Marcus Carey v. Stephen Wolnitzek ( 2010 )


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                             Pursuant to Sixth Circuit Rule 206
                                   File Name: 10a0199p.06
    
                 UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                  _________________
    
    
                                                    X
                Plaintiff-Appellant/Cross-Appellee, -
    MARCUS CAREY,
                                                     -
                                                     -
                                                     -
                                                            Nos. 08-6468/6538
                 v.
                                                     ,
                                                      >
                                                     -
                                                     -
    STEPHEN D. WOLNITZEK, in his official
                                                     -
    capacity as Chairperson of the Kentucky
                                                     -
    Judicial Conduct Commission; MICHELE M.
    KELLER, in her official capacity as a member     -
                                                     -
                                                     -
    of the Kentucky Judicial Conduct
                                                     -
    Commission; EDDY COLEMAN, in his official
                                                     -
    capacity as a member of the Kentucky
    Judicial Conduct Commission; SUSAN M.            -
                                                     -
                                                     -
    JOHNSON, in her official capacity as a
                                                     -
    member of the Kentucky Judicial Conduct
                                                     -
    Commission; DIANE E. LOGSDON, in her
    official capacity as a member of the Kentucky -
                                                     -
                                                     -
    Judicial Conduct Commission; JOYCE KING
    
                                                     -
    JENNINGS, in her official capacity as a
                                                     -
    member of the Kentucky Judicial Conduct
    Commission; LEE E. SITLINGER, JR., in his        -
                                                     -
                                                     -
    official capacity as chairperson of Panel A of
    
                                                     -
    the Kentucky Inquiry Commission; REED N.
                                                     -
    MOORE, JR., in his official capacity as
    chairperson of Panel B of the Kentucky           -
    Inquiry Commission; STEPHEN L. BARKER, in -
    his official capacity as chairperson of Panel C -
                                                     -
                                                     -
    of the Kentucky Inquiry Commission; LINDA
                                                     -
    A. GOSNELL, in her official capacity as Bar
                                                     -
          Defendants-Appellees/Cross-Appellants. -
    Counsel in Kentucky,
    
                                                     -
                                                    N
                        Appeal from the United States District Court
                      for the Eastern District of Kentucky at Frankfort.
                     No. 06-00036—Karen K. Caldwell, District Judge.
                                 Argued: January 13, 2010
                             Decided and Filed: July 13, 2010
    
    
    
                                             1
    Nos. 08-6468/6538             Carey v. Wolnitzek, et al.                                   Page 2
    
    
      Before: BATCHELDER, Chief Judge; SUTTON, Circuit Judge; WISEMAN, District
                                              *
                                       Judge.
                                         _________________
                                              COUNSEL
    ARGUED: James Bopp, Jr., BOPP, COLESON & BOSTROM, Terre Haute, Indiana,
    for Appellant. Mark R. Overstreet, STITES & HARBISON, PLLC, Frankfort,
    Kentucky, for Appellees. ON BRIEF: James Bopp, Jr., Anita Y. Woudenberg, BOPP,
    COLESON & BOSTROM, Terre Haute, Indiana, for Appellant. Mark R. Overstreet,
    STITES & HARBISON, PLLC, Frankfort, Kentucky, Bethany A. Breetz, STITES &
    HARBISON, PLLC, Louisville, Kentucky, R. Gregg Hovious, FULTZ MADDOX
    HOVIOUS & DICKENS PLC, Louisville, Kentucky, for Appellees. Benjamin C. Mizer,
    David M. Lieberman, Emily S. Schlesinger, OFFICE OF THE OHIO ATTORNEY
    GENERAL, Columbus, Ohio, B. Eric Restuccia, OFFICE OF THE MICHIGAN
    ATTORNEY GENERAL, Lansing, Michigan, for Amici Curiae.
            SUTTON, J., delivered the opinion of the court, in which BATCHELDER, C. J.,
    joined. WISEMAN, D. J. (p. 44), delivered a separate opinion concurring in part and
    dissenting in part.
                                         _________________
    
                                               OPINION
                                         _________________
    
            SUTTON, Circuit Judge. Imagine if a State imposed these restrictions on
    candidates for election to the legislature: (1) They “shall not identify” themselves “as
    a member of a political party in any form of advertising or when speaking to a
    gathering”; (2) they “shall not solicit campaign funds”; and (3) they “shall not . . . make
    a statement that a reasonable person would perceive as committing” the candidate to vote
    “a certain way on a[n] . . . issue” likely to come before the legislature. A court faced
    with a First (and Fourteenth) Amendment challenge to the law would make short work
    of it. Legislative candidates have a First Amendment right to associate publicly with a
    political party, see Tashjian v. Republican Party of Conn., 
    479 U.S. 208
    , 214 (1986), to
    solicit campaign funds, see Riley v. Nat’l Fed. of the Blind of N.C., 
    487 U.S. 781
    , 796
    (1988), and to communicate to their constituents how they will vote on the issues of the
    
    
            *
               The Honorable Thomas A. Wiseman, Jr., Senior United States District Judge for the Middle
    District of Tennessee, sitting by designation.
    Nos. 08-6468/6538           Carey v. Wolnitzek, et al.                                Page 3
    
    
    day, see Brown v. Hartlage, 
    456 U.S. 45
    , 55–59 (1982). It is doubtful that a single
    federal or state court judge in the country would see it differently.
    
            Yet what happens if the same restrictions apply to judicial elections, not
    legislative elections? Some say the answer is the same. Elections are elections, and the
    same First Amendment applies to all of them. When the government suppresses election
    speech based on its content—prohibiting candidates from mentioning a political party
    with whom they affiliate, barring them from putting their name on a fund-raising letter
    or telling them what they can and cannot say about their judicial philosophy—the most
    rigorous form of constitutional second-guessing applies, and no categorical exemption
    from the First Amendment spares the government from this burden. In modern America,
    judicial elections are no less relevant to the public policy concerns of the citizenry than
    legislative elections, and the First Amendment protects electioneering speech in the one
    context as vigorously as it does in the other. Concerns about impartiality and open-
    mindedness that might result from unfettered judicial campaigning can be handled after
    the elections, not before, through the application of case-by-case judicial recusal rules
    that all States require their judges to follow before they agree to hear a case. Any
    remaining concerns flow not from the absence of speech restrictions on judicial
    candidates but from the State’s insistence on holding elections for judicial office in the
    first place. A State cannot simultaneously insist that judges be held accountable to the
    electorate at regular intervals but deny to sitting judges and candidates alike the
    communicative tools for explaining how they will be held to account.
    
            Others say it is not that easy. Judges do not represent constituents. They apply
    the law to the facts one case at a time, and, if they represent anyone or anything, it is the
    rule of law, which is why they sometimes must rule against the policy preferences of a
    majority of the voters. The judicial process works only when it is done in a disinterested
    manner, which is inconsistent with campaigns in which judges commit to rule, or appear
    to commit to rule, in a certain way in certain cases. It is one thing when a legislator
    solicits money during a campaign; it is quite another when a judicial candidate, a sitting
    judge above all, does the same. With a few modest exceptions, see, e.g., Caperton v. A.
    Nos. 08-6468/6538          Carey v. Wolnitzek, et al.                              Page 4
    
    
    T. Massey Coal Co., ___ U.S. ___, 
    129 S. Ct. 2252
     (2009); Mich. Court Rule 2.003,
    judicial-recusal rules are self-enforced and therefore may not provide adequate
    safeguards against the risks that flow from treating judicial elections like legislative
    ones. Unlike the other branches of government, the authority of the judiciary turns
    almost exclusively on its credibility and the respect warranted by its rulings, both of
    which are likely to be diminished by free-flowing electoral speech that permits the
    malignant inference that there is such a thing as caucus-bound blue-robed judges and
    caucus-bound red-robed judges. In some settings, there can be too much of a good thing,
    and unfettered free speech in judicial elections is one of them.
    
           This is a complicated debate, and today’s case requires us to take a side on some
    of these issues. Most recently in 2005, the Kentucky Supreme Court promulgated a
    judicial canon along the lines of the hypothetical legislative campaign rules mentioned
    above. As sitting judges ourselves, we have considerable sympathy for the concerns that
    prompted the canon, so much so that we embrace a central premise of it: Judicial
    elections differ from legislative elections, and the Kentucky Supreme Court has a
    compelling interest in regulating judicial campaign speech to ensure the reality and
    appearance of an impartial judiciary. Yet because two clauses of the canon overlooked
    narrower ways of advancing this interest and because, as written, they remain
    incompatible with the United States Supreme Court’s decision in Republican Party of
    Minnesota v. White, 
    536 U.S. 765
     (2002), we must invalidate them. The third clause is
    constitutional in the main but contains a material ambiguity, which requires further
    consideration by the district court. The district court’s decision is affirmed in part and
    vacated in part.
    
                                                I.
    
                                               A.
    
           In 1792, Kentucky became the fifteenth State (and the fourth Commonwealth).
    The original Kentucky Constitution permitted the Governor to appoint judges, see Ky.
    Const. art. 2, § 8 (1792), but the Commonwealth, in the aftermath of the Age of Jackson,
    Nos. 08-6468/6538           Carey v. Wolnitzek, et al.                                  Page 5
    
    
    amended its Constitution in 1850 to require its judges to stand for popular election to
    eight-year terms. See Ky. Const. § 117; Ky. Const. art. 4, §§ 4, 6 (1850). Since 1975,
    judicial elections in Kentucky have been “nonpartisan,” compare Ky. Const. §116
    (1891) with Ky. Const. §117 (1976), meaning that political parties have no formal role
    in any stage of the judicial selection process. Prospective candidates submit petitions
    for nomination to the Secretary of State. Ky. Rev. Stat. Ann. § 118A.060. The
    Commonwealth holds a single primary election for each judicial seat with no party
    identifiers and random ballot positioning. Id. The top two vote-getters in the primary
    election receive a spot on the general election ballot, which also is held without any
    party identifier. Id.
    
            In competing for judicial seats, all candidates must abide by the Kentucky Code
    of Judicial Conduct. Promulgated by the Kentucky Supreme Court, it generally prohibits
    “a judge or judicial candidate” from “inappropriate political activity.” Rules of Supreme
    Court of Kentucky 3.130(8.2); 4.300, Canon 5. Sitting judges or judicial candidates
    violate this admonition, the Code says, if they fail to follow these clauses of Canon 5,
    among others:
    
            The party affiliation clause. “A judge or candidate shall not identify
            himself or herself as a member of a political party in any form of
            advertising, or when speaking to a gathering. If not initiated by the judge
            or candidate for such office, and only in answer to a direct question, the
            judge or candidate may identify himself or herself as a member of a
            particular political party.” Canon 5A(2).
            The solicitation clause. “A judge or a candidate for judicial office shall
            not solicit campaign funds, but may establish committees of responsible
            persons to secure and manage the expenditure of funds for the campaign
            and to obtain public statements of support for the candidacy.” Canon
            5B(2).
            The commits clause. “A judge or candidate for election to judicial office
            . . . shall not intentionally or recklessly make a statement that a
            reasonable person would perceive as committing the judge or candidate
            to rule a certain way in a case, controversy, or issue that is likely to come
            before the court . . . .” Canon 5B(1)(c).
    Nos. 08-6468/6538          Carey v. Wolnitzek, et al.                               Page 6
    
    
    The Kentucky Judicial Conduct Commission, a constitutionally mandated state body
    subject to judicial review by the Kentucky Supreme Court, see Ky. Const. § 121,
    enforces the Code of Judicial Conduct. It may impose sanctions on violators of the
    Code, which run the gamut from a private reprimand to a public censure to removal from
    office to a referral to the Kentucky Bar Association for disbarment from the practice of
    law. Rules of Supreme Court of Kentucky 4.020. The Kentucky Inquiry Commission
    and the Office of Bar Counsel also police ethical violations by Kentucky attorneys,
    including violations of the rule that “[a] lawyer who is a candidate for judicial office
    shall comply with the applicable provisions of the Code of Judicial Conduct.” Rules of
    Supreme Court of Kentucky 3.130(8.2); 3.160(1).
    
