In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1713
T HE H ONORABLE JOHN S IEFERT,
Plaintiff-Appellee,
v.
JAMES C. A LEXANDER, et al., in their
official capacity as members of the
Wisconsin Judicial Commission,
Defendants-Appellants.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 08-cv-126-bbc—Barbara B. Crabb, Judge.
A RGUED S EPTEMBER 17, 2009—D ECIDED JUNE 14, 2010
Before F LAUM, R OVNER, and T INDER, Circuit Judges.
T INDER, Circuit Judge. The plaintiff, John Siefert, is
an elected Wisconsin circuit court judge in Milwaukee
County. He would like to state his affiliation with
the Democratic Party, endorse partisan candidates for
office, and personally solicit contributions for his next
election campaign, but is concerned because these
2 No. 09-1713
activities are prohibited by the Wisconsin Code of
Judicial Conduct. Rather than violate the code and face
discipline, Siefert filed suit under 42 U.S.C. § 1983 for
declaratory and injunctive relief against the members of
the Wisconsin Judicial Commission, the body that
enforces the Code of Judicial Conduct. After con-
sidering the parties’ cross-motions for summary judg-
ment, the district court granted Siefert’s motion,
declared the rules prohibiting a judge or judicial
candidate from announcing a partisan affiliation, en-
dorsing partisan candidates, and personally soliciting
contributions unconstitutional, and enjoined the defen-
dants from enforcing these rules against Siefert. The
Commission appeals. We affirm the district court’s
holding on the partisan affiliation ban but reverse the
district court’s ruling that the bans on endorsing
partisan candidates and personally soliciting contribu-
tions are unconstitutional.
I. Background
Plaintiff John Siefert was first elected to the circuit
court for Milwaukee County in 1999 and has served as a
judge since. Prior to being elected a circuit court judge,
he was a member of the Democratic Party and partici-
pated in a number of partisan activities. He served as a
delegate to the Democratic National Convention, twice
ran as a Democrat for the state legislature, twice ran as
a Democrat for county treasurer (holding that office
from 1990 to 1993), and served as an alternate elector
for President Bill Clinton in 1992. He would like to
No. 09-1713 3
once again join the Democratic Party and list his party
membership in response to candidate questionnaires.
He believes membership in the Democratic Party would
communicate his desire for social justice and peace,
but does not wish to appeal to partisanship as a
candidate or as a judge. Siefert would also like to
endorse partisan candidates for office. At the time he
initiated this suit, he sought to endorse now-President
Barack Obama; he expressed a desire to endorse
Jim Doyle for governor of Wisconsin in 2010 1 and
President Obama if he decides to run for reelection in
2012. Finally, Siefert would like to solicit contributions
for his upcoming 2011 campaign by making phone calls
to potential contributors, signing his name to fundraising
letters, and by personally inviting potential donors to
fundraising events. He would continue to use a
campaign committee to handle the ministerial tasks of
fundraising and to collect and report donations.
The defendants are the executive director and members
of the Wisconsin Judicial Commission (the “Commission”).
The Commission investigates and prosecutes potential
violations of the Wisconsin Code of Judicial Conduct. The
Commission also issues, from time to time, advisory
opinions on the interpretation of the Code of Judicial
Conduct.
1
Jim Doyle has since announced that he will not run for an-
other term as governor. See Lee Bergquist, Stacy Forster &
Patrick Marley, Doyle Won’t Seek Reelection in 2010, Milwaukee
Journal Sentinel, Aug. 15, 2009, available at http://www.
jsonline.com/news/statepolitics/53302852.html.
4 No. 09-1713
Wisconsin conducts two sets of elections; one set
(i.e., a primary and then general election) is held in
the spring for positions filled through nonpartisan elec-
tions and the other is held in the fall for the partisan
elected positions. Nonpartisan officeholders include
judges of the circuit courts, court of appeals, and
supreme court, as well as the state superintendent of
public instruction, county board members, county execu-
tives, and municipal and school district officers. The
election for these positions is nonpartisan in the sense
that all candidates (who meet the eligibility require-
ments) appear on the ballot without party identification.
Similarly, political parties have no power to slate candi-
dates in the nonpartisan election. Wis. Const. art. VII, § 9;
Wis. Stat. §§ 5.58, 5.60. A spring primary is necessary
if more than two candidates meet the nomination re-
quirements for a nonpartisan position. The top two vote-
getters in the primary proceed to the nonpartisan
April election, which is, in essence, a runoff. Wis. Stat.
§ 8.11; Wis. Blue Book 884 (2009-10). If only one or
two candidates meet the nomination requirements,
no primary is necessary. (Practically, it appears that
incumbent judges, at least recently, are rarely chal-
lenged, and if so, are challenged by one opponent only
and thus subject to only one election in April. See
Laurel Walker, Judicial Selections Not Quite Non-Partisan,
Milwaukee Journal Sentinel, Dec. 25, 2009, available
at http://www.jsonline.com/news/statepolitics/80121422.
html). Voting for offices filled through partisan elections,
including sheriff and district attorney, takes place in
the fall with a primary election to choose a single
No. 09-1713 5
candidate for each of the two major parties, followed
shortly thereafter by a head-to-head partisan general
election. Wis. Blue Book 884; see Wis. Stat. §§ 5.64, 8.16.
Party affiliation has been absent from the ballot in
Wisconsin’s judicial elections since 1913, and the district
court found, based on the work of a historian employed
by the Commission, that a tradition of nonpartisanship
had taken hold among judicial candidates even earlier.
However, Wisconsin did not expressly prohibit judges
from joining a political party until 1968, when it adopted
a comprehensive code of judicial conduct. See Charles D.
Clausen, The Long and Winding Road: Political and
Campaign Ethics Rules for Wisconsin Judges, 83 Marq. L. Rev.
1, 2-3 (1999). In October 2004, the supreme court
amended the code to extend a number of rules to cover
judicial candidates in addition to sitting judges, including
the prohibitions on party membership, partisan endorse-
ments, and personal solicitation of campaign contribu-
tions. See Wisconsin Supreme Court Order 00-07, 2004 WI
134 (Oct. 29, 2004).
The plaintiff challenges three distinct provisions of the
rules adopted in 2004. The challenged provisions are all
contained in Wisconsin Supreme Court Rule 60.06:
SCR 60.06 A judge or judicial candidate shall
refrain from inappropriate political activity.
...
(2) Party membership and activities.
(a) Individuals who seek election or appointment
to the judiciary may have aligned themselves
6 No. 09-1713
with a particular political party and may have
engaged in partisan political activities. Wisconsin
adheres to the concept of a nonpartisan judiciary.
A candidate for judicial office shall not appeal
to partisanship and shall avoid partisan activity
in the spirit of a nonpartisan judiciary.
(b) No judge or candidate for judicial office or
judge-elect may do any of the following:
1. Be a member of any political party.
2. Participate in the affairs, caucuses,
promotions, platforms, endorsements,
conventions, or activities of a political
party or of a candidate for partisan office.
3. Make or solicit financial or other
contributions in support of a political
party’s causes or candidates.
4. Publicly endorse or speak on behalf
of its candidates or platforms.
(c) A partisan political office holder who is
seeking election or appointment to judicial office
or who is a judge-elect may continue to engage in
partisan political activities required by his or
her present position.
...
(4) Solicitation and Acceptance of Campaign
Contributions. A judge, candidate for judicial
office, or judge-elect shall not personally solicit
or accept campaign contributions. A candidate
No. 09-1713 7
may, however, establish a committee to solicit and
accept lawful campaign contributions. The com-
mittee is not prohibited from soliciting and ac-
cepting lawful campaign contributions from law-
yers. A judge or candidate for judicial office
or judge-elect may serve on the committee but
should avoid direct involvement with the com-
mittee’s fundraising efforts. A judge or candidate
for judicial office or judge-elect may appear at
his or her own fundraising events. When the
committee solicits or accepts a contribution, a
judge or candidate for judicial office should also
be mindful of the requirements of SCR 60.03
and 60.04(4).
