SECOND AMENDED CONCLUSIONS OF LAW

KARLTON, District Judge.

In this lawsuit, the original plaintiffs, a number of elected state officials, various campaign committees, labor organizations, and a contributor to political campaigns (sometimes hereinafter referred to as "the plaintiffs"), and the plaintiffs in intervention, the Democratic Party (hereinafter referred to as "the Democratic Party" or "the Party"), challenge certain provisions of an initiative adopted by the people of the State of California, known as Proposition 73. After trial, the court took the matter under submission.

The court has agreed to make findings as to all issues of fact which any party believes may be required to ultimately dispose of this matter. The court has set them out in a separate document entitled "Findings of Fact" because it consists of 208 discrete findings. Below, the court articulates its disposition of the case, and will advert to various of those findings as required by this opinion.

I begin with a description of the salient provisions of Proposition 73 as they pertain to this litigation.

I THE STATUTORY SCHEME

Proposition 73 amended the existing California Political Reform Act by adding a new Chapter 5 to Title 9 of the California Government Code. The proposition applies to all campaigns for election to state or local office. See sections 82007, 82023, 82024. Although section 91005 of the Government Code imposes civil liability for violation of Proposition 73, the statute also makes criminal the knowing or willful violation of its provisions. Section 91000.

Proposition 73 seeks to regulate state elections in a variety of ways. First, it establishes limitations on campaign contributions that may be made or accepted during any fiscal year, defined as the period between July 1 and June 30. Section 85102(a). Under its provisions:

1. A "person" may contribute up to $1,000 to a candidate (including all of that candidate's controlled committees) each fiscal year, section 85301(a).

2. A "political committee" many contribute up to $2,500 each fiscal year. Section 85303(a).

3. A "broad-based political committee" or political party may contribute up to $5,000 each fiscal year. Section 85303(b).

The measure also limits to $2,500 per fiscal year contributions from a "person" to a political committee, broad-based political committee, or political party for the purpose of the entities contributing to candidates. Section 85302.

The same contribution limits noted above apply to "special elections." See section 85305(c). The special election limits are imposed for each special election cycle. See sections 85305(a) (b). A special election cycle is defined as the period beginning with the day a vacancy in office is announced, and ending the day of the special election. Section 85305(b)(1). Proposition 73 provides for the possibility of a runoff in a special election by applying the same limits to a "special runoff election cycle." Sections 85305(b)(2), (c). Contributions permitted during a special election cycle are separate from and in addition to any contribution made during the fiscal year. Accordingly, although the normal fiscal year limit is $1,000, a person can actually contribute up to $3,000 to a candidate in a fiscal year, if the candidate is engaged in a special election and runoff.

The initiative also limits candidates to raising funds for particular offices. It provides that a candidate, before soliciting or receiving contributions, must file with the Fair Political Practices Commission "a statement signed under the penalty of perjury of intention to be a candidate for a specific office." Section 85200. Upon filing the statement, the candidate must establish a single campaign bank account, section 85201(a), and all contributions must be deposited therein and "shall be deemed to be held in trust for expenses associated with the election of the candidate to the specific office" sought. Section 85202(b).

Finally, Proposition 73 prohibits the transfer of funds between candidates and controlled committees of a single candidate. Section 85304.

II STATE POLITICAL RIGHTS AND THE FIRST AMENDMENT

Despite the broad right of self-government enjoyed by the states, their conduct in that regard is not unreviewable. When the states banded together to form the United States, they limited the federal government's power to restrain various liberties by adopting as the first ten amendments to the Constitution the Bill of Rights. Those limitations were made applicable to the states themselves by the Fourteenth Amendment. See, e.g., Stromberg v. California, 283 U.S. 359, 368, 51 S.Ct. 532, 535, 75 L.Ed. 1117 (1931) (due process clause of Fourteenth Amendment embraces right of free speech). Accordingly,

[w]hen a State exercises power wholly within the domain of state interest, it is insulated from federal judicial review. But such insulation is not carried over when state power is used as an instrument for circumventing a federally protected right.

