Full opinion text
GOODWIN, Chief Judge: Since at least 1913, California by statute or state constitutional provision has made all city, county, school, and judicial offices nonpartisan. Political parties have no control over the nomination or election processes for those offices. Prior to 1986, however, no law prohibited political party endorsements of candidates running for such offices. Nevertheless, because the legal status of such endorsements was unclear, political parties did not endorse candidates in 75% of California counties. In 1986, the people of California voted overwhelmingly to adopt Proposition 49, which amended the state constitution to formalize the ban on political party endorsements: Article II, § 6(b) provides that “[n]o political party or party central committee may endorse, support or oppose a candidate for nonpartisan office.” Plaintiffs-appellees in this case are ten registered voters of the City and County of San Francisco, an organization of registered voters, and one of that organization’s officers. The basis of their complaint as it relates to this appeal was the refusal of the City and County of San Francisco and the San Francisco Registrar of Voters (appellants) to permit official political party and party central committee endorsements to be printed in the San Francisco Voter Pamphlet prepared for elections scheduled June 2 and November 3, 1987. Appellants based their refusal to print such endorsements on the language of Article II, § 6(b). On September 11, 1987, plaintiffs-appel-lees filed suit, and in their third cause of action challenged the constitutionality of § 6(b) and sought injunctive and declaratory relief. They alleged that § 6(b) violates the rights of political parties and their members to free speech and association under the first and fourteenth amendments of the Constitution and to equal protection under the fourteenth amendment. On April 27, 1988, the district court granted the plaintiffs’ motion for partial summary judgment with regard to their third cause of action 708 F.Supp. 278, relying in large part on the reasoning of state Supreme Court Justice Grodin’s concurring opinion in Unger v. Superior Court, 37 Cal.3d 612, 209 Cal.Rptr. 474, 692 P.2d 238 (1984). On May 6, 1988, the city moved to vacate the district court’s judgment and was unsuccessful. This appeal followed. The original panel of this court reversed the judgment, holding that California’s compelling interest in preserving its nonpartisan system of government for local and judicial offices justified the infringement of the plaintiffs’ first amendment rights effected by § 6(b). 880 F.2d 1062. We took this case en banc in order to reconsider the panel’s decision. Upon reconsideration, we affirm the decision of the district court. The broad authority of the states to prescribe the procedures governing local elections “does not extinguish the State’s responsibility to observe the limits established by the first amendment rights of the State’s citizens.” Eu v. San Francisco Democratic Cent. Comm., 489 U.S. 214, 109 S.Ct. 1013, 1019, 103 L.Ed.2d 271 (1989). In reviewing a challenge to a provision of a state’s election laws, we first consider whether the provision burdens rights protected by the first and fourteenth amendments. Id. If the enactment at issue impairs the first amendment rights of political parties and their members, “it can survive constitutional scrutiny only if the State shows that it addresses a compelling state interest ... and is narrowly tailored to serve that interest.” Id. 109 S.Ct. at 1019-20 (citations omitted); First National Bank of Boston v. Bellotti, 435 U.S. 765, 786, 98 S.Ct. 1407, 1421, 55 L.Ed.2d 707 (1978). It is indisputable that the restrictions embodied in § 6(b) implicate appellees’ first amendment rights. The ban on endorsements directly affects political speech, “the inviolability of which rests at the core of the First Amendment.” San Francisco Democratic Cent. Comm. v. Eu, 826 F.2d 814, 833 (9th Cir.1987), aff'd, 489 U.S. 214, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989). As the Supreme Court has made clear, “[a]dvoeacy of the election or defeat of candidates ... is no less entitled to protection under the First Amendment than the discussion of political policy generally or advocacy or defeat of legislation.” Buckley v. Valeo, 424 U.S. 1, 48, 96 S.Ct. 612, 648, 46 L.Ed.2d 659 (1976). And because the exercise of these basic first amendment freedoms traditionally has been through the media of political associations, political parties as well as party adherents enjoy rights of political expression and association. Sweezy v. New Hampshire, 354 U.S. 234, 250, 77 S.Ct. 1203, 1211, 1 L.Ed.2d 1311 (1957). Because § 6(b)’s prohibitions do impair appellees’ first amendment rights, the burden is on the government to show a compelling state interest justifying the regulation. Eu, 826 F.2d at 833 (quoting Bellotti, 435 U.S. at 786, 98 S.Ct. at 1421). Appellants declare § 6(b) essential to preserving the nonpartisan nature of California’s system of electing local and judicial officials and assert that the State’s interest in the “fair and impartial administration of government” is compelling enough to warrant § 6(b)’s ban on partisan endorsements. Attempting to avoid the constitutional minefield of claiming first amendment restrictions to be justified for the purpose of preventing “undue influence on voters” and guiding the electorate to make sensible choices, see, e.g., Bellotti, 435 U.S. at 789-91, 98 S.Ct. at 1422-24, appellants characterize their concern as an interest in the end product of § 6(b)’s restrictions on political party speech: i.e., prevention of a return of political party domination of local government and diminished voter confidence in local public officials. See, e.g., Amicus Curiae Brief of Tom Bradley, May- or of Los Angeles, at 3 (California’s concern “does not relate to the impact that endorsements may have on voters’ choices but rather to the indirect impact on elected officials’ independence from partisan political pressures”). As support the State cites Supreme Court cases upholding limits on campaign contributions and spending, contending that political party endorsements create the same risks of corruption or the appearance of corruption that the Court previously has determined justify governmental regulation of election spending. The analogy is flawed. In its most recent pronouncement in this area, Austin v. Michigan Chamber of Commerce, — U.S. -, 110 S.Ct. 1391, 108 L.Ed.2d 652 (1990), the Court upheld a provision of the Michigan Campaign Finance Act prohibiting corporations from using general treasury funds for independent expenditures in connection with state candidate elections. In its defense Michigan contended that the unique legal and economic characteristics of corporations necessitated some regulation of their political expenditures in order to avoid corruption or the appearance of corruption. Id. at 1397. Affirming that, in previous cases, “[w]e ... have recognized that ‘the compelling governmental interest in preventing corruption supports] the restriction of the influence of political war chests funneled through the corporate form,’ ” id. (quoting FEC v. Nat’l Conservative Political Action Comm., 470 U.S. 480, 500-01, 105 S.Ct. 1459, 1470, 84 L.Ed.2d 455 (1985) (NCPAC)), the Court found the Michigan statutory provision a legitimate check upon “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the [state-conferred] corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.” Id. at 1397. The corruption the Court found properly addressed by the Michigan statute was not of the kind decried by California here. Under the definition applied in past cases, “[corruption is a subversion of the political process” whereby “[ejlected officials are influenced to act contrary to their obligations of office by the prospect of financial gain to themselves or infusions of money into their campaigns.” NCPAC, 470 U.S. at 497, 105 S.Ct. at 1468; see also Austin, 110 S.Ct. at 1421 (Kennedy, J., dissenting). “The hallmark of corruption is the financial quid pro quo: dollars for political favors.” NCPAC, 470 U.S. at 497, 105 S.Ct. at 1468. By contrast, the Court explicitly has excluded from its definition the kind of conduct California seeks to prevent with § 6(b): “[tjhe fact that candidates and elected officials may alter or reaffirm their own positions on issues in response to political messages ... can hardly be called corruption, for one of the essential features of democracy is the presentation to the electorate of varying points of view.” Id at 498, 105 S.Ct. at 1468. The rationale underlying “the long history of regulation of corporate political activity” thus simply is not available as a justification for the complete suppression of speech by political parties, regardless of whether the elections in question are partisan or nonpartisan in nature. See FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 256, 107 S.Ct. 616, 627, 93 L.Ed.2d 539 (1986) (MCFL) (emphasis added). As the Court said in exempting Massachusetts Citizens for Life, a nonprofit organization dedicated to promoting respect for the rights of the unborn, from Federal Election Campaign Act (FECA) prohibitions on corporate expenditures of treasury funds on behalf of federal candidates: [such groups] do not pose [any] danger of corruption. MCFL was formed to disseminate political ideas, not to amass capital. The resources it has available are not a function of its success in the economic marketplace, but its popularity in the political marketplace. Id. at 259, 107 S.Ct. at 628-29 (emphasis added). That description applies equally well to the political parties targeted by § 6(b). In Eu we considered a similar ban on partisan endorsements before party primaries in California. Finding that “[wjith the exception of cases upholding laws carefully tailored to proscribe fraud and corruption,” the State had “cite[d] no authority for the proposition that the government can regulate the flow of information between political associations and their members,” we held that the ban “patently infringe[d] both the right of the party to express itself freely and the right of party members to an unrestricted flow of political information.” 826 F.2d at 835. Appellants assert that Eu is distinguishable because it involved party endorsements in elections for partisan offices and because the state interest advanced here— i.e., in preventing the appearance or reality of “corruption” of nonpartisan officeholders — is more compelling. Having dealt with the latter contention above, we observe with regard to the first that there is nothing in this court’s Eu opinion or the Supreme Court’s affirmance of that opinion which suggests that either analysis was in any way dependent upon the fact that partisan offices were at issue. The concern in both fora was with the State’s abridgement of the rights of political parties and their members to exchange ideas and information, not with the nature of the elections at issue. See, e.g., 109 S.Ct. at 1020 (“[a] ‘highly paternalistic approach’ limiting what people may hear is generally suspect, but it is particularly egregious where the State censors the political speech a political party shares with its members”) (citations omitted); 826 F.2d at 835 (same). Even if we were to find the state interests underlying § 6(b) compelling, we still would be bound to declare the amendment invalid, because appellants have failed to show that § 6(b) is narrowly tailored to achieve its purported objectives. See Eu, 826 F.2d at 834 (citing Consolidated Edison Co. v. Public Serv. Comm., 447 U.S. 530, 540, 100 S.Ct. 2326, 2334, 65 L.Ed.2d 319 (1980)). The State claims that § 6(b) is narrowly drawn because only political parties and their county central committees are prohibited from endorsing, supporting, or opposing nonpartisan candidates; individuals are not subject to its restrictions. But as we have noted, supra at 283, political parties as well as party adherents possess rights of expression and association under the first amendment, and the mere fact that § 6(b) targets the collective rather than the individual voices of party members does not suffice to render it “precisely drawn.” See Bellotti, 435 U.S. at 777, 98 S.Ct. at 1416 (“[t]he inherent worth of [political] speech ... does not depend upon the identity of its source, whether corporation, association, union, or individual”). Even in the campaign contribution and expenditure cases appellants cite as support for their position, the Supreme Court consistently has emphasized the limited nature of the restrictions it has upheld and the availability of alternative avenues of expression for the affected speakers. As the Court observed in Buckley, with regard to the narrow provisions of the FECA it found to be constitutional: [s]ignificantly, the Act’s contribution limitations in themselves do not undermine to any material degree the potential for robust and effective discussion of candidates and campaign issues by individual citizens, associations, the institutional press, candidates, and political parties. 424 U.S. at 28-29, 96 S.Ct. at 639-40 (emphasis added). Obviously, the same cannot be said of § 6(b); it imposes a total ban on any partisan gesture of support for or opposition to a candidate. Accordingly, the district court below specifically found that the State could adequately safeguard the interests § 6(b) was designed to protect by less drastic means, including provision for non-partisan methods of nominating candidates for local and judicial offices and controls on partisan activities of the candidates. We therefore reject appellants’ assertion that allowing party endorsements will lead inexorably to party usurpation of the nomination process for nonpartisan candidates; the seventy years of nonpartisan government celebrated by appellants were achieved without benefit of a formal ban on partisan advocacy, and the State has offered nothing but speculative evidence to support its contention that the invalidation of § 6(b) will generate a disastrous departure from the experience of the past. We are not unmindful that “the Constitution grants to the States a broad power [to regulate Congressional elections under] Art. I, § 4, cl. 1, which power is matched by state control over the election process for state offices.” Tashjian v. Republican Party of Conn., 479 U.S. 208, 217, 107 S.Ct. 544, 550, 93 L.Ed.2d 514 (1986); see also Oregon v. Mitchell, 400 U.S. 112, 124-25, 91 S.Ct. 260, 264-65, 27 L.Ed.2d 272 (1970) (opinion of Black, J., delivering the judgment of the Court) (observing that under the 10th Amendment, one of the powers reserved to the states is the regulation of state elections). But as the Supreme Court has emphasized, the state’s power to protect the integrity of its electoral processes “does not justify, without more, the abridgement of fundamental rights, such as the right to vote, see Wesberry v. Sanders, 376 U.S. 1, 6-7, 84 S.Ct. 526, 529, 11 L.Ed.2d 481 (1964), or, as here, the freedom of political association.” Tashjian, 479 U.S. at 217, 107 S.Ct. at 550; see also Miami Herald v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974) and Mills v. Alabama, 384 U.S. 214, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966) (striking down on first amendment grounds state election laws interfering with newspapers’ rights to comment on political candidates); Hunter v. Underwood, 471 U.S. 222, 105 S.Ct. 1916, 85 L.Ed.2d 222 (1985) (10th Amendment cannot save legislation prohibited by subsequently enacted fourteenth amendment). Because we find that the ban on partisan endorsements by political parties burdens political speech without being narrowly tailored to serve compelling state interests, we hold that § 6(b) violates the first and fourteenth amendments. AFFIRMED. . The first amendment is made applicable to the states through the fourteenth amendment. See, e.g., NAACP v. Claiborne Hardware Co., 458 U.S. 886, 907 n. 43, 102 S.Ct. 3409, 3422, 73 L.Ed.2d 1215 (1982); Edwards v. South Carolina, 372 U.S. 229, 235, 83 S.Ct. 680, 683, 9 L.Ed.2d 697 (1963). . In Unger, a plurality of the Court held that the state constitutional provisions making city, county, school, and judicial offices nonpartisan did not prohibit the making of endorsements by political parties. Justice Grodin wrote separately in order to express his view that a ban on such endorsements would violate the first amendment. . In Austin, for example, the Court found the Michigan enactment at issue to be “precisely targeted” to achieve its aims because it "does not impose an absolute ban on all forms of corporate political spending but permits corporations to make independent political expenditures through separate segregated funds.” 110 S.Ct. at 1398 (emphasis in original). Similarly in MCFL, the Court emphasized that the FECA limitations on corporate political expenditures upheld in its previous cases were “of course distinguishable from the complete foreclosure of any opportunity for political speech that we invalidated in the state referendum context in First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765 [98 S.Ct. 1407, 55 L.Ed.2d 707] (1978)." 479 U.S. at 259 n. 12, 107 S.Ct. at 628 n. 12 (emphasis added). . In fact, the California Elections Code features several provisions designed to preserve the nonpartisan character of local and judicial elections. To begin with, we note that Section 37 of the Code explicitly forbids party participation in the nomination of candidates for nonpartisan office, defining a "nonpartisan office" as "an office for which no party may nominate a candidate.” In addition, the Code contains provisions stating that declarations of candidacy and other nomination papers may not refer to party affiliation (§ 6401.5); the name of the party to which a candidate for nonpartisan office belongs may not appear on the ballot (§ 10200.5); a voter may cast his ballot for a candidate for nonpartisan office without regard to party affiliation (§ 10214); and partisan and nonpartisan offices are to be listed in separate columns on the ballot form (§ 10207). See Unger, 37 Cal.3d at 616 (Grodin, J., concurring). See also Note, Local Nonpartisan Elections, Political Parties and the First Amendment, 87 Colum.L.Rev. 1677, 1698-1700 (1987) (concluding that § 6(b) unconstitutionally burdens first amendment rights and discussing means short of a complete ban on political party involvement in nonpartisan elections states may employ to counteract perceived threats of undue party influence on nonpartisan officeholders and preserve responsiveness of local government to constituent concerns). § 6(b) was enacted in 1986; appellants have made no showing that the above-mentioned Election Code provisions have proven inadequate to maintain the nonpartisan character of local and judicial offices. .The affidavits by various state officials offered in evidence by appellants fail to demonstrate that "the relative voice of [political parties] has been overwhelming or even significant in influencing" nonpartisan elections, "or that there has been any threat to the confidence of the citizenry" in its nonpartisan officeholders. See Bellotti, 435 U.S. at 789-90, 98 S.Ct. at 1422-23. Indeed, as Justice Grodin pointed out in Unger, “one might expect that in local elections ..., local 'special interest’ and civic groups would have a greater influence over the electorate than would political parties.” 37 Cal.3d at 623-24 n. 4, 209 Cal.Rptr. 474, 692 P.2d 238 (Grodin, J., concurring) (citing Lee, The Politics of Nonpartisanship 77, 79 (1960)). Even if California is correct, and the availability of partisan endorsements in the future does produce nonpartisan officeholders more sensitized to party preferences, that result will have been effected through the exercise of informed voter choice — a mechanism with which the State may not interfere out of a concern that, in the absence of regulation, the voters will mis-perceive their own best interests. See Bellotti, 435 U.S. at 791 n. 31, 98 S.Ct. at 1424 n. 31 (“[g]overnment is forbidden to assume the task of ultimate judgment, lest the people lose their ability to govern themselves”). . It is, of course, "irrelevant that the voters rather than a legislative body enacted [§ 6(b) ], because the voters may no more violate the Constitution by enacting a ballot measure than a legislative body may do so by enacting legislation.” Citizens Against Rent Control v. Berkeley, 454 U.S. 290, 295, 102 S.Ct. 434, 437, 70 L.Ed.2d 492 (1981). . This disposition makes it unnecessary to reach appellees’ equal protection claims.
REINHARDT, Circuit Judge, with whom KOZINSKI, Circuit Judge, joins, concurring: I join fully in Chief Judge Goodwin’s opinion for the court. However, in an effort to ensure that no one will be misled by the ostensible teachings of history, I submit this separate concurrence responding to Judge Alarcon’s thesis that today’s political parties pose a fundamental threat to democratic institutions in California and that their endorsements bring with them the taint of corruption. I also write to comment on the concerns raised in his opinion regarding the independence of California’s judiciary. I There is always a danger in too facile an application of the principle that important lessons may be learned from past events. The problem is similar to the one we frequently experience with those who claim to be expert in determining the original intent of our founding fathers. In both cases, it is the level of generality that is critical, and that so badly confounds the pseudo-experts. In short, “students” sometimes learn the wrong lesson from history — they discern the wrong message not by getting the historical facts wrong but by concentrating on superficial statements or inferences rather than on the fundamental principles that underlie them. For example, it is certainly true, as a matter of historical fact, that the American colonists found it necessary to be vigilant against roving bands of Indians. However, for a modern student of our early history to draw from that fact the lesson that we must today be constantly on the alert against “predatory” Native Americans would be rather foolish. On the other hand, to learn, as a result