                   United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 99-4021
                                 ___________

Republican Party of Minnesota, an       *
association; Indian Asian American      *
Republicans of Minnesota, an            *
association; Republican Seniors, an     *
association; Young Republican League    *
of Minnesota, a Minnesota nonprofit     *
corporation; Minnesota College          *
Republicans, an association,            *
                                        *
      Plaintiffs - Appellants,          *
                                        * Appeals from the United States
Gregory F. Wersal, individually,        * District Court for the
                                        * District of Minnesota.
      Plaintiff,                        *
                                        *
Cheryl L. Wersal, individually; Mark E. *
Wersal, individually; Corwin C. Hulbert,*
individually,                           *
                                        *
      Plaintiffs - Appellants,          *
                                        *
Campaign for Justice, an association, *
                                        *
      Plaintiff,                        *
                                        *
Minnesota African American Republic *
Council, an association,                *
                                        *
      Plaintiff - Appellant,            *
                                        *
Muslim Republicans, an association;     *
Michael Maxim, individually; Kevin J. *
Kolosky, individually,                  *
                                        *
       Plaintiffs,                      *
                                        *
       v.                               *
                                        *
Suzanne White, in her capacity as       *
Chairperson of the Minnesota Board of *
Judicial Standards, or her successor;   *
Edward J. Cleary, in his capacity as    *
Director of the Minnesota Office of     *
Lawyers Professional Responsibility, or *
his successor; Charles E. Lundberg,     *
in his capacity as Chair of the         *
Minnesota Lawyers Professional          *
Responsibility Board, or his            *
successor,                              *
                                        *
       Defendants - Appellees,          *
                                        *
Minnesota Civil Liberties Union,        *
                                        *
       Amicus on Behalf of Appellant, *
                                        *
The Minnesota State Bar Association, *
                                        *
       Amicus on Behalf of Appellee. *
                                        *
                                   ___________

                                No. 99-4025
                                ___________

Republican Party of Minnesota, an     *
association; Indian Asian American    *
Republicans of Minnesota, an          *

                                      -2-
association; Republican Seniors, an     *
association; Young Republican League    *
of Minnesota, a Minnesota nonprofit     *
corporation; Minnesota College          *
Republicans, an association; Minnesota  *
African American Republic Council, an   *
association; Cheryl L. Wersal,          *
individually; Mark E. Wersal,           *
individually; Corwin C. Hulbert,        *
individually; Gregory F. Wersal,        *
individually; Campaign for Justice, an  *
association; Muslim Republicans, an     *
association,                            *
                                        *
       Plaintiffs,                      *
                                        *
Michael Maxim, individually,            *
                                        *
       Plaintiff - Appellant,           *
                                        *
Kevin J. Kolosky, individually,         *
                                        *
       Plaintiff,                       *
                                        *
       v.                               *
                                        *
Suzanne White, in her capacity as       *
Chairperson of the Minnesota Board of *
Judicial Standards, or her successor;   *
Edward J. Cleary, in his capacity as    *
Director of the Minnesota Office of     *
Lawyers Professional Responsibility, or *
his successor; Charles E. Lundberg, in *
his capacity as Chair of the Minnesota *
Lawyers Professional Responsibility     *
Board, or his successor,                *
                                        *

                                         -3-
      Defendants - Appellees,          *
                                       *
The Minnesota State Bar Association,   *
                                       *
      Amicus on Behalf of Appellee.    *

                                 ___________

                                 No. 99-4029
                                 ___________

Republican Party of Minnesota, an       *
association; Indian Asian American      *
Republicans of Minnesota, an            *
association; Republican Seniors, an     *
association; Young Republican League    *
of Minnesota, a Minnesota nonprofit     *
corporation; Minnesota College          *
Republicans, an association,            *
                                        *
      Plaintiffs,                       *
                                        *
Gregory F. Wersal, individually,        *
                                        *
      Plaintiff - Appellant,            *
                                        *
Cheryl L. Wersal, individually; Mark E. *
Wersal, individually; Corwin C. Hulbert,*
individually;                           *
                                        *
      Plaintiffs,                       *
                                        *
Campaign for Justice, an association; *
                                        *
      Plaintiff - Appellant,            *
                                        *
Minnesota African American Republic *

                                       -4-
Council, an association; Muslim           *
Republicans, an association; Michael      *
Maxim, individually;                      *
                                          *
      Plaintiffs,                         *
                                          *
Kevin J. Kolosky, individually,           *
                                          *
      Plaintiff - Appellant,              *
                                          *
      v.                                  *
                                          *
Suzanne White, in her capacity as         *
Chairperson of the Minnesota Board of     *
Judicial Standards, or her successor;     *
Edward J. Cleary, in his capacity as      *
director of the Minnesota Office of       *
Lawyers Professional Responsibility, or   *
his successor; Charles E. Lundberg, in    *
his capacity as Chair of the Minnesota    *
Lawyers Professional Responsibility       *
Board, or his successor,                  *
                                          *
      Defendants - Appellees,             *
                                          *
The Minnesota State Bar Association,      *
                                          *
      Amicus on Behalf of Appellants.     *

                                    ___________

                               Submitted: December 10, 2002

                                   Filed: March 16, 2004
                                    ___________

Before McMILLIAN, JOHN R. GIBSON, and BEAM, Circuit Judges.

                                          -5-
                                    ___________

JOHN R. GIBSON, Circuit Judge.

       In Republican Party of Minnesota v. White, 536 U.S. 765 (2002), the Supreme
Court reversed the grant of summary judgment against Gregory Wersal and the other
plaintiffs in this suit on their claim that the "announce" clause of Canon 5 of the
Minnesota Code of Judicial Conduct violated their First Amendment rights. The
Supreme Court remanded to us for further proceedings consistent with its opinion.
Id. at 788. We conclude that the Supreme Court's opinion requires us to remand to
the district court for entry of judgment in favor of Wersal and the other plaintiffs on
their "announce" clause claim. We remand to the district court for consideration of
whether its disposition of the plaintiffs' claims based on restriction of partisan
activities is consistent with the Supreme Court's opinion. Finally, we remand to the
district court for entry of judgment in favor of Suzanne White and the other
defendants on plaintiffs' personal solicitation clause claim.

       We stated the facts of this case in our earlier opinion, Republican Party of
Minnesota v. Kelly, 247 F.3d 854 (8th Cir. 2001), and need not belabor them here,
except to say that Wersal was a candidate for election to the Minnesota Supreme
Court, who challenged several provisions of Canon 5. Canon 5 prohibits candidates
for judicial office from announcing their views on disputed legal and political issues,
from engaging in specific partisan political activities, and from personally soliciting
campaign contributions. Wersal, together with other plaintiffs associated with his




                                         -6-
campaign1 and the state Republican party and affiliated organizations,2 filed this suit
against the Minnesota Lawyers Professional Responsibility Board3 and the Minnesota
Board of Judicial Standards4 to enjoin enforcement of Canon 5. The district court
granted summary judgment to the Lawyers Board and the Judicial Board, holding that
each challenged provision of Canon 5 survived First Amendment scrutiny.
Republican Party of Minn. v. Kelly, 63 F. Supp.2d 967 (D. Minn. 1999). Wersal and
the other plaintiffs appealed.

