Congress is weighing a proposal that would deny conservatives a powerful tool for defending their rights in court. Only it isn't Democrats who are behind the push—it's Republicans.
Led by Senator Thom Tillis (R-NC), some GOP lawmakers are seeking to effectively ban what's known as "third-party litigation funding." For years, conservative groups have relied on that funding to challenge Democratic administrations' illegal government overreach and push back against progressive activism.
These lawmakers may not realize it, but they are handing the Left a major victory—one that could set back conservative causes for decades. It's bad policy, and even worse politics. Those lawmakers need to come to their senses before it's too late.
For years, conservatives have warned that the legal system is tilted in favor of those with the most money, the most lawyers, and the most time to drag out a fight. They weren't wrong. In high-stakes litigation, often the question is not who is right, but who can afford to keep going.
Third-party litigation funding emerged to address this imbalance. Under these arrangements, outside investors agree to finance lawsuits in exchange for a share of any damages awarded should the case succeed.
Not surprisingly, this funding strategy has been a game-changer for plaintiffs—and particularly conservative plaintiffs—who might otherwise lack the resources to mount a legal case against a Big Tech company or some other deep-pocketed defendant.
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Individuals and organizations on the Right have mounted some of the most resource-intensive legal fights in the country. When religious organizations challenged federal mandates they believed violated their beliefs, those cases dragged on for years against the full weight of the federal government. And when advocacy groups have fought to defend free speech rights, they have often done so against well-funded opponents willing to spend whatever it takes to win.
Just look at what happened after the Internal Revenue Service (IRS) began targeting conservative groups. Those organizations spent years pursuing accountability through the courts, ultimately securing a settlement and formal acknowledgment of wrongdoing.
That outcome did not come quickly or cheaply—and without the ability to sustain prolonged litigation, it likely never would have come at all.
Now consider what Sen. Tillis and his allies are proposing. Their plan would impose a steep federal tax on the money earned by litigation funders. They also want to add extensive disclosure requirements that could expose who is backing a particular case.
Forcing plaintiffs to reveal their financial supporters risks exposing these backers to harassment, retaliation, or public pressure campaigns. In today’s political climate, even small-dollar donors can face serious consequences for their views. A chilling example of this is Brendan Eich, who was removed from a company he founded simply because he donated a small amount of money to the "wrong" cause.
Any effort to impose punitive taxes on third-party litigation funding and intimidate funders into backing away from conservative groups' lawsuits will cause that funding to dry up—and leave right-wing activists hard-pressed to defend our liberties in court.
Taken together, these changes would cut off a source of capital that has quietly sustained many of the Right's most important legal battles. One expects this kind of lawfare from Democrats. The Republicans backing this are failing to understand the unintended consequences of their proposed laws. It’s time for them to think through the full consequences of their efforts and change course.
Thad Butterworth is a small-business owner, consultant, and author who currently serves as the Chairman of the Ada County Republican Central Committee.
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