of our early experience, a more fundamental lesson — namely, that individuals may find it necessary to band together in their common defense — might show a modicum of wisdom. In the case at hand, it does not take much wisdom to know that, whatever the cause of the problems in municipal government in the early 1900s, today’s threat to the integrity of the political process comes not from the Republican or Democratic parties — or even from the Libertarians — but rather from the corrupting influence of money in politics — that is, from massive political contributions. All recent California governors have, of course, been nominated by political parties, while California mayors have, since the days noted by Judge Alarcon, been elected in nonpartisan races. Yet there is no reason to think that recent governors, like Pat Brown, Ronald Reagan, Jerry Brown, and George Deukmejian, have been more subject to corruption, in any form, than mayors, like Pete Wilson, Dianne Feinstein, Tom Bradley, Sam Yorty, and Joe Alioto. In fact, today’s problems concerning the lack of integrity in government may well stem in substantial part from the weakening of the political party system, both locally and nationally. Throughout the nation, candidates no longer can look to the party to assume responsibility for the cost of their campaigns. Conversely, parties no longer can impose discipline on individuals elected to office as the party’s standard bearers. These days public officials and would-be public officials must go directly to the big monied interests and beg for the funds necessary to finance their campaigns. In modern-day America, there simply is no reason to associate partisanship with corruption. There is a basic fallacy in Hiram Johnson’s notions of reform. Eliminating the middle-man does not do much to solve the fundamental problem of corruption. In fact, in this case it may have exacerbated it. We are told that in the early 1900s the Southern Pacific Railroad was the villain, that it controlled both the legislature and the political parties. Strangely, while Johnson’s reforms deliberately weakened the party structure, they left the Southern Pacific wholly untouched, free to contribute, free to endorse, free to promote its own candidates regardless of their ideology. Accordingly, the reforms not only compelled candidates to deal directly with the Southern Pacific and its lobbyists, but made them more dependent on the railroad’s contributions. Political reforms are always well intended. Frequently, however, they, like ill-thought-through history lessons, address only the superficial evil and fail to consider the underlying problem. That is not to say that the people of California do not have the right to use a system of nonpartisan elections for filling local and judicial offices. No one quarrels with that right. But the people of California may not suppress free speech on the excuse that they are merely determining the method by which candidates will be elected. For nearly eighty years, California’s local and judicial elections have been “nonpartisan.” Traditionally, and as California has applied the term, a nonpartisan election means that the candidates who appear on the general-election ballot are not selected by political parties. Cal.Elec.Code § 37. Anyone can run in the primary, not just persons registered in a particular political party. E.g., Cal.Elec.Code §§ 22836 & 25301. If any one of the primary candidates in a nonpartisan election receives a majority of the votes, he is elected; otherwise, the two individuals who receive the highest number of votes face each other in the general election. Cal.Elec.Code §§ 6611, 6612, & 7202. In any event, all citizens, regardless of party affiliation, are eligible to participate in all stages of the nonpartisan election process. California may continue to hold elections that are nonpartisan in the traditional sense. But there is all the difference in the world between refusing to delegate to political parties the decision as to which candidates appear on the general-election ballot and prohibiting political party organizations from announcing their views on the merits of candidates seeking public office. The latter directly infringes on the right of free speech. As the Supreme Court has stated, “[T]he first amendment ‘has its fullest and most urgent application’ to speech uttered during a campaign for political office.” Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214, 109 S.Ct. 1013, 1020, 103 L.Ed.2d 271 (1989). Prohibitions on endorsements “directly hamper[] the ability of a party to spread its message and hamstring[ ] voters seeking to inform themselves about the candidates and the campaign issues.” 109 S.Ct. at 1020. “[I]t is particularly egregious where the State censors the political speech a political party shares with its members.” 109 S.Ct. at 1020. The issue, in short, is not a matter of how to define or structure a “nonpartisan election.” It is instead a question of the right of individuals to band together and express their collective views on a matter of public concern. Unless the state can demonstrate a compelling need to do so, it cannot limit such speech. That the speech is collective rather than individual is of no import. The state may no more prevent Republicans in Los Angeles County from announcing their collective position on candidates for nonpartisan office than it could prevent an individual Republican party member from running for a nonpartisan office, or from proclaiming during the campaign that he is a member of the Grand Old Party and that he intends, if elected, to follow its tenets unswervingly. Similarly, of course, the state could not prevent members of political parties from voting in an election to select a nonpartisan office-holder. While the state may have a compelling interest in maintaining its nonpartisan election structure for certain offices, there are obvious limits to what it may concern itself with. It may select the form of local government it wishes and prescribe procedures for its implementation; however, it has no compelling interest in limiting the people’s right to make informed choices or to select candidates for office on whatever basis they deem relevant. The dissent’s description of California’s populist reforms should not inadvertently mislead anyone into believing that Hiram Johnson and his reformers long ago enacted a prohibition against endorsements in nonpartisan elections. The reformers were not that out of touch with our Constitution. To the contrary, political parties were free to make endorsements in nonpartisan races in the period following the Johnson reforms, right up until 1986. Only then did the voters adopt the no-endorsement rule that Judge Alarcon now finds so essential to the preservation of the republic. Until the adoption of the initiative measure in 1986, political parties were free to, and did, endorse in numerous nonpartisan elections. As Justice Mosk wrote in Unger v. Superior Court, in California it was “customary for the governing bodies of political parties to endorse or assist candidates in elections for nonpartisan office.” And prior to 1986, few thought that the political process was in any great danger as a result. Thus, historical events of the early 1900s cannot provide the basis for limiting the free speech rights of today’s California Democrats, Republicans, and minor party members. Nor can the limitation of that speech be