Rep. Hank Johnson (D-GA4)

Sen. Sheldon Whitehouse (D-RI)

Should the judicial branch’s influencers be subject to the same public disclosure mandates as Congress’s lobbyists and campaign funders are?

Context

In Supreme Court cases, both sides submit a written report called a brief to the nine justices, laying out their reasons for why the ruling should go their way. The Court also permits similar briefs called amicus briefs from outside parties who are interested in the case.

This can include everyone from the federal government through the Justice Department, to advocacy organizations on the right or left like the NRA or ACLU, to law professors with expertise on the subject pending before the court, to news organizations like Fox News or CBS News. (Amicus is Latin for friend.)

These amicus briefs are being filed more frequently than ever, according to a study by the National Law Journal. They found the average Supreme Court case last term had 14 amicus briefs filed, a new record during the 2010s period studied.

And they work, too. Justices cited or quoted an amicus brief in 59% of their majority opinions.

However, while strict public disclosure requirements exist for people or organizations who lobby Congress, no similar requirements exist for lobbying the Supreme Court.

What the legislation does

The AMICUS Act, or Assessing Monetary Influence in the Courts of the United States Act, would strengthen public disclosure requirements for those who submit these friend-of-the-court briefs. Specifically:

Any organization which submits three or more amicus briefs in a year would have to publicly disclose any funders who contributed more than $100,000 or more than 3% of the organization’s revenues.

Any person or organization who files an amicus brief would be banned from buying gifts or paying for travel for a Supreme Court justice.

The Senate version was introduced on May 9 as bill number S. 1411, by Sen. Sheldon Whitehouse (D-RI) — a member of the Senate Judiciary Committee.

The House version was introduced two and a half months later on July 25 as bill number H.R. 3993, by Rep. Hank Johnson (D-GA4) — the chair of the House Judiciary Committee’s Subcommittee on Courts.

What supporters say

Supporters argue the legislation brings needed sunlight into those people, organizations, and advocacy groups — often wealthy and powerful — who are seeking to influence the judicial branch and its decisions.

“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,” Rep. Johnson said in a press release. “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.”

“It defies reason that the branch of the federal government with the least direct accountability to the public is not subject to even the most basic lobbying disclosures. The current system is a recipe for corruption of the judiciary,” Sen. Whitehouse said in a separate press release. “The American people deserve to know which powerful interests are paying to influence federal judges with self-serving legal advice and extravagant gifts.”

What opponents say

Opponents counter that lead sponsor Sen. Whitehouse is hypocritical, given his own history of submitting amicus briefs for Supreme Court cases while holding ties to the sides on whose behalf he advocated.

For example, in January, Whitehouse submitted an amicus brief on behalf of California cities including San Francisco and Oakland which are suing large energy companies for damages related to climate change. The two main lawyers behind the cases, Victor Sher and Matt Edling, both donated thousands of dollars to Sen. Whitehouse’s political campaigns.

“Sheldon Whitehouse is back, so hide the Constitution,” the Wall Street Journal editorial board wrote. “The Rhode Island senator was last spotted examining high school yearbooks to keep Brett Kavanaugh off the Supreme Court. Now the Democrat is trying to muzzle Americans trying to influence the High Court via legal arguments.”

Odds of passage

The Senate version has attracted two cosponsors, both Democrats. It awaits a potential vote in the Senate Judiciary Committee.

The House version has attracted one cosponsor, a Democrat, although it’s only been out for a few days. It awaits a potential vote in the House Judiciary Committee.

Odds of passage in the Republican-controlled Senate are low.

This article was written by GovTrack Insider staff writer Jesse Rifkin.

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