On August 15, the U.S. Judicial Conference Standing Committee approved for public comment amendments to Federal Rule of Appellate Procedure 29, which governs amicus briefs. The amendments fall into two buckets:  One would drastically expand the disclosure requirements for entities filing amicus briefs—going so far as to require membership disclosure even where no member is a party to the litigation. The other would eliminate consent filing altogether and require that a motion for leave to file accompany every non-governmental amicus brief.

In its current form, Rule 29 already safeguards the integrity and efficiency of the judicial process with respect to amicus briefs, and it does so in a manner consistent with the First Amendment. Under the current Rule 29, an amicus may file a brief by leave of court or on consent of all parties. An amicus brief must include a “concise statement of the identity of the amicus curiae, its interest in the case, and the source of its authority to file,” along with a statement indicating whether a party or party’s counsel authored the brief in whole or in part or contributed money to the brief. The brief must also state whether any person—excluding the amicus, its members, or its counsel—contributed money for the brief.

The proposed amendments would eliminate consent filing altogether and would require that every non-governmental amicus brief be accompanied by a motion. This proposed change is in stark contrast to the Supreme Court’s recent decision to move away from burdensome amicus-filing requirements that the Court determined “impose[] unnecessary burdens upon litigants and the Court.” Thus, as of January 1, 2023, Supreme Court Rule 37 allows petition- and merits-stage amicus briefs to be filed without consent or the Court’s permission.

In conjunction with the motion requirement, the proposal introduces a novel purpose requirement for amicus briefs: to “bring[] to the court’s attention relevant matter not already mentioned by the parties.” Any amicus briefs that do not meet this purpose or that are “redundant with another amicus brief” would be “disfavored.” Amicus filers would have to address this new purpose requirement both in the motion and in the body of the brief, explaining why the brief is “helpful” and serves the Rule’s purpose in the motion, and adding to the brief a description of the “identity, history, experience, and interests” of the amicus organization, along with an “explanation of how the brief and the perspective of the amicus will help the court.”

The proposal also includes significant new relationship disclosure rules, including:

  • whether a party, its counsel, or any combination thereof has a majority ownership interest in or majority control of the amicus entity; and
  • whether a party, its counsel, or any combination thereof has, during the 12-month period preceding the filing, contributed or pledged to contribute 25% or more of the total revenue of the amicus organization for the prior fiscal year.

Each of these disclosures must name the party and/or counsel. And if the party or counsel knows that an amicus has failed to make the required disclosures, the party or counsel has an obligation to make the disclosure itself.

In addition, the proposed rule would eliminate the current member exception, which says that an amicus, its members, and its counsel do not need to be disclosed for making monetary contributions to a brief. The amendments instead impose new disclosure requirements relating to an amicus’s members, going so far as to require disclosure of an amicus’ relationship with nonparties in some instances. Amicus would be required to name any person—other than the amicus or its counsel—who contributed or pledged to contribute more than $100 intended to pay for preparing, drafting, or submitting the brief if that person was not a member of the amicus organization for the prior 12 months. If an amicus has existed for less than 12 months, it wouldn’t need to disclose contributing members, but it would have to disclose the date of its creation.

The proposed disclosure amendments to Rule 29 are unnecessary and not sufficiently tailored to avoid encroachment on the core associational rights of membership organizations. Indeed, the Chamber of Commerce has long taken the view that the proposed disclosure requirements violate the First Amendment associational rights of amicus-filing organizations and their members. An industry membership organization could be compelled to disclose a party-member under the new 25% provision, even where that member did not contribute to the brief. That disclosure, in turn, threatens to discount the amicus brief and the speech of the nonparty associational members. The nonparty disclosure requirements also infringe on organizational members’ associational rights—absent a member’s participation in the case as a party, there is no threat that a member’s contribution for the preparation of an amicus brief would serve an improper purpose.

Others disagree that additional disclosure poses serious constitutional problems. Chief among the proposal’s disclosure supporters are Senator Sheldon Whitehouse and Congressman Hank Johnson, who see the amicus process as an “avenue of anonymous lobbying of the judiciary.” They filed a joint comment encouraging increased disclosures (and taking no position on consent filing). The Sheldon-Johnson comment focuses on amicus coordination, fearing “the flotilla of coordinated amicus filings” and the “common funders and orchestrators” behind such efforts. It encourages the Committee to adopt a subsection for disclosure of relationships between nonparties, specifically “related to connections among amici” that would require amici to disclose “major donors funding multiple amici.”

The consent-elimination amendment to Rule 29 is also problematic. Far from encouraging amicus briefs, the proposed amendments would put a thumb on the scale against amicus briefs by explaining when briefs are “disfavored.” This shift away from the current “open-ended” requirements of Rule 29 would make it far less likely that judges will “err on the side of granting leave.”  And the requirement that all private amicus briefs be accompanied by a motion for leave to file would create more work for amici, lead to increased opposition and motion-practice from parties, increase the administrative burden on courts, and foster uncertainty. While a motion would almost certainly invite mischief because of differing practices and standards for such motions across panels and courts, it fails to provide any tangible benefit to the parties or the courts, as evidenced by the Supreme Court moving away from such a practice.

The Advisory Committee is, at a minimum, aware of the serious concerns with the motion requirement and is “particularly interested in receiving comments on the proposal to eliminate the option to file an amicus brief on consent.” And individual members of the Standing Committee, including U.S. Circuit Judges Patricia A. Millett of the D.C. Circuit and William J. Kayatta Jr. of the First Circuit, have already expressed concerns about the proposal’s effect of minimizing speech while maximizing the administrative burden on courts.

We are now midway through the six-month comment period, which is open through February 17, 2025. The Advisory Committee on Appellate Procedure will hold hearings on the proposed changes on January 10, 2025, and February 14, 2025. Members of the public may present testimony at the hearings by giving notice at least 30 days prior to the hearing date, and they may submit comments until the close of the comment period. To learn more about the proposed amendments, you can email Mariel Brookins at [email protected].

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].