The Honorable John SIEFERT, Plaintiff-Appellee, v. James C. ALEXANDER, et al., in their official capacity as members of the Wisconsin Judicial Commission, Defendants-Appellants.
No. 09-1713.
United States Court of Appeals, Seventh Circuit.
Argued Sept. 17, 2009. Decided June 14, 2010.
Johnson is easily distinguishable. There, the Supreme Court held that because under Florida‘s law, any intentional physical contact, “no matter how slight” constitutes a battery, it was not clear that the defendant‘s previous conviction for battery had the requisite “physical force against the person of another” to warrant a sentence enhancement. Johnson, 130 S.Ct. at 1269-70. However, here, based on the recitation of the charging document, it is clear that Rodriguez was charged under the first prong of the Illinois statute because he was charged with “caus[ing] bodily harm to an individual.” Similarly, Jaimes-Jaimes is distinguishable because there, the statutory elements of his crime imposed no requirement that thе state prove, as an element of the offense, that the defendant used, attempted to use, or threatened to use physical force “against the person of another.”
III. CONCLUSION
For the reasons stated above, we AFFIRM Rodriguez‘s sentence.
Before FLAUM, ROVNER, and TINDER, Circuit Judges.
TINDER, 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 activities are prohibited by the Wisconsin Code of Judicial Conduct. Rather than violate the code and face discipline, Siefert filed suit under
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 participated 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 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 20101 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.
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 endorsements, and personal solicitation of campaign contributions. 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 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:
- Be a member of any political party.
- Participate in the affairs, caucuses, promotions, platforms, endorse-
ments, 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 may, however, establish a committee to solicit and accept lawful campaign contributions. The committee is not prohibited from soliciting and accepting lawful campaign contributions from lawyers. A judge or candidate for judicial office or judge-elect may serve on the committee but should avoid direct involvement with the committee‘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 campaign contributions in SCR 60.06(4). He does not challenge 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 activities 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 candidates is helpful to understanding what follows. In 2002, 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, recognized 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 questions we dеal with today. Justice Kennedy, a member of the five-vote majority and author of a separate concurrence, noted specifically that states are obligated to regulate 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 profession. 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 enlightenment, instruction, and inspiration that make them independent-minded and faithful jurists of real integrity.” Id. at 796. We think it beyond doubt that states have a compelling inter-
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 Wisconsin‘s code of judicial conduct, which contains provisions that are similar but not identical to those at issue in White II.
The Commission relies on two government employment 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 dismissed a
The Commission is correct that, ordinarily, governmental 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 governmental functions that cannot operate without some restrictions 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 employees’ speech about working
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 оffice. 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 expression.” Id. at 775 (citing Brown v. Hartlage, 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 impartiality.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 probability 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 the argument that a state has a compelling
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 compelling 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 alоne prohibiting them from announcing those views by proxy.3 Nor can casting the argument in terms of the “appearance of bias” save it—because “avoiding judicial preconceptions on legal issues is neither possible nor desirable, pretending otherwise 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 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.
B. SCR 60.06(2)(b)4: Endorsement of Partisan Candidates
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 Democratic 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 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 thе 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)); 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 endorsement does not fit neatly in that category. Endorsements 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 endorsement based on the danger of “abusing the prestige of judicial office to advance the interests of others.” Model
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 talking about legal issues the Supreme Court struck down in White I. As Judge Siefert notes, “[e]ndorsements primarily benefit the endorsee, not the endorser” and endоrsements 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 endorsements. 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 between 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 restrictiоns” are constitutionally permissible if “based on an interest in allowing governmental entities to perform their functions.“). 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 necessarily forbid any regulation of a judge‘s speech. In fact, Justice Kennedy‘s concurrence indicates just the opposite. Furthermore, unlike restrictions designed, for example, to regulate federal employees’ political activity, restrictions on judicial speech may, in some circumstances, 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 Jenevein v. Willing, 493 F.3d 551, 558 (5th Cir.2007). However, 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 еxemptions for the President, Vice President, and “specified officials in policymaking positions.” Letter Carriers, 413 U.S. at 561. While Wisconsin judges receive job evaluations from the voting public, they are employed in the
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. “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 connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a bаlance 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 promoting 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 guarantees 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 restriction identified in Pickering, therefore, is related both to the government‘s power as an employer and its duty to promote the efficiency of the public services it performs. Here, we emphasize again, we are not concerned 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 entitled. 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 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)).
