The opinion
WIGGINS, Circuit Judge,
dissenting:
The majority’s remarkable opinion is best understood by examining the interests of the parties in this litigation. The plaintiff/ appellee in this case is the Service Employees International Union, AFL-CIO, a special interest group classified as a person under Proposition 73 and subject to the $1,000 contribution limitation. See Cal. Gov’t Code §§ 85102(b), 85301(a). There is no doubt that Proposition 73 will severely limit the Service Employees International Union’s campaign contributions. The Union is represented by Rencho, Johansen & Purcell, a law firm that has a long relationship with the California Democratic Party and has served as counsel to the California Democrats. Indeed, the California Democratic Party itself has joined this suit as a plaintiff in intervention, undemocratically placing itself in direct opposition to a majority of the voters in California. When this suit was filed on March 24, 1989, 24 members (60%) of the California Senate were Democrats, while 15 were Republicans and 1 was independent, and 47 members (59%) of the California State Assembly were Democrats, while 32 were Republicans. Thus, the California Democratic Party had a strong interest in keeping its incumbents in office and retaining control of the State Assembly and Senate.
The Union, the Democratic Party, Democratic incumbents, and other plaintiffs with closely related interests brought this challenge to Proposition 73 before Judge Karlton. 747 F.Supp. at 581. Incredible as it may seem, the plaintiffs, who would be disadvantaged by Proposition 73 because it harms incumbents and special interests, argued that Proposition 73 was unconstitutional because it discriminates against challengers. 1 Judge Karlton accepted this *1324 unbelievable argument and struck down Proposition 73 as unconstitutional. Now Judge Poole and Judge Norris sanction this argument on appeal.
The majority determines that Proposition 73 is nothing more than invidious discrimination against challengers, while ignoring the district court’s conflicting findings showing that Proposition 73 usually works against incumbents and therefore benefits challengers. The majority then cloaks its decision as a finding of fact that this court should be hesitant to disturb. This treatment of the district court’s decision as a sacrosanct finding of fact is instructive. Because the majority decision cannot stand on its own merit, the decision is justified by suggesting that we must follow the district court’s conclusion unless that conclusion was clearly erroneous.
To the contrary, I maintain that whether Proposition 73 works an invidious and unconstitutional discrimination on challengers and their supporters is a conclusion of law. At a minimum, this issue is a mixed question of law and fact. Thus, the district court’s conclusion is not entitled to any special deference. See United States v. Spillone, 879 F.2d 514, 520 (9th Cir.1989) (mixed questions of' law and fact are reviewed de novo).
The district court’s conclusion that Proposition 73 discriminates against challengers is not a finding of fact but an ultimate conclusion “to be distinguished from the findings of primary, evidentiary or circumstantial facts.” Helvering v. Tex-Penn Oil Co., 300 U.S. 481, 491 , 57 S.Ct. 569, 574 , 81 L.Ed. 755 (1937), cited with approval in United States v. McConney, 728 F.2d 1195, 1202 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 , 105 S.Ct. 101 , 83 L.Ed.2d 46 (1984). The relevant factual findings are undisputed, and the discrimination conclusion turns on the legal interpretation of the undisputed facts. 2 This court is in just as good a position as the district court to review the facts and determine whether Proposition 73 works an unconstitutional discrimination on challengers.
Even if we assume, however, that the supposed discrimination is a finding of fact, it would still be clearly erroneous. The record is completely barren of any evidence of invidious discrimination. Proposition 73 limits campaign contributions to reduce both corruption and the appearance of corruption in the California political system. Findings of Fact 46 & 47. The contribution limitations are based on a July 1 through June 30 fiscal year to correspond to California’s June primaries. Thus, a contributor who gave the maximum allowable contribution to a candidate in the primary may make another contribution for the general election as soon as the primary is over. See 747 F.Supp. at 589. At trial, the plaintiffs failed to produce any evidence that this system was a result of invidious or purposeful discrimination. At most, the plaintiffs show that the fiscal year provision may have a disparate effect on some challengers. Standing alone, however, a disparate impact does not establish invidious discrimination. See Washington v. Davis, 426 U.S. 229, 242 , 96 S.Ct. 2040, 2049 , 48 L.Ed.2d 597 (1979).
Moreover, the record in this case demonstrates that Proposition 73 helps rather than harms challengers. There is ample evidence suggesting that on the whole the contribution limits in this case favor challengers by disproportionately burdening incumbents. When the district court’s findings are reviewed together, it is clear that any negative effects a fiscal year basis may have on challengers are overcome by the benefits challengers receive from contribution limits.