Although the defendant-intervenors make much of the fact that the statutes considered here were adopted directly through the initiative process, that happenstance provides the statute with no special insulation from review for asserted constitutional infirmity. Rather, the Supreme Court has held that "[i]t is irrelevant that the voters . . . enacted [a statute], 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).

In sum, the issues tendered by plaintiffs' challenge to Proposition 73 requires recognition of both the state's right of self-government and the overarching principles embodied in the Bill of Rights. Below I explain the relevant legal tests for resolving issues raised by this litigation.

As I have previously explained, to assess the constitutionality of a state election law when challenged on the grounds that it directly regulates rights protected by the First Amendment, a sequential analysis is required. It is first necessary to examine whether "the provisions in issue impinge upon rights protected by the First Amendment." Service Employees Int'l Union v. FPPC, 721 F. Supp. 1172, 1175 (E.D.Cal. 1989) (hereinafter "SEIU"). If so, the court must then determine "if there is a sufficiently strong governmental interest served by [the statute's] restriction on them and whether the section is narrowly tailored to the evil which may be legitimately regulated." Id. at 1176 (quoting FEC v. National Conservative PAC, 470 U.S. 480, 496, 105 S.Ct. 1459, 1468, 84 L.Ed.2d 455 (1985)); see also Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214, ___, 109 S.Ct. 1013, 1019-20, 103 L.Ed.2d 271, 283 (1989).

Where state statutes do not directly restrict political speech or associational rights, but do limit plaintiffs' participation in the political process, as compared to other participants, the litigation has been characterized as being a hybrid First Amendment/Equal Protection question. See Anderson v. Celebrezze, 460 U.S. 780, 786 n. 7, 103 S.Ct. 1564, 1569 n. 7, 75 L.Ed.2d 547 (1983) ("In this case, we base our conclusions directly on the First and Fourteenth Amendments and do not engage in a separate Equal Protection Clause analysis."). When such an attack is tendered, it appears that a somewhat less stringent standard applies. This court must be candid and recognize that the Supreme Court has been less than wholly successful in fixing upon a single applicable standard. The Ninth Circuit has explained, however, that in so-called "ballot access" cases, a paradigm of First/Fourteenth Amendment cases, "[n]o `litmus paper' test exists. . . . Instead, a court must weigh (1) the character and magnitude of the asserted injury to first and fourteenth amendment rights that the plaintiff seeks to vindicate; and (2) the precise interests put forward by the State as justifications for the burden imposed by its rule." Erum v. Cayetano, 881 F.2d 689, 692 (9th Cir. 1989).

In sum, whether the statute being considered is asserted to directly limit speech or comparatively limit effective participation in the electoral process, resolution of the suit requires a close examination of the restrictive effect of particular provisions and the justification tendered in support of those restrictions. A close examination of the constitutionality of the challenged provisions, however, must not be confused with an independent judgment concerning the wisdom of particular legislation. If a statute passes constitutional muster, the question of its wisdom is for the political process. United States v. South-Eastern Underwriters Ass'n, 322 U.S. 533, 562, 64 S.Ct. 1162, 1178, 88 L.Ed. 1440 (1944).

Before undertaking the requisite detailed examination of the statutes in question, it seems appropriate to set out certain general principles pertaining to the evaluation of governmental interests tendered as justifications for statutes which trench upon rights protected by the First Amendment.

III ASSESSING LEGITIMATE GOVERNMENTAL INTERESTS

Although in their brief defendants in intervention assert diverse governmental interests in support of Proposition 73, until this year, "the anti-corruption in fact and appearance rationale [was] the only [legitimate government interest] sanctioned by the Supreme Court" in defense of political contribution and expenditure limitations. SEIU, 721 F. Supp. at 1177 n. 8. This past term, the High Court has identified an additional interest, namely, limiting "the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public's support for the corporation's political ideas." Austin v. Michigan Chamber of Commerce, ___ U.S. ___, 110 S.Ct. 1391, 1397, 108 L.Ed.2d 652 (1990).