        We affirmed the district court with regard to each of the challenged provisions
of Canon 5. 247 F.3d at 885. We subjected the provisions of Canon 5 to strict
scrutiny, asking whether the restrictions were narrowly tailored to serve a compelling
state interest. Id. at 864. We held that the state had compelling interests in protecting
the independence and quality of its judiciary, and in preserving public confidence in
the judiciary's independence. Id. at 864-68. We held that the state had shown the
required quantum of evidence that each of those interests was threatened by the

      1
      Other plaintiffs associated with Wersal were his campaign committee and
Republican Party members Cheryl Wersal, Mark Wersal, and Corwin Hulbert. Later,
Michael Maxim, who was also a member of the Minnesota Republican Party, and
Kevin Kolosky, who was another candidate for judicial office, joined as plaintiffs.
      2
      The affiliated organizations were the Indian Asian American Republicans, the
Republican Seniors, the Young Republicans League of Minnesota, and the Minnesota
College Republicans. The Minnesota African American Republican Council and the
Muslim Republicans were later added as plaintiffs.
      3
        Named as defendants were the Director of the Minnesota Office of Lawyers
Professional Responsibility and the Chair of the Minnesota Lawyers Professional
Responsibility Board. The Professional Responsibility Board supervises the Office
of Lawyers Professional Responsibility, which investigates and prosecutes ethical
violations by lawyer candidates for judicial office.
      4
       The actual defendant named was the Chairperson of the Minnesota Board of
Judicial Standards. The Board of Judicial Standards enforces the Minnesota Code of
Judicial Conduct against judges.
                                        -7-
practices that Canon 5 regulated. Id. at 868-72 (partisan activity restrictions); 876-81
(announce clause); 883-84 (solicitation restrictions). We then held that each of the
challenged restrictions was narrowly tailored to serve the interests of judicial
independence and quality. Id. at 872-76 (partisan activity restrictions); 881-83
(announce clause); 884-85 (solicitation restrictions).

      Wersal and the other plaintiffs filed a petition for certiorari presenting three
questions:

             1. Whether the provision of the Minnesota Code of Judicial
      Conduct that prohibits a candidate for elective judicial office from
      "announc[ing] his or her views on disputed legal or political issues"
      unconstitutionally impinges on the freedom of speech as guaranteed by
      the First and Fourteenth Amendments to the United States Constitution.
             2. Whether the severe burdens imposed by various provisions of
      the Minnesota Code of Judicial Conduct unconstitutionally impinge on
      the right of political parties to endorse candidates for elective judicial
      office in violation of the freedom of speech, freedom of association, and
      equal protection of law as guaranteed by the First and Fourteenth
      Amendments to the United States Constitution.
             3. Whether the provision of the Minnesota Code of Judicial
      Conduct that forbids a candidate for elective judicial office from
      attending or speaking at any political party gathering–while permitting
      such a candidate to attend or speak at gatherings of all other
      organizations–unconstitutionally impinges on the freedom of speech,
      freedom of association, and equal protection of the law as guaranteed by
      the First and Fourteenth Amendments to the United States Constitution.

The petition did not include a question relating to the solicitation restrictions. The
Supreme Court granted certiorari, limited to the first question presented, the challenge
to the announce clause.

      Justice Scalia's opinion for the Supreme Court asked first whether the Boards
had identified a compelling state interest to be served by the announce clause. 536
                                          -8-
U.S. at 775-84. Justice Scalia considered the terms "judicial independence" and
"impartiality" to be insufficiently refined, and he divined three distinct meanings for
"impartiality." First, the "root meaning" of impartiality "is the lack of bias for or
against either party to the proceeding." Id. at 775 (emphasis in original). Although
Justice Scalia implicitly approved this meaning of impartiality as a compelling state
interest, he concluded that the announce clause was not narrowly tailored to serve that
interest and in fact was "barely tailored to serve that interest at all, inasmuch as it
does not restrict speech for or against particular parties, but rather speech for or
against particular issues." Id. at 776 (emphasis in original)

        The second possible meaning of impartiality was "lack of preconception in
favor of or against a particular legal view." Id. at 777 (emphasis in original). Justice
Scalia not only rejected this concept as a compelling state interest, but he considered
this sort of impartiality undesirable in a judge. Id. ("avoiding judicial preconceptions
on legal issues is neither possible nor desirable"). As defined by Justice Scalia, this
second meaning of impartiality refers not to a candidate's public actions, but to his or
her thoughts. An important point that is not explicit in the Supreme Court opinion
is that a restriction on a judicial candidate's speech would be patently ineffective in
regulating the candidate's thoughts, even if the state wanted to do so.

       The third possible meaning of impartiality was "open-mindedness" or
willingness to consider all arguments. "This sort of impartiality seeks to guarantee
each litigant, not an equal chance to win the legal points in the case, but at least some
chance of doing so." Id. (emphasis in original). This "open-mindedness" meaning
of impartiality appears to be intimately related to the second meaning, lack of
preconceptions; whereas the second meaning refers to the judge's view of the
substantive issue, the third meaning refers to the judge's attitude toward reconsidering
his or her view of the substantive issue. Justice Scalia reserved judgment on whether
this third sort of impartiality in a judicial candidate was desirable (not to mention
compelling) because he considered the announce clause to be so ineffective a way to

                                          -9-
achieve "open-mindedness" that this could not have been the state's purpose in
adopting the clause. Id. at 780 ("As a means of pursuing the objective of open-
mindedness that respondents now articulate, the announce clause is so woefully
underinclusive as to render belief in that purpose a challenge to the credulous.").

       Having rejected the state interests offered by the Boards to justify Canon 5, the
Court held: "The Minnesota Supreme Court's canon of judicial conduct prohibiting
candidates for judicial election from announcing their views on disputed legal and
political issues violates the First Amendment. Accordingly, we reverse the grant of
summary judgment to respondents and remand the case for proceedings consistent
with this opinion." Id. at 788.

       The first issue we must decide is what instructions to issue with regard to the
announce clause. Then, we must decide whether to instruct the district court to
reconsider its grant of summary judgment with regard to the partisan activity and
solicitation clauses.

                                           I.

       The Supreme Court's reversal of the grant of summary judgment for the
defendants on the announce clause issue technically leaves open the question of what
to do with the plaintiffs' cross-motion for summary judgment. The plaintiffs ask us
to remand with instructions to enter judgment for them, and the Boards do not dispute
the propriety of this request. Therefore, the district court should enter judgment for
the plaintiffs on Count II of their Second Amended Complaint.

                                          II.

      Wersal and the other plaintiffs also ask us to reverse the entry of judgment for
the Boards and to order entry of judgment in favor of the plaintiffs on the other four

                                         -10-
counts of their complaint, none of which were before the Supreme Court. The Boards
argue that we do not have jurisdiction over the issues as to which the plaintiffs did not
seek certiorari (solicitation clause) or as to which the Supreme Court denied certiorari
(partisan activity clauses).

