The Eighth Circuit in Wetsal v. Sexton, No. 09-1578, ruled en banc that the Minnesota Code of Judicial Conduct clauses for endorsement, personal solicitation, and solicitation for a political organization or candidate do not violate the First Amendment.
Under strict scrutiny, the State bore the burden of proof that the endorsement and solicitation clauses advance a compelling state interest and that it is narrowly tailored to serve that interest.
Minnesota argued that it had a compelling interest in maintaining judicial impartiality and in maintaining the appearance of judicial impartiality. The Eighth Circuit agreed. “[W]e easily conclude Minnesota’s interest in preserving the appearance of impartiality is compelling, particularly when cast against other interests courts have recognized as compelling.”
The Eighth Circuit also held that the judicial campaign restrictions were narrowly tailored. The Court explained that the endorsement clause is narrowly tailored since it restricts speech for or against particular parties, rather than for or against particular issues. The court explains its concern as follows,
Under either framework, a 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.”
The Court held the solicitation clause is also narrowly tailored. The Court first distinguished itself from Republican Party of Minn. v. White, 416 F.3d 738 (8th Cir. 2005) (en banc), which dealt with large group solicitation and signature bans; as opposed to Wersal, which dealt with personal solicitation. With a personal solicitation, “[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 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.” Quoting Siefert v. Alexander, 608 F.3d 974, 989 (7th Cir. 2010). The Court also concluded that because recusal would not be a workable remedy to prevent bias or the appearance of bias from personal solicitations, the solicitation clause is narrowly tailored.