Judicial Panel Trims Amicus Rule Change After Privacy Worries

A federal judiciary rules committee voted to drop a proposed requirement that groups disclose some new members ahead of filing amicus briefs in appeals courts.

The Advisory Committee on Appellate Rules had spent years weighing a rule change to improve disclosure around funders of amicus, or “friend-of-the-court,” briefs. But the proposal was pulled months before it was set to go into effect, after top members of the courts’ policy-making body—the Judicial Conference—said they had privacy concerns about a requirement that groups disclose new members who contribute more than $100 toward the briefs.

The advisory rules panel on Thursday voted to strike that language. Five members of the committee were in favor, one opposed, and another abstained from the vote.

Committee members noted at Thursday’s meeting that the rule changes, including that new member disclosure provision, had been debated for years. That specific change was aimed at preventing individuals from joining groups for the sole purpose of working on an amicus brief.

US District Judge Carl Nichols, a committee member who sits on the Washington trial court, said that “given the very negative reaction from other folks to this proposal,” the panel might want to adopt a recommendation that the language be dropped altogether. He also said it wasn’t clear if the change would be addressing a known problem.

The committee also voted to make more technical changes to the draft rule. And they voted against another round of public comment on the dropped language, instead sending the amendment to the Committee on Rules of Practice and Procedure—also known as the Standing Committee—to be approved yet again.

Members of the Judicial Conference’s executive committee feared the requirement may lead to groups’ members being “chilled from contributing to their organization’s amicus briefs if they were required to announce their membership to the public,” according to a March 10 letter sent to the Supreme Court. The justices were considering approval of the rule change at that time.

Multiple members of the committee sought more information about those exact concerns. Judge Allison Eid, who chairs the panel, said everything that could be shared was in a letter circulated among committee members, a point echoed by Standing Committee Chair Judge John C. Dever III.

The amended rule was on track to go into effect on Dec. 1, barring any action by the Supreme Court and Congress, before being suddenly pulled last month.