                                                B.
    
           In June 2006, Marcus Carey, then a candidate for a seat on the Kentucky
    Supreme Court, filed a complaint in federal district court claiming that the party
    affiliation, solicitation and commits clauses violated his speech and associational rights
    under the First and Fourteenth Amendments of the U.S. Constitution. The named
    defendants sit on the Kentucky Judicial Conduct Commission, sit on the Kentucky
    Inquiry Commission or serve as Bar Counsel.
    
           Carey complained that he wanted to disclose his party status, yet he feared the
    party affiliation clause barred him from doing so. He wanted to ask for campaign
    contributions by signing fund-raising letters, yet he feared the solicitation clause barred
    him from doing so. And he wished to respond to a judicial questionnaire distributed by
    Kentucky Right to Life, raising questions for the candidates about their judicial
    philosophy and about their positions on specific issues, yet he feared the commits clause
    barred him from doing so. He asked the court to declare the clauses unconstitutional on
    their face and to enjoin their enforcement.
    
           In October 2006, roughly one month before the election, the district court
    preliminarily enjoined enforcement of the party affiliation and the solicitation clauses
    but dismissed Carey’s challenge to the commits clause on ripeness and standing grounds.
    On November 2, Carey moved to amend his complaint, re-challenging the commits
    Nos. 08-6468/6538          Carey v. Wolnitzek, et al.                               Page 7
    
    
    clause, this time detailing the statements he proposed to make in possible violation of
    the clause. About a week later, Carey lost the election.
    
           In September 2007, the court ruled that Carey’s amended challenge to the
    commits clause was ripe for review and allowed it to proceed along with Carey’s
    challenges to the party affiliation and solicitation clauses. The parties all moved for
    summary judgment. In ruling on the motions, the district court determined that strict
    scrutiny applied to all of the challenges. It then invalidated the party affiliation and
    solicitation clauses on their face but rejected Carey’s facial challenge to the commits
    clause. The state defendants appeal the court’s ruling on the party affiliation and
    solicitation clauses, and Carey appeals the court’s ruling on the commits clause.
    
                                                II.
    
           Before turning to the merits, we must consider two jurisdictional questions
    implicated by these challenges: Did Carey file his claims too early, making them unripe
    for judicial review, or too late, making them moot? See Warshak v. United States, 
    532 F.3d 521
    , 525 (6th Cir. 2008) (en banc).
    
           Ripeness. Designed to ensure that the federal courts resolve “existing, substantial
    controversies,” Norton v. Ashcroft, 
    298 F.3d 547
    , 554 (6th Cir. 2002), not disputes
    “anchored in future events that may not occur as anticipated” or may not occur “at all,”
    Nat’l Rifle Ass’n of Am. v. Magaw, 
    132 F.3d 272
    , 284 (6th Cir. 1997), the ripeness
    doctrine ensures that a dispute is concrete and real before the judicial branch resolves
    it. Three considerations inform the doctrine: Is the alleged injury likely to occur? Is the
    factual record sufficiently developed to resolve the question? And what kinds of
    hardships, if any, will the parties face if the court delays resolution of the question?
    Warshak, 532 F.3d at 525. In the context of a free-speech overbreadth challenge like
    this one, a relaxed ripeness standard applies to steer clear of the risk that the law “may
    cause others not before the court to refrain from constitutionally protected speech or
    expression.” Broadrick v. Oklahoma, 
    413 U.S. 601
    , 612 (1973).
    Nos. 08-6468/6538           Carey v. Wolnitzek, et al.                                Page 8
    
    
            Carey meets these requirements. In future judicial elections, as in prior ones, he
    claims an interest in engaging in protected speech that implicates, if not violates, each
    clause. He wants to let voters know his party affiliation. He wants to solicit campaign
    funds directly, as opposed to indirectly via an election committee. And he wants to
    answer judicial questionnaires propounded by a local right-to-life organization. These
    aspects of the canon at least chill, and in some instances prohibit, these forms of
    communication, and in the course of the November 2006 election, at least until the entry
    of the October 2006 injunction, Carey censored himself on each topic. All of this
    establishes a “credible fear of enforcement,” Norton, 298 F.3d at 554, sufficient to
    overcome any ripeness concerns.
    
            The Kentucky Judicial Conduct Commission persists that the Kentucky Supreme
    Court and its ethics branch, the Kentucky Judicial Ethics Committee, have yet to apply
    these clauses to Carey, noting that “an authoritative construction of the canons may
    significantly alter the constitutional questions.” Commission’s Opening Br. at 22. That
    is all true, but it is a peculiar ground for staying our hand now with respect to all of these
    challenges, some of which involve clauses with little ambiguity. See City of Lakewood
    v. Plain Dealer Pub. Co., 
    486 U.S. 750
    , 770 n.11 (1988). This challenge dates from July
    2006, and a related challenge, supported by the same counsel, dates from September
    2004, see Family Trust Found. of Ky., Inc. v. Wolnitzek, 
    345 F. Supp. 2d 672
     (E.D. Ky.
    2004). The Commission has had ample time to request interpretations or modifications
    of Canon 5 by the Committee or the Court, yet apparently has not done so. Nor has the
    Commission, or anyone else in this case, asked the federal courts to certify any questions
    to the Kentucky Supreme Court. These claims are ripe for review.
    
            Mootness. In one sense, Carey’s original challenge seems moot because the
    November 2006 election has come and gone. Carey filed his original complaint months
    ahead of the election, and moved to amend it a week before the election, yet here we are
    more than three years after the election, still considering his claims. Carey, however,
    retains the right to run for judicial office again, and all candidates for judicial office in
    Kentucky, whether sitting judges or not, are subject to Canon 5.                Under these
    Nos. 08-6468/6538          Carey v. Wolnitzek, et al.                                Page 9
    
    
    circumstances, the claims may proceed: The alleged wrongs are “capable of repetition,
    yet evading review,” saving them from mootness, as the district court correctly held and
    as the parties do not dispute. See Fed. Election Comm’n v. Wis. Right to Life, Inc., 
    551 U.S. 449
    , 462 (2007); Briggs v. Ohio Elections Comm’n, 
    61 F.3d 487
    , 492–93 (6th Cir.
    1995).
    
                                                III.
    
                                                A.
    
             Two recent decisions of the Supreme Court—White and Caperton—set the stage
    for resolving the merits of this dispute. At issue in White was a judicial canon, first
    promulgated by Minnesota in 1974, providing that “a candidate for a judicial office,
    including an incumbent judge,” shall not “announce his or her views on disputed legal
    or political issues.” Minn. Code of Judicial Conduct, Canon 5(A)(3)(d)(i); White, 536
    U.S. at 768. Applying strict scrutiny, the Court rejected Minnesota’s contention that the
    canon preserved judicial “impartiality” in a permissible way.
    
             To the extent the Minnesota announce clause sought to preserve judicial
    “impartiality” in one sense—a “lack of bias for or against either party to the
    proceeding,” id. at 775—the Court accepted the State’s interest as a compelling one. Id.
    at 777 n.7. But the clause suffered from a means-end problem because it did “not restrict
    speech for or against particular parties, but rather speech for or against particular
    issues.” Id. at 776. It may be, the Court acknowledged, that, “when a case arises that
    turns on a legal issue on which the judge (as a candidate) had taken a particular stand,
    the party taking the opposite stand is likely to lose,” but that is not due to “any bias
    against that party” for “[a]ny party taking that position is just as likely to lose.” Id. at
    776–77.
    
             To the extent the State meant to advance “impartiality” in another sense—an
    absence of judicial “preconception in favor of or against a particular legal view”—that
    was not a compelling interest. Id. at 777. “[S]ince avoiding judicial preconceptions on
    legal issues is neither possible nor desirable, pretending otherwise by attempting to
    Nos. 08-6468/6538            Carey v. Wolnitzek, et al.                           Page 10
    
    
    preserve the ‘appearance’ of that type of impartiality can hardly be a compelling state
    interest either.” Id. at 778.
    
            And to the extent the State meant to promote “impartiality” in the sense of
    judicial “open-mindedness”—the “willing[ness] to consider views that oppose [one’s]
    preconceptions”—the Court found it unnecessary to decide whether this “desirable”
    quality amounted to a compelling interest. Id. at 778. It held that the clause was so
    poorly tailored to any interest in open-mindedness that the Minnesota Supreme Court
    could not have “adopted the announce clause for that purpose.” Id. Judges, both
    incumbent and prospective, it reasoned, retained so many ways to communicate their
    views on legal issues other than through election statements that the clause gratuitously
    limited speech while “leav[ing] appreciable damage to that supposedly vital interest
    unprohibited.” Id. at 780.
    
            Caperton dealt with a sitting state supreme court justice whose top campaign
    donor in the previous election, the head of a mining company, had spent $3 million on
    his behalf—more than all of his other supporters combined. See Caperton, 129 S. Ct.
    at 2257. When a high-stakes dispute involving the mining company came before the
    court, the justice refused to recuse himself from hearing it and ultimately joined the 3–2
    majority in ruling for the company. See id. at 2258. The losing party claimed that the
    justice’s participation in the case violated its due process rights. The Supreme Court
    agreed, holding that, by refusing to disqualify himself, the justice had unconstitutionally
    deprived the parties of a fair hearing. See id. at 2265. When “there is a serious risk of
    actual bias,” the Court reasoned, the Constitution requires judges to disqualify
    themselves, though the Court cautioned that this was “an extraordinary situation,”
    emphasizing the size of the mining company’s support relative to other donors’ support,
    the apparently decisive effect of this support on the justice’s election and the close
    temporal connection between the justice’s election and the company’s case. Id. at 2263,
    2265.
    Nos. 08-6468/6538           Carey v. Wolnitzek, et al.                               Page 11
    
    
                                                 B.
    
            Strict scrutiny applies to all three aspects of this First Amendment challenge.
    White, for one, suggests as much, even if the decision does not compel that conclusion.
    In striking down Minnesota’s announce clause, the Court said the following about the
    standard of review:
    
            As the Court of Appeals recognized, the announce clause both prohibits
            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. 247 F.3d at 861, 863. The
            Court of Appeals concluded that the proper test to be applied to
            determine the constitutionality of such a restriction is what our cases
            have called strict scrutiny, id., at 864; the parties do not dispute that this
            is correct.
    
    536 U.S. at 774.
    
            The state defendants seize on the modest length of the Court’s analysis and
    Minnesota’s concession, arguing that we need not apply strict scrutiny here. But White’s
    brevity on this score and Minnesota’s concession may suggest something else: that the
    counter-argument has little to support it. The multi-State amicus brief filed in support
    of Minnesota did not question the applicability of strict scrutiny in White. See Brief
    Amicus Curiae of California, et al. in Support of Respondents, Republican Party of
    Minn. v. Kelly, 
    536 U.S. 765
     (2002) (No. 01-521). Not one of the Justices, not even one
    of the four dissenters, objected to the application of strict scrutiny. And if strict scrutiny
    does not apply to judicial canons like this one and the one at issue in White, it is difficult
    to understand why the Court exercised its discretion in reviewing White, given that
    virtually the entire analysis is premised on the applicability of strict scrutiny and given
    that the outcome of the case under a lower level of scrutiny is far from clear.
    
            Free-speech first principles also suggest that strict scrutiny should apply. The
    three canons censor speech based on its content in the most basic of ways: They prevent
    candidates from speaking about some subjects (judicial philosophy, the legal issues of
    the day, party affiliation) but not others (experience); and they prevent candidates from
    Nos. 08-6468/6538          Carey v. Wolnitzek, et al.                            Page 12
    
    
    asking for support in some ways (campaign funds) but not others (a vote, yard signs).
    The canons refer directly to, and are “justified with[] reference to,” the content of
    candidates’ speech, meaning they are not eligible for the relaxed review that content-
    neutral restrictions receive. Ward v. Rock Against Racism, 
    491 U.S. 781
    , 791 (1989).
    