Because the Court has failed to articulate any standards for identifying when asserted governmental interests are sufficiently "strong" so as to support limitations on speech, it may become increasingly difficult to predicate in advance whether a tendered interest suffices. Whatever difficulty lower courts may have in determining the sufficiency of a governmental interest under these circumstances, surprisingly little consideration has been given to the problem of identifying and characterizing governmental interests. I now briefly examine that problem.

The High Court has explained that in determining whether a statute was motivated by a constitutionally prohibited purpose, it is necessary to consider "[t]he plain meaning of the statute's words, enlightened by their context and the contemporaneous legislative history [as well as] the historical context of the statute . . . and the specific sequence of events" leading up to the statute's adoption. Edwards v. Aguillard, 482 U.S. 578, 594-95, 107 S.Ct. 2573, 2583-84, 96 L.Ed.2d 510 (1987). The criteria for discerning legislative motive, however, do not bear on the question of identifying what legitimate governmental interest is served by a statute when it is challenged as constitutionally infirm.

Both the plaintiffs and defendants have requested that the court make factual findings as to the interests served by Proposition 73, and the court has accommodated that request. The court has done so because their belief that the issue of legitimate governmental interest is factual in character is not without case support. At least one court has held that an interest asserted must appear either in the legislation itself or there must be tendered "extrinsic evidence of such an interest." National Advertising Co. v. Town of Babylon, 900 F.2d 551, 555 (2d Cir. 1990). The court in Babylon treated the identification of a governmental interest as an evidentiary issue, suggesting that in the absence of an interest declared in the statute, evidence must be tendered or at least the court must be capable of taking judicial notice of the interest. Id. at 556. As to the latter, that court asserted that "[a]t most, courts have taken judicial notice of a common sense linkage between a stated governmental interest and a restriction in order to assess whether . . . [the] restriction directly advance[s] the governmental interest asserted. . . ." Id. at 556.

With the greatest of respect to the Second Circuit and the parties, I do not agree that the issue of ascertaining a legitimate governmental interest sufficient to justify limitations on First Amendment rights is a matter for factual determination. On the contrary, it appears to this court that the Supreme Court has treated the matter as legal in character.

The High Court has held that the interest which may be tendered as a sufficient justification to subordinate an individual's right of free speech need not reflect the original legislative motive ( see footnote 8). Thus, the advancing of "interests . . . concededly . . . not asserted when the prohibition was enacted into law" is entirely proper. Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 71, 103 S.Ct. 2875, 2882, 77 L.Ed.2d 469 (1983). The Court has explained that "[t]his reliance is permissible since the insufficiency of the original motivation does not diminish other interests that the restriction may now serve." Id. See also Geary v. Renne, 911 F.2d 280 (9th Cir. 1990) (Rymer, J. dissenting) (appropriate for court of appeals to consider interest not advanced by government); but see In re Primus, 436 U.S. 412, 434 n. 27, 98 S.Ct. 1893, 1906 n. 27, 56 L.Ed.2d 417 (1978) ("Rights of political expression and association may not be abridged because of state interests asserted by appellate counsel without substantial support in the record or findings of the state court"). It seems clear that if ascertaining the governmental interest justifying a statute's limitation on speech were a matter of fact, the historical interest would be the only one cognizable. The Court's contrary holding demonstrates that the issue is legal in character, and those defending the statute are free to advocate any interest, whatever the evils the statute was originally intended to address.

While a conclusion that, in effect, the supporters of a statute attacked on First Amendment grounds may tender any rationale in its support may appear odd at first blush, I believe that conclusion is consistent with the mode of resolving such litigation. It must be kept in mind that once the interest is identified, the second and third legs of the test require that the statute actually serve the interest asserted and be narrowly tailored to that end. Thus, if governmental interests are tendered as justification for the statute, but the language of the statute cannot support the contention, or the statute is not narrowly tailored to serve the interest advanced, the rationale must fail and the statute will be struck down. This court must confess that treating governmental interests as legal seems less justified where the First/Fourteenth balancing test is applied. Given the less rigorous standards testing constitutionality in such cases, permitting wholly post hoc rationalizations to justify restrictions of rights may appear to denigrate the character of activities that are central to the maintenance of democratic norms. Of course, as always, given my role as a subordinate court, I am bound by the decisions of those courts hierarchically superior to this court. Given the analysis above, I am satisfied that the six findings set out in footnote 9 may be tendered in support of Proposition 73 as a matter of law.

