“Earmarked contributions run the risk that the amicus is being used as a paid mouthpiece by the contributor,” the note said, adding that courts have an interest in “evaluating whether an amicus is serving as a mouthpiece for a party, thereby evading limits imposed on parties in our adversary system and misleading the court about the independence of an amicus.”
Other aspects of the proposal would require nongovernmental parties to obtain a judge’s consent before filing a friend-of-the-court brief. That idea generated widespread criticism at Tuesday’s meeting from panelists who voiced worries about harming civic participation, straining overburdened courts, and putting everyone through a pointless permission process.
“Even if [a brief] is not helpful at all, a lot of times, you just let it in, because it’s a way for people to express their views to the court, which I think is a very important part of the openness of our process,” U.S. Circuit Judge Patricia A. Millett of the D.C. Circuit, one of the proposal’s most strident critics on Tuesday, said at the meeting.
