Stifling speech – This Time in Court

In their aptly-titled pieceSilencing a Watchdog Anthony J. Franze and R. Stanton Jones of Arnold & Porter denounce the government’s effort to block the filing of an amicus brief by the Citizens for Responsibility and Ethics in Washington (CREW). Long story short: CREW does not buy the government’s case against John Edwards. The government argues that asking wealthy friends for cash to keep Rielle Hunter quiet was the same as accepting contributions exceeding the legal limits. And the government doesn’t want CREW’s dissenting arguments being made in court.

Amicus briefs (sometimes called ‘friend of the court briefs’) allow third parties to chime in on issues before a court.  Usually, these briefs point out other rationales or introduce new evidence that the parties may have missed or chosen not to argue. Amicus briefs ensure that the court gets a 360-degree view of the issues, and understands the full ramifications of a decision.  For example, CCP recently filed an amicus brief before the Ninth Circuit, arguing against contribution limits for recall committees, but using a different rationale from that argued by the appellee.

Because amicus briefs can be so helpful, most courts have a very permissive attitude toward permitting amici to file.  CREW is a frequent filer (often on behalf of the government); and their amicus brief in the Edwards case presents a compelling argument that the government’s novel case is simply bunk.  

As Mr. Fraze and Mr. Stanton point out, it is dangerous for the government to suggest courts pick and choose which friends of the court make it through the courtroom doors.  After all, we all know that the current administration is strongly pro-campaign regulation.  For them to engage in what has the “appearance” of viewpoint discrimination against CREW’s challenge is as inappropriate as it would have been for the previous administration to block amicus briefs filed by the ACLU concerning Guantanamo.

Ultimately these questions lie in the Court’s hands. Hopefully it will realize that constitutional litigation presents issues affecting all of society, and the government’s attempt to have the debate to itself will backfire.