With all of the above in mind, I turn to an examination of the plaintiffs' discrete claims.

IV THE PLAINTIFFS' CONTENTIONS

The original plaintiffs attack the provisions of Proposition 73, asserting that they unconstitutionally burden their rights of association and speech. They also argue that the proposition unconstitutionally favors incumbents over challengers, and unconstitutionally discriminates against women and ethnic minorities. They assert that various sections of the proposition either serve no cognizable state interest or that those provisions are unnecessarily broad when construed to serve legitimate interests.

The Democratic Party's suit is pitched somewhat differently. It notes that under Proposition 73, the Party may not contribute more than $5,000 to any candidate in any fiscal year, or accept contributions or more than $2,500 from any one person in any fiscal year for the purpose of making contributions to a particular candidate. Sections 85302 and 85303(b). The Party then notes that section 82015 defines "contribution" as any "expenditure made at the behest of a candidate, committee or elected officer." The phrase "made at the behest of" has been interpreted by the Fair Political Practices Commission (hereinafter sometimes referred to as "the Commission") to mean:

An expenditure by a political party, broad-based political committee, or political committee made at the behest of a candidate in connection with a communication directed to voters or potential voters as part of voter registration activities or activities encouraging or assisting persons to vote, is a contribution to that candidate only if the communication clearly identifies or expressly advocates the election or defeat of that candidate or a rival candidate for the same elective office.

California Code of Regulations, Title 2, section 18215(d).

The Party takes the position that the Commission's present construction of the statute to permit registration efforts and communications at a candidate's behest, provided his name is not mentioned "still limit expenditures for the Party's most effective activities — voter registration and membership communications that mention candidates — to $5,000. Accordingly, the Party remains disabled from effectively performing its unique and crucial role in the political process." Plaintiff-Intervenor's Trial Brief at 8.

V MONEY, POLITICS AND THE CONSTITUTION

A. Fiscal Year Limitations

The plaintiffs contend that limitations on contributions measured by fiscal year rather than by election, works an unconstitutional preference for incumbents and against challengers. Plaintiffs also contend that the statute unconstitutionally disfavors candidates who determine to enter a particular campaign at a late date.

By virtue of the trial, the court has found that, as a general matter, incumbents have a significant natural advantage over challengers. Moreover, given the way the statute works, an elected official can, and most do, raise substantial amounts of money each of the years of incumbency, while as a general matter challengers cannot, and generally do not, do so.

The situation for challengers is entirely different than for incumbents. First, for a variety of practical reasons, few non-incumbents will decide to run for a particular office years in advance of the election. Even if they do, they will have significant trouble in raising money early in the election cycle. Although challengers need not outspend incumbents in order to win, they must raise significant amounts of money to reach a threshold level of name recognition and candidate viability. Thus, the effect of the fiscal year provisions is to favor the fundraising efforts of incumbents to the disadvantage of those who challenge them for office. Given the fluid character of the events which lead to a candidate challenging an incumbent, and the monetary advantage which incumbents have by virtue of measuring the contribution limitations by fiscal years rather than elections, the plaintiffs urge that a fiscal year limitation is unconstitutional.

In accordance with the method recognized above, I first turn to an examination of the question of whether measuring contribution limitations by a fiscal year constitutes a burden upon First Amendment rights.

