“The Committee is trying to limit amicus briefs in a way that will create more work for judges and is constitutionally suspect.”
—John Masslon, WLF Senior Litigation Counsel

Click here for WLF’s comments.

WASHINGTON, DC— Washington Legal Foundation (WLF) today urged the Committee on Rules and Procedures to scrap proposed amendments to Federal Rule of Appellate Procedure 29. In comments filed with the Committee, WLF explains that the proposal will not accomplish its stated goals and raises serious First Amendment concerns.

Under Rule 29, nongovernmental amici can file a merits-stage brief in the courts of appeals if all parties consent. The Committee proposes changing this process to force all nongovernmental amici file motions for leave to file briefs, even if the parties consent. As WLF’s comments explain, the current rule allows for the efficient screening of amicus briefs. The proposal, however, will cause more work for judges while increasing uncertainty for amici. This will lead to fewer amicus briefs and more errors by appellate courts. That is why the Supreme Court made it easier to file amicus briefs last year. The Committee’s explanations for departing from the Supreme Court’s lead are unpersuasive. 

The Committee also proposes requiring disclosing amici’s members if they donate at least 25% of the amici’s annual revenue. Similarly, the Committee proposes requiring disclosure of amici’s members if they have joined the organization within the past twelve months. As WLF’s comments explain, these proposals raise serious First Amendment concerns. Because the proposals burden amici’s and their members’ association rights, the proposals must pass strict scrutiny. But the proposals neither advance a compelling governmental interest nor are narrowly tailored.

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