Stealth Judicial Lobbyists Get Reprieve
Why did the Judicial Conference withdraw a rule that would require disclosure of the parties who lobby federal courts through amicus curiae or 'friend of the court' briefs? Lobbying.
Lobbyists have successfully lobbied the governing body of the federal judiciary to withdraw a rule that would have required them to identify who they represent when they file amicus curiae or “friend of the court” briefs in a case.
It’s not like on Capitol Hill, where lobbyists buy Congress members a meal at a fancy restaurant to press their clients’ position with the promise of a campaign donation — or the threatened loss of support — during dessert.
In the federal court system, “non-party” groups and organizations submit written amicus curiae briefs to the court with the understanding that these documents present important information or data about issues relevant to the case.
In reality, much of the time these briefs are underwritten by judicial lobbyists.
The problem is that no one really knows who is behind these briefs. Did one of the parties to the lawsuit pay a third party to submit the brief to persuade the court under the guise of an independent third-party? Does one of the parties, or its counsel, have an ownership stake in the legal entity that submitted the brief?
For several years, U.S. Senators Sheldon Whitehouse, (D-RI), and Ron Johnson, (R-WI), have demanded the governing body of the federal judiciary, the Judicial Conference of the United States, adopt a rule requiring the identification of those who contribute to the preparation and submission of an amicus curiae brief.
A standing committee of the Judicial Conference, which operates the nation’s federal courts, studied the issue and proposed an amendment to the Federal Rules of Appellate Procedure.
The amendment to Rule 29 was approved by the Conference on July 25. It was scheduled to be transmitted to the U.S. Congress for approval by May 1 and, upon approval, to take effect on December 1.
But the rule change was quashed when it was abruptly withdrawn by a Conference committee on March 26. Why? Because lobbyists objected.
The rule change had two major components.
The filer would be required to disclose whether a party or its counsel has contributed 25% or more of an amicus organization’s total revenue in the past year, and
The filer would be required to disclose brief-related contributions or pledges over $100 from group members for the preparation and submission of the brief unless the person “has been a member of the amicus organization for the prior 12 months.” This provision was designed to weed out briefs filed by parties that join a membership organization solely to commission the amicus brief, and then quit after the brief is filed.
Neither of these provisions appears on its face to be unwarranted or onerous, but the rule change set off a major outcry from groups that are subsidized by fees from industries to file amicus brief.
The National Chamber of Commerce, which led the charge, complained that the rule changed violates the First Amendment by interfering with membership privacy and associational rights.
The Chamber argues that even parties that join associations for the sole purpose of anonymously commissioning an amicus brief, and then quit, are “entitled to First Amendment protection so long as they reflect a ‘collective effort on behalf of shared goals.’”
The Chamber files more than 200 amicus briefs annually.
In a March 10 letter, Conference Committee Chair James C. Dever III, announced the withdrawal of the rule because of privacy concerns.
Dever focused on the requirement that amicus organizations must “disclose brief-related contributions or pledges over $100 not only from nonmembers… but also from relatively new members who joined the organization within the previous 12 months.”
He wrote that the Executive Committee of the Judicial Conference was concerned that members “may be chilled from contributing to their organization’s amicus briefs if they were required to announce their membership to the public.”
Senators Whitehouse and Johnson in 2024 expressed concern that the submission of amici curiae briefs constitutes a form of stealth lobbying where one party, often an industry group with deep pockets, commissions a barrage of seemingly independent amicus briefs to convince the court that there is a groundswell of support for its position.
“While interest groups lobbying Congress face stringent financial disclosure requirements, no similar requirements exist for judicial lobbying,” the senators said in a 2024 statement. “This secrecy undermines judicial independence, is detrimental to the adversarial process, and can lead the public to view courts as political actors.”
The bottom line is that one of the few reforms pursued in recent years by the feckless, unaccountable Judicial Conference — an eminently reasonable disclosure requirement — has been sidelined by lobbyists for multinational corporations and industry groups.
And, individuals and groups without deep pockets will continue to face an uphill battle with respect to important litigation that affects the public.