dissenting:
Ninety years after Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), it is surprising to learn that plaintiffs in federal court cannot sue the members of an administrative agency with prosecutorial functions, such as the Nevada Commission on Judicial Discipline (Commission), in order to bypass Eleventh Amendment immunity, but must sue the state court (or its judges) that would actually impose the punishment for a violation of the challenged statute or regulation. In every case following Ex Parte Young, it always is true that (as here) the officer named as a defendant “does not have the power [to punish] and does not claim to have that power.” Maj. op. at 987.
In the typical Ex Parte Young case, the defendant is usually a state or county prosecutor who, in the majority’s terms, lacks the ability to enforce the statute under question in the sense of having the power to mete out punishment for its violation. That is the function of the courts. The prosecutor also does not write the statute she or he is enforcing; that is the function of the legislature. Yet, in this case, the majority insists that the members of the Commission are not proper Ex Parte Young defendants although their status and function is exactly like that of a state prosecutor.
Thus, the prosecutor’s ability to enforce a statute is never anything more “than the possible use of persuasion.” Maj. op. at 987. That is the nature of a prosecutor’s function in a system which respects the separation of powers. The relevant fact — a fact the majority dismisses as “only collateral, and of no consequence,” maj. op. at 987 is the one that has guided our Eleventh Amendment jurisprudence for the last ninety years: The Commission “advise[s] the Supreme Court whenever contempt appears to be in order.” *989Id. The Commission is therefore a classic prosecutorial authority and its members the ideal Ex Parte Young defendants.
I.
The majority’s narrow holding is that it is insufficient to name the members of the Commission as defendants in this case, and that suing the Nevada Supreme Court (or perhaps the justices themselves in their official capacities) is the only way to attack the confidentiality restrictions that offend the plaintiffs. The majority observes, correctly, that the Commission possesses general administrative responsibilities in judicial investigations, but that only the Nevada Supreme Court has the power to issue contempt citations. Where the majority errs is in its conclusion that, “It is only collateral, and of no consequence ... that the Commission might advise the Supreme Court whenever contempt appears to be in order....” Id.
That cannot be right. No one thinks that in a typical Ex Parte Young suit, the attorney general-defendant has the power to punish wrongdoers for violating statutes — only courts can do that. The attorney general is nonetheless the proper defendant for Eleventh Amendment purposes because his or her job is to initiate legal proceedings to persuade the courts to enforce the statute, even though some other body ultimately decides whether and what punishment is appropriate. See Ex Parte Young, 209 U.S. at 157, 28 S.Ct. 441 (the state official need only “have some connection with the enforcement of the act”). See also Los Angeles County Bar Ass’n v. Eu, 979 F.2d 697, 704 (9th Cir.1992) (same).
I suspect the confusion in this case comes from the dual roles that the Commission plays in the Nevada legal system. The Commission is a creation of the Nevada Constitution, and its primary function is to discipline judges for wrongdoing. To that end, article 6 § 21 of the Nevada Constitution gives the Commission: (1) the power to investigate judicial wrongdoing; (2) the discretion to initiate proceedings against a judge; (3) the ability to summon witnesses and compel production of evidence; and (4) the power to “[gjrant immunity from prosecution or punishment.” Nev. Const. art. 6 § 21(7), (9). These sound like the Nevada Supreme Court has clarified that the Commission’s function of disciplining judges is an entirely judicial role; and its decisions in that regard are subject to review by the Nevada Supreme Court, just like the decisions of other Nevada courts. Whitehead v. Nevada Comm’n on Judicial Discipline, 110 Nev. 128, 906 P.2d 230, 249-50 & n. 24 (1994).
The Commission, however, is also an administrative agency that exercises prosecuto-rial functions. The Nevada Constitution provides that the Nevada Supreme Court may make rules respecting the confidentiality of all proceedings before the Commission. Nev. Const. art. 6 § 21.5(a). And “the Commission is obligated to accept and apply both the substantive rules of conduct and the rules of procedure as they are stated” by the Nevada Supreme Court. Whitehead, 906 P.2d at 250 n. 24.
