Supreme Court Rule Puts a Crimp in Crowd-Funded Amicus Briefs

A handful of organizations have recently resorted to GoFundMe campaigns to generate donations for covering the cost of producing amicus briefs filed with the U.S. Supreme Court.

But because GoFundMe allows for anonymous contributions, the nascent trend has hit a speed bump.

A lawyer for the U.S. Alcohol Policy Alliance is withdrawing an amicus brief she filed in a pending case, after the court clerk’s office informed her that amicus groups must identify all contributors who gave money to fund such briefs. The alliance’s GoFundMe campaign included anonymous donors.

“We're going to re-file the brief with a revised disclosure that identifies all the donors to the GoFundMe,” Allison Ehlert of Ehlert Appeals in El Cerrito, California, said. “The client has returned the donation of the one or two anonymous donors who preferred to remain anonymous.”

The sticking point is the high court’s Rule 37.6, which requires that amicus brief filers "shall identify every person other than the amicus curiae, its members or its counsel, who made such a monetary contribution." The court imposed the rule in 1997 in an effort to stop parties in a case from surreptitiously “buying” what amounts to a second or supplemental merits brief, disguised as an amicus brief, to get around word limits.

In a statement to The National Law Journal, the court’s public information office said last week, “The Clerk’s Office interprets this language of Rule 37.6 to preclude an amicus from filing a brief if contributors are anonymous.” The National Law Journal first brought the issue of anonymous GoFundMe amicus funding to the court’s attention Nov. 28.

The Alcohol Policy Alliance brief was filed in the case of Tennessee Wine & Spirits Retailers Association v. Byrd, a Twenty-First Amendment dispute over a Tennessee law that requires two years of residence in the state before someone is eligible for a license to sell liquor to consumers.

The alliance supports the law as a way of ensuring that retailers “have a connection to the communities in which they do business and thus have a greater incentive than out-of-state retailers to be viewed as law-abiding, responsible sales people by their neighbors and friends.”

The alliance’s GoFundMe campaign is titled, “Protect States' Options on Alcohol” and has raised nearly $3,000, with a goal of $5,000.

An organization on the other side of the case also has a GoFundMe page, titled “Wine Freedom,” which is an affiliate of the National Association of Wine Retailers. The group opposes state regulations that, among other things, restrict wine shipments from out-of-state wine stores and online retailers.

Wine Freedom has raised more than $26,000, exceeding its GoFundMe goal of $25,000. It too includes anonymous donors, but the brief is not due until Dec. 20.



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