           Content-based restrictions on speech generally face strict scrutiny, see United
    States v. Playboy Entm’t Group, Inc., 
    529 U.S. 803
    , 813 (2000), and thus are
    “presumptively invalid” unless the restriction discriminates on the basis of categorically
    “proscribable” speech, see R.A.V. v. City of St. Paul, 
    505 U.S. 377
    , 382–83 (1992). See
    also United States v. Stevens, No. 08-769, slip. op. at 5 (April 20, 2010). None of the
    categorical carve-outs apply. The canons do not address “fighting words” or incitement,
    see Chaplinsky v. New Hampshire, 
    315 U.S. 568
    , 572 (1942), defamation, see
    Beauharnais v. Illinois, 
    343 U.S. 250
     (1952), obscenity, see Roth v. United States, 
    354 U.S. 476
     (1957), or child pornography, see New York v. Ferber, 
    458 U.S. 747
    , 764
    (1982). Far from implicating these exceptions, today’s regulations implicate a core area
    of free-speech protection: elections. See Brown, 456 U.S. at 53–54; see also Stevens,
    slip op. at 9 (declining to declare “depictions of animal cruelty” as a “new categor[y] of
    speech outside the scope of the First Amendment”).
    
           Nor does the nature of the restrictions implicate any of the other areas or types
    of regulation—time, place and manner restrictions, commercial speech, expressive
    conduct—in which the Court has applied less-than-rigorous review. The canons instead
    are of a piece with the kinds of speech regulation—telling candidates what they can and
    cannot say before an election—that the courts have scrutinized most rigorously. See,
    e.g., Brown, 456 U.S. at 53–54; see also Erwin Chemerinsky, Restrictions on the Speech
    of Judicial Candidates are Unconstitutional, 
    35 Ind. L
    . Rev. 735, 740–742 (2002)
    (explaining that strict scrutiny should apply to First Amendment challenges to judicial
    canons like these); Mark Spottswood, Comment, Free Speech and Due Process
    Problems in the Regulation and Financing of Judicial Election Campaigns, 101 Nw. U.
    L. Rev. 331, 347 (2007) (same).
    Nos. 08-6468/6538           Carey v. Wolnitzek, et al.                               Page 13
    
    
            The Commission does not cite a single case, and we have not found one on our
    own, applying anything less than strict scrutiny to comparable free-speech challenges
    to judicial election canons. After White, the Eighth Circuit applied strict scrutiny to
    Minnesota’s party affiliation and solicitation clauses. See Republican Party of Minn. v.
    White, 
    416 F.3d 738
    , 749 (8th Cir. 2005) (en banc) (“White II”). After White, the
    Eleventh Circuit did the same in invalidating Georgia’s rules prohibiting judicial
    candidates from soliciting campaign funds. See Weaver v. Bonner, 
    309 F.3d 1312
    , 1319
    (11th Cir. 2002). After White, the Seventh Circuit applied strict scrutiny to Wisconsin’s
    party affiliation clause and held that Wisconsin’s solicitation clause survived both
    intermediate and strict scrutiny. See Siefert v. Alexander, ___ F.3d ___, No. 09-1713,
    slip op. at 5, 12 (7th Cir. June 14, 2010). And, before White, the Third Circuit applied
    strict scrutiny in upholding some judicial speech restrictions.             See Stretton v.
    Disciplinary Bd. of Supreme Court of Pa., 
    944 F.2d 137
    , 141–42 (3d Cir. 1991).
    
            The Commission urges us to apply a form of intermediate scrutiny, which
    balances the “competing fundamental rights” of some judicial candidates (who have a
    right to engage in campaign speech) and some litigants (who have a right to an impartial
    judiciary). Commission’s Opening Br. at 10. But the reality that judicial impartiality
    is a “vital state interest,” protected by the Due Process Clause, Caperton, 129 S. Ct. at
    2266–67, does not require us to dilute the First Amendment. It establishes instead that
    Kentucky has a compelling interest in preserving the canon, proving that the State can
    satisfy the first requirement of strict scrutiny, not that, having satisfied this requirement,
    it may water down the remaining requirements.
    
            The Commission’s analogy to Gentile v. State Bar of Nevada, 
    501 U.S. 1030
    (1991), does not hold up. Gentile “balance[d]” litigants’ fair trial rights with attorneys’
    free speech rights in upholding a rule prohibiting attorneys involved in a pending trial
    from making statements likely to prejudice the proceedings. Id. at 1075. As these
    features of the decision suggest, Gentile applies only to speech restrictions imposed on
    attorneys during a pending case, see id. at 1073 n.5, which is one reason—there are
    others—why a comparable law restricting judges from telling the press about the
    Nos. 08-6468/6538           Carey v. Wolnitzek, et al.                              Page 14
    
    
    outcome of a pending case would not be an unconstitutional prior restraint on speech.
    Today, however, we have a speech restriction aimed not at judges performing court
    functions but at judges and judicial candidates making campaign statements or
    solicitations outside of court and outside of the process of deciding cases in their official
    capacity—all for the purpose of communicating information to voters about whom they
    should elect. That Gentile upholds a law restricting a lawyer’s speech during a trial does
    not mean that it allows restrictions on lawyers in all settings. Otherwise, a lawyer
    running to be the Attorney General or Governor of a State could be censored simply
    because she is an “officer of the court.” That is not the case.
    
            The Commission insists that the solicitation clause is an especially poor
    candidate for strict scrutiny review, because the Supreme Court applies a “lesser”
    standard of review to restrictions on political donations. See McConnell v. Fed.
    Election Comm’n, 
    540 U.S. 93
    , 136 (2003). But this argument gives analogy a bad
    name. The solicitation clause does not set a contribution limit, as in McConnell and
    similar cases. See, e.g., Fed. Election Comm’n v. Nat’l Right to Work Comm., 
    459 U.S. 197
    , 208 (1982). It flatly prohibits speech, not donations, based on the topic (solicitation
    of a contribution) and speaker (a judge or judicial candidate)—precisely the kind of
    content-based regulations that traditionally warrant strict scrutiny.
    
                                                 C.
    
            Because strict scrutiny applies, the Commission faces a daunting gauntlet, as “it
    is the rare” law that “survives” this kind of review. Burson v. Freeman, 
    504 U.S. 191
    ,
    211 (1992). To survive, the three canons must be “narrowly tailored” to advance a
    “compelling state interest.” Eu v. San Francisco County Democratic Cent. Comm., 
    489 U.S. 214
    , 222 (1989).
    
            At the same time, Carey seeks to invalidate these clauses not just as applied to
    him but in all of their applications, which is to say on their face. In most constitutional
    cases, that exceptional remedy requires the claimant to “show one of two things: (1) that
    there truly are ‘no’ or at least few ‘circumstances’ in ‘which the Act would be valid,’
    United States v. Salerno, 
    481 U.S. 739
    , 745 (1987); see also Wash. State Grange v.
    Nos. 08-6468/6538          Carey v. Wolnitzek, et al.                             Page 15
    
    
    Wash. State Republican Party, 
    552 U.S. 442
    , 449–50 (2008); or (2) that a court cannot
    sever the unconstitutional textual provisions of the law or enjoin its unconstitutional
    applications.” Connection Distrib. Co. v. Holder, 
    557 F.3d 321
    , 335 (6th Cir. 2009) (en
    banc). The courts, however, “rightly lighten this load in the context of free-speech
    challenges to the facial validity of a law.” Id. In view of the risk that “enforcement of
    an overbroad law” may “deter[] people from engaging in constitutionally protected
    speech” and may “inhibit[ ] the free exchange of ideas,” the overbreadth doctrine permits
    courts to invalidate a law on its face “if ‘a substantial number of its applications are
    unconstitutional, judged in relation to the statute’s plainly legitimate sweep.’” Stevens,
    No. 08-769, slip op. at 10 (quoting Wash. State Grange, 522 U.S. at 449 n.6).
    
                                               IV.
    
                                               A.
    
           Party affiliation clause. This clause prohibits judges and candidates from
    disclosing their party affiliation “in any form of advertising, or when speaking to a
    gathering,” save in answer to a question by a voter in one-on-one or “very small private
    informal” settings. Rules of Supreme Court of Kentucky 4.300, Canon 5(A)(2);
    Kentucky Judicial Ethics Opinion JE-105 (2004). The clause advances at least two
    interests, both sufficiently compelling to satisfy the First Amendment. It furthers the
    Commonwealth’s goal of having a judiciary that is biased neither in fact nor in
    appearance. See White, 536 U.S. at 775–79. And it furthers the Commonwealth’s
    interest in diminishing reliance on political parties in judicial selection, a policy
    grounded in the Kentucky Constitution’s requirement that judicial elections be
    nonpartisan in nature.
    
           The problem, however, is not the Commonwealth’s laudable interests in
    promulgating this canon; it is the Commonwealth’s methods in furthering them. The
    Court frequently says that censoring speech must be a government’s measure of
    “last—not first—resort” in advancing its policy interests, e.g., Thompson v. W. States
    Med. Ctr., 
    535 U.S. 357
    , 373 (2002), and the narrow-tailoring requirement is proof that
    Nos. 08-6468/6538          Carey v. Wolnitzek, et al.                              Page 16
    
    
    the Court means it. If a law does too much, or does too little, to advance the
    government’s objectives, it will fail. See Eu, 489 U.S. at 222. This canon does both.
    
            The canon’s first problem is a White problem—that it suppresses too much
    speech to advance the government’s interest. In invalidating Minnesota’s announce
    clause, White established that a State may not prohibit a judicial candidate from
    disclosing, say, that “I am for limited government,” “I support a woman’s right to
    choose,” “I prefer tough-on-crime laws,” or, to use an example from White, “I think it
    is constitutional for the legislature to prohibit same-sex marriage.” 536 U.S. at 779. The
    party affiliation clause prohibits all of this, only more so. It prohibits candidates from
    announcing their position on one issue of potential importance to voters: the party they
    support. And it prohibits them from announcing their position on many issues of
    potential importance to voters: the party platform with which they affiliate. A party
    platform after all is nothing more than an aggregation of political and legal positions, a
    shorthand way of announcing one’s views on many topics of the day. If the single-issue
    announce canon at play in White prevented candidates from “communicating relevant
    information to voters” on “matters of current public importance,” and did not narrowly
    advance the State’s interest in a non-partisan judiciary, id. at 781–82, the same is true
    of Kentucky’s canon, which potentially prevents candidates from announcing their views
    on many issues at once. See id. at 782 (“We have never allowed the government to
    prohibit candidates from communicating relevant information to voters during an
    election.”).
    
            At the same time, the canon does too little to advance the State’s interest in
    impartiality and the avoidance of partisan influence. Party affiliation, as it turns out, is
    not a forbidden topic. It is forbidden only when the candidate raises the point. If, by
    contrast, a voter asks the question in a one-on-one setting or in a small gathering, the
    candidate is free to say what she wants. That reality undermines the suggestion that a
    candidate deals a fatal blow to judicial impartiality by revealing her party affiliations.
    And of course, once that information is disclosed, whether in answer to a question or
    based on prior publicly known affiliations (including holding other elected offices),
    Nos. 08-6468/6538            Carey v. Wolnitzek, et al.                             Page 17
    
    
    nothing in the canon prohibits others, whether newspapers or political parties or interest
    groups, from disclosing to the world the candidate’s party affiliation. “A law cannot be
    regarded as protecting an interest of the highest order, and thus as justifying a restriction
    upon truthful speech, when it leaves appreciable damage to that supposedly vital interest
    unprohibited.” Id. at 780.
    
