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The Gaping Hole in Supreme Court Rules for Tracking Links Between Litigants and Influence Groups

6 6
18.04.2024

In 2022, the Silicon Valley trade group NetChoice cut a $450,000 check to TechFreedom, a nonprofit tech think tank. Over the next year, TechFreedom filed multiple friend-of-the-court briefs — called “amicus” briefs, from the Latin for “friend” — supporting NetChoice’s federal lawsuits against social media laws in two states.

Those cases, which have been consolidated before the U.S. Supreme Court, challenge laws that Texas and Florida passed in 2021 aimed at limiting social media platforms’ ability to moderate user-posted content, which Texas Attorney General Ken Paxton equates to “censorship.” At oral argument in February, the Supreme Court justices seemed highly skeptical that either state’s law could be squared with the Constitution.

The brief TechFreedom submitted to the high court does not list its financial relationship to NetChoice, nor does it have to — illustrating the narrowness of current disclosure rules at the Supreme Court and the gaps watchdogs seek to fill by scouring donation records.

After the Supreme Court wraps up arguments for the current term next week, it will turn to finalizing decisions in dozens of pending matters, including these social media cases plus high-stakes cases about abortion, guns, the limits of presidential immunity, and how the federal regulatory apparatus itself functions. In doing so, the justices will have a chance to review hundreds of amicus briefs.

Like the money spent on elections, the money spent on the deluge of amicus briefs each term is incredibly difficult to track. The Supreme Court’s disclosure rule for amicus briefs is quite narrow, requiring only a footnote that indicates whether there were any outside monetary contributions “intended to fund the preparation or submission” of that specific brief.

Critics question whether that provision serves much purpose, since it does not capture even significant cash flows between case parties like NetChoice and their amicus supporters, except for contributions explicitly earmarked for a particular amicus brief.

Sen. Sheldon Whitehouse, D-R.I., has proposed a much broader disclosure rule as part of a pending Supreme Court reform bill. Whitehouse proposes requiring amicus filers to identify all contributions from the past year that were........

© The Intercept


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