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Transparency in Amicus Funding

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After discussing impact litigation, noted in the previous post, Senator Whitehouse moved on to amicus curiae briefs, particularly in the Supreme Court. I've filed a few of those.

Senator Whitehouse was concerned about transparency in funding. Both the Supreme Court and Court of Appeals rules require disclosure of funding of the brief itself. See Supreme Court Rule 37.6; Federal Rule of Appellate Procedure 29(a)(4)(E). His point was that these rules do not extend to funding for the organization generally, rather than for the specific brief.

True, but for "frequent filer" amici curiae which are IRC ยง 501(c)(3) organizations, including CJLF, our major donors are public record anyway. We disclose them every year in our tax filings (or, if you prefer, tax-exempt filings).

What about non-501(c)(3) organizations? Senator Whitehouse may have a point. Judge Kavanaugh said that, if confirmed, he will be open to a rule change to address the issue. Of course, Senator Whitehouse need not wait for the Supreme Court to act. He can introduce legislation, and the Judiciary Committee can hold hearings. That would be more transparent and public than the court rule-making process. Even if nothing passes Congress, the record made at the hearing would inform the Court regarding a rule change.

And while the Supreme Court is reconsidering its amicus rule, please do something about those ad hoc groups that file under self-anointed, self-important names such as "Constitutional Law Scholars." They aren't the only constitutional law scholars in the case, and no one elected them to represent the constitutional law scholars of the nation as a group. Require every amicus curiae brief to be filed solely under the real names of natural people or pre-existing legal entities.

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