NTUF’s Taxpayer Defense Center teamed up with People United for Privacy Foundation to file comments against dangerous proposed amendments to Federal Rule of Appellate Procedure Rule 29. FRAP Rule 29 regulates how organizations file amicus curiae (“friend of the court”) briefs in federal court. Currently, organizations filing briefs in federal court must state their identity, their interest in the case, and certify whether any party or other person paid for the creation of the amicus brief. The proposed changes would instead demand donor disclosure for those who gave as little as $100 to the amicus organization. This intrusion into donor privacy would deter filings, chill speech, and violate the First Amendment.
Both NTUF and PUFPF file amicus briefs to lend our expertise to courts across the country. The Supreme Court has long recognized that “[e]ffective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association,” and that there is a “vital relationship between freedom to associate and privacy in one’s associations.” Our organizations are effective precisely because we gather the strength of our members and supporters to fight for taxpayers in court.
To protect the freedom to associate, the Supreme Court requires disclosure laws to survive “exacting scrutiny” which requires the government to show such disclosure is in substantial relation to a sufficiently important government interest and be narrowly tailored. The proposed changes to Rule 29 fail this strict test. The memorandum proposing the edits points to a general interest in “some judges” in “some cases” wanting to know about who is donating to those writing an amicus brief and an assertion that the public wants to know this information too. These conclusory statements are not weighty enough to demand the donor lists of nonprofit organizations. Worse, when the public does care about a nonprofit’s donors, it’s often to threaten or harass the employees or supporters of the organization.
We further point out that the proposed changes are not properly tailored to the stated interests of the government. By demanding donor disclosures for nonprofits filing amicus briefs, they impose burdens more appropriate for political organizations with explicit electoral purposes. Precedents like Buckley v. Valeo and other campaign finance cases establish that disclosure requirements must be tied to direct political activities. Applying similar standards to amicus briefs, which focus on legal advocacy, overreaches constitutional bounds. When the government goes after non-political donors, such as in Americans for Prosperity v. Bonta, the disclosures become much more worrisome.
The proposed amendments also suggest that amicus briefs can be heavily regulated because organizations can speak in other ways—like books, articles, podcasts, blogs, advertisements, and social media. But we point out this “alternative channels” argument is unpersuasive because courts can only consider what is before them in open court: briefs by the parties and amici. Indeed, the rules of judicial conduct tell judges to not do independent research and it would be inadvisable to have nonprofits try to target judges via social media posts or advertisements. While judges sometimes consider books or law review articles, publication is slow and aimed at general topics, not resolving specific cases. Amicus briefs bridge the gap between deep thinking about the trends in the law or detailed subject matter expertise with the case-specific recommendations needed by judges to resolve the controversy at hand.
NTUF and PUFPF recommend that the Judicial Conference reject the proposed amendments, as they fail exacting scrutiny and risk chilling nonprofit participation in legal processes. We also requested the opportunity to testify to further discuss the implications and constitutional issues raised by the proposed amendments to Rule 29.
The full regulatory docket, including the proposed amendments and the comments filed so far, may be found here. The deadline to file comments is February 17, 2025.