Reuters and Bloomberg Law both report that the U.S. Judicial Conference’s Advisory Committee on Appellate Rules narrowly rejected an oppressive donor disclosure rule placed on nonprofits who write amicus curiae (“friend of the court”) briefs. NTUF’s Taxpayer Defense Center and People United for Privacy Foundation worked together to tell the Judicial Conference that the proposed rule had serious First Amendment concerns.
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 brief. The proposed changes would have instead demanded donor disclosure for those who gave as little as $100 to the organization.
We filed comments in December 2024 highlighting the grave constitutional concerns. 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 is narrowly tailored. The proposed changes to Rule 29 failed this strict test.
In our February 2025 testimony at the hearing on the matter, we emphasized the importance of amicus briefs in tax law, and argued that donor privacy has been protected by exacting scrutiny for decades. We highlighted the challenges of meeting exacting scrutiny for new areas of regulation and argued that the proposed amendments would fail to meet this standard. The proposed disclosure requirements failed to meet this standard and do not provide a substantial government interest. The proposed amendments are not properly tailored and there are no alternative channels for amicus arguments. We also cautioned against using campaign finance cases—those about directly giving to political candidates—as justification for requiring disclosure for those talking about legal issues directly to courts.
The Judicial Conference narrowly rejected general donor disclosure for amicus filers, but discussed disclosure of earmarked donations. But it will not be clear, in practical effect, if “earmarked” disclosure requirements will apply to earmarks for a specific brief in a specific case or if it would eventually be expanded to apply to any donation of amicus brief programs.
This is no mere idle worry, as can be seen in the campaign finance context. In the 2016 decision in Van Hollen v. Federal Election Commission, the D.C. Circuit upheld the FEC’s rule that limited donor disclosure from nonprofits to “donations totaling $1,000 or more that were ‘made for the purpose of furthering electioneering communications.’” In other words, the D.C. Circuit said the FEC’s earmarked donation rule was reasonable. And practice was that only those who gave for a specific campaign ad would be disclosed (but not those who gave for campaign ads generally). But then, in Citizens for Responsibility and Ethics in Washington v. Federal Election Commission, the D.C. Circuit held that even general programmatic donations for campaign ads must be disclosed, even if not earmarked for a specific campaign. Such could happen in the amicus disclosure context too: what was once disclosure of funds earmarked for specific cases can then expose donors.
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. They can be very helpful to courts, especially in areas of technical expertise like tax law. But nonprofit organizations’ donor lists should not open up just to file a helpful brief.