In its findings of fact, the district court made findings demonstrating that incumbents are more likely than challengers to receive contributions in excess of Proposition 73 limits: “In the three general elec *1325 tion years immediately preceding the effective date of Proposition 73, incumbents in contested California legislative races received a greater percentage of contributions in excess of the limits established by Proposition 73 than did their challengers.” Finding of Fact 87. Thus, the overall effect of Proposition 73 is to narrow the gap between incumbent and challenger fund-raising.
The district court found that incumbents are likely to raise more money than challengers in non-election years, in part because challengers begin their campaigns later. Thus, the district court and majority theorize that Proposition 73 disadvantages .challengers by preventing them from overcoming their late fundraising start and narrowing the contribution gap in the election year. This theory is absurd given that on average incumbents consistently receive more contributions than challengers in election years. Because incumbents are more likely to receive contributions in excess of the Proposition 73 limits, even in election years, the net effect of Proposition 73 is to narrow rather than exacerbate the fund-raising gap between incumbents and challengers.
Moreover, in those campaigns where incumbents are raising funds in early non-election years but challengers are not, Proposition 73 helps challengers by, reducing the amount incumbents would otherwise raise in such circumstances. Given that this fundraising gap already exists and will continue to exist with or without Proposition 73, challengers are much better off with contribution limits to reduce the amounts incumbents raise before challengers begin their campaigns.
By striking down Proposition 73 because it supposedly disadvantages challengers, the majority eliminates contribution limits and places challengers in an even more disadvantageous position. Indeed, the majority disingenuously bolsters its decision by comparing Proposition 73 with an alternative that does not exist.
There are three basic alternatives for regulating campaign contributions presented in the context of this case. The first alternative — no limits on contributions — is the most advantageous to incumbents and harmful to challengers because on average incumbents receive more large contributions. The second alternative — Proposition 73 — benefits challengers because it places limits on contributions and narrows the fundraising gap between challengers and incumbents. The third alternative — contribution limits based on election cycles (the federal model) 3 — may be even more advantageous to challengers. It would still help to reduce the advantage- incumbents obtain by receiving more large campaign contributions, while also allowing challengers to receive more money from contributors in election years to the extent those contributors did not contribute earlier in the campaign (usually because the challengers did not start-their campaigns earlier).
The majority’s decision rests primarily on the conclusion that the third alternative is more advantageous to challengers than Proposition 73. At bottom, the majority’s conclusion is that Proposition 73 unconstitutionally discriminates against challengers because it is not as advantageous to challengers as contribution limits on an election cycle basis (the federal model) would be.
The problem with this reasoning is that the third alternative is a strawman alternative. The voters of California adopted Proposition 73, not the federal model. Although the federal model may be even more advantageous to challengers, Proposition 73 is still better for challengers than the first alternative of no contribution limits at all. Nevertheless, because the majority focuses on the federal model, they reach the incredible conclusion that a law which benefits challengers by helping to close the fundraising gap between incumbents and challengers is unconstitutional because it discriminates against challengers. The very groups that would be harmed most by contribution limits — special interests and *1326 incumbents — are able to avoid Proposition 73 through the disingenuous argument that it discriminates against challengers.
Even more troubling than the majority’s reasoning, however, is the majority’s disregard for Supreme Court precedent. The Supreme Court has made it clear that “a court should generally be hesitant to invalidate [campaign contribution] legislation which on its face imposes evenhanded restrictions.” Buckley v. Valeo, 424 U.S. 1, 31 , 96 S.Ct. 612, 641 , 46 L.Ed.2d 659 (1976). A record showing invidious discrimination against challengers will rebut the general presumption of validity, but the record in this case simply does not show that Proposition 73 discriminates against challengers. As discussed above, and identical to the reasoning in Buckley , “to the extent that incumbents generally are more likely than challengers to attract very large contributions, [Proposition 73’s] ceiling has the practical effect of benefiting challengers as a class.” 424 U.S. at 32 , 96 S.Ct. at 641 (emphasis added).. Moreover, even if Proposition 73 could be viewed as discriminatory, there is simply no showing of any invidious discrimination.
At best, the plaintiff/appellees in this case show that some challengers may be disadvantaged in some elections. However, the evidence shows that in most elections Proposition 73 actually disadvantages incumbents and benefits challengers. Again, similar to Buckley , “the record provides no basis for predicting that such adventitious factors will invariably and invidiously benefit incumbents as a class.” Id. at 33 , 96 S.Ct. at 641.