Siefert challenges the ban on party membership in SCR
60.06(2)(b)1, the ban on partisan endorsements in SCR
60.06(2)(b)4, and the ban on personal solicitation of cam-
paign contributions in SCR 60.06(4). He does not chal-
lenge the ban on “appeal[s] to partisanship and . . .
partisan activity” in SCR 60.06(2)(a) or the balance of
SCR 60.06(2)(b). Nor does he challenge SCR 60.05,
which directs judges to conduct their extra-judicial activi-
ties in a manner that does not cast doubt on the judge’s
capacity to act impartially, demean the judicial office,
or interfere with the proper performance of judicial duties.
II. Discussion
A little background on the law surrounding the First
Amendment rights of elected judges and judicial candi-
dates is helpful to understanding what follows. In 2002,
8 No. 09-1713
the Supreme Court decided Republican Party of Minn. v.
White (White I), 536 U.S. 765 (2002). White I struck down
a Minnesota canon of judicial conduct that prohibited
judges and judicial candidates from announcing their
views on disputed legal and political issues. Id. at 788.
The Court, applying a strict scrutiny approach, recog-
nized a compelling state interest in preventing bias for
or against particular litigants, but held that the state
did not have a compelling interest in preventing a
judge from having a preconception for or against
particular views. Id. at 776-77.
At the same time, White I left open some of the ques-
tions we deal with today. Justice Kennedy, a member of
the five-vote majority and author of a separate concur-
rence, noted specifically that states are obligated to regu-
late the behavior of their judges to protect the integrity
of their courts. “To strive for judicial integrity is
the work of a lifetime. That should not dissuade the pro-
fession. The difficulty of the undertaking does not mean
we should refrain from the attempt.” Id. at 794
(Kennedy, J., concurring). Justice Kennedy noted that
elected judges “have discovered in the law the enlighten-
ment, instruction, and inspiration that make them
independent-minded and faithful jurists of real integ-
rity.” Id. at 796. We think it beyond doubt that states
have a compelling interest in developing, and indeed
are required by the Fourteenth Amendment to develop,
these independent-minded and faithful jurists. See
Caperton v. A.T. Massey Coal Co., Inc., 129 S. Ct. 2252, 2259
(2009); In re Murchison, 349 U.S. 133, 136 (1955). State
rules are the means of their development. White I, 536
U.S. at 794 (Kennedy, J., concurring).
No. 09-1713 9
But White I makes clear that there are boundaries to the
state’s regulation of judicial elections. On remand, the
Eighth Circuit, adopting the Supreme Court’s strict
scrutiny approach from White I, invalidated Minnesota’s
ban on partisan activities by judges and the portion of
Minnesota’s ban on direct solicitation of contributions
that prohibited judges from signing fundraising letters
or speaking to large groups of potential donors at
fundraisers. Republican Party of Minnesota v. White (White
II), 416 F.3d 738, 754, 765-66 (8th Cir. 2005) (en banc).
Siefert relies heavily on these cases to challenge Wis-
consin’s code of judicial conduct, which contains provi-
sions that are similar but not identical to those at issue
in White II.
The Commission relies on two government employ-
ment cases, U.S. Civil Serv. Comm’n v. Nat’l Assoc. of
Letter Carriers, 413 U.S. 548 (1973) and Garcetti v. Ceballos,
547 U.S. 410 (2006), to argue that a less stringent standard
applies. Letter Carriers upheld the constitutionality of
Section 9(a) of the Hatch Act, which prohibited
federal employees from taking “an active part in political
management or in political campaigns.” Garcetti dis-
missed a § 1983 claim brought by a deputy district
attorney who claimed that his employer, a county, took
adverse employment action against him after he wrote
a memorandum in which he recommended dismissal of
a criminal case based on government misconduct, and
that this action amounted to retaliation for exercising
his First Amendment right to free speech. Both of
these cases in turn relied on the deferential standard of
review articulated in Pickering v. Bd. of Ed. of Twp. High
10 No. 09-1713
Sch. Dist. 205, Will County, Ill., 391 U.S. 563 (1968), which
balances the public employee’s right to speak out on
matters of public concern against the government’s
interest in “promoting the efficiency of the public services
it performs through its employees.” Id. at 568. In White I,
the Supreme Court reserved the question of whether
this line of cases could justify restrictions on the speech
“of judges because they are judges.” 536 U.S. at 796 (Ken-
nedy, J., concurring) (“Whether the rationale of Pickering
v. Board of Ed. of Township High School Dist. 205, Will
Cty., and Connick v. Myers could be extended to allow
a general speech restriction on sitting judges—regardless
of whether they are campaigning—in order to promote
the efficient administration of justice, is not an issue
raised here.” (internal citations omitted)).
The Commission is correct that, ordinarily, govern-
mental entities have some leeway to proscribe certain
categories of speech among citizens to promote the
efficient performance of governmental functions. See
Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876, 899
(2010) (collecting cases). “[T]here are certain govern-
mental functions that cannot operate without some re-
strictions on particular kinds of speech.” Id. The First
Amendment allows, for instance, certain prohibitions
on students’ use of vulgar terms at school, Bethel Sch.
Dist. No. 403 v. Fraser, 478 U.S. 675, 683 (1986), state em-
ployees’ speech about working conditions, Connick v.
Myers, 461 U.S. 138, 146 (1983), prisoners’ union-organizing
activity, Jones v. N.C. Prisoners’ Labor Union, 433 U.S. 119,
131-32 (1977), military members’ dissent, Parker v. Levy,
417 U.S. 733, 758 (1974), federal employees’ political
No. 09-1713 11
activity, Letter Carriers, 413 U.S. at 564, state employees’
political activity, Broadrick v. Oklahoma, 413 U.S. 601, 616
(1973), and public school teachers’ speech, Pickering, 391
U.S. at 568. But White I is clear that in the context of
elections, judges are free to communicate their ideas to
voters. Much of our discussion involves our attempt to
harmonize these two strains of First Amendment law.
A. SCR 60.06(2)(b)1: Party Membership
SCR 60.06(2)(b)1 states that “No judge or candidate for
judicial office or judge-elect may . . . [b]e a member of
any political party.” We think this rule falls squarely
within the ambit of the Supreme Court’s analysis in
White I. Just as in White I, the party affiliation ban
forbids “speech on the basis of its content and
burdens a category of speech that is ‘at the core of
our First Amendment freedoms’—speech about the
qualifications of candidates for public office.” White I,
536 U.S. at 774. We agree with Judge Siefert that the
partisan affiliation ban acts to prohibit his speech on
both his political views and his qualifications for office.
Therefore, the clause is a content-based restriction on
speech subject to strict scrutiny. Id.; United States. v.
Playboy Entm’t Group, Inc., 529 U.S. 803, 813 (2000).
To survive strict scrutiny, SCR 60.06(2)(b)1 must be
narrowly tailored to serve a compelling state interest.
White I, 536 U.S. at 774-75. To show that a restriction on
speech is narrowly tailored, the state must show that
it “does not ‘unnecessarily circumscrib[e] protected ex-
12 No. 09-1713
pression.’ ” Id. at 775 (citing Brown v. Hartledge, 456 U.S.
45, 54 (1982)).
