A Flood of Judicial Lobbying: Amicus Influence and Funding Transparency
abstract. This Essay explores how amicus briefs became a tool for coordinated judicial lobbying by dark-money interests. I show how current funding-disclosure rules for amici fail to provide genuine transparency—undermining fairness—and discuss reforms that could improve the judiciary’s amicus-disclosure regime and restore faith in the courts.
Over the past several years, the prevalence of anonymously funded amicus curiae briefs at the Supreme Court has expanded. Supreme Court rules purport to require disclosure of amicus funding to prevent anonymously funded briefs.1 But in practice, these disclosure statements rarely provide any information.2 Meanwhile, investigations by the media and watchdog organizations have revealed a network of groups that receive common amicus funding and often have ties to the parties in interest. These groups regularly file briefs before the Court with no disclosure of their common funding or connections to the parties. This practice of judicial lobbying through amicus influence poses ethical issues representative of today’s political climate, in which dark money abounds, compromising our courts.
My House and Senate colleagues and I have proposed legislation—the Assessing Monetary Influence in the Courts of the United States (AMICUS) Act3—to address the problem of undisclosed judicial-branch lobbying by dark-money interests.4 I have also engaged directly with the judiciary to encourage self-directed reforms.5 Recently, at my urging and after a referral by the Supreme Court, the Judicial Conference Committee on Rules of Practice and Procedure created a new subcommittee to study and address amicus-disclosure rules.6 Donor-disclosure requirements are claimed to raise constitutional questions, with opponents claiming a First Amendment associational right to anonymity7 and representatives of the judiciary suggesting that legislative reform might infringe upon the separation of powers.8 But these challenges are surmountable, and dark-money influence will continue to undermine our democracy absent reform.
This Essay grapples with amicus influence within the broader context of dark-money influence not only on the judiciary, but also on American politics writ large. In Part I of this Essay, I discuss the historical origins of the amicus curiae brief and its expansion as a tool for coordinated judicial-lobbying campaigns by entrenched interests. In Part II, I review the current disclosure rules for amicus briefs and how they fail to compel genuine disclosure. In Part III, I show how those failings of disclosure do real damage to judicial fairness and weaken public faith in the courts and the foundations of our democracy. Finally, in Part IV, I lay out pathways for potential reforms that could update our disclosure regime and have a salutary effect across our legal system.
I. the evolution of the amicus
A. The Historical Role and Recent Prevalence of Amici
Amicus curiae briefs are briefs written by nonparties to a case for the purpose of providing information, expertise, insight, or advocacy. Latin for “friend of the court,” amicus briefs find their roots in Roman and British common law.9 In those traditions, the amicus—usually but not always a lawyer in the community—was tasked with giving the court information it otherwise lacked, or rectifying “manifest error” in the court’s reasoning.10 In the days before law libraries and digital search tools, courts could turn to such a “bystander” for “oral ‘Shepardizing,’ the bringing up of cases not known to the judge.”11
In the early-nineteenth century, Henry Clay, who would go on
to become a
Senator,12 submitted the firstamicus brief to the Supreme Court in Green v. Biddle, a case involving land disputes in his home state of Kentucky.13 From the late nineteenth century through the 1930s, third-party, private-litigant, and federal- or state-government “ex officio” briefs were gradually subsumed under the amicus header.14 By the mid-twentieth century, it became more and more common for outside organizations to intervene in support of a litigating party and to make arguments directly for the party on whose behalf the amicus brief was filed, rather than the amicus itself.15
Over the past century, the volume of Supreme Court amicus briefs swelled from a slow trickle to a stream, and finally to a flood. Amici filed 781 briefs in the 2014 Term,16 a more than 800% increase from the 1950s and a 95% increase from 1995.17 And the number of filings continues to rise. In the Court’s 2019 Term, amicifiled 911 briefs, a rate of about sixteen per case;18 the recently concluded 2020 Term featured almost 940 amicus briefs filed at the merits stage.19 Some high-profile cases even draw amicinumbering in the triple digits.20
There has been an accompanying explosion of amicus activity at the certiorari (cert) stage, where litigants petition the Supreme Court to hear or reject a case. Between 1982 and 2014, the percentage of petitions with at least one cert-stage amicus more than doubled from 6% to 14%.21 Why amici increasingly weigh in at this step of the process is easy to understand. The Court receives thousands of cert petitions per year but elects to hear fewer than seventy-five of those cases.22 With such a low selection rate, persuading the Court to wade into a particular dispute is a critical first step for those seeking to steer its agenda.
Though amicusactivity at the circuit-court level is more modest in scope and did not increase significantly during the first decade of the 2000s,23 cases of constitutional or political import still draw large groups of amici. For example, Americans for Prosperity Foundation v. Becerra24(later argued at the Supreme Court as Americans for Prosperity Foundation v. Bonta25) drew dozens of amicus briefs on appeal in the United States Court of Appeals for the Ninth Circuit.26
The increasing prevalence of amicus briefs correlates with a rise in the Supreme Court’s reliance on them. From 2008 to 2013, the Supreme Court cited amicus briefs 606 times in 417 opinions.27 By contrast, between the 1994 and 2003 Terms, the Court’s majority opinion referenced an amicus brief in only 38% of the 687 cases in which amicus briefs were filed.28 And between the 1946 and 1955 Terms, all opinions combined—majority, concurring, and dissenting—referred to amicus briefs in only 18% of the cases with amicus filers.29 As two scholars of the Supreme Court put it, “There is no question but that the total number of references to amici is substantial, and that the frequency of such references has been increasing over time.”30 These references within the Court’s opinions often adopt language and arguments from amicus briefs.31 The extent to which the Court’s opinions directly quote amici further highlights just how impactful amicus briefs can be to the Court’s decision-making.