            The clause undershoots its target in another respect. Although candidates may
    not reveal their party affiliation, they may discuss their membership in, affiliation with
    or support of any other type of organization, including organizations that take positions
    on judges and judicial philosophy. Although the two major political parties take
    positions on a wide array of issues, many interest groups advance a narrower set of
    positions and often do so more vocally, particularly with respect to judges. By
    identifying themselves with such groups, candidates can communicate more about their
    political and judicial convictions than they ever could by carrying a party membership
    card—and, in the process, may do as much to call judicial open-mindedness into
    question as any party affiliation ever would.
    
            The canon also prohibits only disclosure of a candidate’s party membership, not
    party membership itself. Yet the appearance of judicial closed-mindedness is part and
    parcel of its reality, not a device designed to disguise reality. If concern over judicial
    partisanship and the influence of political parties on judging truly underlies the clause,
    the authorization to belong (secretly) to a political party amounts to a gaping omission.
    A party’s undisclosed potential influence on candidates is far worse than its disclosed
    influence, as the one allows a full airing of the issue before the voters while the other
    helps to shield it from public view.
    
            Kentucky responds that the restriction supports the Kentucky Constitution’s
    requirement that judicial elections be nonpartisan—that they operate with no partisan
    primaries and with no partisan identifiers at the ballot booth. See Ky. Const. § 117; Ky.
    Rev. Stat. § 118A.060. The point, however, cuts both ways. In one sense, it establishes
    the bona fides of the Commonwealth’s policy. But in another sense, it undermines the
    Commonwealth’s professed need to suppress speech in the process. Carey does not
    Nos. 08-6468/6538          Carey v. Wolnitzek, et al.                              Page 18
    
    
    challenge the validity of prohibiting party identifiers on the ballot or the validity of
    holding non-partisan primaries. He just wishes to communicate about a matter of
    potential interest to the voters and one that is often already a point of public
    knowledge—party affiliation—on his own terms.
    
            Most States have not made the choice Kentucky did. Fifteen States choose their
    Supreme Court justices in contested, “nonpartisan” elections, and only five, including
    Kentucky, prohibit candidates in those elections from revealing their partisan affiliations.
    See App’x A. (Three more prohibit candidates from claiming to be “a candidate of a
    political organization” but do not prohibit revealing membership or affiliation. Id.) And
    two of these five canons—this one and Wisconsin’s—have been invalidated. See Siefert,
    slip op. at 16. That a majority of the States with nonpartisan Supreme Court elections
    have opted not to censor their candidates in this way of course does not establish the
    invalidity of the clause, but it does call into question the necessity of implementing
    Kentucky’s nonpartisan judicial election system in this way and whether it amounts to
    the “least restrictive means” of protecting the Commonwealth’s interests. Playboy
    Entm’t Group, 529 U.S. at 813.
    
            The Commission says that the clause restricts as little speech as possible while
    preventing Kentucky’s elections from turning into ultra-partisan affairs. It allows
    judges, the Commission adds, to join political parties, to participate in them and to
    disclose party affiliation if asked in the proper setting—allowing voters who care about
    a candidate’s partisan affiliation to discover it while preventing widespread
    advertisement of a candidate’s party membership and preventing “judicial races [from]
    turning into partisan political campaigns.” Commission’s Opening Br. at 66. Yet this
    argument looks at the problem through the wrong end of the telescope: It merely
    demonstrates that the clause does not restrict as much speech as it might, not that the
    clause restricts no more speech than is necessary.
    
            We do not doubt one of the premises of the canon—that party affiliation may not
    be a reliable indicator of the qualities that make a good judge. Yet “[i]t is simply not the
    function of government to select which issues are worth discussing or debating in the
    Nos. 08-6468/6538           Carey v. Wolnitzek, et al.                            Page 19
    
    
    course of a political campaign,” White, 536 U.S. at 782 (quotation omitted), and it is
    difficult to see how Kentucky’s speech restriction does not do just that. Informational
    bans premised on the fear that voters cannot handle the disclosure have a long history
    of being legislatively tried and judicially struck, whether in the election setting or
    elsewhere. See, e.g., Brown, 456 U.S. at 60 (“The State’s fear that voters might make
    an ill-advised choice does not provide the State with a compelling justification for
    limiting speech.”); Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc.,
    
    425 U.S. 748
    , 773 (1976). Voters often resort to a variety of proxies in selecting judges
    and other office holders, some good, some bad. And while political identification may
    be an unhelpful way to pick judges, it assuredly beats other grounds, such as the all-too-
    familiar formula of running candidates with familiar or popular last names. In that
    respect, this informational ban increases the likelihood that one of the least relevant
    grounds for judicial selection—the fortuity of one’s surname—is all that the voters will
    have to go on. As the district court correctly concluded, this clause violates the First
    Amendment on its face.
    
                                                B.
    
            Solicitation clause. Kentucky prohibits judicial candidates from “solicit[ing]
    campaign funds,” a restriction that extends to all fundraising by the candidate, including
    in-person solicitations, group solicitations, telephone calls and letters. Rules of Supreme
    Court of Kentucky 4.300, Canon 5(B)(2). The clause permits the candidate to establish
    a committee that may solicit campaign donations, and it permits the committee to
    disclose to the candidate the names of people who donated to the campaign and those
    who declined. See id. Kentucky says that the clause satisfies the First Amendment, but
    we, like the district court, conclude that it does not.
    
            As with the party affiliation clause, we do not doubt the bona fides of the
    solicitation clause: that it serves Kentucky’s compelling interest in an impartial
    judiciary. The same goes for its interest in preserving the appearance and reality of a
    non-corrupt judiciary, an objective often served by fundraising limitations. See Fed.
    Election Comm’n v. Nat’l Conservative Political Action Comm., 
    470 U.S. 480
    , 496–97
    Nos. 08-6468/6538          Carey v. Wolnitzek, et al.                              Page 20
    
    
    (1985). Litigants have a due process right to a trial before a judge with no “direct,
    personal, substantial pecuniary interest” in the outcome, Tumey v. Ohio, 
    273 U.S. 510
    ,
    523 (1927), and the legitimacy of the judiciary rests on delivering on that promise and
    in furthering the public’s trust in the integrity of its judges, see Mistretta v. United
    States, 
    488 U.S. 361
    , 407 (1989). See generally Caperton, 
    129 S. Ct. 2252
    .
    
            Preserving these interests, we also acknowledge, grows more complicated when
    a State exercises its sovereign right to select judges through popular elections. Judicial
    elections, like most elections, require money—often a lot of it. Kentucky’s 2006
    Supreme Court election, which featured four contested races and one uncontested race,
    saw ten candidates raise a total of $2,119,871, of which the candidates spent $772,563
    on 2,357 television commercials. Brennan Center for Justice at NYU School of Law,
    The New Politics of Judicial Elections 2006 at 3, 16. “Unless the pool of judicial
    candidates is limited to those wealthy enough to independently fund their campaigns, a
    limitation unrelated to judicial skill, the cost of campaigning requires judicial candidates
    to engage in fundraising.” White, 536 U.S. at 789–90 (O’Connor, J., concurring).
    Complicating matters further, the general public often, though not invariably, pays less
    attention to judicial elections than other elections, forcing judicial candidates to focus
    their fundraising efforts on the segment of the population most likely to have an interest
    in judicial races: the bar. “This leads to the unseemly situation in which judges preside
    over cases in which the parties are represented by counsel who have contributed in
    varying amounts to the judicial campaigns.” Stretton, 944 F.2d at 145.
    
            That the clause advances important government interests, however, does not
    establish that it does so narrowly. Prohibiting candidates from asking for money
    suppresses speech in the most conspicuous of ways and, in the process, favors some
    candidates over others—incumbent judges (who benefit from their current status) over
    non-judicial candidates, the well-to-do (who may not need to raise any money at all)
    over lower-income candidates, and the well-connected (who have an army of potential
    fundraisers) over outsiders. For these reasons, it is tempting to say that any limitation
    on a candidate’s right to ask for a campaign contribution is one limitation too many. But
    Nos. 08-6468/6538          Carey v. Wolnitzek, et al.                              Page 21
    
    
    there are at least two areas covered by the clause that test such an interpretation—face-
    to-face solicitations, particularly by sitting judges, and solicitations of individuals with
    cases pending in front of the court. Yet we need not decide the validity of such
    restrictions today because Kentucky goes well beyond them.
    
            Besides covering in-person solicitations and those directed at individuals with
    pending cases, the canon prohibits a range of other solicitations, including speeches to
    large groups and signed mass mailings. Such indirect methods of solicitation present
    little or no risk of undue pressure or the appearance of a quid pro quo. No one could
    reasonably believe that a failure to respond to a signed mass mailing asking for
    donations would result in unfair treatment in future dealings with the judge. Nor would
    a speech requesting donations from a large gathering have a “coercive effect” on
    reasonable attendees. Commission’s Opening Br. at 55; compare Ohralik v. Ohio State
    Bar Ass’n, 
    436 U.S. 447
    , 465–66 (1978) (State may regulate lawyers’ in-person for-
    profit solicitation of clients because of “intrusive[ness]” of “persuasion under
    circumstances conducive to uninformed acquiescence”) with In re Primus, 
    436 U.S. 412
    ,
    435–36 (1978) (regulation of lawyer’s written, not-for-profit solicitation merited
    heightened scrutiny because it did not “afford any significant opportunity for
    overreaching or coercion”) and Shapero v. Ky. Bar Ass’n, 
    486 U.S. 466
    , 475 (1988)
    (“Targeted, direct-mail solicitation is distinguishable from the in-person solicitation”
    because there is no “badgering advocate breathing down [a potential client’s] neck,”
    asking for “an immediate yes-or-no answer.”).
    
            At the same time, the clause does too little to protect the Commonwealth’s
    interests. Although the candidate himself may not solicit donations, his campaign
    committee may. And nothing prevents a committee member from soliciting donations
    in person. That leaves a rule preventing a candidate from sending a signed mass mailing
    to every voter in the district but permitting the candidate’s best friend to ask for a
    donation directly from an attorney who frequently practices before the court. Are not
    the risks of coercion and undue appearance far less with the first (prohibited) solicitation
    than the second (permitted) one?
    Nos. 08-6468/6538          Carey v. Wolnitzek, et al.                            Page 22
    
    
           Although the clause prevents judicial candidates from saying “please, give me
    a donation,” it does not prevent them from saying “thank you” for a donation given. The
    clause bars any solicitation, whether in a large group or small one, whether by letter or
    one on one, but it does not bar the candidate from learning how individuals responded
    to the committee’s solicitations. That omission suggests that the only interest at play is
    the impolitic interpersonal dynamics of a candidate’s request for money, not the more
    corrosive reality of who gives and how much. If the purported risk addressed by the
    clause is that the judge or candidate will treat donors and non-donors differently, it is
    knowing who contributed and who balked that makes the difference, not who asked for
    the contribution. If Kentucky fears that judges will allow campaign donations to affect
    their rulings, it must believe that “[s]uccessful candidates will feel beholden to the
    people who helped them get elected regardless of who did the soliciting of support.”
    Weaver, 309 F.3d at 1323.
    
           Two other circuits have considered the validity of similar canons and have come
    to similar conclusions. In Weaver, the Eleventh Circuit considered a Georgia rule
    providing that judicial candidates “shall not themselves solicit campaign funds.” 309
    F.3d at 1315. Relying on many of the same means-end problems identified here, the
    court concluded that the canon was “not narrowly tailored to serve Georgia’s compelling
    interest in judicial impartiality.” Id. at 1322. In White II, on remand after the Supreme
    Court invalidated Minnesota’s “announce” clause, the Eighth Circuit invalidated a canon
    that prohibited judicial candidates from “personally solicit[ing] or accept[ing] campaign
    contributions.” 416 F.3d at 745. In Siefert, ___ F.3d ___, the Seventh Circuit upheld
    Wisconsin’s prohibition on judges’ “personal[] solicit[ation]” of campaign contributions.
    See slip op. at 32–33. But, in doing so, it focused on the problems associated with
    “direct” solicitation and did not consider the validity of applying the canon to mass
    mailings and group solicitations—the most troubling scenarios here. See id. at 30–32.
    