       When the Supreme Court remands a case to us, we must determine whether the
law of the case doctrine applies to issues the Supreme Court did not decide. See
Madison v. IBP, Inc., 330 F.3d 1051, 1059 (8th Cir. 2003). The law of the case
doctrine dictates that "when a court decides upon a rule of law, that decision should
continue to govern the same issues in subsequent stages in the same case." Kinman
v. Omaha Pub. Sch. Dist., 171 F.3d 607, 610 (8th Cir. 1999) (quotation marks
omitted). The doctrine does not apply "when an intervening decision from a superior
tribunal clearly demonstrates the law of the case is wrong." Id. (quotation marks
omitted); Madison, 330 F.3d at 1059; Morris v. American Nat'l Can Corp., 988 F.2d
50, 52 (8th Cir. 1993). Where the Supreme Court's reasoning in disposing of one
issue in a case affects the validity of our earlier disposition of other issues in the same
case, we will reconsider those issues on remand.5 See Shrink Missouri Gov't PAC v.


      5
         The dissent argues that we err in taking into consideration the law of the case
doctrine in determining the disposition of issues as to which the Supreme Court did
not grant certiorari and which are not discussed in the Supreme Court's opinion in
White. In our opinion, we conclude that we must reconsider those issues to determine
if the reasoning of our earlier disposition survives the new Supreme Court decision.
The dissent takes exception to the words "clearly demonstrates the law of the case is
wrong," (quoted in Madison, 330 F.3d at 1059). This phrase does not insulate a
purely legal question from de novo review. The word "clearly" in this context does
not refer to "clear error" review, which applies to questions of fact, Anderson v. City
of Bessemer City, 470 U.S. 564, 573 (1985), but to whether the new decision actually
has a bearing on other issues in this case that were not directly addressed by the
superior tribunal. We do not "defer" to our earlier opinion, as the dissent contends.
Where the Supreme Court's reasoning casts doubt on our earlier conclusions, we
revisit them, see section IV, infra; where the earlier reasoning is not inconsistent with
White, there is no reason to alter it, see section V, infra.
                                           -11-
Adams, 204 F.3d 838, 840 (8th Cir. 2000). The law of the case doctrine is
discretionary, not jurisdictional. Arizona v. California, 460 U.S. 605, 618 (1983)
("Law of the case directs a court's discretion, it does not limit the tribunal's power.");
Conrod v. Davis, 120 F.3d 92, 95 (8th Cir. 1997).

       The cases the Boards cite to show we lack power to reconsider the partisan
activity and solicitation clauses are inapposite. In Patterson v. City of Newport News,
364 F.2d 816, 817-18 (4th Cir. 1966), plaintiffs sought to relitigate in federal court
a condemnation that had been litigated to final judgment in state court. This was
barred as a matter of issue preclusion, not law of the case. In Fleming v. Lake Delton
Dev. Co., 267 F.2d 254, 256 (7th Cir. 1959), the court did not decide whether res
judicata or law of the case applied, but declined to reconsider the same arguments and
the same issues the appellant had already fully litigated. There was no suggestion
that the law had changed between the first disposition and the later appeal, as the
plaintiffs argue happened in this case.

       The Boards also argue that the Supreme Court's remand limited our
jurisdiction, citing Hermann v. Brownell, 274 F.2d 842, 843 (9th Cir. 1960).
Hermann "stands only for the proposition that upon remand the jurisdiction of an
appellate court is limited to those particularized points which were assigned for
consideration, if the mandate was in that form." Sanders v. John Nuveen & Co., 554
F.2d 790, 793-94 (7th Cir. 1977) (emphasis added). When a remand does not contain
such a limitation, "[o]ther issues not within the compass of the mandate are thereby
not precluded from consideration." Id. at 794. The remand in this case stated:

      The Minnesota Supreme Court's canon of judicial conduct prohibiting
      candidates for judicial election from announcing their views on disputed
      legal and political issues violates the First Amendment. Accordingly,
      we reverse the grant of summary judgment to respondents and remand
      the case for proceedings consistent with this opinion.


                                          -12-
536 U.S. at 788. This is the language of a general remand, Field v. Mans, 157 F.3d
35, 42 (1st Cir. 1998), and it does not contain an express or implicit limitation on our
jurisdiction of issues that were before us prior to the grant of certiorari, id.

       The question before us, then, is whether the Supreme Court's decision
demonstrates that the law applied by this court or by the district court in deciding the
partisan activity or solicitation clause issues was wrong.

                                           III.

        In our examination of the partisan activity restrictions, we did not suppose that
the restrictions were meant to avoid judicial bias for or against particular parties to
the suit, as for instance, if the Republican Party were an actual party to litigation
before a judge who was endorsed by the Party or who had announced membership in
the Party during his election campaign. Recusal of the judge in such a situation is an
obvious less restrictive alternative. Therefore, it does not appear that the partisan
activity restrictions would be narrowly tailored to avoid impartiality in Justice Scalia's
first sense of the word.

       Nor did we, in our earlier opinion, consider whether the partisan activity
restrictions tended to avoid election of judges who harbored preconceptions about
legal issues and to encourage election of judges whose brains were a tabula rasa
devoid of experience or opinion. Therefore, we did not base our decision upon
vindication of the state's interest in impartiality in Justice Scalia's second sense of the
word.

       Instead, we focused on what we can now recognize as impartiality in Justice
Scalia's third sense of the word: open-mindedness. Moreover, we focused not on lack
of open-mindedness in the sense of obstinacy or dogmatism, which are subjective
states of mind, but rather on the objectively ascertainable threat to open-mindedness

                                           -13-
that results from having incurred obligations to entities who, while not actually
parties to a case, have made known their desire to see certain cases decided in certain
ways. Throughout our discussion of the restrictions on partisan activities, we stressed
the possibility that candidates who became indebted to political parties could be or
seem to be bound to rule in accord with those parties' platforms, rather than in accord
with the record and the law.6 See, e.g., 247 F.3d at 870 (citing concurrence in Moon


      6
        Our focus on the effect of a candidate's obligation to and dependence on a
political party explains why we arrive at a different result than the Northern District
of New York, which recently invalidated a portion of the New York Code of Judicial
Conduct that prohibited judicial candidates from participating in partisan political
activity except for their own campaigns. Spargo v. New York State Comm'n on
Judicial Conduct, 244 F. Supp.2d 72 (N.D.N.Y. 2003), vacated for abstention, 351
F.3d 65 (2d Cir. 2003). That court opined: "The only conceivable connection
[between the prohibition and judicial independence] would be that engaging in
political activity, whether partisan or nonpartisan, would influence a judge's decision
toward or against the view espoused, whether it be on an issue of law or as to a party
to a proceeding." Id. at 88. Although Spargo's reasoning is quite brief, it appears to
conclude that the only possible interests served by the code sections are either lack
of preconceptions as to issues of law, which the Supreme Court disapproved in
White, or lack of bias as to a party, which could be better addressed by recusal. Id.
at 88-89. This reasoning ignores the threat to the interest in open-mindedness
resulting from the reality or the appearance of obligation to and dependence on
political parties. Spargo may have omitted discussion of this interest because New
York, unlike Minnesota, has partisan judicial elections, N.Y. Election Law § 6-106
(McKinney 2003), and one could argue that it makes little sense to prohibit partisan
political activity by judicial candidates where the State has chosen to tolerate partisan
judicial elections. Minnesota, in contrast, has chosen to make its judicial elections
nonpartisan, thus demonstrating its concern with the effect of political parties on
judicial impartiality. See Peterson v. Stafford, 490 N.W.2d 418, 422 (Minn. 1992).

      The New York Court of Appeals disagreed with Spargo and upheld the New
York restrictions on political activity by judicial candidates as narrowly tailored to
serve compelling state interests. In the Matter of Raab, 793 N.E.2d 1287, 1292-93
(N.Y. 2003).