B. The Modern Amicus Machine
The sharp increase in the volume of amicusfilings reflects a growing recognition of a basic truth: the amicus brief is now a powerful lobbying tool for interest groups. Indeed, most of the explosion of amicusactivity comes from briefs that are more from a “friend of a party” than a friend of the Court. These briefs advance the amicus’s own interests or, for member organizations, the interests of their members.32 In the case of briefs funded by dark money, the briefs advance the interests of a hidden presence that is unknown to the parties, the Court, and the public.
As an avenue of influence, the amicus brief is disproportionately available to well-connected political forces with money and the motivation to use it. Litigants now see lining up a robust slate of amici as an essential component of litigating before appellate courts.33 But doing so requires insider knowledge and significant resources. Many major cases now have an “amicus wrangler” or an “amicus whisperer”—usually a lawyer connected to the party-in-interest—who coordinates and vets prospectiveamici and their arguments before they file.34 Litigants routinely seek out former Supreme Court clerks and other members of the Supreme Court “elite” to serve as counsel for amici. At the cert stage, these connected lawyers can improve the chances of the Court viewing the case as “certworthy.”35 At any stage, seasoned members of the Supreme Court Bar add credibility to the amicus briefs. As the late Justice Ginsburg candidly admitted in a 2008 interview:
[C]lerks often divide the amicus briefs into three piles: those that should be skipped entirely; those that should be skimmed; those that should be read in full. If the attorney submitting the amicus brief has significant experience before the Court, it would be more likely that their brief would be placed in a higher priority pile.36
These highly orchestrated amicusefforts often have a specific strategic purpose: a flotilla of substantively similar amicus briefs can create the appearance of broad support for a particular position, even if a party to the litigation has engineered the filing process for briefs on its side.
This carefully managed process can confer unfair advantages to a litigant. As former Seventh Circuit Judge Posner explained as early as 1997, the positions of amici briefs in many cases dovetail so closely that they “in effect merely extend the length of the litigant’s brief.”37 Therefore, to Judge Posner, such briefs “are an abuse.”38 Sharing Judge Posner’s concerns, the Advisory Committee on the Federal Rules of Appellate Procedure imposed a shorter length for circuit-court amicus briefs the following year, noting in its comments that each amicus brief “is supplemental”39 and “should treat only matter not adequately addressed by a party.”40
C. The Amicus Machine in Action: Americans for Prosperity Foundation v. Bonta
Americans for Prosperity Foundation v. Bonta provides a recent and extreme example of the “flotilla” phenomenon. Plaintiff Americans for Prosperity Foundation (AFPF), the 501(c)(3) arm of the Koch network’s right-wing 501(c)(4) political-advocacy group Americans for Prosperity, objected to a California state regulation that required 501(c)(4) nonprofits to confidentially disclose their largest donors.41 The nonprofits had to provide the state Attorney General with a copy of their IRS Form 990 Schedule B—information the organizations must already, of course, provide to the IRS.42 The case proceeded through the federal courts with little fanfare or media attention. But at the Supreme Court cert stage, a veritable armada of amici supporting AFPF barraged the Court, urging it to grant cert.
This was a highly coordinated effort made possible only by
the money and connections of the Koch political enterprise. Atleast fifty-five of the
cert-stage amici in support of the petitioner43 had taken money either from the Koch
political network or from a Koch-linked44 anonymous account at DonorsTrust, an administrator of “donor-advised” funds that
has been described as “the dark-money ATM of the
right.”45 Subsequently, at the merits stage, at least forty-five filers46 had apparent financial ties to the Koch network and/or DonorsTrust. Additionally, the Center for Media and Democracy found that eleven prominent right-wing groups gave close to $222 million to sixty-nine of the organizations filing amicus briefs in support of
It is difficult—if not impossible—to credibly argue that such amici are independent of the plaintiff, because AFPF is itself a central political organization of the Koch network.48 Yet none of these groups disclosed their financial ties to the plaintiff. Why would they? The Court does not require them to. As I discuss in greater detail in Part II below, existing rules, as currently interpreted by the courts, require only disclosure of funds earmarked specifically for the preparation and submission of a particular brief—a level of specificity that donors almost never reach, even when funding the entire amicus practice of a legal nonprofit.