More to the point, however, is that, although the Nevada Supreme Court retains the power to adjudicate and to punish for contempt for a violation of its confidentiality rules, the court is powerless to initiate an investigation into an alleged breach of confidentiality. Del Papa v. Steffen, 112 Nev. 369, 915 P.2d 245, 249-50 (1996). Rather, the Nevada constitution requires that such an investigation be initiated by an executive entity. Id. 915 P.2d at 251. Under Nevada law, the Commission is one of several executive entities that is capable of investigating an alleged breach of the confidentiality rules and initiating punishment proceedings. Id. These rules, of course, define the classic relationship between a prosecutor and . a court.
Thus, the Commission is a judicial entity, to the extent that it is disciplining state judges, but when it comes to enforcing the confidentiality rules, it is a typical prosecutorial agency. Because this case involves the confidentiality rules, the Commission’s members are the proper defendants for the same reason that Attorney General Janet Reno was the proper defendant in a suit challenging the constitutionality of the Communications Decency Act, see Reno v. ACLU, — U.S. -, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997); that Governor Pete Wilson and Attorney General *990Daniel E. Lungren were the proper defendants in a suit challenging California’s Proposition 209, see Coalition for Econ. Equity v. Wilson, 122 F.3d 692 (9th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 397, 139 L.Ed.2d 310; and that Attorney General Christine O. Gregoire was the proper defendant in a suit challenging Washington’s Alternative Provider Statute, see Washington Physicians Serv. Ass’n v. Gregoire, 147 F.3d 1039 (9th Cir.1998).
In all of these cases, the named officers could, at most, initiate proceedings to enforce the challenged statute — which is exactly what the Commission does. Those officers had no power to hold wrongdoers in contempt or otherwise to impose any punishment. That, to repeat, is the function of the courts. Thus, it is irrelevant that the Commission, like all prosecutorial authorities, cannot actually impose punishment. To focus on this latter fact and demand that the plaintiffs sue only the defendant capable of issuing a legally binding judgment against them (i.e., the Nevada Supreme Court) is like saying that every suit challenging the constitutionality of a federal statute must name the nine justices of the United States Supreme Court as defendants. I would have thought that Ex Parte Young had forever ended such arguments.
II.
Even if I shared the majority’s view of the Eleventh Amendment, however, I would still dissent. In my opinion, the Commission has imposed a confidentiality requirement on the plaintiffs that is independent of, and broader than, the one imposed by the Nevada Supreme Court. This broader confidentiality requirement is wholly a creation of the Commission; therefore, even under the majority’s view of Eleventh Amendment immunity, the Commission’s members are indubitably the proper defendants in a lawsuit challenging it.
A close reading of the record reveals that the Nevada Supreme Court imposes a much lesser burden on the plaintiffs’ speech than does the Commission. Under the Nevada Supreme Court Rules, Part VII, Rule 5, the plaintiffs must not disclose any materials “received or developed by the commission....” The Commission, however, has unilaterally expanded that confidentiality requirement— and hence the chill on the plaintiffs’ speech— far beyond the scope of Rule 5. The Commission’s complaint form, which a complainant is required to sign before an investigation will commence, requires confidentiality, not only of the materials “received or developed by the Commission,” but also of “the facts concerning [the complaint]”. (Emphasis added.) Indeed, the Commission is so zealous in enforcing the confidentiality requirement, it mandates that “[y]our complaint should not be discussed with anyone other than members of the Commission’s staff, its attorneys and investigators.” (Emphasis added.) Unless this language means something other than what it says, it appears that the plaintiffs cannot discuss the facts underlying their complaint even with their own attorney, let alone family members, friends, the press, or a Department of Justice official investigating allegations of corruption in the Nevada judiciary. Curiously, none of this discussion is banned by the Nevada Supreme Court’s rules. It is only the Commission’s extension of the confidentiality rule to cover the facts underlying the complaint that casts this pall over the First Amendment.1
Clearly, the Commission’s rules have a chilling effect entirely independent of the Nevada Supreme Court’s rules. It is one *991thing to require that documents submitted to a government agency be kept secret, but quite another to forbid a complainant from discussing the facts of his case with his attorney or anyone else. See Kamasinski v. Judicial Review Council, 44 F.3d 106, 109 (2d Cir.1994); cf. Butterworth v. Smith, 494 U.S. 624, 636, 110 S.Ct. 1376, 108 L.Ed.2d 672 (1990) (Scalia, J., concurring) (“[T]here is considerable doubt whether a witness can be prohibited, even while the grand jury is sitting, from making public what he knew before he entered the grand jury room. Quite a different question is presented, however, by a witness’ disclosure of ... not what he knew, but what it was he told the grand jury he knew.”)