The Commission argues that the ban is necessary to
preserve both “impartiality,” defined as the “absence
of bias or prejudice in favor of, or against, particular
parties, or classes of parties, as well as maintaining an
open mind in considering issues that may come before
the judge,” SCR 60.01(7m), and the appearance of impar-
tiality.2
In White I, the Supreme Court cautioned against vague
invocations of “impartiality.” 536 U.S. at 775. Insofar
as impartiality refers to “the lack of bias for or against
either party to the proceeding,” it is a compelling state
interest. Id. (emphasis in original). This is consistent
with the constitutional guarantee of due process, which
requires recusal in cases where there is a strong prob-
ability of “actual bias.” See, e.g., Caperton, 129 S. Ct. at
2265 (holding that due process required a justice of the
West Virginia Supreme Court of Appeals to recuse
himself from a case involving a company whose
president spent approximately $3 million to elect the
justice while the company’s appeal was pending). On
the other hand, the White I Court squarely rejected
2
The Commission also argues that “nothing in the Constitu-
tion requires Wisconsin to establish a partisan judiciary.”
However, this is not a case about whether partisan affiliation
will appear on the ballot, whether parties will play a formal
role in nominating judicial candidates for the general election,
or any of the other mechanics of the electoral process.
No. 09-1713 13
the argument that a state has a compelling interest in
guaranteeing that judges do not have a “preconception
in favor of or against a particular legal view.” 536 U.S. at
777 (emphasis in original). We not only allow, but
expect, judges to have preconceived views on legal
issues. See Laird v. Tatum, 409 U.S. 824, 835 (1972) (mem.
of Rehnquist, J.) (“Proof that a Justice’s mind at the time
he joined the Court was a complete tabula rasa in the
area of constitutional adjudication would be evidence of
lack of qualification, not lack of bias.”). Finally,
the White I Court left open the possibility that “open-
mindedness”—the willingness to consider opposing
views and remain open to persuasion—is a compelling
state interest. 536 U.S. at 778. Because the Court found
that the canon at issue did not serve the interest of open-
mindedness, it did not decide whether such an interest
was in fact compelling. Id.
The crux of the state’s concern here seems to be that a
judge who publicly affiliates with a political party
has indicated that he is more inclined toward that
party’s stance on the variety of legal issues on which
that party has a position. But that is the purported compel-
ling state interest that White I squarely rejected. 536 U.S.
at 777-78. The state does not have a compelling interest
in preventing candidates from announcing their views
on legal or political issues, let alone prohibiting them
from announcing those views by proxy.3 Nor can casting
3
Wisconsin’s politics, like our nation’s, are dominated by two
large parties which are by no means ideologically homogenous.
(continued...)
14 No. 09-1713
the argument in terms of the “appearance of bias” save
it—because “avoiding judicial preconceptions on legal
issues is neither possible nor desirable, pretending other-
wise by attempting to preserve the ‘appearance’ of that
type of impartiality can hardly be a compelling state
interest either.” Id. at 778.
The Commission also argues that the ban on party
affiliation is designed to prevent bias for or against
parties to a particular case, or the appearance of that
bias. While this interest was certainly recognized in
White I, this rule is not tailored to it.4 Arguably, party
membership is an association that could call into
3
(...continued)
Even on the most polarizing issues, party membership is a
significantly less accurate proxy for a candidate’s views on
contested issues than membership in special interest or advo-
cacy groups, which the Wisconsin Code of Judicial Conduct
does not expressly prohibit. Relying on an advisory opinion
issued by the Commission, the defendants argue that the
Code prohibits judges and judicial candidates from taking a
leadership role in groups such as the Sierra Club or Mothers
Against Drunk Driving, which advocate “social goals
through litigation and legislative action.” Regardless of
whether Wisconsin courts eventually adopt the Commission’s
interpretation of the Code, the flat ban in SCR 60.06(2)(b)1 treats
party membership more harshly than any other affiliation.
4
The Commission does not articulate an argument that SCR
60.06(2)(b)1 furthers impartiality in the sense of open-
mindedness, so we need not decide to what extent, if any,
this interest is compelling.
No. 09-1713 15
question the impartiality of a judge when sitting on a
case involving that party, or perhaps that party’s main
rival. But see White II, 416 F.3d at 755 (“[T]he fact that
the matter comes before a judge who is associated with
the Republican or Democratic Party would not implicate
concerns of bias for or against that party unless the
judge were in some way involved in the case beyond
simply having an ‘R’ or ‘D’ . . . after his or her name.”)
However, nothing in the record suggests that political
parties themselves are such frequent litigants that it
would be unworkable for a judge who chooses to affiliate
with a political party to recuse himself when necessary.
The Commission attacks the practicality of recusal by
arguing that a judge who declared a partisan affiliation
would have to recuse himself in every case where a
party member was a litigant, or where the political party
was supporting a particular outcome, making recusal
impractical. But this significantly overstates the likelihood
of bias toward particular litigants. Membership in a
political party is not the same as membership in a
smaller, more cohesive organization. Furthermore,
mere membership does not connote the type of intricate
relationship with party politics that would create the
appearance of bias. Without some specific, individualized
relationship, the affiliation between a judge who is a
member of a political party and other members of that
political party is simply too diffuse to make it reasonable
to assume that the judge will exhibit bias in favor of his
fellow party members. Indeed, twelve states employ
partisan elections with respect to at least some judge-
ships. See American Judicature Society, Methods of Judicial
16 No. 09-1713
Selection, http://www.judicialselection.us/judicialselection/
methods/selection_of_judges.cfm?state= (last visited June
9, 2010) (identifying Alabama, Illinois, Indiana, Kansas,
Louisiana, New Mexico, New York, Ohio, Pennsylvania,
Tennessee, Texas and West Virginia as states that employ
partisan judicial elections). There is no evidence to
suggest that these states have faced an unworkable
number of recusals as a result of their partisan judicial
elections, nor that their partisan system of elections
works a denial of due process. Cf. White I, 536 U.S. at 776
(noting that due process requires an “impartial” judge
in the sense of a judge lacking a bias for or against either
party to a proceeding). In short, defendants have failed
to show why recusal, which does not restrict speech, is
an unworkable alternative to Wisconsin’s ban on judges
and judicial candidates announcing a party affiliation.
B. SCR 60.06(2)(b)4: Endorsement of Partisan Candi-
dates
SCR 60.06(2)(b)4 prohibits judges and judicial candidates
from “[p]ublicly endors[ing] or speak[ing] on behalf” of
any partisan candidate or platform. Judge Siefert argues
that, like the choice to identify as a member of the Demo-
cratic Party, the choice to endorse another candidate is
simply a means of expressing his political views. We
disagree. An endorsement is a different form of speech
that serves a purpose distinct from the speech at issue in
White I and in the party identification rule discussed above.
Accordingly, we believe that it should be subject to a
distinct analysis. In keeping with a long line of Supreme
No. 09-1713 17
Court precedent determining the rights of government
employees going back to at least Ex Parte Curtis, 106 U.S.
371 (1882), a balancing approach, not strict scrutiny, is
the appropriate method of evaluating the endorsement
rule.
While the First Amendment “has its fullest and most
urgent application to speech uttered during a campaign
for political office,” Citizens United, 130 S. Ct. at 898
(citing Eu v. San Francisco County Democratic Cent. Comm.,
489 U.S. 214, 223 (1989) (internal quotation omitted)); see
also White I, 536 U.S. at 774 (noting that “speech about the
qualifications of candidates for public office” is “at the
core of our First Amendment freedoms”), a public en-
dorsement does not fit neatly in that category. Endorse-
ments are not simply a mode of announcing a judge’s
views on an issue, or a shorthand for that view. In fact,
the American Bar Association model code from which
the rule is derived justifies the restriction on endorse-
ment based on the danger of “abusing the prestige of
judicial office to advance the interests of others.” Model
Code of Judicial Conduct R. 4.1 cmt. [4] (2007). The Com-
mission identifies its interest in the rule as an attempt to
preserve the appearance of impartiality in the judiciary.
Appellant’s Br. at 36.
