Senator Sheldon Whitehouse (D-RI). Photo: Diego M. Radzinschi/NLJ

Sen. Sheldon Whitehouse, D-Rhode Island, has launched a campaign to reform what he calls the “fecklessness” of the U.S. Supreme Court's rules requiring the disclosure of who is behind amicus curiae briefs filed with the court.

Last month Whitehouse sent a letter to Chief Justice John Roberts Jr. and Court Clerk Scott Harris, decrying “the court's practice of routinely accepting amicus curiae briefs from special interest groups that fail to disclose their donors.”

As a result, Whitehouse said, the court has opened the door to the “well-heeled, repeat-player amici who routinely flood the court with anonymously funded briefs.”

Whitehouse offered an example, asserting that in the 2016 case Friedrichs v. California involving union agency fees, the Lynde and Harry Bradley Foundation “not only bankrolled the nonprofit law firm bringing the case, but also donated to 11 different organizations that filed amicus curiae briefs supporting the plaintiffs.”

Whitehouse first raised the issue during a colloquy with then-nominee Brett Kavanaugh during his confirmation hearing last September, claiming that “once the nominee's on the court, the same business front groups with ties to the Koch brothers and other funders of Republican political machine file friend of the court, or amicus briefs to signal their wishes to the Roberts Five. Who is really behind those friends is another deep, dark secret.”

The court's Rule 37.6 requires that those who file amicus briefs “shall identify every person other than the amicus curiae, its members or its counsel, who made such a monetary contribution.”

Harris, the Supreme Court clerk, invoked the rule in December to rein in the growing trend of organizations undertaking GoFundMe campaigns to fund amicus briefs by seeking small donations from the public, some of which were anonymous. Whitehouse cited The National Law Journal's article on the subject in his letter to Roberts and Harris.

But in the GoFundMe cases, the donations were explicitly sought to fund the production of amicus briefs. Whitehouse's example of the Friedrichs briefs signals that he is taking on a broader target, namely donors who contribute to organizations in general, not specifically to fund a given amicus brief the organization might file.

“Americans deserve to know who is behind these judicial lobbying efforts,” Whitehouse wrote in his letter, adding that the current situation “presents a threat to the court's reputation as neutral arbiter of laws, which I know you value and strive to protect.”

Whitehouse's letter also included a draft bill Whitehouse plans to introduce. It would require those who file three or more amicus briefs with the Supreme Court and federal appeals courts to register with the court and disclose contributions to amicus-filing organizations. The bill would be called “Assessing Monetary Influence in the Courts of the United States Act of 2019.”

Whitehouse's letter, first reported by Roll Call, was made public as an appendix to an amicus brief he filed January 29 in County of San Mateo, California v. Chevron Corp., a Ninth Circuit case brought by California counties and cities seeking damages and other relief from fossil fuel companies for sea level rise.

The brief targets the U.S. Chamber of Commerce's role in the case, which the senator said reflects “a decades-long campaign of disinformation, obstruction, and political intimidation” on the subject of carbon pollution.

 

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