The lack of disclosure obscured the fact that the amicus armada in AFPF—one of the largest ever assembled—featured far more plaintiff- and donor-network-tied amici than even some of the highest-profile cases involving right-wing donor interests. Consider, for instance, National Federation of Independent Businesses v. Sebelius (NFIB), the first major constitutional challenge to the Affordable Care Act (ACA).49 In NFIB, anonymized right-wing donors hostile to the ACA pumped over $2 million into the litigation effort.50 However, trailing the flotilla in AFPF, only four groups filed at the cert stage and onlyseven groups tied to that same funding network weighed in at the merits stage.51 Janus v. American Federation of State, County & Municipal Employees, Council 31,52 the right-wing attack on union agency-shop fees,and Seila Law v. Consumer Financial Protection Bureau,53 a Federalist Society-inspired assault on the “administrative state,” each featured groups of only about a dozen commonly funded amici.54
Why was the amicus flotilla in AFPF so large, outpacing those in cases involving national, high-stakes issues such as labor organizing and healthcare? Simply put, because the stakes for the donors behind AFPF could not have been higher. Indeed, the issue in AFPF was an existential one for the amicus machine: in deciding nonprofit donors’ alleged right to anonymity, the Court would directly impact the ability of dark-money donors to continue shaping judicial outcomes. In effect, the amicus briefs argued for a constitutional right to anonymous dark-money spending in our democracy. The size of the AFPF flotilla also functioned as a signaling device: it told the ideologically aligned members of the Court that a “correct” outcome in this case was more urgent than it might otherwise have seemed from the narrow question presented. And many amicus briefs asked the Court to go well beyond the narrow confines of the case.55
Sure enough, Chief Justice Roberts’s ruling in favor of the Koch network—a 6-3decision with all Republican-appointed Justices in the majority—cast doubt on the constitutionality of disclosure requirements of any kind, turbocharging the kind of secretive influence through which the Koch operation and its allies already dominate the public sphere.56
Significantly, many of the donors behind these amici lobbied for the confirmation of the Justices hearing the case. For instance, Americans for Prosperity, the 501(c)(4) group directly affiliated with the plaintiff Foundation, spent “millions” of dollars on a “Full Scale Campaign” to confirm Justice Barrett to the bench while AFPF’s cert petition was pending before the Court.57 Yet, in spite of all this lobbying on her behalf by an affiliate of one of the parties, Justice Barrett rebuffed calls for her recusal in this matter by me and others—a recusal seemingly required under the Court’s own due-process precedent58—and heard the case anyway.59
D. Amicus Briefs and Dark-Money Influence on the Courts
Amicus briefs play an important role in the appellate process. Indeed, I have filed many myself.60 Interested parties should be able to use amicus briefs to advance their view of the law or their conception of the public interest or to educate a court with their specialized expertise. But the emergence of coordinated, secretly funded amicus campaigns like the effort in AFPF reflects a troubling avenue of special-interest influence within the courts, obscuring from both the public and the Court who is really in the courthouse presenting arguments and how a favorable ruling might benefit them. As the First Circuit emphasized in the immediate aftermath of the AFPF decision, “there is plainly an informational interest served” by laws requiring identification of a speaker’s donors, as “[c]itizens rely ever more on a message’s source as a proxy for reliability and a barometer of political spin.” 61
The negative effects that these new amicus campaigns have on our democracy are twofold. The wealthy few fund the campaigns, excluding the majority of Americans from the process and exacerbating preexisting countermajoritarian and inequality concerns. And without a mechanism for disclosure, the general public currently does not, and cannot, know how judicial reasoning is influenced by masked private actors.
Anonymously funded, coordinated amicus efforts are just one component of a larger strategy to capture the federal judiciary for the benefit of a self-interested donor class and for Republican Party electoral interests.62 As a strategy, it is not very different from “regulatory capture,” a well-documented phenomenon in administrative spaces.63 Courts can equally be targeted, as became very apparent during the Trump Administration. By its own words, the Trump Administration “insourced”64 its judicial selection process to a single, well-funded outside group, the Federalist Society, which former President Trump acknowledged “picked” his judges.65 A majority of the Court’s sitting Justices are active members of the Federalist Society, which receives an enormous amount of anonymous donations each year.66 Although it officially claims to take no policy positions, the Federalist Society serves as a “political epistemic network,”67 promoting doctrines that advance right-wing political goals, bringing formerly fringe theories into the mainstream of legal thought,68 and giving potential judicial nominees opportunities to “audition” for future vacancies.69
It is odd that a private group should acquire such power; it is still odder that this power should have no guardrails. But that is the point. Players at the center of this insourced judicial-selection operation concurrently raised multimillion-dollar anonymous donations for the Federalist Society.70 Related fundraising hauls went to political advertisements to support confirmation of Trump nominees. Federalist Society board cochair and former Executive Vice President Leonard Leo coordinated a donor network that took in over $400 million in dark money between 2014 and 2018 to pursue judicial confirmation activities.71 A major player in this network, the Judicial Crisis Network (JCN), spent tens of millions of dollars on campaigns to confirm Justices Gorsuch, Kavanaugh, and Barrett, taking in enormous donations from an anonymous source each filing year from 2015 through 2018.72 These donations may all have come from the same donor.73 Whoever the donor was, he or she was able to get their hand-selected judges confirmed for life to the federal bench. Consider this Stage One of two.
