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The Judiciary Seeks to Bully Congress with Misinformation to Maintain its PACER Slush Fund

New this morning – sources tell Fix the Court that the Administrative Office of the U.S. Courts is mobilizing dozens of judges to lobby their members of Congress to oppose a bipartisan bill that would make PACER free and searchable and would modernize the third branch’s diffuse, complicated and wastefully expensive electronic case management system.

The Open Courts Act (H.R. 8235), introduced by Reps. Hank Johnson (D) and Doug Collins (R) and supported by House Judiciary Chairman Jerry Nadler and Ranking Member Jim Jordan, passed the Committee unanimously on Sept. 15. Now, judges on several different Judicial Conference committees, we’re told, are being equipped with talking points comprising numerous falsehoods in an effort to kill the bill.

Some of the more laughable assertions appearing in the judges’ lobbying materials include:

–        That “free PACER” would cost $2 billion to build (…no serious technologist believes that an online filing system comprising static PDFs would even cost a tenth of that);

–        That free PACER would mean filing fees would have to double or triple (…the bill provides a “pay-for” that keeps filing fees at or near status quo); and

–        That a new, modernized system would not benefit the public (…because the public enjoys paying exorbitant fees to access public documents?).

This escalation is as odd as it is unprecedented in recent history, as there’s no Senate companion bill, and we’re in a lame-duck session. With this being the case, one would presume the third branch would use its political capital to advance efforts to improve judicial security (S. 4711 / H.R. 8591) or add 65 new judgeships to U.S. District Courts (S. 4779) – both purported AO priorities.

What’s more, a federal appeals court ruled earlier this year that the judiciary has been using PACER revenue to pay for non-PACER related programs in violation of federal law, meaning the program is legally in need of an adjustment.

“Federal judges should not be lending their names and reputations to an ill-advised, ethically dubious lobbying effort,” FTC executive director Gabe Roth said. “Instead of waging a campaign of grievance and misinformation, the judiciary ought to work with lawmakers on a legislative fix.”

The lobbying effort also raises ethical concerns. Judiciary policy states that judges should only lobby on issues they are “uniquely qualified to address” (p. 155) that would not compromise their impartiality (cf., Canons 3 and 4A[2]). But judges are not experts on modernizing government IT systems, and they are hardly impartial about preserving what’s widely considered to be the judiciary’s own slush fund, as PACER brings in more than $140 million annually.

The ongoing lawsuit over PACER fees makes this revelation even more ethically troubling. After the Federal Circuit ruled in August that the judiciary had been illegally spending PACER revenue, the court remanded the case to the D.C. District, and preliminary research suggests there is some overlap between the judges who sit on these courts and those being asked to lobby against the Open Courts Act.

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