                                          -14-
v. Halverson, 288 N.W. 579, 581 (Minn. 1939), deploring "accusations of party
treason which have been heaped upon some judges in the recent past because of
decisions thought to be contrary to the interests of an indorsing party"); 247 F.3d at
872 ("The Minnesota Supreme Court has attempted to prevent judicial candidates
from incurring, or seeming to incur, debts to political parties that could compromise
their independence. . . ."); id. at 876 ("If the judiciary is then expected to review . . .
legislation neutrally, a State may conclude that it is crucial that the judges not be
beholden to a party responsible for enactment of the legislation, or to one that
opposed it."); id. (Political parties "are simply in a better position than other
organizations to hold a candidate in thrall."). In its most extreme form, this kind of
threat to open-mindedness goes by the name "bribery," which, of course, is forbidden
by laws other than Canon 5, and is unquestionably within the state's power to
proscribe. We do not mean to suggest that political endorsements are comparable to
the payment of money or could be regulated in the same way. However, the
underlying problem of candidates for public office incurring obligations which
interfere with their performance in office has been recognized as an urgent threat that
governments can remedy, even when the problem takes more subtle forms than
bribery. See McConnell v. FEC, 124 S. Ct. 619, 660-61 (2003) (corruption and
appearance of corruption extend beyond bribery to other arrangements which create
"sense of obligation" in officeholders); Nixon v. Shrink Missouri Gov't PAC, 528
U.S. 377, 389 (2000) ("In speaking of 'improper influence' and 'opportunities for
abuse' in addition to 'quid pro quo arrangements,' we recognized a concern not
confined to bribery of public officials, but extending to the broader threat from
politicians too compliant with the wishes of large contributors. These were the
obvious points behind our recognition that the Congress could constitutionally
address the power of money to 'influence governmental action' in ways less 'blatant
and specific' than bribery."); see also United States Civil Serv. Comm'n v. National
Ass'n of Letter Carriers, 413 U.S. 548, 565 (1973) (upholding restraints on executive
branch employees' political activities because such activities posed "hazards to fair
and effective government."). The partisan activity restrictions of Canon 5 are aimed

                                           -15-
at forms of obligation which are more subtle than outright corruption, but which the
state still has a compelling interest in avoiding in its judiciary.

       The Supreme Court left open the possibility that open-mindedness in judicial
candidates might be a compelling state interest, so a decision premised upon such an
interest has not been shown to be wrong, see Kinman, 171 F.3d at 610. After the
decision in White, the New York Court of Appeals entertained a First Amendment
challenge to a section of its Rules Governing Judicial Conduct that prohibited judicial
candidates from making certain pledges and promises about their future conduct in
office. The New York court applied strict scrutiny and upheld the section based, in
part, on New York's compelling interest in open-mindedness. In re Watson, 794
N.E.2d 1, 7 (N.Y. 2003) (per curiam) ("[O]penmindedness is central to the judicial
function for it ensures that each litigant appearing in court has a genuine–as opposed
to illusory–opportunity to be heard.")

        Although an analysis based on the compelling interest in judicial open-
mindedness is not contrary to White, another aspect of our analysis of the partisan
activity clauses must be reexamined carefully. The Supreme Court held that the
announce clause would have been a "woefully underinclusive" method of achieving
the goal of electing open-minded judges, and so the announce clause could not be
said to be narrowly tailored to serve this goal. 536 U.S. at 780. It therefore behooves
us to look closely at whether the partisan activity clauses are similarly underinclusive.

       Our earlier opinion's discussion of the partisan activity clauses, unlike our
discussion of the announce clause, specifically addressed the issue of
underinclusiveness in a dialogue with the dissent. Compare 247 F.3d at 871-72 with
247 F.3d at 899-902. The dissent contended that, because Canon 5 prohibited a
candidate from participating in the three specified activities with political parties, but
not with other organizations that took an interest in how a candidate would decide
certain cases if elected, Canon 5 was fatally underinclusive. 247 F.3d at 900-01. We

                                          -16-
responded that underinclusiveness is not a ground in its own right for invalidating a
law, but that it frequently points to two other defects that are fatal:
underinclusiveness may show that the government's interest is not truly compelling,
since the government has chosen to leave unchecked a threat to that interest; or else
it may show that the government is discriminating on the basis of content,
suppressing disfavored speech, while allowing other, favored speech even though it
ought to be subject to the same objection as the prohibited speech. 247 F.3d at 871
(citing City of Ladue v. Gilleo, 512 U.S. 43, 51-53 (1994)). To disprove the existence
of this first defect, the government defending a law must "establish the empirical
reality of the problems it purports to be addressing." 247 F.3d at 871 (quoting
Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S. 457, 493 (1997) (Souter, J.,
dissenting)); see generally Interactive Digital Software v. St. Louis County, 329 F.3d
954, 959 (8th Cir. 2003) (For measure to pass strict scrutiny, government defending
measure must present substantial supporting evidence of harm.).

       To disprove the possibility of content discrimination, the government must
show that the speech it has burdened poses a different, more serious threat to its
asserted interest than the speech it chose not to regulate. See Erznoznik v. City of
Jacksonville, 422 U.S. 205, 215 (1975) ("[E]ven a traffic regulation cannot
discriminate on the basis of content unless there are clear reasons for the
distinctions."). For instance, in Austin v. Michigan State Chamber of Commerce, 494
U.S. 652 (1990), Michigan restricted the political expenditures of corporations in
support of or opposition to candidates for state office. The compelling interest for
such regulation was the concern that entities that amassed wealth in the economic
marketplace would parlay that wealth into "unfair advantage in the political
marketplace," 494 U.S. at 670 (Brennan, J., concurring) because their ability to spend
corporate money bore no relation to political support for the ideas the corporations
spent their money to promote, id. at 659-60, 670, 672. The Chamber of Commerce
attacked the Michigan law as underinclusive because it did not regulate expenditures
by unincorporated labor unions, which also amassed political war chests. Id. at 665.

                                        -17-
The Court noted that federal law restricted expenditures by unions, as well as by
corporations, id. at 665 n.4.7

        Austin rejected the underinclusiveness challenge, reasoning that the
corporations enjoyed greater government-conferred legal advantages enhancing their
ability to accumulate wealth. 494 U.S. at 665. These legal advantages of corporate
form made a crucial distinction between corporations and unions. Additionally, case
law permitted union members to opt out of contributing to the union's political
activities, which meant that "the funds available for a union's political activities more
accurately reflects members' support for the organization's political views than does
a corporation's general treasury." Id. at 666. The Michigan law therefore passed
strict scrutiny. Cf. Burson v. Freeman, 504 U.S. 191, 207 (1992) (also upholding law
on strict scrutiny review against underinclusiveness challenge that law failed to
regulate all speech posing same threat; Court reasoned that only the type of speech
subject to regulation had been shown to pose threat to compelling interest: "The First
Amendment does not require States to regulate for problems that do not exist.");
Florida Star v. B.J.F., 491 U.S. 524, 541-42 (1989) (Scalia, J., concurring in
judgment) (underinclusiveness fatal where unregulated speech would cause victim
discomfort "at least as great" as that caused by speech that was banned).