While an interest in the impartiality and perceived
impartiality of the judiciary does not justify forbidding
judges from identifying as members of political parties, a
public endorsement is not the same type of campaign
speech targeted by the impermissible rule against party
affiliation in this case or the impermissible rule against
18 No. 09-1713
talking about legal issues the Supreme Court struck down
in White I. As Judge Siefert notes, “[e]ndorsements pri-
marily benefit the endorsee, not the endorser” and en-
dorsements may be exchanged between political actors
on a quid pro quo basis. Appellee’s Br. at 37 & n.11. This
amounts to a concession that offering an endorsement
is less a judge’s communication about his qualifications
and beliefs than an effort to affect a separate political
campaign, or even more problematically, assume a role
as political powerbroker.
This distance between an endorsement and speech
about a judge’s own campaign justifies a more deferential
approach to government prohibition of these endorse-
ments. See Letter Carriers, 413 U.S. at 556; United Pub.
Workers of Am. v. Mitchell, 330 U.S. 75, 99 (1947); see also
Biller v. U.S. Merit Sys. Prot. Bd., 863 F.2d 1079, 1089 (2d Cir.
1988) (noting that the Supreme Court has drawn a
careful line between “partisan political activities” and
“mere expressions of views”). When judges are speaking
as judges, and trading on the prestige of their office to
advance other political ends, a state has an obligation to
regulate their behavior. We thus see a dividing line be-
tween the party affiliation rule, which impermissibly
bars protected speech about the judge’s own campaign,
and the public endorsement rule, which addresses a
judge’s entry into the political arena on behalf of his
partisan comrades. See Citizens United, 130 S. Ct. at
899 (noting that while political speech restrictions are
subject to strict scrutiny, “a narrow class of speech restric-
tions” are constitutionally permissible if “based on an
interest in allowing governmental entities to perform
No. 09-1713 19
their functons.”). We note that Citizens United, even as it
broadly prohibited restrictions on “political speech,”
reconfirmed the validity of the Letter Carriers line of
cases, which specifically targeted political activity by
government employees. Id. And we reiterate that the
Supreme Court’s holding in White I does not neces-
sarily forbid any regulation of a judge’s speech. In fact,
Justice Kennedy’s concurrence indicates just the oppo-
site. Furthermore, unlike restrictions designed, for exam-
ple, to regulate federal employees’ political activity,
restrictions on judicial speech may, in some circum-
stances, be required by the Due Process Clause. This
provides a state with a sufficient basis for restricting
certain suspect categories of judicial speech, even political
speech. The only question is whether a ban on public
endorsements serves this state interest.
Judge Siefert argues that judges are different from
“employees” because they are more akin to legislative
actors who are “ultimately accountable to the voters.” See
Jenevien v. Willing, 493 F.3d 551, 558 (5th Cir. 2007). How-
ever, this conception of a judge’s role is improperly
limited. The Hatch Act, as considered in Letter Carriers,
was not confined to low-level bureaucrats, but covered
the entire executive branch of the federal government,
with specific exemptions for the President, Vice President,
and “specified officials in policy-making positions.”
Letter Carriers, 413 U.S. at 561. While Wisconsin judges
receive job evaluations from the voting public, they are
employed in the essential day-to-day task of operating a
judicial system that must not only be fair and impartial,
but must also appear to the public to be fair and impar-
20 No. 09-1713
tial. To the extent that Wisconsin chooses to restrict those
employed to perform important judicial functions from
being in the business of trading political endorsements,
important due process interests are served.
Furthermore, while Garcetti, Connick, Letter Carriers, and
Pickering all concern public employees, the ability of the
government to regulate the speech of the employees in
those cases is not solely dependent on its authority as
an employer. See Connick, 461 U.S. at 143-44 (tracing the
development of the law in this area). Instead, by the time
it decided Pickering, the Supreme Court had recognized
that the doctrine that the government was allowed to
subject its employees “to any conditions, regardless of
how unreasonable” had been “uniformly rejected.”
Pickering, 391 U.S. at 568 (citation omitted). “At the same
time it cannot be gainsaid that the State has interests as
an employer in regulating the speech of its employees
that differ significantly from those it possesses in con-
nection with regulation of the speech of the citizenry
in general. The problem in any case is to arrive at a
balance between the interests of the [employee], as a
citizen, in commenting upon matters of public concern
and the interest of the State, as an employer, in pro-
moting the efficiency of the public services it performs
through its employees.” Id.; see also Mitchell, 330 U.S. at 96
(“Again this Court must balance the extent of the guaran-
tees of freedom against a congressional enactment to
protect a democratic society against the supposed evil
of political partisanship by classified employees of the
government.”). The rationale behind government restric-
tion identified in Pickering, therefore, is related both to
No. 09-1713 21
the government’s power as an employer and its duty
to promote the efficiency of the public services it per-
forms. Here, we emphasize again, we are not con-
cerned merely with the efficiency of those services, but
that the work of the judiciary conforms with the due
process requirements of the Constitution; this tips the
balance even more firmly in favor of the government
regulation.
The observation that elected judges are “ultimately
accountable to the voters” seems irrelevant to the due
process issue. A judge must also be accountable to her
responsibilities under the Fourteenth Amendment. It is
small comfort for a litigant who takes her case to state
court to know that while her trial was unfair, the judge
would eventually lose an election, especially if that
litigant were unable to muster the resources to combat
a well-financed, corrupt judge around election time.
As Justice Kennedy pointed out in his concurrence in
White I, state rules fill the gap between elections in order
to develop the fair jurists to whom each litigant is enti-
tled. White I, 536 U.S. at 794 (Kennedy, J., concurring).
So, as in Pickering, we have to find the balance between
the state’s interest and the judge’s. Under the Pickering
approach, narrow tailoring is not the requirement; the
fit between state interest and regulation need not be so
exact. Instead, the state’s interest must be weighed
against the employee’s interest in speaking. Pickering,
391 U.S. at 568; Bridges v. Gilbert, 557 F.3d 541, 549 (7th
Cir. 2009). And the state’s interest in the endorsement
regulation is a weighty one. Due process requires both
22 No. 09-1713
fairness and the appearance of fairness in the tribunal.
“[T]o perform its high function in the best way, ‘justice
must satisfy the appearance of justice.’ ” Murchison, 349
U.S. at 136 (citing Offutt v. United States, 348 U.S. 11, 14
(1954)). The Commission’s concern is that judges who
“publicly endorse or speak on behalf of [a party’s] candi-
dates or platforms” undermine this appearance of impar-
tiality.
At the same time, the constitutional protection in a
political endorsement is tempered by the limited com-
municative value of such an endorsement. Judge Siefert
concedes that endorsements may be less about communi-
cating one’s qualifications for office than bolstering
another politician’s chances for office. Appellee’s Br. at
37 & n.11. While White I teaches us that a judge who
takes no side on legal issues is not desirable, a judge
who takes no part in political machinations is.
The Conference of Chief Justices, as amicus, points to
the same quid pro quo concerns conceded by Judge
Siefert to justify the endorsement ban. “Without this
rule, judicial candidates and judges-elect could elicit
promises from elected officials, including local prosecutors
and attorneys general, in exchange for their endorse-
ment.” Br. of Conf. of Chief Justices, amicus, at 23. The
Commission justifies its interest in the ban based on the
danger that parties whom the judge has endorsed may
appear in the judge’s court, and argues that the risk of
bias is not mitigated by the remedy of recusal, due to both
the volume of litigation involving the government in
Wisconsin and the number of small circuit courts in
No. 09-1713 23
Wisconsin, where recusal would be impracticable. Both
the Commission’s and the Chief Justices’ concerns are
valid. Any suggestion that the rule should only
forbid Judge Siefert from making endorsements while
identifying himself as “Judge” is dubious (he would be
prohibited from using his title anyway by SCR 60.03(2));
the Commission is entitled to believe that simply
removing the honorific “judge” will not conceal Siefert’s
true identity from the public.