In Stage Two, these same forces use dark money to fund dozens of so-called “public interest” litigation boutiques, such as Pacific Legal Foundation (PLF).74 These groups scour the country for sympathetic and willing “plaintiffs of convenience” to bring litigation that advances their constitutional theories and ideological and political goals, even in the absence of a genuine “case or controversy.”75 When these groups fail to find outside plaintiffs, they can just bring the suits themselves, as in AFPF.
Nominal plaintiffs can do very well. The nominal plaintiff in
the first constitutional challenge to the Affordable Care Act, the NFIB,
had never received a contribution in excess of $21,000 through 2009, the year
before they brought the suit.76 From 2010 through 2012, the
years in which NFIB was the nominal plaintiff, dark money flowed into it; the
group received millions of dollars in donations from a limited group of wealthy
donors,77 including an
anonymized $1.15 million in 2010 from
DonorsTrust,78 $500,000 in 2011 from the Koch network-linked group Free Enterprise America,79 $1.5 million in 2012 from the Koch-backed Freedom Partners,80 and $3.7 million in 2012 from Crossroads GPS, the group of long-time Republican strategist Karl Rove.81
Many of these litigants intentionally lose their cases in lower courts—a glaring departure from the ordinary course of litigation. For example, the plaintiffs in Friedrichs v. California Teachers Association, barely hiding that their lawsuit was a weapon for overturning decades-old labor precedents,82 directly asked the courts to rule against them so that they could expeditiously take their claims to the Supreme Court.83 In Cedar Point Nursery v. Hassid, plaintiffs recruited by PLF rushed to lose at every stage of lower-court litigation, without showing any tangible injury, foregoing claims that, in a real case or controversy, could have secured them adequate relief.84 They did so to push PLF’s extreme constitutional theory directly to the Supreme Court’s doorstep.85 The Court’s indulgence of this behavior creates a “fast lane” for judicial-policy victories via cases lacking the most basic features of real litigation, such as a firm factual record, a concrete injury, and an attempt to win one’s case at trial.
When not deployed as nominal plaintiffs, or as counsel to nominal plaintiffs, these same dark-money interests are orchestrated into judicial-lobbying campaigns using arrays of amicus briefs, fueled by massive anonymous donations and often with common donors behind multiple briefs.86 Given that the interest groups participating in the “amicus machine” are some of the same ones that pushed through judicial nominations, they’re not just “friends of the court”—in many cases, they are quite literally friends of the judges they have put on the Court.
Donors have reaped enormous returns on their investments. As
I have documented, the Roberts Court has handed down over eighty partisan
Republican 5-4 decisions87 that benefit an easily identifiable
Republican Party-donor interest.88 These include
decisions that remove constraints on anonymous giving (e.g., Citizens
United v. FEC,89 Americans for Prosperity Foundation v. Bonta90), as well as decisions that weaken the power of countervailing institutions like labor unions (e.g., Janus v. American Federation of State, City & Municipal Employees, Council 3191), regulatory agencies (e.g., Seila Law v. Consumer Financial Protection Bureau92), and the civil jury (e.g., Epic Systems Corp. v. Lewis93).
The effects of this litigation strategy on our democracy are frightening: the courts are becoming an arena for enacting policies by judicial decree that are too unpopular to pass through democratically elected legislatures. These coordinated efforts warp the judiciary toward anonymous, ultrawealthy donor interests, all without the public ever learning about the role of dark-money interests in shaping the law. The Supreme Court was already, by its nature, an avenue for countermajoritarian ideas and policies to prosper. But as Barry Friedman explains, especially when the Court is acting during a period of judicial supremacy—as it arguably is now—the countermajoritarian aspect of the institution will flourish.94 Alongside those concerns, the emergence of the dark-money amicus machine increases the probability that the Court’s rulings will run counter to the will of the American people (i.e., counter to democracy), and instead for the benefit of the hidden interests that had a secret hand in putting Justices on the Court and then filed masked amicus briefs.
II. existing disclosure rules and their shortcomings
The troubling rise of influence campaigns by anonymous special interests flows directly from weak disclosure rules for amici curiae in federal appellate courts and the Supreme Court. In this Part, I lay out the existing rules, examine how they are applied, describe their deficiencies, and highlight the many ways that parties and donors exploit them to achieve unfair and even improper advantages and outcomes.
Supreme Court Rule 37.6 requires amicusfilers to “indicate whether counsel for a party authored the brief in whole or in part and whether such counsel or a party made a monetary contribution intended to fund the preparation or submission of the brief.”95 Further, the Rule requires the brief to “identify every person or entity, other than the amicus curiae, its members, or its counsel, who made such a monetary contribution to the preparation or submission of the brief.”96 Federal Rule of Appellate Procedure (FRAP) 29(a)(4)(E)—modeled after Supreme Court Rule 37.6—imposes the same requirements for amicus briefs filed in the U.S. Courts of Appeals.97
The Court adopted its amicus-funding-disclosure rule in 1997 “in an effort to stop parties in a case from surreptitiously ‘buying’ what amounts to a second or supplemental merits brief, disguised as an amicus brief, to get around word limits.”98 The parallel FRAP Rule ostensibly “serves to deter counsel from using an amicus brief to circumvent page limits on the parties’ briefs.”99 In 2018, the Supreme Court’s Public Information Office explained that “the Clerk’s Office interprets [the Rule] to preclude an amicus from filing a brief if contributors are anonymous.”100
Yet despite their aspirations, these rules, as interpreted by the courts, have a fundamental flaw that special interests readily exploit. On their face, they bar amicus briefs paid for by anonymous contributors. But in practice, federal courts routinely accept amicusbriefs filed by anonymously funded special-interest groups. To the extent the rules were devised to preclude amici from filing “supplemental merits briefs” on behalf of parties, or briefs whose financial backers are anonymous, they simply do not achieve those goals.