      Our analysis of the problem of underinclusiveness in applying strict scrutiny
finds strong support in the Supreme Court's most recent campaign finance case,

      7
        The Court had discussed in earlier cases a long history of Congressional
attempts to address the "war chest" problem posed by corporations and labor unions.
See FEC v. Nat'l Right to Work Comm., 459 U.S. 197, 208-09 (1982) (Federal laws
accounting for "particular legal and economic attributes of corporations and labor
organizations" reflect "a permissible assessment of the dangers posed by those
entities to the electoral process."); accord FEC v. Beaumont, 123 S. Ct. 2200, 2206
(2003) (including labor unions in discussion of policies behind regulating corporate
campaign contributions); McConnell v. FEC, 124 S. Ct. 619, 644-45 (2003) (same).


                                          -18-
McConnell v. FEC, 124 S. Ct. 619, 694-98 (2003). In McConnell, the Court
considered a challenge to section 203 of the Bipartisan Campaign Reform Act of
2002, which in turn amended section 316(b)(2) of the Federal Election Campaign Act
of 1971, to prohibit use of corporations' and unions' treasury funds to pay for election
advertising. 124 S. Ct. at 695 & n.87. Because the provision restricted campaign
expenditures, it had to be tested by strict scrutiny. Id. at 695 (asking whether
"compelling governmental interest justifies" measure); id. at 766 (Kennedy, J.,
dissenting) ("All parties agree strict scrutiny applies [to section 203]."). The plaintiffs
contended that the section was underinclusive because it did not apply to election
advertising in the print media or on the Internet. Id. at 697. The Court held that the
evidence in the case supported the conclusion that television advertising posed the
greater threat, and therefore the "record amply justifie[d] Congress' line drawing."
Id. The Court said that "reform may take one step at a time, addressing itself to the
phase of the problem which seems most acute to the legislative mind." Id. (quoting
Buckley v. Valeo, 424 U.S. 1, 105 (1976)). McConnell thus confirms our earlier
reasoning that the sort of underinclusiveness that is fatal in strict scrutiny is irrational
underinclusiveness, not underinclusiveness that results from attempting to focus the
restriction on only the severest form of the threat to a compelling governmental
interest.

       Although our method of analysing the underinclusiveness issue remains valid,
we must examine whether the actual application was affected by anything in the
White decision. The Supreme Court's discussion of the announce clause affected
both the necessity and narrow tailoring aspects of our determination that the partisan
activity clauses passed strict scrutiny. First, our determination that the Boards had
shown the necessity of the restrictions depended partly on our view of the history of
Minnesota's effort to extricate its judiciary from partisan pressures, initially by
designating judicial elections as non-partisan, and later by adopting Codes of Judicial
Conduct restricting partisan activities. 247 F.3d at 869-70. We concluded that "'a



                                           -19-
long history, a substantial consensus, and simple common sense' combine to show
that regulation is necessary to protect the institution of the judiciary from the dangers
of partisanship and corruption." Id. at 870-71 (quoting Burson, 504 U.S. at 211).
However, the Supreme Court rejected our reliance on similar considerations
supporting the announce clause. 536 U.S. at 785 ("The practice of prohibiting speech
by judicial candidates on disputed issues, however, is neither long nor universal.").
Moreover, the Court's discussion included language that has obvious relevance to the
history of the partisan activity clauses. Id. at 786 ("Thus, not only were judicial
candidates (including judges) discussing disputed legal and political issues on the
campaign trail [throughout the 19th and first quarter of the 20th centuries], but they
were touting party affiliations and angling for party nominations all the while.").
Therefore, it is necessary to reconsider whether the partisan activities clauses are
supported by sufficient evidence of necessity, without the reliance we placed on the
history of Minnesota's efforts to protect its judiciary from partisan pressures.

       Second, our conclusion that the Minnesota Supreme Court was justified in
regulating candidate speech concerning political parties, while leaving unregulated
comparable speech concerning single issue groups depended in part on the existence
of the announce clause. 247 F.3d at 876 ("At the Minnesota Supreme Court's 1997
hearing on amending Canon 5, DePaul Willette, Executive Secretary of the Judicial
Board, testified that the danger of judicial candidates affiliating with single-issue
interest groups was adequately addressed by the provision of Canon 5 prohibiting
announcement of the candidate's views on disputed legal or political issues.").
Therefore, the evidence supporting Minnesota's distinction between political and
other organizations must be reevaluated in light of the demise of the announce clause.

       Third, our original underinclusiveness analysis discussed only whether the
partisan activity restrictions were underinclusive because they reached speech
pertaining to political parties, but not other organizations. We concluded the



                                          -20-
distinction between burdened speech and non-burdened speech was justified because
political parties posed a more pervasive threat to judicial independence than did other
types of organizations. 247 F.3d at 872, 875-76. Cf. McConnell, 124 S. Ct. at 686
("Congress is fully entitled to consider the real-world differences between political
parties and interest groups when crafting a system of campaign finance regulation.
Interest groups do not select slates of candidates for elections. Interest groups do not
determine who will serve on legislative committees, elect congressional leadership,
or organize legislative caucuses. Political parties have influence and power in the
legislature that vastly exceeds that of any interest group.") (citation omitted).

      The Supreme Court's opinion raised an entirely different underinclusiveness
objection:

             The short of the matter is this: In Minnesota, a candidate for
      judicial office may not say "I think it is constitutional for the legislature
      to prohibit same-sex marriages." He may say the very same thing,
      however, up until the very day before he declares himself a candidate,
      and may say it repeatedly (until litigation is pending) after he is elected.
      As a means of pursuing the objective of open-mindedness that
      respondents now articulate, the announce clause is so woefully
      underinclusive as to render belief in that purpose a challenge to the
      credulous.

536 U.S. at 779. This type of underinclusiveness analysis looks at whether banning
certain communications within one time-frame but not another is arbitrary. The same
analysis could be applied to other clauses of Canon 5, such as the party identification
and attendance at party gatherings clauses. (The endorsement clause only makes
sense during the time-frame of an election.) This particular underinclusiveness
question was not briefed either before the district court or before us when we decided
this case the first time. The plaintiffs ought not to be barred from making a new




                                          -21-
argument based on the intervening Supreme Court decision, see Morris v. Am. Nat'l
Can Corp., 988 F.2d at 52 (litigant who did not raise argument on first appeal "got
lucky" when Supreme Court case changed law before its case became final), but
neither should the Boards be prevented from marshaling whatever evidence they
choose to present on this issue, as they asked to do at oral argument on remand from
the Supreme Court. We therefore remand to the district court to receive new evidence
and to determine whether the partisan activity clauses can survive strict scrutiny in
light of the Supreme Court's opinion.

                                          IV.

       The plaintiffs contended that the solicitation clause of Canon 5 was not
narrowly tailored in that it unnecessarily prohibited candidates from soliciting
contributions from large groups and sending out fund-raising letters over their own
signatures. 247 F.3d at 883-84. We held that personal solicitation by candidates
could create the impression that justice is for sale and Canon 5 left a candidate
sufficient means by which to raise funds. Id. at 884-85. Plaintiffs did not seek
certiorari on this issue. We conclude, however, that failure to seek certiorari on the
issue does not now preclude the plaintiffs from asking for reconsideration of the issue
in light of the Supreme Court's opinion. See Morris v. American Nat'l Can Corp., 988
F.2d 50, 52 (8th Cir. 1993).

