Federales nix State ethics rules

Conservatives cheer bench-legislating judicial activism

Yesterday a federal court in Madison dumped three Wisconsin rules of judicial conduct as unconstitutional (and no, among them was not the one Michael Gableman is under investigation for violating).

Two of the rules had to do with sitting judges — and candidates for judge — joining political parties and endorsing other partisan candidates for election. Those rules fell fairly easily, as abridgments of the First Amendment freedoms of speech and association.

However in the meantime, judicial elections in Wisconsin are to remain nominally "non-partisan," and no party affiliations will appear next to judicial candidates' names on ballots.

(The court didn't engage that question directly but mentioned it in passing, just as it didn't invalidate the second ethics rule's provision dealing with judicial candidates endorsing political party platforms, as distinct from endorsing individual partisan office-seekers.)

The court determined that although the State undeniably does have a "compelling interest" in maintaining the integrity and bias-free independence of the courts, the ethics rules at issue are not "narrowly tailored" enough to protect that interest where there are other "less restrictive means" of doing so.

In summary, the court wrote:

Because the effect of [the three ethics rules] is to limit the discussion without providing any appreciable benefit in return, these canons violate the First Amendment and may not stand.

Where this "strict scrutiny" is involved the defenders of the rules, in this case the Wisconsin Judicial Commission, are burdened with an especially onerous standard of proof and here they failed to meet it by a considerable distance (the opinion makes that very clear throughout; it's extremely critical of the WJC's reasoning, almost — or perhaps actually — to the point of impatience).

More particularly, the WJC was unable to overcome the dictates of Republican Party of Minnesota v. White, an important U.S. Supreme Court decision from 2002 addressing the general subject of judicial speech during election campaigns.

The third rule, preventing judges from directly soliciting or accepting campaign contributions, collapsed even more easily than the others.

Maybe too easily. That is, with too little justification, too little serious "as applied" consideration, or not enough of either.

The public, said the court, likely sees no distinction between candidates soliciting and handling contributions themselves personally and setting up a committee to do so on their behalf.

The court observed that the fundraising rule appears to "further no interest at all," and surmised that the only reason for its continued existence was based in nostalgia for the olden days when candidates found it unseemly and in bad taste to personally request and palm cash money with their own hands.*

So it looks like we'll have to stop making merry with Jefferson County Circuit Judge Randy Koschnick for attending exclusively Republican fundraisers (that is, we still can, but just without any legal basis).

Opinion: Siefert v. Alexander (.pdf; 65 pgs.)

The Wisconsin Code of Judicial Conduct is available here.**

The three rules held by the federal court to be unconstitutional are 60.06(2)(b)1 (party membership), 60.06(2)(b)4 (endorsement of partisan candidates), and 60.06(4) (personal solicitation).

* Prof. Esenberg helpfully provides a riotously profane example.
** Somebody really needs to clean up that grotesque formatting.