Under the rule that amici disclose funding “that was intended to fund preparing or submitting the brief,”101 amici rarely, if ever, disclose the sources of funding that allow them to operate. In fact, an amicus group can avoid disclosing even large donations earmarked to fund its amicus practice. This is because the Court accepts a reading of the rules so narrow as to encompass only the costs of formatting, printing, and delivering the specific brief in the specific case at issue.102 This reading ignores the reality that “money is fungible,”103 allowing an amicus filer to avoid disclosure altogether, even if its funders include a party in interest to the case. If a party in interest gives an amicus filer a million dollars and approves the filed brief, and the brief is designed to benefit that donor, none of this needs be disclosed if the filing entity has a few thousand dollars on hand to pay for printing, binding, and service.
A review of amicus practice before the Supreme Court shows that parties to litigation, as well as large donors who fund impact litigation with the goal of shaping law and public policy, exploit this loophole to exert anonymous influence on the courts. As a result, many amicus briefs effectively skirt page limits on the parties’ briefs or advance boundary-pushing arguments on behalf of anonymous donors’ long-term interests. Opposing parties, the public, and courts themselves are left in the dark as to who is seeking to influence judicial outcomes. Ordinarily, parties can appear in court masked in anonymity only in very special types of appeals.104 Not so for amici curiae.
This phenomenon takes various forms: parties directly funding amici, donors funding amiciand litigants in the same case, donors anonymously orchestrating amicusprojects, and member-organization amicithat do not disclose their members. Below, I explore each form of funding in turn.
A. Parties Directly Funding Amici
The narrow demands of Rule 37.6 and FRAP 29 essentially allow litigating parties to purchase supplemental merits briefs disguised as amicus briefs.
One recent high-profile Supreme Court case illustrates this problem. In Google LLC v. Oracle America Inc., the Internet Accountability Project (IAP), a 501(c)(4) “social welfare” organization that does not disclose its funders (and is run by a political operative with close ties to Justices Gorsuch and Kavanaugh),105 filed an amicus brief supporting Oracle’s position, explaining that it wanted to “ensure that Google respects the copyrights of Oracle and other innovators.”106 Bloomberg subsequently reported that Oracle had itself donated between $25,000 and $99,999 to IAP in 2019 as “just one part of an aggressive, and sometimes secretive, battle Oracle has been waging against its biggest rivals,” including Google.107 The report also documented donations from Google to at least ten groups that filed briefs in support of Google’s position.108
The Court’s amicus-funding-disclosure rule did not require the IAP to disclose any of these donations—so long as they were not specifically earmarked for the “preparation or submission of the brief.”109 Indeed, several of the party-funded amici in Google v. Oracle did not disclose that they had been funded by a party to the case.110 IAP, for example, misleadingly—if compliantly—attested that “none of the parties or their counsel, nor any other person or entity other thanamicus or its counsel, made a monetary contribution intended to fund the preparation or submission of this brief.”111 Nevertheless, at least four of these amicusfilers (but not IAP) voluntarily reported the financial support they had received from one of the parties in the case out of, in the words of one amicus,“an abundance of caution and for the sake of transparency.”112 These voluntary disclosures suggest that some attorneys believe their ethical obligations required a greater degree of disclosure than the Supreme Court requires. Plenty of others, however, have been content to conceal suspicious financial arrangements, which the present reading of the Court’s rule permits.
B. Donors Funding Amici and Litigants in the Same Case
Thanks to the work of investigative reporters, in recent years we have been able to observe the rise in high-profile, politically charged cases that are financed directly by ideological foundations.113 Often the same foundations that fund the litigation also exploit the courts’ lenient amicus-funding-disclosure rules to anonymously fund flotillas of amicus briefs that support their preferred outcomes.
For example, in the orchestrated challenge to union agency-shop fees first initiated in Friedrichs v. California Teachers Association,114 one organization bankrolled not only the nonprofit law firm bringing the case, but also eleven different organizations that filed amicusbriefs supporting the plaintiffs.115 That organization was the Lynde and Harry Bradley Foundation—a conservative organization that has long sought to weaken labor rights, including by financing impact litigation.116 If the disclosure rule were operating to its intended effect, the Court and parties would have been made aware of that funding. Yet none of those amicus filers disclosed the Bradley Foundation as a source of its funding for the brief under Rule 37.6, and none of those briefs were rejected by the Court for lack of disclosure.
The Bradley Foundation’s coordinated and undisclosed funding of the litigants and amici in Friedrichs was not a one-off. In Janus v. AFSCME, the follow-up to Friedrichs, investigative reporters found that the Bradley Foundation again funded both of the two groups representing the plaintiffs, as well as a dozen groups that filed amicus briefs.117 Similarly, the two groups representing the Janus plaintiffs, plus thirteen amicus filers, all received funding from Donors Trust, mentioned above.118 None of this common funding was disclosed to the Court.