           The state defendants push back, arguing that, even though a candidate may
    discover her donors’ identities from the campaign committee, the solicitation clause
    makes “favoritism” toward contributors “more difficult.” Commission’s Opening Br.
    Nos. 08-6468/6538          Carey v. Wolnitzek, et al.                            Page 23
    
    
    at 57. After all, they reason, when a candidate asks for a donation in person, she
    immediately will find out whether the donor gives and how much. Id. That may or may
    not be true. But even if we grant the Commonwealth’s premise—that in-person
    solicitations always lead to more immediate information about donations or
    rejections—that suggests only that the solicitation clause may be constitutional in some
    settings. It does not resolve the clause’s considerable overbreadth: its application to
    mass-mailing solicitations or speeches to a large audience.
    
           But the solicitation clause must be constitutional, the state defendants add,
    because most other States with judicial elections also prevent candidates from soliciting
    funds. See Commission’s Opening Br. at 53. The argument is not as helpful as they
    suggest. By our count, twenty-two States currently elect judges to their highest courts
    in contested elections. (States with retention elections are less relevant because by
    definition they do not involve two candidates competing for the same seat.) Of these
    twenty-two States, thirteen, including Kentucky, prohibit candidates from soliciting
    campaign contributions. See App’x B. (Two more have hortatory canons telling
    candidates they “should not” or are “strongly discouraged” from personally soliciting.
    Id.) Yet this bare majority is no more dispositive here than it was in White, where
    twenty-six States had some form of announce clause. See White, 536 U.S. at 786. No
    less importantly, we do not decide today whether a State could enact a narrowly tailored
    solicitation clause—say, one focused on one-on-one solicitations or solicitations from
    individuals with cases pending before the court—only that this clause does not do so
    narrowly.
    
           The Commonwealth to its credit wishes to avoid cases like Simes v. Ark. Judicial
    Discipline & Disability Comm’n, 
    247 S.W.3d 876
     (Ark. 2007), where a judge “made
    direct, personal solicitations” to attorneys who “had cases currently pending in the
    judge’s court.” Id. at 880. But Kentucky’s clause goes well beyond these sorts of
    solicitations. Kentucky has chosen to elect its judges in competitive elections and must
    abide by some of the risks that go with that decision. See White, 536 U.S. at 792
    (O’Connor, J., concurring). While we do not question Kentucky’s right to select judges
    Nos. 08-6468/6538          Carey v. Wolnitzek, et al.                              Page 24
    
    
    through popular elections, the Commonwealth cannot exempt itself from the demands
    of the First Amendment in the process. See id. at 788 (majority); Geary v. Renne, 
    911 F.2d 280
    , 294 (9th Cir. 1990) (en banc) (Reinhardt, J., concurring) (“The State . . .
    cannot have it both ways. If it wants to elect its judges, it cannot deprive its citizens of
    a full and robust election debate.”), vacated on other grounds by Renne v. Geary, 
    501 U.S. 312
     (1991). The solicitation clause is overbroad and thus invalid on its face.
    
                                                C.
    
            The commits clause. In prohibiting judicial candidates from “intentionally or
    recklessly mak[ing] a statement that a reasonable person would perceive as committing
    a judge or candidate to rule a certain way in a case, controversy, or issue that is likely
    to come before the court,” Canon 5B(1)(c), the commits clause covers a range of
    campaign statements. Some of those restrictions are legitimate. Others may not be.
    And there is a “vast middle ground of uncertainty” between the two. Outlaw v. Airtech
    Air Conditioning & Heating, Inc., 
    412 F.3d 156
    , 161 (D.C. Cir. 2005) (Roberts, J.).
    
            In what seems to be its core sense, the clause, found in one form or another in 39
    States, see App’x C, runs the gauntlet of strict scrutiny. By preventing candidates from
    making “statement[s]” that “commit[]” them “to rule a certain way in a case [or]
    controversy,” the clause secures a basic objective of the judiciary, one so basic that due
    process requires it: that litigants have a right to air their disputes before judges who
    have not committed to rule against them before the opening brief is read. See Caperton,
    129 S. Ct. at 2266–67; Bracy v. Gramley, 
    520 U.S. 899
    , 904–05 (1997). Whatever else
    a fair adjudication requires, it demands that judges decide cases based on the law and
    facts before them, not based on “express . . . commitments that they may have made to
    their campaign supporters.” Buckley v. Ill. Judicial Inquiry Bd., 
    997 F.2d 224
    , 227 (7th
    Cir. 1993). No one, Carey included, disputes that the Commonwealth has a compelling
    interest in “prohibit[ing] candidates from promising to rule a certain way on cases.”
    Carey’s Opening Br. at 14–15.
    
            Nor does Carey dispute that the clause narrowly advances this interest—if, that
    is, the clause is confined to campaign “commitments” with respect to “cases” or
    Nos. 08-6468/6538          Carey v. Wolnitzek, et al.                             Page 25
    
    
    “controversies.” So limited, the clause targets the kinds of interests White suggests the
    States may protect, as judicial commitments with respect to cases and controversies
    implicate not just a lack of open mindedness about the law but a lack of impartiality in
    its most essential sense—a commitment to rule for one party over another. See White,
    536 U.S. at 775–76 (“[I]mpartiality” in “the traditional sense” means “apply[ing] the law
    to [one party] in the same way [one] applies it to any other party.”). The First
    Amendment permits a State to limit speech when the Due Process Clause demands
    nothing less.
    
           But the canon does not stop there. It also prevents candidates from making
    commitments about “issues.” A commitment to rule a certain way on “issues likely to
    come before the court” covers a raft of electioneering stands, and it unmoors the
    prohibition from “cases” or “controversies” and the party-specific connotations that
    come with those terms. As White reminds us, “there is almost no legal or political issue
    that is unlikely to come before a judge of an American court, state or federal, of general
    jurisdiction.” White, 536 U.S. at 772 (emphasis added and quotation omitted). To make
    matters worse, the commentary to the clause says that it covers the “appearance” of
    making “issue”-related commitments. Canon 5B(1)(c), Cmt.
    
           Think back to White. How is a judicial candidate’s “announcement” of a position
    on a legal “issue” during an election campaign not likely to create the “appearance” that
    the candidate has “committed” to “rule a certain way” on the “issue”? And, if that is so,
    how can this aspect of the canon survive White, given that it seems to ban what White
    permits? These are good questions, but they prompt an even more basic one: what
    exactly does the “issues” prohibition cover?
    
           The clause contains a serious level-of-generality problem. At the broadest level
    of meaning, it would seem to cover issue-related promises like these: “I commit to
    follow stare decisis”; “I commit to follow an originalist theory of constitutional
    interpretation” or for that matter “a living constitutionalist theory”; “I commit to a
    purposive method of statutory interpretation” or for that matter a “textual” one; “I
    commit to use (or not to use) legislative history”; or “I commit to be a rule-of-law
    Nos. 08-6468/6538          Carey v. Wolnitzek, et al.                             Page 26
    
    
    judge.” One might reasonably say that the clause covers all of these statements, as they
    all relate to “issues” likely to come before a court and they all create an “appearance”
    of commitment. Yet if that is what the clause means, it is hard to square with the
    Constitution. A restriction on such promises does nothing to prevent the kind of
    “impartiality” that the States have an interest in securing—defined as bias (or the
    appearance of bias) toward particular parties or cases. See White, 536 U.S. at 776–77.
    
           In a narrower sense, however, the “issues” prohibition may serve that interest.
    In White itself, the Court contemplated that a State could prevent a candidate from
    highlighting an “unbroken record of affirming convictions for rape” because such
    statements would “exhibit a bias against parties,” namely against these types of criminal
    defendants and in favor of the prosecutor in these types of appeals. 536 U.S. at 777 n.7;
    id. at 800–01 (Stevens, J., dissenting). An interpretation of the clause confined to these
    kinds of statements thus might advance a compelling state interest and do so narrowly.
    
           In a facial challenge like this one, the ultimate question is one of overbreadth:
    Does the law “prohibit[] a substantial amount of protected speech both in an absolute
    sense and relative to [the canons’] plainly legitimate sweep”? Connection Distrib. Co.,
    557 F.3d at 336 (internal quotations omitted). To determine the extent of a law’s
    illegitimate reach, one needs to know what it means, as “it is impossible to determine
    whether a statute reaches too far without first knowing what the statute covers.” United
    States v. Williams, 
    553 U.S. 285
    , 293 (2008).
    
           That inquiry has not happened here—at least with respect to the “issues”
    prohibition. In upholding this clause, the district court focused on its application to
    “cases” and “controversies” and, to that extent, we agree with its analysis for the reasons
    noted. But the district court did not explore the clause’s applicability to “issues,” the
    array of settings in which that part of the clause and commentary may apply and the
    tension of several of them with White. At oral argument, we asked the parties about the
    point. Carey agreed that the commits clause would satisfy the First Amendment if the
    clause did not contain an “issues” component to it, and saw the addition of the “issues”
    language (together with the commentary) as having two impermissible effects: chilling
    Nos. 08-6468/6538           Carey v. Wolnitzek, et al.                             Page 27
    
    
    candidates’ free-speech rights to discuss their legal philosophies freely, and effectively
    sidestepping White by prohibiting candidates from announcing their positions on legal
    issues. The state defendants suggested that a narrowing construction of the “issues”
    clause could save it.
    
              Under these circumstances, discretion, to say nothing of respect for a co-equal
    sovereign, is the better part of valor.          At this point it is not clear what the
    Commonwealth’s position on the term is, and the district court has not yet explored these
    issues. If we remand this aspect of the case to the district court, the court will have that
    chance.     So too will the parties—particularly the state defendants, who retain
    considerable authority over shaping the clause and the commentary that goes with it.
    The state defendants may be able to obtain authority to remove the “issues” language;
    they may be able to identify an acceptable narrowing construction of the “issues”
    language along with a modification to the commentary; or they may suggest certification
    to the Kentucky Supreme Court. Any of these options may spare the federal courts the
    task of resolving a difficult constitutional question, and at a minimum they will give the
    Commonwealth a first shot at addressing the question.
    
                                         *       *        *
    
              There is room for debate about whether the election of state court judges is a
    good idea or a bad one. Yet there is no room for debate that, if a State opts to select its
    judges through popular elections, it must comply with the First Amendment in doing so.
    In this case, we have upheld some components of Kentucky’s Code of Judicial Conduct,
    invalidated others and sought clarification of still one other provision. Through it all,
    no one should lose sight of the reality that a judicial candidate’s right to engage in
    certain types of speech says nothing about the desirability of that speech. The First
    Amendment protects the meek and brazen, the “offensive” and agreeable. Texas v.
    Johnson, 
    491 U.S. 397
    , 414 (1989). Today’s case is about the meaning of the First
    Amendment, not about the virtues of some types of judicial campaign speech relative to
    others.
    Nos. 08-6468/6538          Carey v. Wolnitzek, et al.                            Page 28
    
    
                                               V.
    
           For these reasons, we affirm the district court’s judgment as to the party
    affiliation and solicitation clauses and vacate its judgment as to the commits clause and
    remand the case for further consideration of the meaning and validity of that clause.
    Nos. 08-6468/6538       Carey v. Wolnitzek, et al.                                         Page 29
    
    
                                       APPENDIX A
    
    
     State                   Party Affiliation Clause
     Kentucky                “A judge or candidate shall not identify himself or herself as a member
                             of a political party in any form of advertising, or when speaking to a
                             gathering.” Ky. Code of Jud. Conduct, Canon 5A(2).
    