Judge Siefert, arguing for a strict scrutiny standard,
suggests that the availability of recusal, a less restric-
tive alternative to the ban on endorsements, dooms the
prohibition. The example Judge Siefert uses to dispute
the Commission’s argument that recusal is too onerous
for some of its courts—his endorsement of President
Obama—is a particularly good example of why strict
scrutiny is the inappropriate inquiry. The value of that
endorsement to the President would be directly
congruent to Judge Siefert’s status in the community, the
publicity his endorsement would engender, and the
narrowness of the margin in public support for the Presi-
dent. While all of these factors enhance the value of the
endorsement, they similarly enhance its problematic
nature. A local judge who tips the outcome of a close
election in a politician’s favor would necessarily be a
powerful political actor, and thus call into question the
impartiality of the court. Conversely, if Judge
Siefert’s public endorsement carried no weight, why
preserve his right to make this public endorsement by
jeopardizing the efficiency of Wisconsin’s courts? See
Broadrick, 413 U.S. at 613 (“Application of the overbreadth
24 No. 09-1713
doctrine in this manner is, manifestly, strong medicine.
It has been employed by the Court sparingly and only as
a last resort.”). Once we accept that public endorse-
ments are not the type of speech contemplated in White I,
our task is to balance the value of the rule against the
value of the communication. The concerns the Com-
mission and its amici articulated also speak to a broader
concern that freely traded public endorsements have the
potential to put judges at the fulcrum of local party
politics, blessing and disposing of candidates’ political
futures. Given that Wisconsin’s interest in preventing its
judges’ participation in politics unrelated to their cam-
paigns is justified based on its obligations under the Due
Process Clause, as well on its obligation to prevent the
appearance of bias from creeping into its judiciary, and
that the endorsement restriction does not infringe on
a judge’s ability to inform the electorate of his qualifica-
tions and beliefs, the regulation is permissible.
We note that the rule only bans endorsements in
partisan elections. Wisconsin also holds nonpartisan
elections for judges, as well as the state superintendent
of public education, county board members, county
executives, and municipal and school district officers.
Wis. Blue Book 884; see Wis. Stat. §§ 5.58, 5.60. According
to the text of the rule (“No judge or candidate for
judicial office . . . may publicly endorse or speak on
behalf of [a political party’s] candidates or platforms”),
endorsements in these nonpartisan elections may be
freely given. Were we to consider this provision under
strict scrutiny, this underinclusiveness could be fatal to
the rule’s constitutionality.
No. 09-1713 25
But, because we are applying a balancing test, the
question we ask is whether the exception for nonpartisan
elections so weakens the ban (and therefore the state’s
asserted interest in enforcing it) that the scales tip in
favor of the plaintiff’s right to speak. See SEIU, Local 3
v. Municipality of Mt. Lebanon, 446 F.3d 419, 425 (3d Cir.
2006) (“[T]o the extent that the [regulation] is not
tailored to the [state’s] stated interest, there is a com-
mensurate reduction in the [state’s] interest in its en-
forcement.” (quotation omitted)). We think it does not
for two reasons.
First, the Commission justifies the ban based on the
onerous nature of recusal in the case where a judge en-
dorses a prosecutor or sheriff who frequently appears in
front of the court. None of the nonpartisan officials
appear as frequently before the court as law enforcement
officials. Of these nonpartisan officials, only judges are
necessarily lawyers, and the frequency with which
a private practitioner appears before a court pales in
comparison with prosecutors and sheriffs who are in-
volved in litigation nearly every day. Even nonpartisan
candidates that may come before the court as part of a
suit against their institution (for instance, school board
members) will not appear as frequently before the court
as the partisan law enforcement officials that the ban
reaches.
Second, the difficulty of recusal is but one factor in
favor of the ban; the other is Wisconsin’s interest in
preventing judges from becoming party bosses or power-
brokers. Wisconsin has a justified interest in having its
26 No. 09-1713
judges act and appear judicial rather than as political
authorities. This interest is directly implicated by endorse-
ments in partisan elections and much less so, if at all,
in nonpartisan elections. In a nonpartisan election, an
endorsement connotes the quality of one candidate
among several. In a partisan election, an endorsement
can still mean an assessment of the quality of the
endorsed candidate, but it also carries implications that
the endorsement is given because of party affiliation; in
other words, it suggests that the political party of the
endorsing judge is behind the candidate. In that sense,
the judge becomes a spokesperson for the party. The
state’s interest in preventing partisan endorsements, then,
is appropriately given more weight than nonpartisan
endorsements.
Our treatment of the endorsement prohibition is based
on the claims that Judge Siefert, an incumbent, brings.
This is not the appropriate case to address the issue of
regulations for judicial candidates who are not judges.
Their potential role on a court or the impact that such
endorsements could have on a judicial election as a
whole may justify the type of regulation we have here,
but that is for another day. United States v. Wurzbach, 280
U.S. 396, 399 (1930) (“[I]f there is any difficulty, which
we are far from intimating, it will be time enough to
consider it when raised by some one whom it concerns.”).
Wisconsin has an interest in regulating the non-
campaign political activities of its judges, and prohibiting
public endorsements serves this interest.
No. 09-1713 27
C. SCR 60.06(4): Personal Solicitation
The final portion of the Wisconsin Judicial Code of
Conduct at issue here is the ban on the personal solicita-
tion of contributions by judges or judicial candidates.
SCR 60.06(4) allows a judge to set up a finance com-
mittee to raise campaign contributions, serve on that
committee, and appear at fundraising events. The canon
prohibits judges from directly soliciting or accepting
contributions. Finally, judges are admonished to avoid
“direct involvement” in their campaign’s fundraising
efforts, although no particular level of involvement is
expressly forbidden.
At heart, the solicitation ban is a campaign finance
regulation. As such, it is reviewed under the framework
set forth in Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam).
See also Stretton v. Disciplinary Bd. of Supreme Ct. of
Penn., 944 F.2d 137, 145-46 (3d Cir. 1991) (a pre-White I
case upholding Pennsylvania’s personal solicitation ban
under a deferential standard). In Buckley, the Supreme
Court recognized a compelling state interest in pre-
venting corruption or the appearance of corruption in
elections through some campaign finance regulation. Id.
at 26-27; see also Citizens United, 130 S. Ct. at 908. The
Court reasoned that restrictions on raising funds were
typically less burdensome to speech than restrictions on
spending funds, and thus created a two-tiered scheme
of review for campaign finance regulation. Buckley, 424
U.S. at 20-21. Under Buckley, restrictions on spending by
candidates and parties is reviewed with strict scrutiny,
while restrictions on contributions are reviewed under
28 No. 09-1713
less rigorous “closely drawn” scrutiny. Id. at 25. We note
that Citizens United, rather than overruling Buckley,
noted and rein forced the distinction between
independent expenditures on behalf of candidates and
direct contributions to candidates. Citizens United, 130
S. Ct. at 909-11; see also Richard M. Esenberg, The Lonely
Death of Public Campaign Financing, 33 Harv. J.L. & Pub.
Pol’y 283, 290-92 (2010). Since we are dealing with reg-
ulation of campaign contributions, we therefore pro-
ceed with the analysis under Buckley.
Because the direct solicitation ban does not restrict the
amount or manner in which a judicial candidate can
spend money on his or her campaign, we apply closely
drawn scrutiny. This is consistent with the approach
the Supreme Court took in analyzing the various solicita-
tion bans in the Bipartisan Campaign Finance Reform
Act. See McConnell v. Fed. Election Comm’n, 540 U.S. 93, 136-
38 & n.40 (2003), overruled in part on other grounds by
Citizens United, 130 S. Ct. at 913; see also id. at 177, 181-82.