       As with the partisan activities clauses, our consideration of Canon 5's
restriction on personal solicitation was also premised on the state's interest in a kind
of open-mindedness-- keeping candidates free from obligations that would hamper
their ability to decide the law according to their own judgment, rather than in
accordance with implicit obligations to their financial benefactors. We said: "When
judges obtain funds from a group that has an interest in the outcome of litigation,
such as the plaintiffs' or defendants' bar, judges can appear beholden to that group for



                                         -22-
their accession to office, creating the expectation that the judges will favor their
benefactors accordingly." 247 F.3d at 883. We cannot, then, say that our opinion
was wrong in discerning a compelling state interest served by the personal solicitation
restriction.

       We considered whether the personal solicitation restriction was narrowly
tailored in our original opinion. Id. at 884-85. Nothing in the Supreme Court's
opinion discredits our analysis of this issue. Cf. In re Dunleavy, 838 A.2d 338, 350-
51 (Me. 2003) (upholding restriction on judges' solicitation of support for political
candidates after White as narrowly tailored), pet'n for cert. filed (Jan. 20, 2004) (No.
03-1132). Our holding on the issue is therefore not wrong. The plaintiffs cite the
Eleventh Circuit's opinion in Weaver v. Bonner, 309 F.3d 1312, 1322-23 (11th Cir.
2002), invalidating Georgia Canon of Judicial Conduct 7(B)(2), which prohibited
judicial candidates from personally soliciting campaign contributions. The Canon did
allow the candidate's election committee to solicit funds. Id. at 1322. The Eleventh
Circuit's holding on this issue was based on the fact that the Canon would not prevent
the candidate from learning who had contributed to his campaign and consequently
from feeling beholden to those contributors. Accordingly, it was ineffective in
protecting the state's asserted compelling interest. Minnesota's Canon 5B(2), on the
other hand, prohibits a candidate's campaign committee from disclosing to the
candidate either the identity of campaign contributors or the identity of those who
were solicited for contributions but declined to contribute. The Weaver rationale is
therefore inapplicable to the Minnesota Canon.8 We need not comment on the

      8
        The dissent argues that because Canon 5B(2) prohibits the campaign
committee from disclosing to the candidate the names of contributors and decliners,
there is no compelling interest in prohibiting the candidate from signing his own
solicitation letters. If the request comes from the candidate himself rather than the
committee, it is natural to expect contributors to respond to the candidate rather than
the committee, which would undermine the Canon's design of interposing the



                                         -23-
conclusion expressed in Weaver that the distinction between judicial elections and
other types of elections "if there truly is one," 309 F.3d at 1321, does not justify
"greater restrictions on speech during judicial campaigns than during other types of
campaigns." Id. Cf. White, 536 U.S. at 783 ("[W]e neither assert nor imply that the
First Amendment requires campaigns for judicial office to sound the same as those
for legislative office.") We have no need to revisit our consideration of the personal
solicitation clause.
                                         ***

       We remand with instructions to the district court to enter judgment for the
plaintiffs on Count II of the Second Amended Complaint (announce clause), to enter
judgment for the defendants on Counts V (solicitation clause), and to reconsider its
ruling on Counts I, III and IV (partisan activities clauses) in light of the Supreme
Court's decision in this case and such further evidence as the parties may offer.

BEAM, Circuit Judge, concurring and dissenting.

       I concur in the court's conclusion that the district court must enter judgment for
Gregory Wersal and the other plaintiffs (collectively plaintiffs) on their "announce
clause" claim. I believe that the plaintiffs are also entitled to judgment on their
"partisan activities" and "personal solicitation" claims. Accordingly, I dissent from
the court's holdings on these issues.

       I begin by again noting that Minnesota's decision to popularly elect judges
invokes the need to fully and strictly apply the requirements of the First Amendment,
including the Amendment's speech and associational mandates. If Minnesota wants
judicial elections, it must provide the constitutional trappings required for such

committee as the intermediary between candidate and contributors.



                                          -24-
procedures. As Justice O'Connor noted in her concurrence above, Minnesota cannot
ignore the "'crocodile [it has chosen to place] in [its] bathtub.'" Republican Party v.
White, 536 U.S. 765, 789 (2002) (quoting former California Supreme Court Justice
Otto Kaus). Yet today, the court permits the State to do just that.

       I adhere to the views expressed in my previous dissent, see, 247 F.3d at 885-
903, and fully incorporate my remarks by reference. But this case's present posture
requires a further and different inquiry: What must we do on remand? In considering
this question, the court misdefines our task and renders a decision that violates both
the Supreme Court's mandate and the First Amendment.

I.    Our Task on Remand

       The court (sometimes referred to as the panel majority or majority) gives great
weight to its previous decision. This is error. The last time this case was before us,
the panel majority, over my dissent, upheld the solicitation clause, the partisan-
activities clause, and the announce clause. The Supreme Court granted certiorari to
consider the announce clause. It reversed, explained why it reversed, and remanded
the case for proceedings consistent with its opinion. White, 536 U.S. at 788. On
remand, instead of simply asking what the Court's order and opinion command, the
majority clouds our task by misapplying the law-of-the-case doctrine.9


      9
        Footnote 5 of the court's opinion further muddies the water. First, the court
writes that we apply the law of the case unless intervening authority clearly
demonstrates that the law of the case was wrong. Next, the court cites Shrink, a case
that never mentioned the doctrine. Then, the court ultimately concludes that the
"clearly demonstrates" language is merely a redundant statement of the Shrink rule,
which allows for a de novo review of legal questions. To the extent that footnote 5
suggests that the court is conducting a de novo review of the panel's previous opinion
in light of the Supreme Court's teachings, I agree with that footnote. But I am not



                                         -25-
       We owe no deference to the court's earlier decision. The Supreme Court
ordered us to proceed consistently with its opinion. Our only task on remand should
be to ensure that we render, remand, or vacate consistently with the Supreme Court's
mandate:

      A corollary to the principle that a mandate is completely controlling as
      to all matters within its compass is the rule that, upon a reversal and
      remand for further consistent proceedings, the case goes back . . . for a
      new determination of the issues presented as though they had not been
      determined before, pursuant to the legal principles enunciated in the . . .
      opinion.

Poletti v. C.I.R., 351 F.2d 345, 347 (8th Cir. 1965) (emphasis added). This de novo
review is absolute because, when the mandate tells a lower court to proceed
consistently with an opinion, the opinion and its teachings become part of the
mandate. Bailey v. Henslee, 309 F.2d 840, 843 (8th Cir. 1962); see Bankers Trust
Co. v. Bethlehem Steel Corp., 761 F.2d 943, 949 (3d Cir. 1985).

       Although the court cites a case that proceeded properly on remand, Shrink
Missouri Government PAC v. Adams, 204 F.3d 838, 840 (8th Cir. 2000), Shrink does
not support the court's actions. The court cites Shrink for the proposition that
"[w]here the Supreme Court's reasoning in disposing of one issue in a case affects the
validity of our earlier disposition of other issues in the same case, we will reconsider
those issues on remand." Ante at 11. Then, the court defines our task as determining
whether "the law applied by this court or by the district court in deciding the partisan
activity or solicitation clause issues was wrong." Ante at 13. But the court ultimately


convinced that the opinion's text says or means what the footnote suggests, and in any
event, the footnote does not accurately describe the way the court actually applies the
doctrine.



