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Forty-nine years ago, the Supreme Court ruled that the government may not force advocacy groups to reveal their membership rolls, because of “the vital relationship between freedom to associate and privacy in one’s associations.” Now, advocacy groups are grumbling that the high court is about to require them to do exactly what was prohibited in that 1958 ruling, NAACP v. Alabama. Under a proposed rule change being considered by the Court, any group that files an amicus curiae brief in support of a party in a pending case would be required to state whether “a party is a member of the amicus curiae or made a monetary contribution to the preparation or submission of the brief.” If the Snack Food Association, for example, filed a brief on behalf of Frito-Lay, it would have to tell the Court that Frito-Lay is a member. The U.S. Chamber of Commerce, which has a deep tradition of keeping the identity of its members private, is preparing comments objecting to the rule change, and may be joined by other groups. Meanwhile, top Supreme Court advocates will meet Thursday at Georgetown University Law Center’s Supreme Court Institute to discuss this and other proposed changes in Court rules. The Court has asked that public comments be filed by June 4. The new rules will take effect Aug. 1. Another rule change that is generating debate may cramp advocates’ style in writing briefs for the Court: a switch from a page limit (50) for briefs on the merits, for example, to a word limit (15,000.) The change, similar to what other courts have done in the last decade, is aimed at discouraging practitioners from using typographic and line-spacing tricks and wider margins to squeeze more words onto each page. But David Gossett, partner at Mayer, Brown, Rowe & Maw, has run the numbers on briefs that were faithful to the existing rule, and found that many 50-page briefs contained significantly more than 15,000 words. “This change will mean somewhat shorter briefs,” Gossett says. On the amicus brief issue and the rules proposals in general, Court officials decline comment. But the proposal appears to be the Court’s latest attempt to keep parties in pending cases from, in effect, filing two briefs — one, their own, and the second by an amicus group in which the party is a member, presumably with influence over what the brief says. Giving one side the equivalent of 100 pages to make its central arguments would be unfair, Court officials assert, and should at least be disclosed. In some cases the rule might seem innocuous, and some groups would not object. For example, though it has other concerns, the Product Liability Advisory Council routinely lists its corporate members in its briefs filed with the high court on liability and pre-emption issues. But to organizations like the Chamber, the proposed rule is a problem. “We tell our members we will never disclose their membership,” says Robin Conrad, executive vice president of the National Chamber Litigation Center, the Chamber’s public policy law firm. “They rely on their ability to have us argue for them collectively.” She adds that sometimes there is a “complex funding structure” for the Chamber’s briefs. Members from a certain industry may be solicited to help fund a brief in a case that will affect that industry. But, she says, “When we file a brief for XYZ Company, it doesn’t mean we are doing the bidding of that company.” Since the Chamber files briefs in many and varied cases in a term, Conrad says that if the rule takes effect, “after awhile we’d be forced to give our entire membership list. . . . It will really undermine our ability to represent our members.” Conrad is assembling a group of amicus groups to file objections to the proposed rule before June 4, the deadline the Court has set for public comments. “I blew the dust off NAACP v. Alabama” in preparation for writing a letter on the change, Conrad says. Other amicus groups, including PLAC, have other concerns about the proposed rule. While the product liability group lists its 128 corporate members in its briefs, it also has 385 “sustaining members” who are lawyers in private practice. Since members’ dues are the council’s only source of revenue, PLAC President Hugh Young is worried that he might have to list all the sustaining members as well, no matter what their involvement in the brief. “Our greatest concern in the need for clarification on the meaning of ‘monetary contribution’ in the rule,” Young says. To Court veterans, the brewing controversy over amicus briefs is nothing new. Eleven years ago, the Court proposed a similar rule change, with the same result. Conrad and representatives of other groups ranging from the Alliance for Justice to the American Trucking Associations protested. Responding to the objections at the time, Court Clerk William Suter said the change had been “inartfully worded,” and it was altered to its current wording. As it stands today, Rule 37.6 requires that amicus filers “shall indicate whether counsel for a party authored the brief in whole or in part.” By adding the requirement that amicus groups reveal if the party is a member, the Chamber’s Conrad says the proposed rule represents a much more direct infringement on membership privacy. Tony Mauro can be contacted at [email protected].

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