The majority, therefore, is simply wrong when it argues that “[t]he contempt chill affecting plaintiffs’ constitutional rights cannot be alleviated by any pressure which the district court might seek to apply on the Commission. Only the Nevada Supreme Court ... can do anything one way or the other about plaintiffs’ contempt chill.” Maj. op. at 987. In fact, a declaratory judgment by the district court that the Commission’s embellishment on the Nevada Supreme Court’s rules is unconstitutionally overbroad would dramatically reduce the chilling effect on the plaintiffs. Hence, the members of the Commission are appropriate defendants under Ex Parte Young, even under the majority’s restricted reading of that case.
The majority, unfortunately, ignores the Commission’s expansion of the Nevada Supreme Court’s confidentiality rale. In the process, it brashes aside the Supreme Court’s admonition to distinguish between greater and lesser levels of the chilling effect. See ACLU, 117 S.Ct. at 2344-45 (recognizing that a greater chilling effect renders a statute more constitutionally suspect); Wisconsin v. Mitchell, 508 U.S. 476, 488-89, 113 S.Ct. 2194, 124 L.Ed.2d 436 (1993) (holding that a minor or speculative -chilling effect does not trigger First Amendment scrutiny).
about the defendants’ Eleventh Amendment status. The plaintiffs are challenging as unconstitutionally overbroad the Nevada Supreme Court’s confidentiality rale in judicial misconduct proceedings. They are suing the members of the agency that “enforces” that rule in the same way that a prosecutor “enforces” a criminal statute. That agency, the Commission, has also interpreted the rale to give it a far broader 'effect than as originally written. Far from being barred by the Eleventh Amendment, this is a classic case for the invocation of Ex Parte Young.
I- dissent from the majority’s contrary holding.2
. The majority asserts that the district court’s reliance on the Wheeler affidavit was "misplaced.” Maj. op. at 988. It further asserts that the Wheeler affidavit "deserves to be disregarded" because it "does not provide substantial evidence that the Commission informed Wheeler that he must sign the confidentiality pledge before action would be taken on his complaint.” Id. With all due respect, I disagree with this analysis. The district court's ruling was made on a Rule 12(b)(6) motion to dismiss. See maj. op. at 986. Contrary to the rules that apply to the determination of such motions, see, e.g., Sosa v. Hiraoka, 920 F.2d 1451, 1455 (9th Cir.1990), the majority seems to be saying that all inferences should be drawn against the plaintiffs. For surely, it can be inferred from the Wheeler affidavit and Wheeler's "understanding” that a Commission agent told him “that no action would be taken by the Commission on plaintiffs' complaint unless plaintiffs would abide by the confidentiality requirements.” At the very least, plaintiffs should be given leave to amend their complaint, rather than our concluding at this stage that they haven’t presented "substantial evidence” on this issue.
. The district court concluded that the defendants did not have Eleventh Amendment immunity from suit under Ex Parte Young. It went on to hold, however, that the plaintiffs lacked Article III standing. Because of the majority's disposition of the Eleventh Amendment immunity issue, it does not reach the plaintiffs’ contention that the district court erred in dismissing the action on Article III standing grounds. I would affirm the district court's holding that Eleventh Amendment immunity does not apply in this case and reach the Article III standing issue.