But see id. at 314 (Kennedy, J., concurring in part in the
judgment and dissenting in part) (applying strict
scrutiny to solicitation ban); White II, 416 F.3d at 765-66
(applying strict scrutiny to solicitation ban without dis-
cussion of McConnell). We note, however, that even if
strict scrutiny applied, a solicitation ban may still
survive if it is narrowly tailored to prevent corruption
or the appearance of corruption. See McConnell, 540 U.S.
at 314 (Kennedy, J., concurring in part in the judgment
and dissenting in part) (concluding that the Federal
Election Campaign Act § 323(e), which prohibits federal
candidates from soliciting soft-money contributions,
No. 09-1713 29
survives strict scrutiny); White II, 416 F.3d at 765-66
(suggesting that portion of Minnesota’s solicitation ban
that prohibits judges from knowing the identity of contri-
butors or non-contributors would survive strict scrutiny).
We believe it survives under either standard. But see
Weaver v. Bonner, 309 F.3d 1312, 1322-23 (11th Cir. 2002)
(striking down personal solicitation ban after applying
strict scrutiny).
The Commission suggests that this ban ensures that
“no person feel directly or indirectly coerced by the
presence of judges to contribute funds to judicial cam-
paigns,” Order No. 00-07 at 11 (Abrahamson, C.J., con-
curring), and eliminates the potential bias or appearance
of bias that would accompany lawyers who frequently
appear before a judge being personally solicited for
campaign contributions. Siefert argues that the solicita-
tion ban does not serve the impartiality interest as
defined in White I and that the interest advanced by the
state in protecting potential donors from coercion is not
one that we should recognize as compelling.
Wisconsin’s personal solicitation ban serves the anti-
corruption rationale articulated in Buckley and acts to
preserve judicial impartiality.5 A contribution given
5
These two interests are closely linked and may be best
understood as different ways of stating the same concern. Cf.
White II, 416 F.3d at 769 (Gibson, J., dissenting) (“ ‘Open-minded-
ness,’ in Justice Scalia’s terminology, is in reality simply a
facet of the anti-corruption interest that was recognized
(continued...)
30 No. 09-1713
directly to a judge, in response to a judge’s personal
solicitation of that contribution, carries with it both a
greater potential for a quid pro quo and a greater ap-
pearance of a quid pro quo than a contribution given to
the judge’s campaign committee at the request of
someone other than the judge, or in response to a mass
mailing sent above the judge’s signature. In White II,
for example, the Eighth Circuit recognized that a ban
prohibiting “candidates, who may be elected judges,
from directly soliciting money from individuals who
may come before them certainly addresses a compelling
state interest in impartiality as to parties to a particular
case,” 416 F.3d at 765, but concluded that prohibiting a
candidate from personally signing a solicitation letter
or making a blanket address to a large group does not
advance that interest, id. at 765-66. Similarly, while we
decline to recognize here a compelling state interest
in protecting potential contributors from feeling “co-
erced,” we note that the perceived coerciveness of direct
solicitations is closely related to their potential impact
on impartiality.6 A direct solicitation closely links the
5
(...continued)
in Buckley v. Valeo and subsequent campaign finance
cases.”(citations omitted)).
6
Because we do not adopt the “coercion” rationale to
support SCR 60.06(4), we need not reach Siefert’s argument
that the direct solicitation ban is significantly underinclusive
because it does not apply to candidates for legislative office.
In any event, this argument misapprehends the respective
(continued...)
No. 09-1713 31
quid—avoiding the judge’s future disfavor—to the
quo—the contribution. We do not mean to suggest that
judges who directly solicit contributions are necessarily
behaving inappropriately, but the appearance of and
potential for impropriety is significantly greater when
judges directly solicit contributions than when they
raise money by other means.
The question remains whether the solicitation ban
hews closely enough to the anti-corruption rationale
that purportedly justifies it. Wisconsin allows judges to
serve on their own finance committees, and while it
directs them to avoid involvement with the committee’s
fundraising efforts, it does not specifically prohibit
them from reviewing lists of contributors. Cf. White II,
416 F.3d at 766 (concluding that where judicial canon
prohibited judges from knowing the identities of con-
tributors and non-contributors, additional restrictions
on blanket solicitations to large groups were unconstitu-
tional). Wisconsin also allows judges to appear at their
own fundraising events, where they will come into
6
(...continued)
roles of legislators and judges. Legislators are not expected to
be impartial; indeed, they are elected to advance the
policies advocated by particular political parties, interest
groups, or individuals. Judges, on the other hand, must be
impartial toward the parties and lawyers who appear before
them. In addition, legislators can only act with the support
of their colleagues. Judges—particularly trial court judges—
exercise wide and largely unreviewable discretion over
discrete cases involving specific parties and lawyers.
32 No. 09-1713
contact with people who they will likely presume are
contributors. Finally, the ban reaches solicitations
that do not implicate the risk of a quid pro quo, such
as solicitations directed at family members.
We conclude that the solicitation ban is drawn
closely enough to the state’s interest in preserving impar-
tiality and preventing corruption to be constitutional.
The fact that a judge might become aware of who has or
has not contributed to his campaign does not fatally
undercut the state’s interest in the ban. As discussed
earlier, the personal solicitation itself presents the
greatest danger to impartiality and its appearance. Like
SCR 60.06(4), the solicitation ban at issue in McConnell
did not prohibit officeholders from becoming aware of
soft-money contributions and contained an exception
for fundraising events. See 2 U.S.C. § 441i(e) (codifying
FECA § 323(e)). Finally, to the extent that the ban affects,
at the margins, some solicitations that do not pose a risk
to impartiality, that impact is not fatal to the ban. Just
as the state may enact a contribution limit, rather than
ask of each individual contribution whether it poses the
risk of corruption, the state may enact a ban on direct
solicitations, a ban tailored to the specific behavior that
poses the greatest risk. Cf. Buckley, 424 U.S. at 26-28.
Moreover, the ban’s effect on innocuous contributions is
small because the judge’s campaign committee remains
free to solicit those individuals. And unlike the partisan
affiliation and endorsement bans, there is no reasonable,
less restrictive means available here. It is an unfortunate
reality of judicial elections that judicial campaigns are
often largely funded by lawyers, many of whom
No. 09-1713 33
will appear before the candidate who wins. It would be
unworkable for judges to recuse themselves in every
case that involved a lawyer whom they had previously
solicited for a contribution. Because the ban on direct
solicitation of contributions by judicial candidates
prevents corruption and preserves impartiality without
impairing more speech than is necessary, we reverse
the district court’s decision on SCR 60.06(4).
III. Conclusion
For the foregoing reasons, we A FFIRM the district court’s
judgment in favor of Siefert with respect to the party
affiliation ban, SCR 60.06(2)(b)1, but R EVERSE the dis-
trict court’s judgment with respect to the public endorse-
ment and personal solicitation bans, SCR 60.06(2)(b)4
and SCR 60.06(4).
R OVNER , Circuit Judge, dissenting in part. Protecting
judicial integrity is a government interest of highest
magnitude, as is protecting the rights guaranteed by
the First Amendment. Reconciling these two competing
interests is no small feat, and when evaluating the
party membership restrictions in Section II.A and the
personal solicitation restriction in Section II.C, I believe
34 No. 09-1713
the majority successfully navigates the competing con-
cerns. As for the ban on endorsements of partisan candi-
dates, the majority and I begin at the same starting
point—with the notion that endorsements of candidates
in political elections are troubling and have the potential
to compromise judicial impartiality. I part ways with the
majority, however, where it applies the balancing test
from Pickering and Connick to the endorsement ban.
Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205, Will
County, Ill., 391 U.S. 563, 568 (1968); Connick v. Myers, 461
U.S. 138, 142 (1983). Because I believe this is the wrong test
to apply, I respectfully dissent.
