Top Senate Republican Mitch McConnell expressed strong disapproval on Tuesday regarding the judiciary’s recent proposals aimed at tightening financial disclosure requirements for groups submitting friend-of-the-court briefs and restricting law clerks from pursuing political employment.
Speaking on the Senate floor, McConnell targeted the new ethics policies adopted by federal judicial policymakers, arguing that they infringe upon the free speech protections guaranteed by the First Amendment of the U.S. Constitution.
“I am second to no one in my defense of the First Amendment,” McConnell stated. “So I’ve found the recent habit of the federal judiciary’s bureaucracy to try and abridge its protections alarming, to say the least.”
One of the key proposals under scrutiny involves enhancing disclosure requirements for organizations that file amicus briefs advocating for specific positions in court cases. McConnell announced that he, along with Republican Senators John Cornyn of Texas and John Thune of South Dakota, has sent a letter urging the judiciary to abandon this proposal. They warned that they would encourage parties to challenge the rule in court if it is enacted.
The U.S. Judicial Conference’s Committee on Rules of Practice and Procedure voted in June to publish a draft rule after years of discussions sparked by legislation introduced in 2019 by Democratic lawmakers, including Senator Sheldon Whitehouse of Rhode Island, aimed at regulating amicus brief filers.
The proposed amendment to Rule 29 of the Federal Rules of Appellate Procedure would require non-profits, charities, or trade associations filing amicus briefs to disclose if any party or counsel contributed 25% or more of the organization’s annual revenue. Additionally, it would mandate that any donor contributing more than $100 for preparing or submitting an amicus brief be named if they had been a member of the filing organization for less than 12 months.
McConnell characterized the proposal as “the result of persistent bullying by Senate Democrats,” asserting that it would unconstitutionally “chill free speech by mandating donor disclosure.” The Administrative Office of the U.S. Courts, responsible for managing judicial administration, did not provide immediate comment on McConnell’s remarks.
In addition to his concerns about donor disclosure, McConnell criticized a new ethics opinion from the Judicial Conference’s Committee on Codes of Conduct. This opinion advises judges to limit law clerks from seeking post-clerkship employment with political organizations to protect judicial independence.
“Political activity is at the core of our freedom of speech,” McConnell argued. “To single it out for a special disability among clerks seeking employment turns the First Amendment on its head.”