deemed necessary to the proper functioning of the nonpartisan election system. In reaching those conclusions, I note that nowhere in the record is there a whit of evidence that party endorsements in nonpartisan elections ever, even on a single occasion, led to corruption or evil of any kind — almost eighty years of endorsements in nonpartisan races and not one example of a public official being unduly or improperly influenced. In fact, recent experience tends to suggest that the influence of party organizations is not nearly as great as Judge Alar-con fears. Only a few months ago the California Democratic party made endorsements in the statewide partisan primary for the first time. The endorsed candidates for Governor and Insurance Commissioner, the only two seriously contested statewide posts for which endorsements were made, both lost by substantial margins. In nonpartisan races, the voice of political party organizations is likely to be even less effective. Ordinarily endorsements in those races are made on a local level; there, the endorsing bodies are the county central committees, which are notoriously unin-fluential organizations. In any event, in nonpartisan races, as in partisan ones, the party’s voice is but one of many that seek, whether for selfish or idealistic reasons, to persuade voters to cast their ballots one way or the other. The only difference is that in nonpartisan races the party’s voice is even more attenuated since its message is directed not only at its own members but at the electorate at large. As I have already noted, political parties have the same right as others to make their views known; their speech may not be suppressed unless the state can demonstrate that it is necessary to do so for compelling reasons. Eu, 109 S.Ct. at 1019-20. It is also important to note that the result would be no different here even if political parties’ endorsements carried great weight and influenced voters inordinately. For speech cannot be prohibited on the ground that it is effective. In any event, in this case those arguing that a compelling governmental interest warrants limiting the right of members of political parties to make known their collective views have completely failed to carry their burden. II A Judge Alarcon’s dissent touches on a critical and sensitive subject when it discusses the question of the independence of the California state judiciary — and the threat to that independence that purportedly arises when political parties are free to express their views regarding the qualifications or records of candidates for judicial office. My colleague’s argument is paradoxical indeed, and, implicitly but unavoidably, raises the basic question whether judges who are forced to stand for election can be independent. The threat to the independence of elected judges stems from the fact that they are dependent for their livelihood and continued employment on the political process. They must all stand for election at one time or another, either initially, shortly after their appointment, or at the end of their first and subsequent terms. Cal. Const, art. VI § 16. Some raise large sums of money and seek support from persons and pressure groups with particular interests that will come before them. Judicial candidates are rated by various interest groups and are questioned about their decisions — sometimes about the very issues listed in Judge Alar-con’s dissent. None of this appears to cause my dissenting colleague any concern — except for the fact that one of the groups that may endorse a judicial candidate may be a political party organization. The paradox I find in Judge Alarcon’s position lies in the assumption that judges can remain independent though compelled to seek financial contributions and other assistance, including endorsements, from powerful special interests and pressure groups, but that their very integrity may crumble if they ask members of a political party publicly to proclaim their collective support. As far as I am concerned, one can make a plausible argument that judges who must run for election cannot be fully independent — that their decisions on controversial issues will be suspect — that they are too susceptible to pressures arising out of personal concerns. Or, on the other hand, one can argue that good judges, being strong-willed, intellectually disciplined, and highly principled, will disregard the effects of being compelled to seek, and accept, the aid of those whose basic interests are regularly at stake in their courts. But it cannot be seriously argued, in my view, both that the typical judge is strong enough to ignore the temptation to succumb to the influence of those who can truly control his destiny — the powerful interests, the big contributors, even the governor who has it solely within his power to make a career advancement possible — and, at the same time, that the typical judge is so weak, morally or ethically, that he will not be willing to disagree in subsequent judicial opinions with so much as a single plank of the platform of a political party that has given him nothing more than its endorsement. That argument simply does not make sense. B We can, of course, learn from history, and the events surrounding recent judicial elections in California shed significant light on the problem we are asked to resolve. In the 1986 statewide general election, three members of the California Supreme Court, including the Chief Justice, were voted out of office because a majority of the electorate disagreed with the perceived views of those justices on controversial issues. The election was not one in which either major political party made an official endorsement. However, endorsements there were — and campaign contributions for and against the justices totalling more than eleven million dollars. A wide variety of special interest groups — insurance companies, oil and gas interests, large corporate employers, agricultural conglomerates, prosecutors, and other law enforcement officials — poured money into the campaign coffers of the organizations formed to defeat justices who wrote or joined in opinions those groups deemed harmful to their economic or professional interests. On the other side, personal-injury and criminal-defense lawyers who agreed in general with the Court’s decisions rallied to the support of the beleaguered judicial officers. In the months preceding this nonpartisan election, the three embattled justices were forced to appear on television to plead their cases, and to seek the endorsements of powerful newspapers, bar organizations, and prominent lawyers. Most important, however, the justices were compelled to seek large amounts of money from potential campaign contributors so that they could convey their messages to the voters. True, they could have kept silent — but if the people of the state want elections for judges, they must also want a fair and full debate on the issues; and a fair and full statewide debate these days costs many millions — at least if, as was the fact in the 1986 California election, the opponents of incumbent judges conduct a full-scale, paid media campaign with thirty-second spots designed to inflame the passions and prejudices of the voters. Statistics from other states suggest that California’s experience in the 1986 race was not unique. Seven million dollars was spent in Ohio’s nonpartisan elections for the state Supreme Court that same year. Even back in 1980, three open seats on the Texas Supreme Court generated campaign expenses of nearly two million dollars. Uelman, California Judicial Retention Elections, 28 Santa Clara L.Rev. 333, 348 n. 44 (1988). Money is no less important in the case of California’s trial-court judges; a survey conducted by the California Judges’ Association is informative in this connection. One judge who responded to the survey wrote, “[M]y ‘reasons for winning’ ... are as follows: (1) Money; (2) Organization; (3) An early start; (4) Money; (5) An ‘excellent’ candidate; (6) A weak opponent; (7) Excellent public relations and use of media advice; (8) Money; (9) Luck.” Schotland, Elective Judges’ Campaign Financing: Are State Judges’ Robes the Emperor’s Clothes of American Democracy? 