It is clear that "contribution and expenditure limitations operate in an area of the most fundamental First Amendment activities." Buckley v. Valeo, 424 U.S. 1, 14, 96 S.Ct. 612, 632, 46 L.Ed.2d 659 (1976). Although the plurality in Buckley asserted that contribution limits entail "only a marginal restriction upon the contributor's ability to engage in free communication," id. at 21, 96 S.Ct. at 635, the High Court has since come to recognize that contribution limits "automatically affect[ ] expenditures, and limits on expenditures operate as a direct restraint on freedom of expression." Citizens Against Rent Control v. Berkeley, 454 U.S. 290, 299, 102 S.Ct. 434, 439, 70 L.Ed.2d 492 (1981). Moreover, it appears obvious to this court that contributions made to a common fund for the purpose of forwarding a particular candidacy is a function of rights of association which are protected by the First Amendment. See FEC v. National Conservative PAC, 470 U.S. 480, 495, 105 S.Ct. 1459, 1467, 84 L.Ed.2d 455 (1985).

Acknowledging that making campaign contributions constitutes activity protected by the First Amendment does not resolve the issue of whether or not the fiscal year provisions at bar burden such activity. It appears to this court that the answer to that question must be "yes." If contributing to political campaigns constitutes activity protected by the First Amendment then, it must follow, that limitations upon such contributions constitute a burden upon First Amendment activity. Because any limitation is composed of two elements — a monetary limit and a durational limit, I conclude that the fiscal year limitations in and of themselves constitute a burden upon First Amendment activity.

Having determined a limitation based upon a fiscal year measurement does constitute a burden upon free speech, I must now examine the justifications tendered in support of a fiscal year measure. Defendants contend that a fiscal year structure serves the legitimate governmental interest of permitting

[S]uccessful candidates in the June primary [to] as of July 1 of the same year, receive new contributions from the general election from contributors who gave the candidate the maximum allowable contributions for the primary election. . . . Also, political action committees and political parties who spend contributions given to them for the June primary can, as of July 1, receive additional contributions from the same contributors and use them for the November general election.

Defendants' Trial Brief at 6. The Defendants in Intervention, on the other hand, do not seek to defend the fiscal year measurement per se, but rest their defense of that aspect of the statute upon the undoubted right of the state to regulate contributions in general. See Defendants in Intervention's Trial Brief at 11(ff). Thus, as the court understands these defendants' contentions, they are that given the fact that the state has a right to limit contributions in some fashion, measuring by a fiscal year is simply one mode, as legitimate as any other, under which regulation may be accomplished.

It appears to this court that the defendants' contentions have weight only if the statute is subject to review under the Fourteenth Amendment rational classification test. Here, however, as the court understands the position adopted by all parties, some form of heightened scrutiny must be applied by virtue of the fact that fiscal contributions constitute some form of protected speech, or, in any event, implicate equal opportunity to participate in elections. Under such circumstances, whether one employs the stringent standards ordinarily applicable to restrictions upon First Amendment rights, or the balancing test applicable to First/Fourteenth equal opportunity to engage in political activity, the fiscal year provisions of Proposition 73 must fail.

The statute clearly fails the legitimate governmental interest and narrow tailoring test since the fiscal year restrictions, providing as they do a major benefit to incumbents, cannot be sustained upon the rationale that they provide an opportunity for separate contributions to each election. Clearly, a contribution limitation by election, rather than by fiscal year, accomplishes the same result without providing incumbents with the significant benefit that the fiscal year provisions accord them. For the same reason, a rationale premised on the state's right to regulate campaign contributions is equally unavailing.

Examining the fiscal year limitation under the balancing provisions of the equal participation cases produces the same result. The circuit has explained that in weighing the "precise interests put forward by the State" against "the character and magnitude of the asserted injury," it is necessary to "not only determine the legitimacy and strength of each of those interests, it also must consider the extent to which those interests make it necessary to burden the plaintiff's rights." Erum, 881 F.2d at 692 ( quoting Anderson v. Celebrezze, 460 U.S. 780, 789, 103 S.Ct. 1564, 1570, 75 L.Ed.2d 547 (1983)). Here, what is at stake is the ability of candidates to compete for contributions on an equal basis as a matter of fact. Because contributions translate into political speech, the favoring of incumbents over challengers constitutes a significant impediment to fair access to the electoral process. Given that the state has a simple and direct way of assuring its asserted governmental goal of permitting contributions to both primary and general elections, but can do so without benefitting incumbents, it seems clear that in any weighing the statute must fail. From all of the above, I conclude that Proposition 73, in measuring the limitation on campaign contributions by fiscal year rather than election, unconstitutionally restricts free speech and favors incumbents against challengers, and must be found to violate the First and Fourteenth Amendments to the United States Constitution.

