Elites Will Rule If Sheldon Whitehouse Gets His Wish
Rhode Island Senator Sheldon Whitehouse has some oddly incongruous views on the democratic process for a man who has spent so much of his life running for or holding elected office. For more than two decades he has sought (and often gained) the support of rank-and-file voters, as he jumped from political perch to political perch, but other manifestations of democracy clearly rub Whitehouse the wrong way, revealing a strong elitist (or exclusionist) streak.
After years of trying to starve grassroots organizations of funding, by denouncing and combating the influence “dark money” allegedly wields in American politics, Whitehouse is taking a new tack in his assault on donor privacy, by introducing legislation that would force any group filing an amicus brief in a federal court case to disclose its donors.
Not only would such a proposal deny courts and judges insights, perspectives, and legal arguments that they need to hear, resulting in worse rulings, but it blatantly favors elites over average Americans.
The battle has to do with what lawyers call briefs by an “amicus curiae” — Latin for “friend of the court.” In a typical case, a court hears from the plaintiff and the defendant. An amicus curiae brief is by an outside group that highlights legal arguments that the parties to the lawsuit may not be discussing. No court has to listen to what an amicus brief says, but they’re often helpful to understand complex issues.
Let’s take a real example.
The Supreme Court is hearing a case called CIC Services v. IRS, a complex case about tax law and administrative procedure. While the parties to the lawsuit argued their case well, an additional 13 amicus briefs provided other information for the High Court — ranging from a tax law professor who discussed the relevant history of the statute to nonprofit groups that discussed the far-reaching implications for the Court’s decision. These amici (plural of “amicus”) aim to help the Supreme Court to understand how it’s decision will affect a variety of people, not just the two parties to the case.
Another case generated 41 amicus briefs representing dozens of groups, including the ACLU, NAACP, Electronic Frontier Foundation, and Citizens United (yes, that same group of the famous case from 2010).
Amicus briefs are expensive to create. Lawyers spend many billable hours researching and writing the document. And the Court requires special printing that is expensive and time-consuming. Each brief typically costs thousands of dollars by the time they are filed in the Court. Groups pool donor money to pay for them. Only the wealthy can pay for them out of pocket.
The Supreme Court, like all other federal appellate courts, already mandates that groups disclose if anyone paid for the filing of the amicus brief specifically. Supreme Court rules even require disclosure if any “counsel for a party” in the case authored any portion of the brief. And the Court requires the brief say what the interest of the Amicus Curiae is in the case. Often this “interest” section describes the mission of the organization, its relevant expertise in the legal question at issue, and other information for the Court to decide if the amicus is worth close attention. Plus, the lawyer’s reputations are on the line for not filing frivolous briefs.
But Senator Whitehouse’s Amicus Act would demand even more information — namely, the donor list of the organization filing an amicus brief. Few, if any, organizations on either the left or right will risk giving up their donor lists for the sake of one of their policy experts to write an amicus brief. It essentially shuts down amicus work to only those who can pay a lawyer the thousands of dollars such briefs cost to produce — in other words, the rich and elite — like Senator Whitehouse himself.
Senator Whitehouse’s idea goes against decades of case law protecting private association under the First Amendment. This right was hard won by the Civil Rights movement in the 1950s. Back then, Southern states sought to use similar disclosure laws to get the donor lists of the NAACP and other groups to harass and intimidate the people into not supporting the Civil Right movement. The Supreme Court intervened and held that the First Amendment protects the right of private association, particularly for controversial opinions.
That protection is needed now more than ever. With the rise of doxing and cancel culture, aided by the vast research potential of the internet, being “outed” as having views not approved by the majority is dangerous. Political violence is at an all-time high — whether that’s groups attacking public health workers in protest of Covid measures or liberal mobs on Twitter demanding that conservatives be fired from their jobs.
Senator Whitehouse wants donor information disclosed for all to see, exposing people to harassment from those who disagree. Worse, the end result is that fewer voices are heard in our highest court, expect those of the Senator and his colleagues. Congress should reject this ridiculous idea and hold true to the First Amendment’s rights.
Tyler Martinez is a Senior Attorney at Mountain State Legal Foundation, where he practices before various federal courts across the country, including the United States Supreme Court.