U.S. judiciary panel expresses support for amicus brief financial disclosures

(Reuters) - Members of a federal judiciary panel on Tuesday expressed support for requiring greater disclosures of financial ties between litigants and outside groups that file amicus briefs in their cases – if only to avoid Congress mandating just that.

Several judges on the Judicial Conference's Committee on Rules of Practice and Procedure expressed interest in adopting new disclosures requirements governing friend-of-court briefs rather than allowing Congress to force the judiciary to do so.

"I think there's no doubt certain members of Congress will continue to pursue this," U.S. District Judge John Bates, the committee's Washington, D.C.-based chair, said during a hearing.

The judiciary is considering rule changes in response to pending legislation called the AMICUS Act first introduced in 2019 by Senator Sheldon Whitehouse of Rhode Island and Representative Hank Johnson of Georgia, both Democrats.

The most recent version calls for amicus brief filers to disclose any funders who contributed more than $100,000 or 3% of their gross annual revenue to them. It would also bar amicus filers from providing judges gifts or travel.

A subcommittee of the Advisory Committee on Appellate Rules tasked with considering issues in the legislation sought feedback from the panel on Tuesday as it considers whether the judiciary should itself require greater disclosures.

Adopting rules on its own would allow the judiciary to maintain independence and craft different requirements than the AMICUS Act. Should the advisory committee propose a rule, it would go to the standing committee for approval.

Proposals include requiring disclosures if parties have an ownership stake or have contributed money to amicus brief filers in their cases.

The 1st Circuit's U.S. Circuit Judge William Kayatta on Tuesday said "all things being considered I'd rather know who is behind a brief than not know."

But, he said, "the importance of that gets quickly overstated," and he questioned whether the judiciary should move forward if the legislation would not pass.

"If it's not going to happen, then maybe we don't have to do anything on our own," he said.

Robert Giuffra, the newly named co-chair of the Wall Street firm Sullivan & Cromwell and one of the committee's practitioner members, expressed concern that "over-regulation may diminish the benefits of amicus briefs."

But U.S. Circuit Judge Patricia Millett of the D.C. Circuit called it important to know the "real power behind the throne" with amicus briefs so that judges can assess if they might have to recuse.

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Judiciary panel weighs expanding disclosure rule for amicus filers

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