Finally, in Seila Law LLC v. Consumer Financial Protection Bureau, eleven amici aligned with the petitioner Seila Law received financial support from the same entities, which also fund the Federalist Society.119 The Center for Media and Democracy subsequently found that “16 right-wing foundations,” including the Bradley Foundation and DonorsTrust, “have donated a total of nearly $69 million to 11 groups that filed amicus briefs in favor of scrapping the CFPB.”120 None of this information was disclosed to the Court under its current reading of the Rule.
C. Donors Anonymously Orchestrating Amicus “Projects”
Recently released documents reveal how donors like the Bradley Foundation use tax-exempt money to coordinate amicus “projects,” in which they influence court results by funding an array of groups in the same legal network as the Federalist Society, as presumably occurred in Seila Law.121 In 2015, a representative of the Bradley Foundation emailed Leonard Leo, then Executive Vice President of the Federalist Society, to ask if there was “a 501(c)(3) nonprofit to which Bradley could direct any support of the two Supreme Court amicus projects other than Donors Trust.”122 Leo replied, “Yes, Judicial Education Project could take and allocate.”123 In turn, Judicial Education Project (JEP), a 501(c)(3) tax-exempt organization that does not disclose its donors, submitted a grant proposal to Bradley seeking $200,000 to coordinate and develop amicus briefs in two politically charged (but otherwise completely unrelated) cases: the aforementioned Friedrichs and King v. Burwell,124 a challenge to the Affordable Care Act. The Bradley Foundation estimated that “each of the two amicus-brief efforts costs approximately $250,000, for a total of $500,000,” and the Bradley staff recommended a $150,000 grant be given to JEP to support this work.125 The Bradley staffer explained the strategy behind this investment as follows:
At this highest of legal levels, it is often very important to orchestrate high-caliber amicus efforts that showcase respected high-profile parties who are represented by the very best lawyers with strong ties to the Court. Such is the case here, with King and Friedrichs, even given Bradley’s previous philanthropic investments in the actual, underlying legal actions.126
In King and Friedrichs, none of the amici supporting the Bradley-funded litigants disclosed their Bradley Foundation funding under Rule 37.6—or any of their funding sources for that matter. This nondisclosure resulted from interpreting the Rule narrowly to require disclosure only of funds intended to cover the costs of formatting, printing, and delivering the briefs.127
D. Member-Organization Amici that Do Not Disclose Their Members
Another loophole impeding transparency in the amicus-funding-disclosure regime is that it exempts from disclosure any contributions by an amicus filer’s own members.128 This enables parties to litigation to secretly fund amicus briefs in support of their position by funneling money through organizations of which they are members.
For example, the Court’s most prolific amicus filer, the Chamber of Commerce,129 routinely submits influential amicus briefs in Supreme Court litigation.130 The Chamber has affirmed under Supreme Court Rule 37.6 that “no person other than amicus, its members, or its counsel made a monetary contribution to its preparation or submission.”131 However, the Chamber does not disclose its members to the public,132 making it impossible to determine who influences the positions the Chamber takes in litigation. As a result, its disclosure is meaningless, and deep-pocketed corporate contributors to the Chamber’s amicus activity can enjoy, behind complete anonymity, the fruits of its unparalleled win rate at the Court—ten out of the twelve cases in which it participated last Term.133
III. implications for judicial transparency and accountability
After years of hyper-politicized judicial confirmation battles and Supreme Court decisions of enormous political import consistently made along partisan lines, signs point to eroding public trust in the independence of our courts. Americans’ confidence in the Court has fallen by 10% since 2002.134 Last month, a Grinnell College National Poll found that 62% of Americans believe Supreme Court decisions are “based more on the political leanings of justices than the Constitution and the law.”135 This fall, polling showed public support of the Court’s job performance at a record low, with just 37% approving of the Court’s performance to 49% disapproving; this was “the worst job approval since Quinnipiac University began asking the question in 2004” and a steep drop from 52% approval in July 2020.136Reflecting this growing unease about the Court, President Biden’s Executive Order establishing the Presidential Commission on the Supreme Court put the present day among “periods in the Nation’s history when the Supreme Court’s role and the nominations and advice-and-consent process were subject to critical assessment and prompted proposals for reform.”137 Meanwhile, a groundswell has emerged within the academy and the halls of Congress calling for ambitious court reforms ranging from term limits for federal judges,138 to expanding the size of the Supreme Court,139 to stripping its jurisdiction.140
Whatever the merits of such structural reforms and external constraints, transparency and accountability are uncontroversial and vital values that would aid in restoring and maintaining the public’s trust in the courts, particularly in the Supreme Court. It should not fall to members of Congress and investigative journalists to scrutinize court dockets and IRS forms to expose conflicts of interest. It is untenable to leave those conflicts—whether actual or perceived—hidden, thereby undermining the independence and transparency of the judiciary’s work.
