The US Advisory Committee on Appellate Rules (ACAR) on Thursday voted to remove a proposed membership-disclosure requirement from the rules governing amicus briefs in federal appellate courts.
The now scrapped changes would have required amicus filers to name any donor who contributed more than $100 toward a brief if that person had been a member of the filing organization for less than 12 months. The change was intended to identify individuals who briefly join advocacy groups for the purpose of influencing a pending case. ACAR, comprised of federal judges, practitioners, and law professors, voted 5-1 on Thursday to remove the proposed language from the draft rule, according to Bloomberg Law. The changes to Rule 29, tracked as item 21-AP-C in ACAR’s April 16 agenda book originated from a 2019 suggestion from Sen. Sheldon Whitehouse (D-RI) and Rep. Hank Johnson (D-GA).
The proposed rule cleared the ACAR Standing Committee and the ACAR Judicial Conference last September, but was pulled back in March after ACAR’s executive committee raised concerns. In a March 10 letter to the Supreme Court, Standing Committee Chair Judge James Dever III and Appellate Rules Committee Chair Judge Allison Eid wrote that leadership worried the requirement “could interfere with the privacy of those organizations and of their members, who may be chilled from contributing to their organization’s amicus briefs if they were required to announce their membership to the public.”
Additionally, concerns had been raised that the proposed change, if passed, would not survive judicial scrutiny. Under Supreme Court precedent established in Buckley v. Valeo and Americans for Prosperity Foundation v. Bonta, mandatory disclosure policies are impliedly reviewed under a strict scrutiny standard, the highest level of judicial review regarding the constitutionality of government actions. This means that the amicus disclosure rule must tie in to a substantial government interest and that the rule must be narrowly tailored to that interest. Critics, including the US Chamber of Commerce, argued the new-member provision failed that test in part because it imposed heavier disclosure burdens on longstanding membership organizations than on ad hoc groups created solely to file a single brief, a distinction they argued had no rational relationship to the rule’s stated transparency goals.
Thursday’s vote represents the latest development in the contentious landscape surrounding amicus briefs. In March, the Supreme Court heard oral arguments in Trump v. Barbara, a highly publicized case regarding birthright citizenship that has seen significant amicus participation. The landmark 2015 same sex marriage Supreme Court case Obergefell v. Hodges is typically cited as the record holder for amicus participation with 149 briefs filed.
An amicus curiae (Latin for “friend of the court”) brief allows parties with no direct involvement in a lawsuit to submit legal arguments to an appellate court. Under Federal Rule of Appellate Procedure 29, organizations filing amicus briefs must identify themselves and state their interest in the case. Amicus briefs represent a significant tool for groups seeking to influence federal appellate law.
