Reps. Ted Lieu, D-California, (left) and Hank Johnson, D-Georgia.

A bill calling on advocates who file friend-of-the-court briefs in federal appellate cases to publicly identify who funded them has been introduced by U.S. Reps. Hank Johnson and Ted Lieu to bring transparency to what the legislators say amounts to judicial lobbying.

The two Democratic Congressmen, both members of the U.S. House Judiciary Committee, introduced the bill as a companion to one in the Senate.

The Senate bill was sponsored by Democratic Sens. Sheldon Whitehouse of Rhode Island, Richard Blumenthal of Connecticut and Mazie Hirono of Hawaii.

The bill, H.R. 3993, would require any entity that files three or more amicus curiae briefs in a calendar year at the U.S. Supreme Court or the federal appellate courts to disclose the identity of all funders contributing either more than $100,000 or 3% of each funder’s gross annual revenue.

The bill also would require the Administrative Conference of the U.S. Courts to make that information available to the public.

The proposed legislation also would prohibit entities or individuals filing amicus briefs from making gifts or providing travel to appellate judges or Supreme Court justices—a prohibition similar to restrictions placed on legislative lobbying.

The House bill, known as the Assessing Monetary Influence in the Courts of the United States (AMICUS) Act,” was introduced July 26. Amicus briefs are submitted to the courts by nonparties to provide expertise, insight, or advocate for particular position.

Johnson—a senior member of the House Judiciary Committee and chairman of the Subcommittee on Courts, Intellectual Property and the Internet—said he co-sponsored the bill to bring transparency to what he labeled “amicus based judicial lobbying.”

“Enormous sums of money are being spent to lobby the federal judiciary to help influence the outcome of cases with little or no ethics rules governing this type of spending and influence,” said Johnson, of Georgia. “The American people deserve transparency at all levels of government, and the judiciary shouldn’t be under its own set of rules. The lack of oversight makes it ripe for abuse.”

Cohen said the bill will shine a light on those who might try to influence the Supreme Court.

“Just as the Congress maintains a lobbyist registration database so the public can see who is advocating for legislation, the courts should also make such information available,” he said. “The public should know and understand which interest groups are advocating before the Supreme Court.”

Whitehouse introduced the Senate bill after he sent a letter to Chief Justice John Roberts Jr. in January criticizing the U.S. Supreme Court for “routinely accepting amicus briefs from special interest groups that fail to disclose their donors.”

Whitehouse said the bill is needed because, “It defies reason that the branch of the federal government with the least accountability to the public is not subject to even the most basic lobbying disclosures.”

The Supreme Court already has a rule addressing amicus disclosures. The rule requires that an amicus brief indicate whether counsel for a party to the case authored the brief, in whole or in part, or made a monetary contribution to fund its preparation and submission. The rule also requires that an amicus brief must disclose in the first footnote on the first page, “every person or entity, other than the amicus curiae, its members, or its counsel,” who made a monetary contribution to prepare and submit an amicus brief.

In 2014, Georgia’s judicial watchdog agency launched an ultimately unsuccessful battle with the state’s judges over the ethical propriety of the judges’ state associations filing amicus briefs in pending appellate cases.

The Judicial Qualifications Commission issued an opinion barring judges and their state judicial councils from weighing in as a friend of the court in pending appellate cases, calling the practice a violation of the state Code of Judicial Ethics.

The JQC opinion came  after the Council of State Court Judges filed an amicus brief in support of a private probation company in a pending appellate case that would influence how judges fined and sentenced misdemeanor probationers.

The Council of State Court Judges asked the Supreme Court of Georgia to set the JQC opinion aside. In 2017, the high court ruled that the Code of Judicial Conduct “permits judges’ associations to submit amicus briefs in pending litigation” although it generally prohibited full-times judges from filing individual amicus briefs.

But the high court didn’t completely foreclose individual judges from submitting amicus briefs, ruling they could do so “on a rare occasion and while exercising extreme caution.”