     Partisan Election
     Alabama                 Judges should refrain from inappropriate political activities, but “it is
                             realized that a judge or a candidate for election to a judicial office
                             cannot divorce himself or herself completely from political
                             organizations and campaign activities . . . .” Ala. Canons of Jud.
                             Ethics, Canon 7A(1).
    
     Illinois                “A judge or candidate may . . . at any time . . . identify himself or
                             herself as a member of a political party.” Ill. Code of Jud. Conduct,
                             Canon 7(B)(1).
    
     Louisiana               “A judge or a judicial candidate may at any time . . . identify himself
                             or herself as a member of a political party.” La. Code of Jud. Conduct,
                             Canon 7(C)(1).
    
     New Mexico              “A judge may . . . identify the political party of the judge . . . .” N.M.
                             Code of Jud. Conduct, Rule 21-700A(2)(b).
    
     Pennsylvania            Judges and candidates may “identify themselves as a member of a
                             political party . . . .” Pa. Code of Jud. Conduct, Canon 7A(2).
    
     Texas                   “A judge or judicial candidate . . . may indicate support for a political
                             party.” Tex. Code of Jud. Conduct, Canon 5(2).
    
     West Virginia           “A judge or a candidate subject to public election may . . . at any time
                             . . . identify himself or herself as a member of a political party . . . .”
                             W. Va. Code of Jud. Conduct, Canon 5C(1).
    
     Partisan Nomination and Nonpartisan Election
     Michigan                No comparable rule.
    
     Ohio                    “A judicial candidate shall not . . . [,] [a]fter the day of the primary
                             election, identify himself or herself in advertising as a member of or
                             affiliated with a political party.” Ohio Code of Jud. Conduct, Rule
                             4.2(B)(4).
    
     Nonpartisan Election
     Arkansas                “[A] judge or a judicial candidate shall not . . . publicly identify
                             himself or herself as a candidate of a political organization . . . .” Ark.
                             Code of Jud. Conduct, Canon 4, Rule 4.1(A)(6).
    
     Georgia                 No comparable rule.
    
     Idaho                   No comparable rule.
    Nos. 08-6468/6538     Carey v. Wolnitzek, et al.                                         Page 30
    
    
    
     Minnesota             No comparable rule.
    
     Mississippi           “Judges . . . or candidates for such office, may . . . identify themselves
                           as members of political parties . . . .” Miss. Code of Jud. Conduct,
                           Canon 5C(1).
    
     Montana               “[A] judge or a judicial candidate shall not . . . publicly identify
                           himself or herself as a candidate of a political organization . . . .”
                           Mont. Code of Jud. Conduct, Canon 4, Rule 4.1(A)(6).
    
     Nevada                “[A] judge or a judicial candidate shall not . . . publicly identify
                           himself or herself as a candidate of a political organization . . . .” Nev.
                           Code of Jud. Conduct, Canon 4, Rule 4.1(A)(6).
    
     North Carolina        “A judge or a candidate may . . . identify himself/herself as a member
                           of a political party . . . .” N.C. Code of Jud. Conduct, Canon 7B(3).
    
     North Dakota          No comparable rule.
    
     Oregon                “[A] judicial candidate shall not knowingly . . . [p]ublicly identify the
                           judicial candidate, for the purpose of election, as a member of a
                           political party other than by registering to vote . . . .” Or. Code of Jud.
                           Conduct, JR 4-102(C).
    
     Washington            “Judges or candidates for election to judicial office shall not
                           . . . identify themselves as members of a political party . . . .” Wash.
                           Code of Jud. Conduct, Canon 7A(1)(e).
    
     Wisconsin             “No judge or candidate for judicial office or judge-elect may . . . [b]e
                           a member of any political party.” Wis. Code of Jud. Conduct, Rule
                           60.06(2)(b)(1). But see Siefert v. Alexander, ___ F.3d ___, No. 09-
                           1713 (7th Cir. June 14, 2010).
    
     Retention Election
     Alaska                No comparable rule.
    
     Arizona               No comparable rule.
    
     California            No comparable rule.
    
     Colorado              No comparable rule.
    
     Florida               “A judicial candidate involved in an election or re-election . . . should
                           refrain from commenting on the candidate’s affiliation with any
                           political party or other candidate, and should avoid expressing a
                           position on any political issue. A judicial candidate attending a
                           political party function must avoid conduct that suggests or appears to
                           suggest support of or opposition to a political party, a political issue,
                           or another candidate.” Fla. Code of Jud. Conduct, Canon 7C(3).
    
     Indiana               “[A] judge or a judicial candidate shall not . . . publicly identify
                           himself or herself as a member or candidate of a political organization
                           . . . .” Ind. Code of Jud. Conduct, Canon 4, Rule 4.1(A)(6).
    
     Iowa                  No comparable rule.
    Nos. 08-6468/6538       Carey v. Wolnitzek, et al.                                         Page 31
    
    
    
     Kansas                  “[A] judge or a judicial candidate shall not . . . publicly identify
                             himself or herself as a candidate of a political organization . . . .” Kan.
                             Code of Jud. Conduct, Canon 4, Rule 4.1(B)(5); cf. Kan. Code of Jud.
                             Conduct, Canon 4, Rule 4.2(D)(1)(b) (Trial court judges subject to
                             partisan election may “identify” themselves “as a member of a political
                             party” “at any time”).
    
     Maryland                No comparable rule.
    
     Missouri                No comparable rule.
    
     Nebraska                No comparable rule.
    
     Oklahoma                No comparable rule.
    
     South Dakota            “A judge or candidate subject to public election may . . . at any time
                             . . . identify himself or herself as a member of a political party . . . .”
                             S.D. Code of Jud. Conduct, Canon 5C(1)(a)(ii).
    
     Tennessee               “A judge or a candidate subject to election may . . . at any time . . .
                             identify himself or herself as a member of a political party . . . .”
                             Tenn. Code of Jud. Conduct, Canon 5C(1)(a)(ii).
    
     Utah                    “[A] judge or a judicial candidate shall not . . . publicly identify
                             himself or herself as a member of a political organization . . . .” Utah
                             Code of Jud. Conduct, Canon 4, Rule 4.1(A)(6).
    
     Wyoming                 No comparable rule.
    
     Legislative Election
     South Carolina          No comparable rule. See S.C. Code of Jud. Conduct, Canon 5A(1).
                             Judges subject to “public election,” e.g., S.C. Code Ann. § 14-23-30
                             (probate judges), may reveal political party membership “at any time.”
                             S.C. Code of Jud. Conduct, Canon 5C(1)(a)(ii).
    
     Virginia                No comparable rule.
    
     Appointment
     Connecticut             No comparable rule.
    
     Delaware                No comparable rule.
    
     Hawaii                  No comparable rule.
    
     Maine                   No comparable rule.
    
     Massachusetts           No comparable rule.
    
     New Hampshire           No comparable rule.
    
     New Jersey              No comparable rule.
    
     New York                “A sitting judge . . . [may] . . . identify himself or herself as a member
                             of a political party . . . .” N.Y. Code of Jud. Conduct, Canon 5A(1)(ii).
    
     Rhode Island            No comparable rule.
    Nos. 08-6468/6538   Carey v. Wolnitzek, et al.   Page 32
    
    
    
     Vermont             No comparable rule.
    Nos. 08-6468/6538       Carey v. Wolnitzek, et al.                                      Page 33
    
    
                                      APPENDIX B
    
    
     State                   Solicitation Clause
     Kentucky                “A judge or candidate for judicial office shall not solicit campaign
                             funds . . . .” Rules of the Supreme Court of Kentucky 4.300, Canon
                             5B(2).
    
     Partisan Election
     Alabama                 “A candidate is strongly discouraged from personally soliciting
                             campaign contributions.” Ala. Canons of Jud. Ethics, Canon 7B(4)(a).
    
     Illinois                “A candidate shall not personally solicit or accept campaign
                             contributions.” Ill. Code of Jud. Conduct, Canon 7B(2).
    
     Louisiana               “A judge or judicial candidate shall not personally solicit or accept
                             campaign contributions.” La. Code of Jud. Conduct, Canon 7D(1).
    
     New Mexico              “[C]andidates . . . may solicit contributions for their own campaigns”
                             but they “shall not accept any contribution that creates an appearance
                             of impropriety” and “shall not personally solicit or personally accept
                             campaign contributions from any attorney, or from any litigant in a
                             case pending before the candidate. . . . Campaign committees shall not
                             disclose to the judge or candidate the identity or source of any funds
                             raised by the committee.” N.M. Code of Jud. Conduct, Rules 21-
                             800A–F.
    
     Pennsylvania            “Candidates . . . should not themselves solicit or accept campaign
                             funds, or solicit publicly stated support . . . .” Pa. Code of Jud.
                             Conduct, Canon 7B(2).
    
     Texas                   Judges and judicial candidates may accept “political contribution[s]”
                             during a specified period of time around the election. Tex. Elec. Code
                             Ann. § 253.153.
    
     West Virginia           “A candidate shall not personally solicit or accept campaign
                             contributions or personally solicit publicly stated support.” W. Va.
                             Code of Jud. Conduct, Canon 5C(2).
    
     Partisan Nomination and Nonpartisan Election
     Michigan                “A judge should not personally solicit or accept campaign funds . . . .”
                             Mich. Code of Jud. Conduct, Canon 7B(2)(a).
    
     Ohio                    “A judicial candidate shall not personally solicit or receive campaign
                             contributions.” Ohio Code of Jud. Conduct, Rule 4.4(A).
    
     Nonpartisan Election
     Arkansas                “[A] judge or a judicial candidate shall not . . . personally solicit or
                             accept campaign contributions other than through a campaign
                             committee . . . .” Ark. Code of Jud. Conduct, Canon 4, Rule 4.1(A)(8).
    
     Georgia                 “Candidates . . . may personally solicit campaign contributions and
                             publicly stated support.” Ga. Code of Jud. Conduct, Canon 7B(2).
    Nos. 08-6468/6538   Carey v. Wolnitzek, et al.                                       Page 34
    
    
    
     Idaho               “A candidate shall not solicit campaign contributions in person. . . .
                         Except as required by law, a candidate’s judicial election committee
                         should not disclose the names of contributors to judicial campaigns
                         and judicial candidates and judges should avoid obtaining the names
                         of contributors to the judicial campaign.” Idaho Code of Jud. Conduct,
                         Canon 5C(2).
    
     Minnesota           “[A] judge or judicial candidate shall not . . . personally solicit or
                         accept campaign contributions,” except that he or she may “make a
                         general request for campaign contributions when speaking to an
                         audience of 20 or more people; sign letters . . . soliciting campaign
                         contributions . . . [and] personally solicit campaign contributions from
                         members of the judge’s family, from a person with whom the judge
                         has an intimate relationship, or from judges over whom the judge does
                         not exercise supervisory or appellate authority.” Minn. Code of Jud.
                         Conduct, Canon 4, Rules 4.1(A)(6), 4.2(B)(3).
    
     Mississippi         “A candidate shall not personally solicit or accept campaign
                         contributions or personally solicit publicly stated support.” Miss.
                         Code of Jud. Conduct, Canon 5C(2).
    
     Montana             Candidates may solicit. See Mont. Code of Jud. Conduct, Canon 4,
                         Rule 4.4, Cmt. 1 (permitting candidates “to solicit financial or in-kind
                         campaign contributions personally or to establish campaign
                         committees to solicit and accept such contributions”).
    
     Nevada              Candidates may solicit. See Nev. Code of Jud. Conduct, Canon 4,
                         Rule 4.4, Cmt. 1 (“A candidate may personally solicit or accept
                         campaign contributions . . . .”).
    
     North Carolina      “A judge or a candidate may . . . personally solicit campaign funds and
                         request public support from anyone for his/her own campaign . . . .”
                         N.C. Code of Jud. Conduct, Canon 7B(4).
    