2 J.L. & Pol. 57, 155 (1985) (emphasis in original). This dependence on contributors may actually affect a trial-court judge more significantly than an appellate judge, since a large portion of the necessary money is contributed by lawyers who may then or later (or indeed, regularly) have cases pending in the candidate’s court. C In light of the above, the California provision prohibiting endorsements by political parties appears to be a particularly peculiar way of addressing the problem of maintaining judicial independence. Obviously, the dependence of judges on campaign contributions represents a far greater threat to the integrity of California’s judiciary than does the possibility that some judicial candidates may be endorsed by political party organizations. Yet the state has not regulated the solicitation of campaign funds by incumbent or would-be judges, even though, as Chief Judge Goodwin points out in the majority opinion, the financial influences condoned by the state of California are not entitled to as much protection under the Constitution as the core political expression the state seeks to suppress. See FEC v. Massachusetts Citizens for Life, 479 U.S. 238, 257-59, 107 S.Ct. 616, 627-29, 93 L.Ed.2d 539 (1986); FEC v. National Conservative Political Action Comm., 470 U.S. 480, 497, 105 S.Ct. 1459, 1468, 84 L.Ed.2d 455 (1985). If contributions and endorsements are to be treated differently under the first amendment, one would expect the state to afford greater, not lesser, constitutional protection to the latter. In actuality, the prohibition of endorsements appears to be counterproductive, for it increases the dependence of judicial candidates on campaign contributions. Endorsements permit the judge to get his name before the public in a favorable light at no expense to himself. Shutting off that avenue may well require him to find other means of attempting to make his name a household word in a few short months. Almost all those other means will involve the expenditure of substantial amounts of money. For example, a judge may file a candidate’s statement which will be mailed to the voters by the county along with other election material, such as the statewide and local ballot arguments. The rub is that the judge must pay the cost of the mailing, Cal.Elec.Code § 10012, a cost well beyond the means of most judicial officers. In the most recent election in Los Angeles County, the cost — to a candidate for the position of Superior Court judge — of distributing a biographical statement to the voters was over $62,000, and that cost was approximately fifteen percent higher than the cost at the time of the previous election only two years earlier. Campaign costs for all means of communication have escalated comparably — and rapidly — and the need for judges and would-be judges to engage in serious fund raising activities continues to grow each year. Moreover, even if it were constitutionally permissible to ban some forms of speech in judicial campaigns, there is no warrant for singling out political endorsements. In part, this is because the political parties have as much right to make known their views regarding candidates for judicial office as do the Crime Victims for Court Reform, the Law and Order Campaign Committee, the District Attorneys’ Association of California, the National Organization for Women, or the San Francisco Chronicle, all of which took official positions in California’s 1986 retention election. The fact is that suppressing the views of political parties leaves the field free to special interest groups that have narrow, often single-issue agendas they wish to advance through the courts. California’s endorsement ban permits those groups to promote their chosen candidates without fear of countervailing messages from broader-based political parties which tend to take a more balanced view, and which consider candidates’ overall records, qualifications, and judicial philosophy. And California’s choice must seem particularly irrational to anyone familiar with the regrettable propensity of those who manage judicial campaigns to pander to the voters’ lack of familiarity with the processes of the law, and particularly the criminal law. Again, California’s experience in 1986 provides a telling example: [Ijmagine the power of the 30-second television spot: here was a stomach-turning crime, committed by a person whose humanity was cloaked in blood; here is the mother, or the grandmother, or the daughter of the victim lamenting her loss, and suggesting, or implying, that the California Supreme Court, in its unalterable opposition to the death penalty, and in defiance of the public will, had in reliance upon some unidentified technicality set the defendant loose on the streets. Of course, it was no technicality, but a matter of constitutional or statutory right, and of course the defendant was not turned loose, but returned for retrial — in fact by the time the opposition ran the principal ad I have described, the defendant in the case had already been retried, reconvicted, and sentenced to death. But try explaining all of that effectively in 30 seconds on television, or in any manner sufficient to offset the emotional impact of the opponents’ appeal. Grodin, supra note 7, at 366-67. See also Forum, The Robed Politician, L.A. Law., Mar. 1979, at 12. Given that many of the arguments befouling today’s judicial campaigns are harmful to the health of the state judiciary, there is little reason to single out political endorsements, which are surely a cut above much that currently passes for “debate on public issues [that is] uninhibited, robust, and wide-open.” New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 720, 11 L.Ed.2d 686 (1964). Finally, anyone familiar with California’s judicial elections must be aware that prohibiting official party endorsements cures none of the ills cited by supporters of the ban. First, to the extent that one is concerned about the use of “litmus tests” for judicial candidates, the concern is misdirected. As I have already suggested, party organizations are far less likely to use “single-issue” determinants of judicial fitness than are many powerful interest groups that participate in election campaigns, such as the National Rifle Association, the National Abortion Rights Action League, or the Right to Life Committee. Silencing the voice of political parties serves only to increase the strength of the message being delivered by other groups with narrower or less public-spirited objectives. Under these circumstances, it could well be argued that Judge Alarcon’s “frightened incumbent who has been subjected to media criticism for an unpopular decision,” post, at 