicial Conference’s Advisory Committee on Appellate Rules, members discussed altering disclosure rules for amicus briefs.
Among the proposed changes, the conference suggested requiring organizations interested in submitting amici to report whether any person or group has contributed 25% or more of the organization’s annual revenue. The new rules would also mandate the disclosure of so-called earmarked contributions by outside parties — that is, groups or individuals who gave the filing organization more than $1,000 for the express purpose of preparing, filing or submitting an amicus brief.
Some of the language in the Judicial Conference’s proposed rules change was derived from a 2021 bill filed by Rhode Island Senator Sheldon Whitehouse, known as the Assessing Monetary Influence in the Courts of the United States, or AMICUS, Act.
Whitehouse, a Democrat and outspoken critic of what he calls “dark money” influence over the judiciary, had proposed even stricter disclosure guidelines in his legislation, requiring organizations to disclose stakeholders who had contributed just 3% of annual revenue.
The conference argued that the 3% limit would dissuade organizations from filing amici at all. “With a threshold that low, a company that wanted to submit an amicus brief in a case in which a company with which it did business was a party would have to be concerned whether those ordinary business transactions added up to 3% of revenue,” the group concluded.
A 25% threshold, they contended, strikes a better balance because a contribution that large suggests that the coordinating party has “considerable influence” over the amicus.
Regardless of that change, Whitehouse applauded the Judicial Conference for taking steps to rein in amicus brief lobbying in a letter Monday.
“Proper transparency would help root out this misconduct,” Whitehouse wrote alongside Georgia Representative Hank Johnson, “by providing judges, parties and the public with much-needed information about who is actually present in the courtroom and how they connect to other parties and amici.”
However, the lawmakers warned that lobbying groups would still try to get around the 25% reporting threshold by spreading their contributions across multiple related groups or using intermediaries.
Whitehouse and Johnson urged the conference to finalize the new proposed guidelines, which were not set in stone at the Oct. 19 meeting.
The Rhode Island senator has long railed against coordinated amici campaigns, which he frames as an increasingly influential part of the American judicial system. In a 2021 op-ed published in the Yale Law Journal, Whitehouse derided amicus briefs as “the lobbying tool of choice for right-wing dark-money interests.”
“The judiciary must awaken to the wealthy few’s ongoing scheme to influence the Court through anonymously filed amicus briefs,” Whitehouse wrote. “Either our judicial system confronts this scheme and strengthens its countermeasures, or legislation will have to address the problem.”
Roth, meanwhile, said the Judicial Conference’s attention to amicus brief gamesmanship is a major step.
“The fact that the judiciary is even looking into this issue is kind of a big deal,” he said. “I think the judges realize that there are transparency and ethical implications here.”
Roth forecast that the conference could finalize new amicus brief disclosure guidelines as soon as April 2024. “That’s a good sign,” he said. “They’re at least identifying that there’s a problem.”
The problems with amicus briefs — weak transparency rules and the propensity of some judges to cherry-pick ones that confirm their prior convictions — are a far cry from their intended benefits.
“I think justices are looking for that expertise,” Roth said, “to help them understand some of the real-world implications of what their cases are about, as well as the larger implications of what certain rulings might mean down the line.”
Especially as courts take on cases involving emerging technology, climate change, and other uncharted legal territory, there are situations where judges and justices can benefit from amici, Roth said, but the pitfalls remain.
“Unfortunately, I think it’s been beaten beyond recognition,” he said, “and has become more of a political game than a useful way of sussing out legal arguments.”Follow @BenjaminSWeiss
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