Introduction

Amicus briefs are playing a more influential role than ever in the federal courts. Latin for “friend of the court,” amicus briefs are briefs submitted by a party other than the litigants in a case. Their use has become increasingly common. In 2020, there were over 900 amicus briefs submitted to the Supreme Court, over double the number filed in 1995.[1] Further, the Court is citing amicus briefs with increasing frequency.[2] But this rise in influence has come with a corresponding increase in scrutiny—in particular, scrutiny of the federal courts’ rules on the disclosure of funding behind amicus briefs.

Current Disclosure Rules and the Amicus Industry

As things stand, the rules of disclosure for amicus briefs are lax. Supreme Court Rule 37.6 only requires disclosure of the names of individuals who funded the amicus brief if counsel for one of the parties to the case authored part of the amicus brief or made a monetary contribution intended to fund preparation of that specific brief.[3] Similarly, Federal Rule of Appellate Procedure 29, the rule governing disclosure of amicus funding in federal appellate courts, is aimed at preventing parties from using amicus briefs to get around page limits.[4] Neither of these rules are aimed at preventing critics’ primary concern: the development of a coordinated amicus industry.

In a recent essay published in the Yale Law Journal Forum, Senator Whitehouse, the congressperson who has been most vocal about the need for amicus disclosure reform, described the rise of the amicus industry.[5] It’s now common for major cases to have a dedicated lawyer with a connection to one of the parties who coordinates amicus briefs and the arguments they make.[6] These briefs can be persuasive in lower courts but play an even more influential role in Supreme Court cases. At the cert stage, parties seek out prominent members of the Supreme Court Bar or former clerks to write amicus briefs.[7] Justice Ginsburg herself admitted that briefs from such connected individuals are much more likely to be read in full than typical amicus briefs, giving parties who can afford to leverage the amicus industry a greater chance of getting their case before the Court.[8] Despite this coordination, the current rules do not require any disclosure of amici’s connections to the actual litigants in a case.

Proposed Amicus Funding Disclosure Reform

In August 2024, the Committee on Rules of Practice and Procedure Judicial Conference of the United States, the judicial body responsible for proposing and recommending rules relating to amicus briefs, proposed an amendment to Rule 29 of the Federal Rules of Appellate Procedure.[9] The amended rule would require amicus briefs filed by non-profits to disclose if a party in a case contributed twenty-five percent or more of the organization’s annual funding.[10] The disclosure requirement is triggered even if none of the money was contributed for the purpose of funding the amicus brief at issue.[11] Further, the proposed rule would require disclosure of the name of any donor who contributed over 100 dollars to preparation of a specific amicus brief if the member has been a part of the organization filing the brief for less than twelve months.[12] The clear import of the rule is to create greater transparency in the amicus industry so that judges can more easily identify coordination between parties at issue and amici. The proposed rule is currently in a public comment period until February 17, 2025.[13] If the committee decides to move forward with the rule after the comment period, it will need to be approved by the Supreme Court before it can be submitted to Congress for adoption.[14]

First Amendment Concerns and Ethical Critiques of the Proposed Rule

The proposed amendment to Rule 29 raises both First Amendment right-of-association concerns and ethical questions for judges. Supreme Court precedent on the constitutionality of compelled disclosures has varied depending on the context of the disclosure. In NAACP v. Alabama, the Attorney General of Alabama attempted to force the NAACP to disclose the names of its members.[15] The Supreme Court held that such a requirement violated their First Amendment right of association.[16] The Court reasoned that members of the NAACP faced potential violence after opening an Alabama office supporting racial integration.[17] The Court further reasoned that the Alabama Attorney General’s request for the membership list would chill the group’s activities.[18]

On the other hand, the Supreme Court has upheld compelled disclosure in the context of campaign finance. In Buckley v. Valeo, the Court upheld the compelled disclosure requirements of the Federal Election Commission Act, which required groups engaging in electioneering to disclose the name and address of any person making contributions above a threshold.[19] Along the way, the Court clarified that compelled disclosure laws are subject to exacting scrutiny.[20] The law must serve a legitimate government interest, and there must be a “substantial relation between the government interest and the information required to be disclosed.”[21]

There are strong arguments that the amendment to Rule 29 would not survive exacting scrutiny.  The existing rule serves the government’s interest by requiring disclosure of direct coordination between a party and an amicus. The amended rule ratchets up the disclosure requirement, which inherently increases the chilling effect. At this point, it’s not clear whether the increased chilling effect will be enough to render Rule 29 unconstitutional.

Comparisons to campaign finance are also on shaky ground and raise concerns about judicial ethics. In its report, the advisory committee analogized the proposed amendments to campaign finance disclosure requirements.[22] It argued that just as campaign finance disclosure allows voters to evaluate candidates who seek to persuade them, amicus disclosure would allow judges to better evaluate the arguments of those who seek to persuade them.[23] That argument suggests that the identity of a party, rather than purely the merits of an amicus brief, is relevant to judges’ decision-making. Such a justification leaves judges open to accusations of bias and judicial ethics complaints.

Conclusion

Today, amicus briefs play a larger role in litigation than they did in the past, and disclosure requirements have not kept up. The proposed amendment to Rule 29 makes connections between parties and amici more transparent, but it raises serious constitutional and ethical concerns. Even if Rule 29 is fully adopted, it will have to hold up in court. And when that day comes, there are sure to be amicus briefs on both sides trying to persuade the court.

 

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[1]  Sheldon Whitehouse, A Flood of Judicial Lobbying: Amicus Influence and Funding Transparency, 131 Yale L.J. F. 141, 144 (2021).

[2]  Id. at 145.

[3]  U.S. Sup. Ct. R. 37.6.

[4]  See Fed. R. App. P. 29.

[5]  Whitehouse, supra note 1.

[6]  Id. at 146.

[7]  Id.

[8]  Id.

[9]  Preliminary Draft of Proposed Amendments to the Federal Rules of Practice and Procedure (August 2024), https://www.uscourts.gov/sites/default/files/preliminary_draft_of_proposed_amendments_2024.pdf [https://perma.cc/ST3B-U29H] (last visited Feb. 9, 2025).

[10]  Id.

[11]  Id.

[12]  Id.

[13]  Id.

[14]  Nate Raymond, US judicial panel proposes greater amicus brief financial disclosures, Reuters, (Apr. 10, 2024, 5:39 PM), https://www.reuters.com/legal/government/us-judicial-panel-proposes-greater-amicus-brief-financial-disclosures-2024-04-10/ [https://perma.cc/U5DK-96NL].

[15]  NAACP v. Alabama, 357 U.S. 449, 453 (1958).

[16]  Id. at 466.

[17]  Id. at 462.

[18]  Id.

[19]  Buckley v. Valeo, 424 U.S. 1, 62–63 (1976).

[20]  Id. at 64.

[21]  Id.

[22]  Comment Letter from Senators Mitch McConnell, John Thune, and John Cornyn on Proposed Amendments to Federal Rule of Appellate Procedure 29 (Sept. 10, 2024), https://www.regulations.gov/comment/USC-RULES-AP-2024-0001-0008 [https://perma.cc/25HP-GAN3].

[23]  Zach Smith & Seth Lucas, It’s a Trap! A (Likely Unconstitutional) Solution in Search of a Problem: A Partisan Push for Unneeded Amicus Disclosure, Heritage Found. (Jan. 24, 2025), https://www.heritage.org/the-constitution/report/its-trap-likely-unconstitutional-solution-search-problem-partisan-push [https://perma.cc/6FJ9-GRNS].