Yet that is precisely the state of play. All but completely unchecked outside the advice-and-consent process, the judiciary remains by far the least transparent and least accountable branch. The Justices have famously refused to bind themselves to a code of ethics applicable to all other federal judges.141 They limit media and public access to their proceedings.142 Their official papers and records are kept entirely private, with even posthumous publication subject to their personal discretion.143 The Justices are exempted from the insider-trading and reporting requirements of the STOCK Act, and commonly fail to recuse themselves from cases despite owning shares of interested parties.144 The Court’s annual financial disclosures are opaque, with Justices neglecting to disclose all-expenses-paid trips and other emoluments, using a seemingly unique “personal hospitality” exemption to the Ethics in Government Act’s disclosure requirements.145
The judiciary’s failure to police the flood of anonymous judicial filings contributes to a culture of opacity and unaccountability, which has rightly left the public jaded. As I have documented here, wealthy and sophisticated repeat players exploit the Court’s ineffective amicus-funding-disclosure regime to develop what amounts to a massive, anonymous judicial-lobbying program that leaves the Court, the parties, and the public in the dark. They have created a procedural fast lane for their issues that the Court then indulges. They exploit the lower appellate courts’ rule, where amicus briefs of any kind are less common, and orchestrate amicus projects to influence outcomes.
One rare example of the Court actually enforcing its Rule 37.6 illustrates the absurd results created by the current disclosure regime. In 2018, the Court rejected an amicus submission by the U.S. Alcohol Policy Alliance for its failure to comply with Rule 37.6. The Court deemed the brief noncompliant because it neglected to disclose the names of each of the group’s donors, many of whom contributed through the small-dollar crowdfunding website GoFundMe.146 The Alliance was forced to return donations from individuals who wished to remain anonymous and refile its brief, disclosing the names of individuals who had supported the campaign. The organization had raised small-dollar gifts ranging from $25 to $500.147
The Court’s disparate treatments of the crowdfunded, small-dollar-backed brief filed by the U.S. Alcohol Policy Alliance and the wealthy, repeat-player amici who routinely file anonymously funded briefs is both troubling and telling. It reflects an elemental tension in a democracy between two classes of citizens. One is an influencer class that occupies itself with favor-seeking from government, and therefore desires rules of engagement that make the government more and more amenable to its influence. The other class is the general public, which has an abiding institutional concern in the government’s capacity to resist that special-interest influence. This is a centuries-old tension.148 When courts establish and apply rules designed to promote transparency and integrity, they should not worsen this imbalance.
Ironically, the Court’s application of its own Rule is what has posed the most significant threat to associational and speech interests. By applying Rule 37.6 to require small-donor disclosure for an amicus brief funded through GoFundMe, the Court directly chilled the ability of individuals to band together on an ad hoc basis to support a legal position of importance to them. A rule that forces disclosure of these donors, but not the large and anonymous corporate funders of sophisticated repeat-players like the Chamber of Commerce, does not “strike a balance” at all.149
IV. pathways for reform
Reforming amicus-disclosure rules is essential for our democracy and for the integrity of judicial proceedings, and it is long overdue. In this Part, I outline two potential pathways for reform. One involves the judicial branch taking action of its own accord; the other requires Congress to pass legislation addressing this issue.
A. Internal Judicial Reform
I have previously called on the Court and on the Judicial Conference’s Committee on Rules of Practice and Procedure to reform its amicus-disclosure regime to address the problems discussed above.150 The judiciary created its current disclosure rule and can adjust it as needed. Indeed, it has before. The Supreme Court, “irritated” in large part by increasing amicus participation by civil-rights groups, made significant rule changes to restrict the number of amici in the late 1940s, and then made the rules more permissive again in the mid-1950s.151 More recently, the Court amended Rule 37.6 in 2007 (ten years after its creation), adding in its explanatory notes that disclosure was vital “both in considering questions of recusal and in assessing the credibility to be attached to the views submitted by the amicus.”152 Though that revision was manifestly not effective, it shows that the judiciary recognizes the important public interest in transparency, and suggests that more tightening is not out of the question.
This year, at my urging and after a referral by the Supreme Court,153 the Judicial Conference Committee on Rules of Practice and Procedure created a new subcommittee to study and address this issue of amicus anonymity. Early returns appear promising. The subcommittee’s preliminary report concluded that “[t]he extent to which amicus briefs are controlled by, or represent the views of, undisclosed persons or entities, and the steps that might be appropriate to further greater transparency, are important and complex issues that deserve further investigation and consideration.”154 The subcommittee also recognized that “parties may enjoy more influence over amicus briefs than the current disclosure regime reveals,” and that the existing disclosure provisions “may need to be revised.”155 I look forward to seeing how the full committee will act on the subcommittee’s report.
B. Legislative Reform
While I recognize the prospect of the judicial branch cleaning up this mess on its own, a legislative solution is necessary if it does not. We must ensure transparency around judicial lobbying and put all amicus funders on an equal playing field.