I must now consider whether I may sever the unconstitutional "fiscal provision" from the rest of the statute. See Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 506, 105 S.Ct. 2794, 2803, 86 L.Ed.2d 394 (1985) (an unconstitutional provision of a state statute may be severed where to do so will not frustrate intent of legislature). I conclude that the fiscal year provisions cannot be severed from the financial limitations themselves and thus, the entire provision must be struck down. It is, of course, true that the court could strike the word "fiscal" from the various provisions of Proposition 73. But to do so would simply put the statute on some annual basis, and the exact vice noted above would be replicated. Indeed, such a revision not only would fail to cure the constitutional problem, it would frustrate the asserted legislative purpose of providing contributors with an opportunity to contribute to both primaries and general elections. Under such circumstances, severing the word "fiscal" is wholly inappropriate. Id. Accordingly, I must find that all the provisions of Proposition 73 relating to limitations on campaign contributions, because they are measured by a fiscal year, violate the Constitution of the United States and are unenforceable.

Given my conclusion that the fiscal year provisions are both unconstitutional and not severable, I need not reach various other contentions made by the plaintiffs. Thus, it is unnecessary for the court to resolve the questions of whether the level of contribution established by the statute coupled with the absence of an escalator clause is unconstitutional. Additionally, since the expenditure limitations relative to unions and political parties are also measured by fiscal years, the court believes it need not reach the separate contentions made by the Union plaintiffs and the Democratic Party.

B. Transfer Bans

1. Transfers Among a Candidate's Own Committees

2. Inter-Candidate Transfers

Plaintiffs also attack those provisions of Proposition 73 which ban all transfers between candidates. They argue that once a contribution is received by a candidate, his decision to contribute to another candidate should be viewed as an expenditure rather than a contribution, and that the ban works a particular hardship on minority candidates.

The evidence before the court has demonstrated that contributing to other candidates is a recognized means of seeking and maintaining leadership positions in California's legislative bodies. In that sense, it may be said that at least for members of the legislature seeking leadership positions, transfers can be viewed as expenditures for office. Even if so viewed, however, it is not clear to this court that such expenditures should enjoy the special solicitude accorded expenditures under Buckley. That special solicitude grew out of the Supreme Court's recognition that expenditures constitute direct political speech, an activity at the core of First Amendment protection. Here, even if the transfer is for the purpose of forwarding the transferor's ambition for legislative leadership, it is not transmuted into political speech until expended by the transferee. Under this analysis, it appears to the court that transfers from candidates ought to enjoy a status and protection no different than that accorded donations in general.

The record also demonstrates that, in general, minority candidates, and particularly minority challengers, have greater difficulty raising funds than white male candidates. Moreover, the record demonstrates that because incumbents have, as a general matter, a greater ability to raise money than challengers, a process has developed under which incumbents raise money for challengers in truly competitive elections. This process is especially important to minority challengers since they must raise sufficient funds early enough to reach the required threshold so that they may be seen as a viable candidates worthy of contributions on their own.

Notwithstanding the fact that as a practical matter partisan transfers have had a beneficial effect upon the race of at least some minority candidates, plaintiffs cannot sustain their burden of demonstrating that the prohibition on candidate transfers works an unconstitutional burden on minority candidates. On the other hand, given my ruling on the fiscal year provisions, the ban on contributions cannot be sustained on the grounds advanced by the defendants, and it too must be declared unenforceable. I turn first to plaintiffs' First/Fourteenth claim.