                                         -26-
departs from any permissible interpretation of the law-of-the-case doctrine (or any
other standard of review I can find). Two problems evidence this departure. First,
the court defers to a ruling that no court has ever made. And second, the court
adheres to rulings it made before, even though the Supreme Court's new teachings
require precisely the opposite rulings. I address each in turn.

II.    The Court Defers to a Ruling it Never Made

       Although it is undisputed that both the partisan-activities and solicitation
clauses must be justified by a compelling state interest, and although these clauses
restrict core, political, election speech, the last time this case was before the court, the
panel majority upheld the restrictions based on an interest it forgot to define.

              The Court of Appeals concluded that [Minnesota] had
              established two interests as sufficiently compelling . . .
              preserving the impartiality of the state judiciary and
              preserving the appearance of the impartiality of the state
              judiciary. . . . [A]lthough the term is used throughout the
              Eighth Circuit's opinion, the briefs, the Minnesota Code of
              Judicial Conduct, and the ABA Codes of Judicial Conduct,
              none of these sources bothers to define it.

White, 536 U.S. at 775. So the Supreme Court defined impartiality for us, and left
open the possibility that judicial "openmindedness" is or might become a compelling
state interest.

       Even though the panel majority did not define "impartiality" or
"openmindedness" in the previous appeal, it does not return to this compelling-state-
interest question. Instead, the majority claims to have exercised remarkable foresight
and near-psychic precision when it states today that it earlier "focused on what we can



                                           -27-
now recognize as impartiality in Justice Scalia's third sense of the word: open-
mindedness."10 Ante at 13.

        This stunning metamorphosis to the determinations the panel now says it made
in its previous opinion presents, to borrow Justice Scalia's words, "a challenge to the
credulous." White, 536 U.S. at 780. And the majority further states that because the
Supreme Court left open the possibility that openmindedness might be a compelling
state interest, its supposed reliance upon such an interest was not shown to be wrong.
Ante at 16. This self-serving analysis is fatally incorrect for obvious reasons. The
analysis focuses on the recognition of a newly minted compelling state interest that
the Supreme Court scolded the majority for not finding or defining.

        When the government suppresses election speech, the Constitution demands
strict scrutiny; that is, a narrowly tailored restriction designed to serve a compelling
state interest. White, 536 U.S. at 774-75. Yet the panel majority, in neither its
previous effort nor in today's opinion, has discussed how or why "openmindedness"
is a compelling state interest that can be used to suppress election speech and
associational activities. Neither did Justice Scalia.

       As already noted, in its earlier opinion, the panel majority simply asserted that
judicial impartiality (a term it forgot to define) was a compelling state interest. Only
later did the Supreme Court define impartiality for us. And while the Supreme Court
acknowledged openmindedness as a possible use as a subset of the word impartiality,
and acknowledged the possibility that that possible subset was a compelling state
interest, the panel today claims earlier reliance on this later-defined interest and,


      10
       A computer scan of the majority's previous opinion fails to disclose its use of
the words "openminded" or "openmindedness" in any definitional discussion of the
words impartiality or judicial impartiality.



                                         -28-
without further discussion, declares that it previously found this undefined interest
compelling. If the panel's present statements accurately describe its earlier holdings,
then one of the following statements must be true: either the Supreme Court missed
the panel's previous message, or the previous panel was able to examine an undefined
term so closely as to label it compelling. But neither is true. Our role as an inferior
court requires that we reject the first option. And we must reject the second because
the very ideas of fundamental rights and strict scrutiny require that before we deem
an interest compelling, we must know what that interest is. Because neither statement
is true, the court's opinion misstates what occurred.

       The Supreme Court refused to pursue this crucial question because it did not
believe that the Minnesota Supreme Court had adopted the "announce" clause for the
purpose of protecting the openmindedness of judges. There is even less chance
(hardly any chance at all) that the Minnesota court adopted the partisan-activities and
solicitation restrictions to protect judicial "openmindedness." Indeed, there is almost
no readily discernible connection between the words contained in these restrictions
and "how a [judicial] candidate would decide certain cases if elected." Ante at 16.11

     So, as a fundamental first step, we should ask whether "openmindedness" is a
compelling state interest at all.12 After all, the Supreme Court left open only the

      11
        This is especially true with the solicitation clause, as shown by the panel
majority's rejection of Weaver v. Bonner, 309 F.3d 1312 (11th Cir. 2002) (striking
down solicitation clause). The majority opinion states that because the solicitation
clause considered by the Eleventh Circuit did not prohibit the candidate from
knowing of solicitation responses or declinations, as does the Minnesota rule, the
Minnesota version passes muster. If this is correct, the disconnect between the rule
and judicial openmindedness is all the more obvious.
      12
        The New York Court of Appeals's Watson decision–which of course does not
bind us–adds nothing to this case. See ante at 16 (citing In re Watson, 794 N.E.2d 1,



                                         -29-
possibility that openmindedness, as a desirable judicial trait, rises to the level of a
"compelling state interest." The Supreme Court did not find it to be so and, upon
proper consideration, it may be found to fall well short of the fundamental interest
necessary to fit into this constitutional category.

       Then, because we have never scrutinized the restrictions under the only interest
that can possibly support them (openmindedness), we should do so now. We should
ask, for example, whether preventing a judge from sending his or her own fund-
solicitation letter is necessary to preserve the judges "willing[ness] to consider views
that oppose [existing] preconceptions, and remain open to persuasion, when the issues
arise in a pending case," the hallmarks of "openmindedness" according to Justice
Scalia. White, 536 U.S. at 778. This is especially true when Minnesota forbids the
judge from learning of a solictee's response or lack thereof. But, beyond this
question, it is my view that the solicitation clause is unconstitutional for a more
specific reason. The only way the solicitation clause survives strict scrutiny is if it
is necessary and narrowly tailored to further the compelling state interest of judicial
openmindedness. The Minnesota canon does not allow a judge to even sign a
solicitation request. This is one aspect of a more complicated rule purportedly
designed to protect the state's interest. But this part of the restriction renders the law
not narrowly tailored. Stated another way, in a state where a judge cannot learn of




7 (N.Y. 2003) (per curiam)). In Watson, the defendant defined impartiality, and the
plaintiff did not dispute that interest's compelling status. In re Watson, 794 N.E.2d
at 6. The fact that the Watson court reached this uncontested conclusion does not
magically insert an analysis into the void left by the panel majority's previous
decision.