I have proposed one such solution: the Assessing Monetary Influence in the Courts of the United States Act (AMICUS Act).156 The bill narrowly targets only high-dollar funders of amicus filers, requiring disclosure of only those who contributed three percent or more of the amicus group’s gross annual revenue, or over $100,000.157
Greater transparency will likely have salutary effects on Supreme Court and appellate-court practice. When amicus filers can no longer hide their true interests, judges and Justices might be more wary of arguments that seem facially neutral, but are actually self-serving. It would also have a salutary effect on anonymous money groups across the entire political and legal sphere, presenting interested parties and advocacy groups with a choice: be honest about the interests you represent or take your advocacy elsewhere. We customarily demand this in American courtrooms.158
I am hopeful that both my Democratic and Republican colleagues in the Senate will join me in support of the AMICUS Act. However, if history is any indication, some will continue to stand in opposition to increased transparency within the monetary-disclosure sphere. As a recent example, one of my Senate colleagues, Minority Leader Mitch McConnell, filed an amicus brief in support of Americans for Prosperity in AFPF v. Bonta. In his brief, Senator McConnell argued not only that the Court should create a new constitutional right to dark-money nonprofit spending (an invitation it readily accepted in AFPF),but that the Supreme Court “frankly, ought to revisit its campaign finance disclosure precedents,” thereby endorsing the prospect of constitutional protection for dark-money spending in elections—159 a chilling thought, indeed.
C. Overcoming Constitutional Challenges
Even if passed into law, my AMICUS Act, or any similar reforms self-imposed by the courts, may run into the buzzsaw of the right wing’s heavily organized and—yes—anonymously funded effort to secure constitutional protection for dark-money political spending.160 Critics of compelled disclosure claim that it violates First Amendment associational or speech rights, such as those at issue in NAACP v. Alabama ex rel. Patterson.161 In NAACP, the Supreme Court refused to allow compelled disclosure of the identities of NAACP members in the Deep South who faced significant threats to their physical safety during the Civil Rights Era.162 In AFPF v. Bonta, as I discussed in Part I above, the Court’s Republican-appointed majority presumptively extended the NAACP protections to allmembership organizations, even those that experience no significant threats or burdens whatsoever.
Take the business network of the Chamber of Commerce, whose corporate members face no serious threat of reprisal for the public expression of their views, but which is capable of extracting significant benefits for its members via anonymous amicus lobbying. As one scholar has written, “applying NAACP v. Alabama’s holding in a formally symmetrical manner to the relatively powerful . . . without regard to context may undermine rather than affirm the values underlying that decision.”163
The balance between the public’s interest in transparency and organizations’ associational rights was already badly off-kilter in favor of dark money and anonymity. There is simply no public-safety comparison between Black citizens and civil-rights activists in the Jim Crow South, under the active abuse of a state government that often operated arm-in-arm with the Ku Klux Klan, and today’s elite, wealthy interests. But in AFPF, the “Supreme Court that dark money built”164 made that exact false equivalence the law of the land.165 Indeed, in private correspondence offering feedback on my AMICUS Act, the Court has already suggested that “requiring broader disclosure of an organization’s membership information or general donor lists could well infringe upon the associational rights of the organization,” citing NAACP for that proposition.166
However, the more relevant cases are those disfavoring anonymity in judicial proceedings. As a general rule, parties “should be permitted to proceed anonymously only in those exceptional cases involving matters of a highly sensitive and personal nature, real danger of physical harm, or where the injury litigated against would be incurred as a result of the disclosure of the plaintiff’s identity. The risk that a plaintiff may suffer some embarrassment is not enough.”167 The same rationale applies to amici. In United States v. Microsoft Corp., the Court found that a lower court erred in granting the “‘rare dispensation’ of anonymity against the world” when it allowed an amicus to file a brief anonymously, concluding that “the court has ‘a judicial duty to inquire into the circumstances of particular cases to determine whether the dispensation is warranted.’”168 That same rationale should apply to organizational funders, who possess the leverage to “control the arguments advanced by others.”169
In our correspondence, the Court has also foreshadowed its willingness to invalidate my proposed legislation as violating the separation of powers, noting that “this legislation would intrude into areas historically left to the Court.”170 I reject that suggestion. Congressional authority over federal courts, including the regulation of judicial processes, has long been accepted as expansive. While Congress has historically delegated much of its rulemaking authority directly to the courts, where Congress has deemed it appropriate, it has by statute rejected or amended proposed rules, delayed the effective dates of proposed rules, or drafted and enacted court rules itself.171
Amicus curiae briefs, an increasingly influential part of our legal system, have become the lobbying tool of choice for right-wing dark-money interests, who can coordinate systematized armadas of commonly funded briefs to push for their preferred political outcomes. The amicus machine usually goes undetected due to a disclosure regime that flatly fails to show the courts and parties (and the public) the sources of that coordinated common funding. This coterie of funders takes advantage of that secrecy to press its interests by bringing cases to Justices that they themselves helped get onto the Court. The Court’s pattern of partisan decisions is hard to explain statistically. In conjunction with the broader dark-money project of capturing the courts, the outcomes are bad for democracy, tilting our system ever further towards the interests of a wealthy few.
The judiciary must awaken to the wealthy few’s ongoing scheme to influence the Court through anonymously funded amicusbriefs. Either our judicial system confronts this scheme and strengthens its countermeasures, or legislation will have to address the problem. Justice Scalia once wrote:
Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously . . . hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.172
On this point, Justice Scalia and I are in rare agreement.