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Judicial Stock Disclosure, Court Records Bills Poised for 2022

Dec. 29, 2021, 9:45 AM

Bipartisan bills to make court records free to access, increase judicial financial reporting requirements, and create a shield for judges’ personal information online are the judiciary measures best positioned in Congress to win final passage in 2022.

While Congress didn’t pass major courts legislation in 2021, the three proposals that moved through committees or one chamber have strong support among lawmakers from both parties.

“Even more than a committee vote or a floor vote, you look at the movers behind these bills,” said Gabe Roth, executive director of judicial watchdog Fix the Court. “And in the Senate Judiciary Committee, each of these bills—either when it was introduced or when it was brought up in the executive business meetings—just got a ton of sponsors from both parties.”

Fix the Court has advocated for the Courthouse Ethics and Transparency Act on judicial disclosures and the Open Courts Act on records access via the PACER system. The Daniel Anderl Judicial Security and Privacy Act is named after the son of U.S. District Judge Esther Salas who was killed by a disgruntled attorney at their New Jersey home in 2020.

Other measures to add trial court seats and create a harassment shield for judiciary employees have potential for more bipartisan agreement but don’t appear to have a clear path forward yet.

Here are bills to watch:

Financial Disclosures

A bill to require the judiciary to post financial disclosures online and create stricter reporting rules for judges passed the House , 422-4, and has potential to be adopted by unanimous consent, Hill aides said.

The legislation (H.R. 5720; S. 3059) was introduced after a Wall Street Journal report found that 131 judges heard cases in which they or a family member held stock in a company involved in the case.

The Senate version was referred to the Homeland Security and Governmental Affairs Committee, but an aide to Sen. Chris Coons (D-Del.), one of the bill’s sponsors said, they don’t expect it will need go through the formal committee process.

“We’re optimistic that it will pass this year, and our plan is to get it out of the Senate by unanimous consent,” the Coons aide said of the process of passing a measure without a roll call vote. A committee aide also said unanimous consent is possible.

Free PACER

The Senate Judiciary Committee advanced the Open Courts Act (S. 2614, H.R. 5844), a bill that would make U.S. court documents free to the general public online.

The House has yet to take action on the bill this Congress, but the chamber easily passed the legislation in 2020.

Under the plan, the judiciary would have to create a version of PACER—the electronic court records system—that allowed public free access . The system currently requires fees of 10 cents per search, 10 cents per page, and a cap of $3 on documents. The first $30 of usage is waived.

The bill is opposed by the judiciary, which said through the Administrative Office of the U.S. Courts that balancing funding and free public access “would not be a simple exercise.”

Judicial Security

A bill to shield judges’ personally identifiable information online advanced out of the Senate Judiciary Committee with unanimous support from committee members.

The measure (S. 2340, H.R. 4436) was reintroduced after failing to advance last Congress. Sen. Rand Paul (R-Ky.) blocked an attempt to pass the bill in 2019, citing concerns that it should also cover members of Congress.

At the Senate Judiciary markup , lawmakers on both sides of the aisle expressed interest in exploring separate legislation that would cover other members of Congress and other government officials.

District Judgeships

Bills to add district judgeships are pending in Congress. While lawmakers on both sides of the aisle agree there is a need for more positions, there is disagreement about how many seats should be added and how soon.

A bipartisan bill, the JUDGES Act (S.2535, H.R. 4885), would give the judiciary 77 new judgeships over two presidential administrations. Another bill introduced by Democrats, the District Court Judgeships Act of 2021 (H.R. 4886),offers 203 seats immediately, arguing the third branch needs more help than it’s letting on.

Despite requests from the judiciary, Congress hasn’t expanded the lower courts comprehensively in more than 30 years.

An aide for Coons, a sponsor of the JUDGES Act, said they are working to build support, add cosponsors, and are hopeful the bill will pass in 2022.

Employee Protections

The Judiciary Accountability Act of 2021 (H.R. 4827, S. 2553) would give judiciary workers the same antidiscrimination rights and whistleblower protections as other federal employees, but it has yet to gain widespread bipartisan support.

The bill’s introduction followed the the #MeToo-era reckoning within the federal judiciary, during which several judges were accused of workplace harassment. Sponsors say the third branch failed to take steps to protect employees. The judiciary, which opposes the bill, says it doesn’t account for safeguards the judiciary already put into place.

To contact the reporter on this story: Madison Alder in Washington at malder@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com