Getting Dark Money Out Of U.S. Courts
Industry groups hire seemingly independent parties to file friend-of-the-court briefs to support their interests in federal courts. A proposed rule change would partially stop the practice.
Big business has had its thumb on the scale of justice in U.S. Courts for decades.
An industry or organization undertakes a lawsuit (or opposition to a lawsuit) to effect a financial goal. It spends lavishly to hire a flotilla of supposedly disinterested groups to prepare and submit amicus curiae or friend-of-the-court briefs to the court. These are advocacy documents that seek to persuade judges about the merits of a party’s position.
It’s a form of organized lobbying - by deceit. The lobbyists intentionally misguide the court by creating the appearance of independence when they are hired guns. The scheme wreaks havoc on concepts of fairness and justice, and undermines public faith in the courts.
And it would still be going on if not for persistent efforts of two members of the U.S. Congress.
U.S. Sen. Sheldon Whitehouse, D-RI, and Rep Hank Johnson, D-GA, proposed a law in 2019 to require judicial lobbyists to register and disclose their funding, but the proposal faced stiff resistance from the judiciary, which claimed it would encroach on judicial independence and violate Constitutional separation of powers.
So Whitehouse and Johnson tacked, and urged the Judicial Conference Committee on Rules of Practice and Procedures to change its rules to require authors of amicus curiae briefs to identify themselves and their interests.
Why wasn’t reform initiated by the judiciary, instead of Congress?
The Judicial Conference has proposed amending Appellate Rule 29 to, among other things, require the disclosure of the identity of a party or counsel (or any combination of the two) that has a majority ownership in or controls the legal entity filing the brief.
Additionally, the amendment would require disclosure of a non-member of the group that is filing the brief that has contributed 25% of the organization’s total revenue in the past year. The Judicial Committee said it “settled on 25%, reasoning that an amicus that is dependent on a party for one quarter of its revenue may be sufficiently susceptible to that party’s influence to warrant disclosure, thereby enabling a judge to consider that potential influence in evaluating the brief.” It said the one-year look back limitation is intended to reduce the “risk” that someone might decline to make a significant contribution to an organization to avoid disclosure.
The Judiciary Committee concedes that the scheme harms the court. It says the identity of an amicus matters to some judges, and “members of the public use the disclosures to monitor the courts, thereby serving both the important governmental interest in appropriate accountability and public confidence in courts.”
A wink and a nod
Even if approved, the proposed level of transparency leaves sizable holes.
A statement by the nonprofit watchdog group, Court Accountability, criticized the proposal because it is triggered “only for contributions earmarked for preparing or submitting the brief” and does not reach “contributions purportedly made to an amicus for its general fund or other purposes.”
In other words, lobbyists can avoid triggering the reporting requirement by making a contribution without earmarking it.
Alexander Aronson, who founded Court Accountability in 2023, writes: “The limitations of the funding disclosure regime allow meaningful financial entanglements to go undisclosed… a party can fund essentially the entire amicus operation of an organization” without being required to disclose its role because it did not earmark its contribution.
Court Accountability also proposed raising the 25% funding threshold because “a donor contributing 15 or 20 percent of an organization’s revenue still exerts considerable influence on the amicus’s operations and messaging.”
Aronson, who serves as executive director of the organization, is a former chief counsel to Sen. Whitehouse.
Unsurprisingly, the U.S. Chamber of Commerce opposes the proposed disclosure requirements, contending the influence of an amicus brief should be “accorded weight based on the strengths of its arguments, rather than the identities or perceived influence” of its authors.
The Chamber also claims that compelled disclosure is “openly hostile to core First Amendment principles” that link the right to freedom of association with privacy in one’s associations. The Chamber argues the proposal will have a “chilling effect on amicus organizations.”
The Chamber fails to explain why Congressional lobbyists must disclose their interests but not lobbyists before the judiciary. Indeed, the Chamber insists that amicus briefing is not a form of lobbying but an educational service.
Asleep at the wheel?
Why didn’t the judiciary halt the obviously corrupt sham amicus scheme. It is obvious that it ill-serves the public’s interests when a party secretly plots to file amicus briefs that appear on the surface to be independent, but which are actually part of a strategy to influence the court in its favor.
Why did it take two stalwart members of the U.S. Congress to address the problem? Does no one in the federal judiciary care about the intentional abuse of the court by billionaires and big business? Perhaps it is the absence of effective national leadership in the federal judiciary, institutional complacency, or the lack of public oversight of courts due to exclusion and secrecy.
The failure of the Court to address corrupt practices should be a future issue for study by the Judicial Conference Committee on Rules of Practice and Procedures.