     North Dakota        “A candidate shall not directly and personally solicit or accept
                         campaign contributions,” but “the candidate may orally solicit
                         contributions . . . in front of large groups or organizations” and “[t]he
                         candidate’s actual signature or a reproduction of the signature may
                         appear on letters or other printed or electronic materials distributed by
                         the committee which solicit contributions . . . from individuals or large
                         groups.” N.D. Code of Jud. Conduct, Canon 5C(2). Additionally,
                         “[t]he candidate must take reasonable measures to ensure the names
                         and responses, or lack thereof, of the recipients of solicitations for
                         contributions will not be disclosed to the candidate.” Id.
    
     Oregon              “[A] judicial candidate shall not knowingly . . . [p]ersonally solicit
                         campaign contributions in money or in kind . . . .” Or. Code of Jud.
                         Conduct, JR 4-102(D).
    
     Washington          “Candidates, including incumbent judges, for a judicial office that is
                         filled by public election between competing candidates shall not
                         personally solicit or accept campaign contributions.” Wash. Code of
                         Jud. Conduct, Canon 7B(2).
    Nos. 08-6468/6538     Carey v. Wolnitzek, et al.                                        Page 35
    
    
    
     Wisconsin             “A judge, candidate for judicial office, or judge-elect shall not
                           personally solicit or accept campaign contributions.” Wis. Code of
                           Jud. Conduct, Rule 60.06(4).
    
     Retention Election
     Alaska                “A judge who is a candidate for retention in judicial office shall not
                           personally solicit or accept any funds to support his or her candidacy
                           . . . .” Alaska Code of Jud. Conduct, Canon 5C(3).
    
     Arizona               “A judge or a judicial candidate shall not . . . personally solicit or
                           accept campaign contributions other than through a campaign
                           committee . . . .” Ariz. Code of Jud. Conduct, Canon 4, Rule
                           4.1(A)(6).
    
     California            Candidates may solicit. See Cal. Code of Jud. Ethics, Canon 5A, Cmt.
                           (“[J]udges are neither required to shield themselves from campaign
                           contributions nor are they prohibited from soliciting contributions from
                           anyone including attorneys.”).
    
     Colorado              “If there is active opposition to the retention of a candidate judge . . .
                           any committee . . . may raise funds for the judge’s campaign, but the
                           judge should not solicit funds personally or accept any funds . . . .”
                           Colo. Code of Jud. Conduct, Canon 7B(2)(d).
    
     Florida               “A candidate, including an incumbent judge, for a judicial office that
                           is filled by public election between competing candidates shall not
                           personally solicit campaign funds . . . .” Fla. Code of Jud. Conduct,
                           Canon 7C(1).
    
     Indiana               “[A] judge or a judicial candidate shall not . . . personally solicit or
                           accept campaign contributions other than through a campaign
                           committee . . . .” Ind. Code of Jud. Conduct, Canon 4, Rule 4.1(A)(8).
    
     Iowa                  No rule directly addressing personal solicitation. See Iowa Code of
                           Jud. Conduct, Canon 7B(2) (“A judge . . . whose candidacy has drawn
                           active opposition, may campaign in response thereto and may establish
                           committees of responsible persons to obtain publicly stated support
                           and campaign funds.”).
    
     Kansas                “A judicial candidate may also personally solicit or accept campaign
                           contributions.” Kan. Code of Jud. Conduct, Canon 4, Rule 4.4(A).
    
     Maryland              No comparable rule. See Md. Code of Jud. Conduct, Canon 5B,
                           Comm. Note (a prohibition on personal solicitation “may be too
                           restrictive”).
    
     Missouri              “A candidate, including an incumbent judge, for a judicial office . . .
                           shall not solicit in person campaign funds from persons likely to
                           appear before the judge. A candidate may make a written campaign
                           solicitation for campaign funds of any person or group, including any
                           person or group likely to appear before the judge.” Mo. Code of Jud.
                           Conduct, Canons 5B(2)–(3).
    Nos. 08-6468/6538       Carey v. Wolnitzek, et al.                                          Page 36
    
    
    
     Nebraska                “A judicial candidate for retention election whose candidacy has
                             drawn active opposition shall not personally solicit or accept campaign
                             contributions . . . .” Neb. Code of Jud. Conduct, Canon 5(C)(2).
    
     Oklahoma                “A candidate should not personally solicit campaign contributions
                             . . . .” Okla. Code of Jud. Conduct, Canon 5C(2).
    
     South Dakota            “Candidates, including an incumbent judge, may personally solicit
                             campaign contributions . . . from individuals and organizations other
                             than political parties.” S.D. Code of Jud. Conduct, Canon 5C(2).
    
     Tennessee               “A candidate shall not personally solicit or accept campaign
                             contributions.” Tenn. Code of Jud. Conduct, Canon 5C(2)(a).
    
     Utah                    “The judge shall not directly solicit or accept campaign funds . . . .”
                             Utah Code of Jud. Conduct, Canon 4, Rule 4.2(B)(2).
    
     Wyoming                 “[T]he judge shall not solicit funds personally or accept any funds
                             . . . and . . . the judge shall not be advised of the source of funds raised
                             by the committees.” Wyo. Code of Jud. Conduct, Canon 4, Rules
                             4.2(B)(4)–(5).
    
     Legislative Election
     South Carolina          “A candidate for appointment to judicial office . . . shall not solicit or
                             accept funds, personally or through a committee or otherwise, to
                             support his or her candidacy.” S.C. Code of Jud. Conduct, Canon
                             5B(1).
    
     Virginia                No comparable rule.
    
     Appointment
     Connecticut             No comparable rule.
    
     Delaware                No comparable rule.
    
     Hawaii                  No comparable rule.
    
     Maine                   No comparable rule as to appointed judges. Candidates for “election
                             or reelection as a judge of probate shall not personally solicit or accept
                             campaign contributions or personally solicit stated support.” Maine
                             Code of Jud. Conduct, Canon 5(C).
    
     Massachusetts           No comparable rule.
    
     New Hampshire           No comparable rule.
    
     New Jersey              No comparable rule.
    
     New York                “A judge or candidate for public election to judicial office shall not
                             personally solicit or accept campaign contributions . . . .” N.Y. Code
                             of Jud. Conduct, Canon 5A(5); see also Cmt. 5.1 (“Canon 5 generally
                             applies to all incumbent judges . . . .”).
    Nos. 08-6468/6538   Carey v. Wolnitzek, et al.                                         Page 37
    
    
    
     Rhode Island        “A candidate for appointment to judicial office . . . shall not solicit or
                         accept funds, personally or through a committee or otherwise, to
                         support his or her candidacy.” R.I. Code of Jud. Conduct,
                         Canon5B(1).
    
     Vermont             “A candidate for appointment to . . . state judicial office . . . shall not
                         . . . solicit or accept funds, personally or through a committee or
                         otherwise, to support the candidacy . . . .” Vt. Code of Jud. Conduct,
                         Canon 5B(4)(d).
    Nos. 08-6468/6538    Carey v. Wolnitzek, et al.                                         Page 38
    
    
                                    APPENDIX C
    
    
     State                Commits Clause
     Kentucky             “A judge or candidate for election to judicial office . . . shall not
                          intentionally or recklessly make a statement that a reasonable person
                          would perceive as committing the judge or candidate to rule a certain
                          way on a case, controversy, or issue that is likely to come before the
                          court . . . .” Rules of the Supreme Court of Kentucky 4.300 Canon
                          5B(1)(c).
    
     Partisan Election
     Alabama              “A candidate for judicial office . . . [s]hall not make any promise of
                          conduct in office other than the faithful and impartial performance of
                          the duties of the office [and] shall not announce in advance the
                          candidate’s conclusions of law on pending litigation . . . .” Ala.
                          Canons of Jud. Ethics, Canon 7B(1)(c).
    
     Illinois             A “candidate for judicial office” shall not “make statements that
                          commit or appear to commit the candidate with respect to cases,
                          controversies or issues within cases that are likely to come before the
                          court.” Ill. Code of Jud. Conduct, Canon 7A(3)(d)(i).
    
     Louisiana            A “judge or judicial candidate . . . shall not . . . with respect to cases,
                          controversies, or issues that are likely to come before the court, make
                          pledges, promises or commitments that are inconsistent with the
                          impartial performance of the adjudicative duties of the office.” La.
                          Code of Jud. Conduct, Canon 7B(1)(d)(i).
    
     New Mexico           “A judge shall not, with respect to cases, controversies or issues that
                          are likely to come before the court, make pledges, promises or
                          commitments that are inconsistent with the impartial performance of
                          the adjudicative duties of the office.” N.M. Code of Jud. Conduct,
                          Rule 21-300B(11).
    
     Pennsylvania         “Candidates . . . should not . . . make statements that commit the
                          candidate with respect to cases, controversies or issues that are likely
                          to come before the court.” Pa. Code of Jud. Conduct, Canon 7B(1)(c).
    
     Texas                “A judge or judicial candidate shall not . . . make pledges or promises
                          of conduct in office regarding pending or impending cases, specific
                          classes of cases, specific classes of litigants, or specific propositions
                          of law that would suggest to a reasonable person that the judge is
                          predisposed to a probable decision in cases within the scope of the
                          pledge . . . .” Tex. Code of Jud. Conduct, Canon 5(1)(i).
    
     West Virginia        “A candidate for judicial office . . . shall not . . . make statements that
                          commit or appear to commit the candidate with respect to cases,
                          controversies or issues that are likely to come before the court . . . .”
                          W. Va. Code of Jud. Conduct, Canon 5A(3)(d)(ii).
    Nos. 08-6468/6538       Carey v. Wolnitzek, et al.                                         Page 39
    
    
    
     Partisan Nomination and Nonpartisan Election
     Michigan                “A candidate . . . should not make pledges or promises of conduct in
                             office other than the faithful and impartial performance of the duties
                             of the office . . . .” Mich. Code of Jud. Conduct, Canon 7B(1)(c).
    
     Ohio                    “A judge or judicial candidate shall not . . .[i]n connection with cases,
                             controversies, or issues that are likely to come before the court, make
                             pledges, promises, or commitments that are inconsistent with the
                             impartial performance of the adjudicative duties of judicial office.”
                             Ohio Code of Jud. Conduct, Rule 4.1(A)(7).
    
     Nonpartisan Election
     Arkansas                “[A] judge or a judicial candidate shall not . . . in connection with
                             cases, controversies, or issues that are likely to come before the court,
                             make pledges, promises, or commitments that are inconsistent with the
                             impartial performance of the adjudicative duties of judicial office.”
                             Ark. Code of Jud. Conduct, Canon 4, Rule 4.1(A)(13).
    
     Georgia                 “Candidates . . . shall not make statements that commit the candidate
                             with respect to issues likely to come before the court . . . .” Ga. Code
                             of Jud. Conduct, Canon 7B(1)(b).
    
     Idaho                   “A candidate for judicial office . . . shall not . . . make statements that
                             commit or appear to commit the candidate with respect to cases,
                             controversies or issues that are likely to come before the court . . . .”
                             Idaho Code of Jud. Conduct, Canon 5A(4)(d)(ii).
    
     Minnesota               “[A] judge or a judicial candidate shall not . . . in connection with
                             cases, controversies, or issues that are likely to come before the court,
                             make pledges, promises, or commitments that are inconsistent with the
                             impartial performance of the adjudicative duties of judicial office.”
                             Minn. Code of Jud. Conduct, Canon 4, Rule 4.1(A)(11).
    
     Mississippi             “A candidate for judicial office . . . shall not . . . make statements that
                             commit or appear to commit the candidate with respect to cases,
                             controversies or issues that are likely to come before the court . . . .”
                             Miss. Code of Jud. Conduct, Canon 5A(3)(d)(ii).
    