313, should welcome the broader perspective the political parties offer and the support their endorsements can bring. Second, if the concern is rather that endorsements will be made on the basis of political allegiances that have nothing to do with judicial fitness, that is not an appropriate consideration on which to base a measure outlawing speech. Voters are free to accept or reject endorsements made on the basis of political beliefs, just as they are free to base their ultimate choice on their own view of the judicial candidates’s political or judicial philosophy. Moreover, it is obvious that the “slate mailers” that frequently substitute for authentic endorsements have even less relation to the character or ability of the candidate. Today’s judicial elections, for the trial courts at least, are marked by the widespread use of pseudo-official mailers that contain endorsements of candidates for both partisan and nonpartisan office. Republican candidates for partisan office are listed on slates addressed to Republican voters; Democratic slates contain the names of Democratic candidates and are mailed to Democratic party members. In each case, the names of the “endorsed” judicial candidates are listed as well. However, the decision as to which candidates will appear on the slate mailers is made not in a democratic manner by the members or officers of an official party organization; instead, it is made by private entrepreneurs, some of whom sell space — that is, endorsements — to the highest bidder. Many of these private slate mailers, despite small print disclaimers, use the name of a political party and appear to the average voter to contain official party endorsements. If political parties were to be prohibited from making endorsements in judicial campaigns, then judicial candidates who might otherwise seek an honest endorsement from a legitimate political party might be compelled to buy spurious party endorsements — to pay thousands of dollars to be included on slate mailers sent out by private operators who may have no convictions about anything. Thus, even if party endorsements are made in substantial part on the basis of political affiliations, those affiliations are likely to tell the voters more about a candidate’s judicial philosophy than would the fact that he can afford to purchase a spot on one or more pseudo-official slates. Ill The State of California cannot have it both ways. If it wants to elect its judges, it cannot deprive its citizens of a full and robust election debate. It cannot forbid speech by persons or groups who wish to make their views, support, or endorsements known. Nor can it complain if the citizens wish to make their electoral judgments based in part on recommendations made by political parties. If the people are to be given the right to choose their judges directly, they are free, rightly or wrongly, to consider the political philosophy of the candidates. They are even free, rightly or wrongly, to consider how the candidates may vote on important issues of public concern, such as abortion, capital punishment, affirmative action, gun control, and religious freedom, to name just a few. One would have to be exceedingly naive not to be aware that a judge’s judicial philosophy may influence his or her votes on important public issues that come before the court, particularly the state or federal supreme court. Whether a judicial candidate wishes to make his views known on those issues during the electoral process is another matter. So is the question whether it is proper for him to do so. But those are all problems inherent in California’s decision to conduct judicial elections. If California wishes to elect its judges, it must allow free speech to prevail in the election process. While it is undoubtedly clear to all that California could not prohibit all endorsements in judicial elections, in this case it is equally clear that it cannot single out one form of disfavored speech and ban it. Of course, the citizens of California have a choice. If they want their judges to be free from the need to conduct full-scale political campaigns, to solicit campaign funds, to seek endorsements from political organizations and private-interest pressure groups, and, most important of all, to be free from the need to worry about whether their decisions in pending cases will affect their chances of reelection, there are options available. California could, like the federal government, provide for the appointment of judges for life — at some or all levels of its judiciary. Or, there are other alternatives, some more in keeping with the traditional approach of most states. For example, California could provide that its judges must be elected or confirmed once, and that thereafter they would not need to stand for office again. However, it is not my function to tell California what system it should use to select its judges. There are legitimate arguments both for and against judicial elections; and various factors to be balanced — the most important being accountability, on the one hand, versus independence, on the other. In the end, however, any system must be judged in large measure by the quality of the judges it produces. The system presently used in California has both advantages and disadvantages, as does the federal system. However, one thing is clear: Whatever California’s ultimate decision, it may not call an election, judicial or nonjudicial, and silence citizens who wish to speak, individually or collectively, through a political party organization or otherwise. . Of course, as Judge Canby pointed out in his excellent dissent from the original panel opinion, it would not "have been constitutional for California to solve the problem of Southern Pacific dominance by prohibiting the Railway from announcing its support for particular political candidates.” 880 F.2d 1062, 1084 (1989). . In an election for partisan office, each party chooses its own nominee in a primary election in which all party members are entitled to vote. Cal.Elec.Code § 6610. The candidates whose names are printed on the primary ballot must all be members of the party. Cal.Elec.Code §§ 6401-6402. The party’s nominee then contends for office in November against the nominees of the other political parties. It is possible under California law, for an independent to qualify for the general election ballot as well, Cal.Elec.Code § 6800, although with one exception, a state senator from San Francisco, this provision has been of little significance in recent decades. . It would be difficult to surpass the analysis of the free speech issue set forth in Judge Canby’s dissent, 880 F.2d at 1082-86. I commend that dissent to anyone interested in the general topic. . 