                                          -30-
his donors, to keep the judge's mind "open," must the state prohibit the judge from
even signing solicitation letters? Of course not.13

III.   Underinclusiveness and the Partisan-Activities Clause

      Nor do I understand, even under its misguided application of the law-of-the-
case doctrine, how the panel can adhere to its view that underinclusiveness is not an
independent ground to challenge a restriction on election speech (and now, by
analogy, partisan activities). I simply questioned this premise in my earlier dissent,
but Justice Scalia defenestrated it in White: "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." 536 U.S. at 780 (internal marks and citations omitted). But the panel
now agrees with neither Justice Scalia nor with me.14


       13
        Footnote 8 shows just how forgiving the court views the strict-scrutiny
standard; indeed, the court's language appears better suited for rational-basis review.
The court asserts that the ban on personal solicitation is justified because "it is natural
to expect contributors to respond to the candidate rather than the committee" if the
candidate signs the letter. This footnote is wrong because it assumes that either
candidates will violate the law or that their contributors will not follow the
candidate's direction to reply in the way the law allows. Why is it not "natural to
expect" that candidates will obey the law and direct replies to the committee, as the
rules require? And why would we expect the contributors to do anything but obey
the candidate's direction? The record does not even approach answering (or even
asking) these questions. The court fails to realize the significance of strict
scrutiny–and its burden-of-proof allocation–when it chooses, by default, the speech-
suppressing answer based on its own unsupported hypothesis.
       14
       Perhaps the court does not feel this language is binding. In White, Justice
Scalia wrote for the Court and cited that language from one of his concurring
opinions. The fact that the language used to be non-binding does not change the fact



                                           -31-
        The majority's view on underinclusiveness is an interesting but unsupportable
position because I am certain that Justice Scalia meant what he wrote in White. His
words bear repeating: "A law [here the partisan-activities restriction] cannot be
regarded as protecting an interest of the highest order [possibly a judge's
openmindedness] . . . when it leaves appreciable damage to that . . . interest
unprohibited." Id. The panel apparently does not dispute that we must strike down
the partisan-activities clause unless we regard it as protecting an interest of the
highest order. But somehow (and I admit I do not see how) the court feels free to
finesse this Supreme Court language to allow the partisan-activities clause to purport
to protect judicial openmindedness even though the clause leaves appreciable damage
(affiliation with and the support from other special-interest groups) unprohibited.15


that it is now the law.
      15
         Even though Justice Scalia wrote the applicable rule in this very case when
the Court reversed the first time, the majority today ignores that language and instead
relies upon McConnell v. FEC, 124 S. Ct. 619, 694-98 (2003). That reliance puzzles
me. First, I don't understand why the court today pieces together blurbs from that
several-hundred-page opinion, when Justice Scalia wrote a clear, one-sentence rule.
Remarkably, even though the Supreme Court decided McConnell shortly after it
decided White, and even though the McConnell opinion contained hundreds of pages
and more citations than I care to count, the McConnell opinion didn't cite White. I
am quite certain that the Supreme Court did not overlook White when it wrote
McConnell. Instead, it recognized that the two cases were so different as to not even
justify a single citation. But this distinction does not dissuade the court today. When
the puzzle pieces seem out of place, the court pounds them until they wedge together;
the problem is, the pieces are not only in the wrong place, but they are from the
wrong puzzle.

       Even this patchwork formulation doesn't support the court's holding. In
McConnell, the "Court held that the evidence in the case supported the conclusion
that television advertising posed the greater threat, and therefore the record amply
justifie[d] Congress' line drawing." Ante at 19 (citing McConnell, 124 S. Ct. at 697)



                                         -32-
(emphasis added and internal quotations omitted). Determining which threat is
"greater" requires a comparison of the two threats. In its previous opinion, the panel
majority purported to examine the threats presented by association with political
parties, concluded they were not arbitrary, cited inapplicable cases that support
treating political parties differently, and held that the State had satisfied its heavy
burden. But the panel majority never discussed (and it does not discuss today) the
threats that special-interest-group association pose, even though the record highlights
this problem. It certainly fails to discuss "ample" record evidence (past or present)
that supports the idea that political association presents a greater threat to judicial
openmindedness than special-interest association. Indeed, the record, including a
Minnesota Supreme Court hearing conducted when the court was amending the
ethical rules, shows that special-interest-group association posed at least as great a
threat. See Hearing on the Amendment to Canon 5 of the Code of Judicial Conduct,
C7-81-300, Tr. at 36-37, 40 (Minn. Nov. 19, 1997) (Minnesota District Judge Gary
Meyer testifying) ( The rule "allows a candidate for the judiciary to seek and use the
endorsements of such special interest groups as the National Rifle Association, the
Minnesota Citizens Concerned for Life, the National Organization for Women,
Mothers Against Drunk Drivers, or any labor union. Clearly, organizations such as
these can and frequently do support and oppose candidates for political office. . . .
It appears that the proposed changes to [the rule] are an attempt to strip political
affiliation from judicial elections, but at the same time, they allow and perhaps
encourage candidates to adopt issue group affiliation. This doesn't take party politics
out of the judicial election. . . . Is it appropriate for a judicial candidate to speak and
appear at a MADD . . . function but not a political party? Why should these special
interest endorsements and activity be protected as constitutionally guaranteed free
speech and assembly but political party endorsements and activity not be so
protected.").

       We should not remand to the district court to allow it to review the record for
evidence that is not there. There simply is not "ample" record evidence to show that
this line drawing is necessary to advance the state's interest in an openminded
judiciary, or in the appearance of an openminded judiciary. In a gun-control case,
how is the candidate's openmindedness more affected by his political affiliation than
his NRA affiliation? In an abortion case, would association with a political party



                                           -33-
The facts establish the probability of greater harm to judicial openmindedness from
association with these other narrowly focused, politically active groups who have
persistent interest in many of the cases an elected judge may be called upon to decide
in the Minnesota courts.16

       Even so, the majority never examines whether these other political contacts
pose an "appreciable danger." If a law cannot pass strict scrutiny when it leaves an
appreciable danger unprohibited, the starting place must be to ask whether an
appreciable danger exists at all and, if so, does the law leave it unprohibited? This
is the essence of the "underinclusiveness" inquiry and it clearly is an independent
ground for challenging the restriction. And although the panel correctly notes that
the underinclusiveness challenge clearly points toward two other fatal defects in the
Minnesota law, the unprotected-appreciable-danger challenge stands on its own and
defeats the Minnesota rule.

      In short, although the panel's interpretation of Supreme Court
underinclusiveness jurisprudence is inventive, I choose Justice Scalia's binding


influence judicial minds more than association with pro-life or pro-choice groups?
To justify the restriction, even the court's proposed rule requires a "yes" answer to
these questions. Because neither logic nor the record supports a "yes" answer, the
Constitution forbids the line drawing.
      16
        In this regard, I take judicial notice, for instance, of candidate filings
contained in Minnesota Board of Campaign Finance and Public Disclosure Reports
for year 2000 and in Minnesota media reports that reveal that large law firms and
their members contribute substantial sums of money to judicial candidates, especially
incumbent candidates, as well as to non-judicial candidates for state and federal
office. See In re Ahlers, 794 F.2d 388, 392 n.1 (8th Cir. 1986) (permitting
consideration of matter outside the record on appeal), rev'd on other grounds sub
nom. Norwest Bank Worthington v. Ahlers, 485 U.S. 197 (1988).



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interpretation of the law. The Minnesota partisan-activities clause, as presently
written, violates the Constitution.

IV.   CONCLUSION

      The panel majority uses the discretionary, judicial-economy-based, law-of-the-
case doctrine to reach an unsupportable result. Minnesota has failed to establish a
"compelling state interest," at least one with a discernible connection to the
regulations at issue. One regulation is woefully underinclusive and the other overly
broad but with no real connection to a constitutionally protectable interest. The
majority construes its previous ruling as deciding a question that did not exist when
the decision was rendered. And, the panel defers to its own hypothetical ruling
instead of applying the mandate of the Supreme Court. For these reasons, and those
expressed in my previous dissent, I concur in the court's invalidation of the Minnesota
Supreme Court's announce clause, but dissent from the court's failure to invalidate
the partisan-activities and solicitation restrictions.
                        _______________________________




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