     Montana                 “[A] judge or a judicial candidate shall not . . . in connection with
                             cases, controversies, or issues that are likely to come before the court,
                             make pledges, promises, or commitments that are inconsistent with the
                             impartial performance of the adjudicative duties of judicial office.”
                             Mont. Code of Jud. Conduct, Canon 4, Rule 4.1(A)(12).
    
     Nevada                  “[A] judge or a judicial candidate shall not . . . in connection with
                             cases, controversies, or issues that are likely to come before the court,
                             make pledges, promises, or commitments that are inconsistent with the
                             impartial performance of the adjudicative duties of judicial office.”
                             Nev. Code of Jud. Conduct, Canon 4, Rule 4.1(A)(13).
    
     North Carolina          No comparable rule. See N.C. Code of Jud. Conduct, Canon 7C.
                             Judges should “abstain from public comment about the merits of a
                             pending proceeding.” Id., Canon 3A(6).
    Nos. 08-6468/6538     Carey v. Wolnitzek, et al.                                         Page 40
    
    
    
     North Dakota          “A candidate for a judicial office . . . shall not . . . with respect to
                           cases, controversies or issues that are likely to come before the court,
                           make pledges, promises or commitments that are inconsistent with the
                           impartial performance of the adjudicative duties of the office . . . .”
                           N.D. Code of Jud. Conduct, Canon 5A(3)(d)(i).
    
     Oregon                “[A] judicial candidate shall not knowingly . . . [m]ake pledges or
                           promises of conduct in office that could inhibit or compromise the
                           faithful, impartial and diligent performance of the duties of the office
                           . . . .” Or. Code of Jud. Conduct, JR 4-102(B).
    
     Washington            “Candidates, including an incumbent judge, for a judicial office
                           . . . should not . . . make statements that commit or appear to commit
                           the candidate with respect to cases, controversies or issues that are
                           likely to come before the court . . . .” Wash. Code of Jud. Conduct,
                           Canon 7B(1)(c)(ii).
    
     Wisconsin             “A judge, judge-elect, or candidate for judicial office shall not make
                           or permit or authorize others to make on his or her behalf, with respect
                           to cases, controversies, or issues that are likely to come before the
                           court, pledges, promises, or commitments that are inconsistent with the
                           impartial performance of the adjudicative duties of the office.” Wis.
                           Code of Jud. Conduct, Rule 60.06(3)(b).
    
     Retention Election
     Alaska                “A candidate for judicial office . . . shall not . . . make statements that
                           commit or appear to commit the candidate to a particular view or
                           decision with respect to cases, controversies or issues that are likely to
                           come before the court . . . .” Alaska Code of Jud. Conduct, Canon
                           5A(3)(d)(ii).
    
     Arizona               “A judge or a judicial candidate shall not . . . in connection with cases,
                           controversies, or issues that are likely to come before the court, make
                           pledges, promises, or commitments that are inconsistent with the
                           impartial performance of the adjudicative duties of judicial office.”
                           Ariz. Code of Jud. Conduct, Canon 4, Rule 4.1(A)(10).
    
     California            “A candidate for election or appointment to judicial office shall not . . .
                           make statements to the electorate or the appointing authority that
                           commit the candidate with respect to cases, controversies, or issues
                           that could come before the courts . . . .” Cal. Code of Jud. Ethics,
                           Canon 5B.
    
     Colorado              “A judge who is a candidate for retention in office . . . should not make
                           pledges or promises of conduct in office other than the faithful and
                           impartial performance of the duties of the office [or] announce how the
                           judge would rule on any case or issue that might come before the judge
                           . . . .” Colo. Code of Jud. Conduct, Canon 7B(1)(c).
    
     Florida               “A candidate for a judicial office . . . shall not . . . with respect to
                           parties or classes of parties, cases, controversies, or issues that are
                           likely to come before the court, make pledges, promises, or
                           commitments that are inconsistent with the impartial performance of
                           the adjudicative duties of the office . . . .” Fla. Code of Jud. Conduct,
                           Canon 7A(3)(e)(i).
    Nos. 08-6468/6538   Carey v. Wolnitzek, et al.                                           Page 41
    
    
    
     Indiana             “[A] judge or a judicial candidate shall not . . . in connection with
                         cases, controversies, or issues that are likely to come before the court,
                         make pledges, promises, or commitments that are inconsistent with the
                         impartial performance of the adjudicative duties of judicial office.”
                         Ind. Code of Jud. Conduct, Canon 4, Rule 4.1(A)(13).
    
     Iowa                “A judge who is a candidate for retention in judicial office . . . [s]hould
                         not, with respect to cases, controversies, or issues that are likely to
                         come before the court, make pledges, promises, or commitments that
                         are inconsistent with the impartial performance of the adjudicative
                         duties of the office.” Iowa Code of Jud. Conduct, Canon 7B(1)(e).
    
     Kansas              “A judge or a judicial candidate shall not . . . in connection with cases,
                         controversies, or issues that are likely to come before the court, make
                         pledges, promises, or commitments that are inconsistent with the
                         impartial performance of the adjudicative duties of judicial office.”
                         Kan. Code of Jud. Conduct, Canon 4, Rule 4.1(A)(6).
    
     Maryland            “A judge who is a candidate for election or re-election to or retention
                         in a judicial office . . . with respect to a case, controversy or issue that
                         is likely to come before the court, shall not make a commitment,
                         pledge, or promise that is inconsistent with the impartial performance
                         of the adjudicative duties of the office . . . .” Md. Code of Jud.
                         Conduct, Canon 5B(1)(d).
    
     Missouri            “A candidate . . . shall not make pledges or promises of conduct in
                         office other than the faithful and impartial performance of the duties
                         of the office . . . .” Mo. Code of Jud. Conduct, Canon 5B(1)(d).
    
     Nebraska            “A candidate for a judicial office . . . [s]hall not . . . make statements
                         that commit or appear to commit the candidate with respect to cases,
                         controversies, or issues that are likely to come before the court . . . .”
                         Neb. Code of Jud. Conduct, Canon 5(A)(3)(d)(ii).
    
     Oklahoma            “A candidate for judicial office . . . should not . . . with respect to
                         cases, controversies, or issues that are likely to come before the court,
                         make pledges, promises or commitments that are inconsistent with
                         impartial performance of the adjudicative duties of the office . . . .”
                         Okla. Code of Jud. Conduct, Canon 5A(3)(d)(i).
    
     South Dakota        “A candidate for a judicial office . . . shall not . . . with respect to
                         cases, controversies, or issues that are likely to come before the court,
                         make pledges, promises or commitments that are inconsistent with the
                         impartial performance of the adjudicative duties of the office . . . .”
                         S.D. Code of Jud. Conduct, Canon 5A(3)(d)(i).
    
     Tennessee           “A candidate for a judicial office . . . shall not . . . make statements that
                         commit or appear to commit the candidate with respect to cases,
                         controversies, or issues that are likely to come before the court . . . .”
                         Tenn. Code of Jud. Conduct, Canon 5A(3)(d)(ii).
    
     Utah                “[A] judge or a judicial candidate shall not . . . make pledges,
                         promises, or commitments other than the faithful, impartial and
                         diligent performance of judicial duties.” Utah Code of Jud. Conduct,
                         Canon 4, Rule 4.1(A)(11).
    Nos. 08-6468/6538       Carey v. Wolnitzek, et al.                                           Page 42
    
    
    
     Wyoming                 “A judge who is a candidate for retention in office shall . . . not make
                             pledges or promises of conduct in office other than the faithful and
                             impartial performance of the duties of the office [or] announce how the
                             judge would rule on any case or issue that might come before the judge
                             . . . .” Wyo. Code of Jud. Conduct, Canon 4, Rule 4.2(A)(5).
    
     Legislative Election
     South Carolina          “A candidate for a judicial office . . . shall not . . . make statements that
                             commit or appear to commit the candidate with respect to cases,
                             controversies or issues that are likely to come before the court . . . .”
                             S.C. Code of Jud. Conduct, Canon 5A(3)(d)(ii).
    
     Virginia                No comparable rule.
    
     Appointment
     Connecticut             No comparable rule.
    
     Delaware                No comparable rule.
    
     Hawaii                  “[A] judge shall not . . . in connection with cases, controversies, or
                             issues that are likely to come before the court, make pledges, promises,
                             or commitments that are inconsistent with the impartial performance
                             of the adjudicative duties of judicial office.” Haw. Code of Jud.
                             Conduct, Canon 4, Rule 4.1(a)(13).
    
     Maine                   “A candidate for appointment to judicial office . . . shall not . . . make
                             pledges or promises of conduct in office other than the faithful and
                             impartial performance of the duties of the office [or] make statements
                             that commit or appear to commit the candidate with respect to cases,
                             controversies, or issues that are likely to come before the court . . . .”
                             Maine Code of Jud. Conduct, Canon 5(B).
    
     Massachusetts           No comparable rule.
    
     New Hampshire           “A candidate for judicial office . . . shall not . . . with respect to cases,
                             controversies or issues that are likely to come before the court, make
                             pledges, promises or commitments that are inconsistent with the
                             impartial performance of the adjudicative duties of the office . . . .”
                             N.H. Code of Jud. Conduct, Canon 5B(1)(b)(i).
    
     New Jersey              No comparable rule.
    
     New York                “A judge or a non-judge who is a candidate for public election to
                             judicial office shall not . . . with respect to cases, controversies or
                             issues that are likely to come before the court, make commitments that
                             are inconsistent with the impartial performance of the adjudicative
                             duties of the office . . . .” N.Y. Code of Jud. Conduct, Canon
                             5A(4)(d)(ii).
    
     Rhode Island            “A candidate for a judicial office . . . shall not . . . make statements that
                             commit or appear to commit the candidate with respect to cases,
                             controversies or issues that are likely to come before the court . . . .”
                             R.I. Code of Jud. Conduct, Canon 5A(3)(d)(ii).
    Nos. 08-6468/6538   Carey v. Wolnitzek, et al.                                         Page 43
    
    
    
     Vermont             “A candidate for appointment to . . . state judicial office . . . shall not
                         make statements that commit or appear to commit the candidate with
                         respect to cases, controversies, or issues that are likely to come before
                         the court . . . .” Vt. Code of Jud. Conduct, Canon 5B(4)(b).
    Nos. 08-6468/6538          Carey v. Wolnitzek, et al.                              Page 44
    
    
               ____________________________________________________
    
                 CONCURRING IN PART AND DISSENTING IN PART
               ____________________________________________________
    
            WISEMAN, District Judge, concurring in part and dissenting in part. I concur
    in the judgment of affirmance of the District Court on the party affiliation and
    solicitation clauses, as well as affirmance of the “cases and controversies” portion of the
    commits clause. I would go further and affirm the District Court in upholding the entire
    commits clause, including the issues portion. The majority’s concern with an overly
    broad interpretation of what constitutes a commitment to vote a certain way or bias
    toward a party based on campaign promises regarding an “issue,” amounts to the
    construction of a straw man. I believe a candidate for judge knows exactly when she is
    making a commitment, or giving the appearance of such a commitment. I believe the
    same is true of the enforcer of the canons. Is there any doubt about commitment when
    a candidate professes to believe that life begins at conception? Is there any committed
    bias in favor of a potential party when a candidate for judge states a “strong belief in the
    right to keep and bear arms?”         Maybe the definition of White-permitted issue
    commitments is like the definition of pornography. Anyone with common sense knows
    the portent of a campaign commitment when he hears it. Yet by remand we are asking
    the District Court to do what the Supreme Court could not do in White and we are unable
    to do here.
    
            Maintenance of public confidence that a litigant will receive an unbiased hearing
    in the courts is as compelling an interest as any possessed by the Commonwealth of
    Kentucky. The canon here appropriately addresses that interest.                Definitional
    disagreements, if they arise, can be addressed when they arise.
    
            I respectfully dissent from the holding of the majority vacating the District Court
    in respect to the commits clause.