Getting by With a Little Help From Friends, Mystery in Cuba, and Is UBI No BFD?
Here’s What You Need To Know
These days, individuals and groups with cases before the Supreme Court are getting by with a little help from their friends. In fact, over 90% of cases that the Supreme Court hears attract at least one amicus curiae – Latin for “friend of the court” brief. That is a more than 800% increase since the 1950s, and a 95% increase since 1995.
Amicus briefs are a tool for individuals or groups that have an interest in – but are not a party to – a case that allows them to provide an outside perspective to be considered by the judge. As the primary way for interest group participation in the judicial system, and in an effort to prevent well-funded litigants from stacking the deck in favor of their interests, the Supreme Court and federal appeals courts have required friends of the court to disclose if their brief was written by a party in the case or whether they were paid to do so.
However, recent headlines have brought to light hidden ties to big investors behind amicus briefs. Here are some of the questions raised by the lengths that well-funded litigants will go to in order to get around disclosure requirements:
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- Why Are There Disclosure Requirements? The purpose of the disclosure requirements are to make clear if a filer is a party to a case or being paid by the party to submit their brief.
- What Tactics Are Being Used To Get Around Disclosure Rules? In one instance, a major law firm wrote an amicus brief on behalf of a nonprofit that supported their client’s interests and recruited a different lawyer to be “involved for five minutes” and sign her name to it, thereby avoiding the need to disclose their involvement. In another example, a consulting firm recruited allies to file briefs on behalf of their client’s interests and obfuscated their involvement by diverting payments through other entities in order to help their clients succeed.
- Why Are These Tactics Being Used? Litigants and others use amicus briefs not only to influence the court, but to influence public opinion as well. When coupled with a press release and media strategy, it creates an artificial perception of wide-range support that generates buzz on behalf of their cause.
- What Does The Way Forward Look Like? With the proliferation of this tool, those involved in public policy battles that involve the courts need to know the full nature of what they are up against. That includes following the money, uncovering hidden motives, and understanding who is really behind amicus briefs and other influence efforts. Such competitive intelligence builds a stronger foundation for a successful public affairs strategy.
News You Can Use
IS UBI NO BFD?
This week, former Vice President Joe Biden pushed back against Universal Basic Income (UBI) as he launched the Biden Institute at the University of Delaware. In a blog post, Biden painted UBI as a “government check with no strings attached,” and instead insisted on building “a future that puts work first.” In particular, he suggests education, workplace benefits and protections, and support for communities burdened by transformation. Due to the technological disruption in the 21st century, UBI has been gaining steam as a solution to inequality and unemployment among titans of Silicon Valley, as well as by voices on both the left and right.
Biden’s focus on the value of work as part of the solution to technological disruption, rather than on a “government check” through UBI, is in stark contrast to Bernie Sanders, who has repeatedly called for guaranteeing a “minimum standard of living” to all Americans through government action. The Democratic party has not always stood for just another “government check,” as demonstrated by FDR’s work programs and Clinton’s support of welfare reform. Whether Biden’s views are an appraisal of the passing scene in his role as an elder statesman, or a sign that someone is starting to push back on the party’s leftward lurch, remains to be seen.
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“BREXIT” OR “BRICS – IT”?
The “BRICS” nations of Brazil, Russia, India, China, and South Africa are thought to represent the future of the global economy. However, a look at the performance of 74 world economies since the turn of the century shows that a number of smaller countries like Vietnam, Bangladesh, Uzbekistan, and Sudan have outperformed larger countries like Brazil, Russia, and South Africa.
While China and India have seen dynamic growth, much of the promise of the “BRICS” – which make up 40 percent of the world’s population and more than a quarter of its land – remains unfulfilled. In an age where Britain is leaving the European Union, Angola’s economy is outperforming Brazil’s, and tensions are rising between “BRICS” members over policy disputes, the durability of the “BRICS” coalition will be tested.
FREEDOM TO GET SUED ACT?
Lawsuits over public records have traditionally been a means of last resort for parties seeking public records from government under the Freedom Of Information Act (FOIA) and its state and local equivalents, but now some government offices are flipping the script, using legal action as a defensive measure to deter requests. Instead of simply confirming or denying public records requests, governments are using lawsuits to stonewall requests for embarrassing or otherwise sensitive information. Even if records are ultimately released, the requester is responsible for legal costs and the government’s actions can intimidate others from requesting records.
Open records laws at all levels of government have been effectively used by watchdogs, journalists, researchers, and individual citizens in order to gain the release of documents and public records. While government officials who have sued requesters say that it’s best for courts to legally determine if records should be released, this trend has concerned freedom-of-information advocates and raises questions about the potential for abuse. With the IRS targeting scandal still fresh in memory and with concerns about civil forfeiture in the news, an ordinary citizen being ensnarled in a legal battle “against a public entity with almost inexhaustible resources” may highlight the need to implement new steps to ensure citizens can hold governments accountable.
MYSTERY IN CUBA
At least 21 American diplomats stationed in Havana, including the top official in charge of security, have been affected by a “blaring, grinding noise” in the middle of the night that has resulted in hearing loss, speech problems, and memory troubles over the past few months. The top U.S. diplomat has called these occurrences “health attacks,” but what is causing them, and who is behind them, remains a mystery.
The Castro government denied involvement, and with Canadian diplomats among the victims as well, even though their government has had cordial relations with Cuba for years, U.S. officials are focusing their investigation on rogue Cuban elements or other state actors. The U.S. embassy remains open as the investigation continues, but concern for the safety of American diplomats may require the U.S. to close the embassy – resulting in further uncertainty regarding U.S.-Cuban relations as President Trump rolls back some of President Obama’s steps toward détente with the Caribbean nation.
LESSONS FROM AMAZON’S WONDERLUST
In announcing its decision to open a second headquarters outside of Seattle, Amazon sent more than 100 municipalities scrambling across the U.S. and Canada to compete for a $5 billion campus and 50,000 new well-paying jobs. This announcement caught Seattle by surprise, and has prompted soul-searching in the city to determine ways to encourage state, local, and business leaders to promote policies that enable companies’ growth.
High-tax and wage policies, rapidly rising housing costs, and traffic congestion are among the frustrations driving Amazon’s search for a “stable business climate for growth and innovation.” Yet in its search for cities willing to give it the most generous corporate tax breaks, which includes cities with deep fiscal challenges, Amazon is tempting state and local leaders to put taxpayers on the hook, which could result in the same high-tax policies they are fleeing in the first place.