As I noted above, it is clear that minority challengers face problems in raising funds which are not shared by others. Those problems, however, are not the product of legal restrictions upon their right to raise funds, nor do the provisions at bar, like the fiscal year provisions, by their nature, favor incumbents, white male or otherwise. Rather, the problems faced by such candidates grow out of the perceptions of potential contributors and the socio-economic reality of minority populations in California; issues which plaintiffs' constitutional challenge do not address. Put another way, as I now explain, because the statutes are essentially irrelevant to the problem faced by minority candidates as a class, striking them down will have no effect upon the realities of California campaign financing. For this reason, plaintiffs cannot sustain their attack on the statute premised on an assertion that the statutes discriminated against minority candidates as a class.

I begin by observing that while it is true that the present legislative leadership has contributed to some minority challengers, it is equally true that transfers have been used to support incumbents. For the same reason, if the court were to declare the transfer ban unconstitutional on the ground that it adversely affected minority candidates, there is no reason to believe that minority candidates as a class would benefit. The basis for this conclusion seems obvious; decisions by candidates to transfer funds, like the decision of any contributor, are made on the basis of a series of subjective judgments focusing on the candidate's potential for success or a desire to associate with a candidate's political position regardless of the candidate's likelihood of success. Since eliminating the ban of transfers would have no effect upon the reasons that minority candidates as a class do or do not receive contributions, it will have no appreciable effect upon minority candidates, as a class, receiving or not receiving donations. Put another way, while the absence of a transfer ban would permit transfers to minority candidates, it would not compel them, and there is simply no basis to suggest that minority candidates as a class, as contrasted with individual candidates, would benefit. Such a conclusion completely undermines an attack on the statute which is premised on the asserted class bias of the provision.

The attack on the complete ban of transfers premised on pure First Amendment grounds, however, would appear to fair much better. As I noted above, there is no dispute that political contributions are some form of protected speech, though there is dispute as to the level of protection they enjoy. Accordingly, plaintiffs have satisfied the first step in the analytical process and the burden now shifts to defendants to demonstrate that the transfers serve some legitimate governmental interest.

Both the defendants and the defendants-in-intervention argue that the provision is a necessary corollary to those provisions setting contribution limitations. They note that under Buckley, provisions which seek to limit opportunities to do indirectly that which is prohibited directly, have been upheld. See California Medical Ass'n v. FEC, 453 U.S. 182, 198, 101 S.Ct. 2712, 2722, 69 L.Ed.2d 567 (1981). They maintain that the transfer ban is simply a device to prevent those who desire to avoid the contribution limits from doing so by the simple expedient of using another candidate as a conduit for the contribution.

Defendants' argument would have significant weight if Proposition 73's campaign limitations were in effect. Given the determination above that limitations premised on a fiscal year cannot withstand constitutional scrutiny, the ban, to the extent it is premised on the need to prevent subversion of fiscal year limitations, must also fail.

Neither defendant has made the argument that the provisions in question are also justified on the basis of avoiding fraud on contributors who intended to donate to a certain candidate's campaign but not to the transferee's. It appears to this court that such an argument, if made, must fail for two reasons. First, contributions are fungible, and thus there is no way to trace particular transfers to particular contributors; second, any such justification would fail the narrowly tailored prong of the First Amendment test for the same reasons the candidate committees ban failed.

V ORDER

For all of the above reasons, relative to those provisions of the California Government Code adopted as Proposition 73, THE COURT ORDERS AS FOLLOWS:

1. All contribution limitations measured on a fiscal year basis violate the provisions of the First Amendment to the Constitution of the United States and are hereby declared unenforceable; accordingly, enforcement of all such provisions are PERMANENTLY RESTRAINED;

2. All provisions prohibiting candidates from transferring contributions among or between the candidate's own committees violate the provisions of the First Amendment to the Constitution of the United States and are hereby declared unenforceable; accordingly, enforcement of all such provisions are PERMANENTLY RESTRAINED;

3. All provisions prohibiting candidates or elected officials from making contributions to other candidates from their own campaign funds insofar as they are premised upon the need to prevent evasion of campaign contribution limitations based on fiscal years violate the provisions of the First Amendment to the Constitution of the United States and are hereby declared unenforceable; accordingly, enforcement of all such provisions are PERMANENTLY RESTRAINED;

Let judgment enter accordingly.

IT IS SO ORDERED.