37 Cal.3d 612, 616, 209 Cal.Rptr. 474, 477, 692 P.2d 238, 241 (1984) (emphasis added). Dissenting in Unger, Justice Sims, sitting by designation, discounted the frequency of such partisan activity by stating that it occurred in only 25 percent of the state’s counties. His use of statistics, however, was highly misleading. In the study on which Justice Sims relied, Professor Lee noted that the tendency of political parties to participate in nonpartisan elections increased with the population. According to Professor Lee’s study, if the counties without significant populations are excluded, the political parties made endorsements in nonpartisan elections in roughly two-thirds of the state’s counties. E. Lee, The Politics of Nonpartisanship 102-03 (1960). . Former court of appeal justice Winslow Christian’s testimony simply presents one experienced individual’s policy views on the subject of partisan endorsements in judicial elections. Certainly, those views can no more carry the day for an unconstitutional measure than can the popular vote. In any event, Mr. Christian’s statement, like the rest of appellant’s case, fails to offer a single fact, pro or con, relating to the making of a partisan endorsement, or its subsequent effect, in a nonpartisan race in California. .Judge Canby has pointed out most articulately that the state’s theory that it can prohibit endorsements because voters will be unduly influenced by them constitutes a classic form of state paternalism, and reflects an unwillingness to allow voters to receive information on which, the state believes, they would like to base their decisions. 880 F.2d at 1083. . Retired California Supreme Court Justice Otto Kaus, for example, has publicly questioned whether his decisive vote to uphold California's Victim’s Bill of Rights in 1982 might have been influenced by the fact that he was facing a retention election that year. Wold & Culver, The Defeat of the California Justices: The Campaign, the Electorate, and the Issue of Judicial Accountability, 70 Judicature 348, 351 (1987). Former Justice Grodin, during his retention campaign, made it his "goal to go to bed election night knowing, as best one can know such things, that I did not decide any case differently because of the election. To the best of my knowledge I achieved that goal. But I have to recognize that I may be wrong." Grodin, Judicial Elections: The California Experience, 70 Judicature 365, 367 (1987). . Governors are free to take positions in judicial elections, and at least some do. Governor George Deukmejian served as a vigorous public spokesman for the forces seeking to oust the incumbent Supreme Court justices in the 1986 election. When his view prevailed, he was able to appoint successors whose positions on controversial issues more closely matched his own. Since our concern here is not with the electoral debate per se, but rather with the effect on the post-election performance of public duties, it is interesting to note that some of Governor Deukmejian’s remarks in the 1986 campaign were explicitly directed toward the "correction" of what the Governor perceived as errant judicial conduct by sitting justices. Governor Deukmejian initially opposed only Chief Justice Rose Bird, and not Associate Justices Cruz Rey-noso and Joseph Grodin. Toward the middle of the campaign, however, as former Justice Gro-din tells us, the Governor declared that he would be inclined also to vote against Justice Reynoso and myself if our records in death penalty cases did not improve. Still later, in the early fall preceding the election, he announced that he did, indeed, intend to vote against the two of us as well, citing as justification that Justice Reyno-so had voted only once to affirm a death penalty judgment and on only five occasions had I done so. There was no analysis of the cases, no argument that the grounds on which we had voted to reverse death penalty judgments were legally insubstantial, and no indication of how many death penalty judgments we would have to affirm to meet with Governor Deukmejian’s approval. Grodin, supra note 7, at 367. . It is only natural, of course, for members of the bar to join the fray on both sides, for no one is more interested than lawyers in the question of who will decide controversial cases. Indeed, lawyers constitute the largest single group of contributors to judicial campaigns generally. The excessive judicial reliance on attorney contributions can raise troubling questions about the even-handedness of justice. See generally Note, Safeguarding the Litigant’s Constitutional Right to a Fair and Impartial Forum, 86 Mich.L. Rev. 382 (1987). At least as disturbing is the role played by law enforcement organizations. Statistics from 1980 show that such organizations are at the top of the list in terms of average contributions. Dubois, Financing Trial Court Elections: Who Contributes to California Judicial Campaigns? 70 Judicature 8, 12-13 (1986). Defense counsel may well wonder whether their clients will receive a fair shake from the recipients of that largesse. .In a primary election, both the partisan and the nonpartisan slots on slate are wide open. For some offices, the slate-mailer operator may choose candidates affiliated with his faction of the party; in other cases, the highest bidder may prevail. In the general election, the factors are different. The party’s nominees for partisan office are included automatically and only endorsements of judges and other nonpartisan candidates, as well as endorsements of ballot measures are up for grabs. It is in fact the supporters or opponents of the latter who principally finance slate mailers. The official party organizations may also on occasion mail official slate mailers, but these mailers are only sporadic and generally are not distributed nearly as widely. . Judge Alarcon's "frightened incumbent” may well not be willing to risk letting his opponent outbid him and secure the highly desirable spot on the pseudo-official slate mailer. Slate mailers are among the least expensive ways for an incumbent judge to let the voters know something about himself, not an easy task for an individual of whom the public is likely to have no prior awareness. . That is clearly a factor normally considered by the appointing authority. More than ninety percent of all judges appointed by Democratic and Republic presidents in recent years were members of the same party as their benefactor. The same is generally true with appointments to the state courts by California governors.
RYMER, Circuit Judge, with whom ALARCON and FERNANDEZ, Circuit Judges, join, dissenting: There is no question that political speech is at the core of the First Amendment, and is to be jealously protected. Eu v. San Francisco Democratic Cent. Comm., 489 U.S. 214, 109 S.Ct. 1013, 1020, 103 L.Ed.2d 271 (1989); Buckley v. Valeo, 424 U.S. 1, 14-15, 96 S.Ct. 612, 632, 46 L.Ed.2d 659 (1976). “Debate on the qualifications of candidates [is] integral to the operation of the system of government established by our Constitution.” Id. at 1, 96 S.Ct. at 612. Similarly, there is no question that all persons have the right to associate in political parties for the purpose of espousing their views. Tashjian v. Republican Party, 479 U.S. 208, 214, 107 S.Ct. 544, 548-49, 93 L.Ed.2d 514 (1986). Likewise the state’s power to regulate the time, place and manner of elections does not extinguish the state’s responsibility to be faithful to the First Amendment. Id. at 217, 107 S.Ct. at 550; Eu, 109 S.Ct. at 1019. I also agree that California’s ban on political party endorsements, opposition and support of candidates for nonpartisan elections burdens First Amendment rights, and is subject to strict scrutiny. First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 786, 98 S.Ct. 1407, 1421, 55 L.Ed.2d 707 (1978). However, I disagree that this ease is like any other, including Eu, upon which the majority relies. Article II, § 6(b) of the California Constitution, which was designed to keep party politics out of elections for these nonpartisan offices, must therefore be analyzed afresh. The restriction on party endorsements in non-party