Laws and regulations that restrict speech on the basis
of content are subject to the high hurdle of the strict
scrutiny test. United States v. Playboy Entm’t Group, Inc.,
529 U.S. 803, 813 (2000). Such laws are “presumptively
invalid, and the Government bears the burden to rebut
that presumption.” United States v. Stevens, 130 S. Ct.
1577, 1584 (2010) (internal citations omitted); Playboy
Entm’t Group, 529 U.S. at 813, 817. In addition, speech about
the qualifications of candidates for public office is at the
core of First Amendment freedoms and is thus also strictly
scrutinized. Republican Party of Minn. v. White, 536 U.S.
765, 774, 781 (2002); Eu v. San Francisco County Demo-
cratic Cent. Comm., 489 U.S. 214, 222-23 (1989). The law
presumes that these intrusions on First Amendment rights
are invalid and shifts the burden of proof to the govern-
ment to demonstrate that these regulations are narrowly
tailored to serve a compelling government interest.
Stevens, 130 S. Ct. at 1584; Eu, 489 U.S. at 222. There
could be no clearer example of a restriction that is
No. 09-1713 35
both content-based and that burdens speech regarding
qualifications for office than the one at issue here: Wiscon-
sin Supreme Court Rule 60.06(2)(b)4 states that no
judge or candidate for judicial office may “[p]ublicly
endorse or speak on behalf of [a party’s] candidates or
platforms.” SCR 60.06(2)(b)4. The majority concedes
that under a strict scrutiny analysis, the regulation at
issue here would fail. Supra at 24. Rather than reach
that unpalatable result, however, it has manufactured a
new balancing test not heretofore applied to the First
Amendment rights of elected judges.
It is true, of course, that some forms of speech fall out-
side the protections of the First Amendment, including
obscenity, defamation, fraud, incitement, and speech
integral to criminal conduct. See Stevens, 130 S. Ct. at
1584. And in the case of public employees, the Supreme
Court has relaxed the scrutiny it applies to regulation
of government employee speech, holding that a public
employee’s right to speak on matters of public concern
must be balanced against the government’s need for
efficient operation of government functions. Garcetti v.
Ceballos, 547 U.S. 410, 418-19 (2006); Connick, 461 U.S. at
142; Pickering, 391 U.S. at 568. Neither this court nor the
Supreme Court, however, has ever held that these deci-
sions limiting the speech of public employees can be
applied to elected officials’ speech, including the speech
of elected judges.
In the seminal case on free speech and judicial codes
of conduct, the Supreme Court applied strict scrutiny
in evaluating the challenged provisions of Minnesota’s
36 No. 09-1713
Code of Judicial Conduct. White, 536 U.S. at 774. Although
the White decision considered the rights of candidates
seeking judicial office as opposed to those already
holding office, the language of the decision reflects two
important principles that apply to the case before us
today—the Court’s recognition that political speech is
highly protected and that content-based restrictions
must be viewed most skeptically. Id. The court in White
stated,
the notion that the special context of electioneering
justifies an abridgement of the right to speak out
on disputed issues sets our First Amendment
jurisprudence on its head. Debate on the qualifica-
tions of candidates is at the core of our electoral
process and of the First Amendment freedoms,
not at the edges. The role that elected officials
play in our society makes it all the more impera-
tive that they be allowed freely to express them-
selves on matters of current public importance.
Id. at 781 (internal citations omitted) (emphasis in original).
In White, it was undisputed and uncontroversial that
the court should apply strict scrutiny in evaluating the
content-based restrictions of the canons of judicial con-
duct. Id. at 774. Even the two dissenting opinions, which
vigorously defended the particular speech restrictions
on judges, did so while applying strict scrutiny. See White,
536 U.S. at 800 (Stevens, J., dissenting) (“Minnesota has a
compelling interest in sanctioning such statements.”); Id.
at 817 (Ginsburg, J., dissenting) (“In addition to pro-
tecting litigants’ due process rights, the parties in this
No. 09-1713 37
case further agree, the pledges or promises clause
advances another compelling state interest: preserving
the public’s confidence in the integrity and impartiality
of its judiciary.”). In short, both the majority and dissent in
White applied strict scrutiny to a content-based speech
prohibition for judicial candidates.1
Nevertheless, as Justice Kennedy noted in his concur-
rence, the White decision left open the question as to
whether “the rationale of Pickering and Connick could
be extended to allow a general speech restriction
on sitting judges—regardless of whether they are cam-
paigning—in order to promote the efficient administra-
tion of justice. . . .” White, 536 U.S. at 796 (internal cita-
tions omitted).
1
In his concurrence, Justice Kennedy noted that he would
go further and hold that “content-based speech restrictions
that do not fall within any traditional exception should be
invalidated without inquiry into narrow tailoring or com-
pelling government interests. The speech at issue here does
not come within any of the exceptions to the First Amendment
recognized by the Court. Here, a law is directed to speech
alone where the speech in question is not obscene, not defama-
tory, not words tantamount to an act otherwise criminal, not
an impairment of some other constitutional right, not an
incitement to lawless action, and not calculated or likely to
bring about imminent harm the State has the substantive
power to prevent. No further inquiry is necessary to reject
the State’s argument that the statute should be upheld.”
White, 536 U.S. at 792-93 (Kennedy, J., concurring).
38 No. 09-1713
Although the White court left the question unanswered,
that opinion and others provide compelling support for
the proposition that strict scrutiny is the proper test for
evaluating restraints on an elected judge’s speech. The
Supreme Court has long found the speech of elected
officials to be as protected as that of ordinary citizens. In
Bond, the Supreme Court held that the State of Georgia
could not exclude a state representative from member-
ship in the legislature based on his criticism of the
Vietnam War. Bond v. Floyd, 385 U.S. 116, 133 (1966). The
Court specifically noted that the interest of the public
in hearing all sides of a public issue is advanced by ex-
tending the same First Amendment protections to legisla-
tors as to ordinary citizens. Id. at 136. The Court later
held the same for a sheriff who questioned the motiva-
tions of a judge’s charge to a grand jury. The Court rea-
soned that “the role that elected officials play in our
society makes it all the more imperative that they be
allowed freely to express themselves on matters of
current public importance.” Wood v. Georgia, 370 U.S. 375,
395 (1962). Forty years later, a majority of the Supreme
Court repeated this same statement in evaluating the
restrictions imposed by a canon of judicial conduct. White,
536 U.S. at 781-82. After reviewing White, and its analyses
of these earlier cases, the Fifth Circuit concluded that
strict scrutiny was the appropriate test for evaluating a
state’s interest in suppressing a sitting judge’s speech.
Jenevein v. Willing, 493 F.3d 551, 557-58 (5th Cir. 2007).
In contrast, non-elected employees, like those covered
by the Hatch Act, are subject to a test which balances the
interests of the employee as a citizen, in commenting
No. 09-1713 39
upon matters of public concern, against the interest of
the government, as an employer, in promoting the effi-
ciency of the public services it performs through its
employees. See U.S. Civil Serv. Comm'n v. Nat'l Assoc. of
Letter Carriers, 413 U.S. 548, 561 (1973). The Hatch Act
restricts the speech of government employees by pro-
hibiting them from taking an active part in political
management or political campaigns, but notably
exempts the two elected executive branch employees, the
president and vice president, from coverage. 5 U.S.C.
§ 7322(1); See also Letter Carriers, 413 U.S. at 561. In sum,
no Supreme Court decision or Seventh Circuit case has
applied a balancing test to the speech of elected officials.
It would be folly, of course, to ignore the reality that
elected judges are different from elected legislators and
executives. “Legislative and executive officials act on
behalf of the voters who placed them in office; judges
represent the Law.” White, 536 U.S. at 803 (Ginsburg,
J., dissenting) (internal citations omitted). See also
Buckley v. Ill. Judicial Inquiry Bd., 997 F.2d 224, 228 (7th
Cir. 1993) (“Judges remain different from legislators
and executive officials, even when all are elected, in
ways that bear on the strength of the state’s interest in
restricting their freedom of speech.”).