At the same time, the constitutional protection in a political endorsement is tempered by the limited communicative value of such an endorsement. Judge Siefert concedes that endorsements may be less about communicating one‘s qualifications for office than bolstering another politiciаn‘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 endorsement.” 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 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 restrictive 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 President. 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 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 endorsements 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 Commission 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 campaigns is justified based on its obligations
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
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 commensurate reduction in the [state‘s] interest in its enforcement.” (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 endorses 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 involved 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 judges act and appear judicial rather than as political authorities. This interest is directly implicated by endorsements 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 regulаtion we have here, but that is for another day. United States v. Wurzbach, 280 U.S. 396,
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 solicitation of contributions by judges or judicial candidates. SCR 60.06(4) allows a judge to set up a finance committee 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). 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 preventing 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 less rigorous “closely drawn” scrutiny. Id. at 25. We note that Citizens United, rather than overruling Buckley, noted and reinforced 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 regulation of campaign contributions, we therefore proceed 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 solicitation 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 discussion 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(е), which prohibits federal candidates from soliciting soft-money contri-
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 campaigns,” Order No. 00-07 at 11 (Abrahamson, C.J., concurring), 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 solicitation 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 anticorruption rationale articulated in Buckley and acts to preserve judicial impartiality.5 A contribution given 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 appearance 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 “coerced,” 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 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
The question remains whether the solicitation ban hews closely enough to the anticorruption 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 contributors and non-contributors, additional restrictions on blanket solicitations to large groups were unconstitutional). Wisconsin also allows judges to appear at their own fundraising events, where they will come into 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 impartiality 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
III. Conclusion
For the foregoing reasons, we AFFIRM the district court‘s judgment in favor of Siefert with respect to the party affiliation ban, SCR 60.06(2)(b)1, but REVERSE the district court‘s judgment with respect to the public endorsement and personal solicitation bans, SCR 60.06(2)(b)4 and SCR 60.06(4).
ROVNER, 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
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 Democratic 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 government 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 both content-based and that burdens speech regarding qualifications for office than the one at issue here: Wisconsin 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 987. 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 outside 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 decisions 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 Code of Judicial Conduct. White, 536 U.S. at 774. Although the White decision considered the rights of
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 qualifications 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 imperative that they be allowed freely to express themselves 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 conduct. 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 protecting litigants’ due process rights, the parties in this 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 concurrence, 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 campaigning—in order to promote the efficient administration of justice....” White, 536 U.S. at 796 (internal citations omitted).
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 membership 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 extending the
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 upon matters of public concern, against the interest of the gоvernment, as an employer, in promoting the efficiency of the public services it performs through its employees. See Letter Carriers, 413 U.S. at 561. The Hatch Act restricts the speech of government employees by prohibiting 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.
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 abandoning a strict scrutiny analysis of content-based regulations of speech about the political qualifications of candidates for elected office. Content-based regulations are, after all, some of the most reviled by the First Amendment and election speech among the most protected. 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 pro-
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 contemplating releasing a notorious terrorist is well aware that she faces the pressure of being voted out of office come 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 appointment 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 popular control of public office, many states turned from appointing judges to popular elections. 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 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 permit 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 employer 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 proсess [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 elections are about.” Id. at 787-88. Endorsements are part of that discussion
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 supra at 987; see also White, 536 U.S. at 780.
Wisconsin has opted to allow judges to endorse candidates 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 appearing 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 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 partisan-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 thеy 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.
Perhaps 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 circumstances our outcome would nevertheless be the same and I would find myself concurring in the result. My dissent stems entirely from the unique situation 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 nonpartisan endorsements. Endorsements undermine the integrity of
UNITED STATES of America, Plaintiff-Appellee, v. Romell R. LEWIS, Defendant-Appellant.
No. 09-3804.
United States Court of Appeals, Seventh Circuit.
Argued April 20, 2010. Decided June 14, 2010.