US judicial panel votes to scrap key part of amicus disclosure rule

By Nate Raymond

April 2 (Reuters) - A U.S. judicial panel voted on Wednesday to abandon a core part of a proposed rule aimed at increasing disclosure of who funds friend-of-the-court briefs by outside groups following backlash from the U.S. Chamber of Commerce and other trade associations.

The U.S. Judicial Conference's Advisory Committee on Appellate Rules, during a meeting in Atlanta, voted 5-4 to scrap a proposed rule change that would have required non-profits, charities, or trade associations that file amicus briefs to disclose when a party in a case is a major financial contributor.

The disclosure requirement was a central piece of a proposed rule judicial policymakers had put out for public comment following years of deliberations over whether to impose greater transparency requirements on filers of amicus briefs.

The proposed rule the panel had endorsed last year would have required amicus briefs to disclose if a party or its counsel in a given case contributed 25% or more of the organization's annual revenue.

The committee had also proposed requiring an amicus brief filer to name any donor who earmarked money for the preparation of the brief if that person or entity had only been a member of the organization filing it for less than 12 months.

The committee on Wednesday voted unanimously to advance that piece of the proposal to the Judicial Conference's Committee on Rules of Practice and Procedure, its top rulemaking body, to vote to finalize the rule.

But the panel narrowly voted down the 25% requirement, after some judges and the U.S. Department of Justice now under Republican U.S. President Donald Trump questioned its necessity.

It had been widely opposed by groups that frequently file such briefs in cases, like the Heritage Foundation and the U.S. Chamber of Commerce, which argued mandatory disclosure of a group's members would violate its right to free association under the U.S. Constitution's First Amendment.

Lisa Wright, a federal public defender, said it was no surprise such groups opposed the rule, but she argued greater disclosure would help maintain the public's trust in the judicial system.

But U.S. District Judge Carl Nichols, a Trump appointee in Washington, cited a lack of any known cases where a judge had been "hoodwinked by not knowing this information" into relying on arguments in an amicus brief submitted by a non-party.

"What matters much more to me is what an amicus brief says rather than who it is filed by," he said.

The judiciary first began considering the rule following the introduction of legislation in 2019 by Democratic lawmakers including Democratic U.S. Senator Sheldon Whitehouse of Rhode Island that would regulate amicus brief filers.

He and other Democrats have argued that changes were needed to expose how special interests can secretly disguise their advocacy for causes in cases pending in the courts by funneling donations through non-profits that file amicus briefs.

While Democratic lawmakers have in the years since reintroduced the legislation, it has never been enacted.

Mark Freeman, an official with the U.S. Department of Justice who spoke on behalf of Acting Solicitor General Sarah Harris, said the department was concerned the disclosure requirement could be overly burdensome.

"We're at risk of going overboard with the disclosure rules and deterring the filing of amicus briefs," he said.

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