This distinction, however, does not warrant aban-
doning a strict scrutiny analysis of content-based regula-
tions of speech about the political qualifications of candi-
dates for elected office. Content-based regulations are,
after all, some of the most reviled by the First Amend-
ment and election speech among the most protected.
40 No. 09-1713
There is no doubt that the due process rights guaranteed
by the Fourteenth Amendment are equally compelling,
but we need not abandon well-settled First Amendment
jurisprudence and set aside strict scrutiny to protect due
process, as the majority claims. Rather, the solution is
to apply strict scrutiny but give proper weight to the
exceedingly compelling interest the state has in ensuring
an impartial and fair judiciary. See id. at 228 (noting that
the fact that elected judges are different from elected
legislators and executive officials bears on the strength
of the state’s interest in restricting their freedom.). See
also White, 536 U.S. at 783 (“we neither assert nor
imply that the First Amendment requires campaigns for
judicial office to sound the same as those for legislative
office.”). In evaluating a restraint on judge’s speech
under a strict scrutiny analysis, a court must consider
its hefty obligation to provide litigants with a fair
adjudicative proceeding by an impartial and disin-
terested tribunal—a right guaranteed by the Due Process
Clause of the Fourteenth Amendment, as well as its
obligation to preserve public confidence in the integrity
and impartiality of the judiciary. See White, 536 U.S. at
813, 817 (Ginsburg, J., dissenting).
Furthermore, although elected judges are not the same
as elected legislators and executives, they are also not
entirely like judges appointed for life or for fixed
terms—immune from the influence of popular opinion.
As Justice Scalia pointed out in White, a judge contem-
plating releasing a notorious terrorist is well aware that
she faces the pressure of being voted out of office come
No. 09-1713 41
the next election cycle. Id. at 782. Thus, in some limited
sense, elected judges, for better or for worse, know that
they serve at the pleasure of the public. And although
a state is free to establish any constitutional system it
wishes to populate its benches, states that choose to
elect judges have made a particular decision about the
role of the public in the selection of judges.
Our federal Constitution, of course, provides for ap-
pointment of judges for life. As Justice O’Connor
recounted in White, the first twenty-nine states did not
use elections for selecting judges. White, 536 U.S. at 791
(O’Connor, J., concurring). In the 1830’s and 1850’s as
part of the Jacksonian movement toward greater pop-
ular control of public office, many states turned from ap-
pointing judges to popular elections. Id. Thirty-one states
have turned from non-electoral systems to popular elec-
tions. Id. at 792. There may be many reasons why a
state opts to elect judges, but such a decision reflects,
at least in part, a policy decision that to the extent that
judges have any discretion to mold the law—and of
course they do—the people should be able to have
some say in how that discretion will be used. For
example, in the area of sentencing where discretion can
be large, the public may choose to elect candidates who
are “tough on crime” or who “judge with compassion.”
The choice to elect judges may also represent an attempt
to allow the people to choose among the populace
the person they see as most fit to judge, but embedded
in this choice is most certainly some consideration
about how that candidate understands and would apply
42 No. 09-1713
the law. The decision to hold judicial elections, therefore,
may negatively impact the integrity of the judiciary in
ways that are unavoidable, see White, 536 U.S. at 782; see
also id. at 789 (O’Connor, J., concurring) (explaining
why the very practice of electing judges undermines the
interest in an impartial judiciary), but it is, nevertheless,
a legitimate choice by a state.
Having made a policy decision allowing the public to
shape the bench, a state must allow judges greater leeway
to communicate their opinions. Thus, although elected
judges are not like other elected officials, they are also
not like public employees subject to Pickering—that is,
employees who answer only to the government as em-
ployer and not to the public at large. As the majority in
White pointed out, “if the State chooses to tap the energy
and the legitimizing power of the democratic process
[in the election of judges], it must accord the participants
in that process the First Amendment rights that attach
to their roles.” White, 536 U.S. at 788. “Opposition [to
electing judges] may be well taken (it certainly had the
support of the Founders of the Federal Government), but
the First Amendment does not permit it to achieve its
goal by leaving the principle of elections in place while
preventing candidates from discussing what the elec-
tions are about.” Id. at 787-88. Endorsements are part of
that discussion in much the same way that announcing
one’s views on the legal issues of the day are—the issue
before the court in White. We are, after all, often judged
by the company we keep. There is much to say about the
utility and harm of endorsements, but because my dis-
agreement with the majority is over the level of scrutiny
No. 09-1713 43
to be applied to the regulation, I need not spill ink evalu-
ating the benefits and harms of endorsements. Most
importantly, it is important to note that applying strict
scrutiny will not mean that the speech of sitting judges
cannot be regulated more restrictively than the speech
of other elected officials; it most certainly can. The
state, after all, has an exceptionally compelling interest
in protecting the integrity of the judiciary and the due
process rights of litigants.
In short, I would apply a strict scrutiny test to the
announce clause at issue in this case. Whatever the
result may be in an ordinary case where a state passes
a blanket prohibition on endorsements by sitting judges,
the result here is made simple by the fact that
Wisconsin allows endorsements for non-partisan but not
partisan elections. As even the majority concedes, the
under-inclusiveness of the provision is fatal to the
rule’s constitutionality when applying strict scrutiny.
See White, 536 U.S. at 780.
Wisconsin has opted to allow judges to endorse candi-
dates in non-partisan elections. Such endorsements
threaten judicial fairness and the appearance of fairness
no less than endorsements in partisan elections. Lawyers
and judges who lose non-partisan judicial elections, for
example, go right back to practicing (and perhaps ap-
pearing as litigants) in the same small circuits in
Wisconsin in which they ran and were endorsed by
sitting judges. A criminal defendant prosecuted by such
an endorsed attorney will not question the fairness of
his trial any less because the prosecuting attorney ran in
44 No. 09-1713
a non-partisan rather than a partisan election. And a
judge who makes or breaks a non-partisan candidate’s
career is no less of a power broker than one who
endorses a partisan candidate. It may be true that party-
affiliated sheriffs and prosecutors appear frequently in
courtrooms, but it is also true that frequent litigators,
who are the very same lawyers who are most qualified
and most likely to run for judge, should they lose, will
go right back to litigating before those same judges
who endorsed them.
By allowing endorsements in non-partisan elections,
Wisconsin has largely eviscerated the force of any
asserted concern. A regulation that is so under-inclusive
diminishes the credibility of the government’s rationale
for restricting speech. White, 536 U.S. at 780.
It may be that the endorsement provision causes us
such unease because we expect a judge not to use her
office for personal gain—either her own or others’. In fact,
Wisconsin Supreme Court Rule 60.03(2) prohibits
improper use of the visibility and prestige of the judicial
office. Endorsements arguably use the visibility and
prestige of the judicial office in an improper manner.
Wisconsin, however, has not articulated this as its
interest and indeed cannot, as it allows endorsements in
non-partisan races.
Although I disagree with the majority about the
proper test to apply, it is likely that under different cir-
cumstances our outcome would nevertheless be the
same and I would find myself concurring in the result.
My dissent stems entirely from the unique situation
No. 09-1713 45
presented here. Wisconsin has opted to elect judges in
popular elections and has further mired those judges in
that political process by allowing them to make non-
partisan endorsements. Endorsements undermine the
integrity of the judiciary regardless of whether they
focus on partisan or non-partisan races. Once Wisconsin
greased the slope for non-partisan endorsements, it
should not have been surprised that partisan endorse-
ments could come sliding after. Wisconsin has failed to
demonstrate that its endorsement ban is narrowly
tailored to prevent the harm it asserts.
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