Like the federal model at issue in Buckley , Proposition 73’s “primary purpose — to limit the actuality and appearance of corruption resulting from large individual campaign contributions” — is a sufficiently compelling interest to justify interference with protected rights. 424 U.S. at 26 , 96 S.Ct. at 638. To overcome the evils associated with large campaign contributions, 4 it is necessary that the rights of incumbents, special interests, contributors, and even challengers will be burdened to some extent. Under Buckley's First Amendment discrimination analysis, these burdens are constitutional unless the contribution limitation “invariably and invidiously” discriminates against one class for the benefit of another. Id. at 33, 96 S.Ct. at 641. Thus, to survive the constitutional challenge in this case, it is enough that Proposition 73 (1) serves its corruption-fighting purpose and (2) does not place challengers in a worse position.
Apparently, the majority believes that campaign contribution limitations are unconstitutional unless every part of the limitation is carefully tailored to benefit challengers. Although Proposition 73 actually benefits challengers and requires incumbents to bear a disproportionate share of the burden of eliminating actual and apparent corruption, the majority strikes down Proposition 73 because the fiscal year provision does not skew the balance even farther in favor of challengers. This reasoning misses the point that benefitting or harming incumbents or challengers is not a legitimate purpose for regulating campaign contributions.
Simply put, the majority’s reasoning is not a faithful or even a reasonable application of Buckley . Indeed, to justify this same line of reasoning, the district court suggested that Buckley has been overruled by Citizens Against Rent Control v. Berkeley, 454 U.S. 290 , 102 S.Ct. 434 , 70 L.Ed.2d 492 (1981). See 747 F.Supp. at 588, 589 n. 20. Although the majority is not as direct as the district court, the ma *1327 jority shows the same disregard for the Buckley mandate.
Even if the majority were not overlooking Supreme Court direction, the majority’s discrimination analysis would still be in error because the decision sanctions such a transparent attempt by incumbents to overcome a law that inadvertently benefits challengers. However, given the clear mandate of Buckley , the majority decision is especially egregious. With this decision, I believe the majority disregards the judgments of the Supreme Court and the people of California as well as common sense.
In Summary, Proposition 73 represents a balanced effort to eliminate a significant political problem — the actuality and appearance of corruption resulting from large campaign contributions. Under Buckley’s discrimination analysis, this purpose may be served absent a showing that Proposition 73 invidiously discriminates against challengers as a class. Because (1) the record shows no invidious discrimination and (2) Proposition 73 actually benefits challengers as a class, Proposition 73 does not violate the Constitution. Incumbents and special interests should not be able to avoid this law by arguing that the law does not benefit challengers enough. 5
I began this dissent by observing that this litigation can best be understood by examining the interest of the parties who brought it. Without question, it is an effort by the Democratic Party and its major financial supporters to strike down a measure adopted by the people of California to curtail perceived abuses in campaign financing. The majority opinion affirms the district court in finding the popularly adopted measure unconstitutional. Thus, the majority returns the law in California to where it was before Proposition 73 was enacted — no limitations on campaign contributions. In a most bizarre twist of reasoning, the majority permits the law to return to a condition where the maximum benefit is afforded the incumbents, by accepting their argument that the challenged law provides insufficient advantages to challengers.
It requires no special insight to conclude that this case turned out exactly as the Democratic plaintiffs intended: to preserve the seats of incumbent Democratic members of the state legislature and to insulate them from successful challenge.
. None of the plaintiffs in this case are themselves challengers. Indeed, it appears that the interests of the plaintiffs in this case are closely identified with incumbents and actually conflict with the interests of challengers. Thus, the defendants argue that the plaintiffs in this casé lack standing to argue on behalf of challengers as a class.
*1324 However, rather than force the plaintiffs to find a nominal challenger and begin again, I agree with the majority that the plaintiffs have standing as contributors who may wish to contribute to a challenger in a given election.
. More precisely, the discrimination issue turns on whether we utilize all of the relevant, undisputed facts in our legal analysis instead of a select few.
. A system of contribution limits based on election cycles is the federal model that withstood constitutional challenge in Buckley v. Valeo, 424 U.S. 1 , 96 S.Ct. 612 , 46 L.Ed.2d 659 (1976). The federal model is codified at 2 U.S.C. §§ 43-1-455 (1988).
. Elimination of actual and apparent corruption associated with large campaign contributions is an. especially compelling interest in California given the influence and bribery scandals that have plagued the state capital the last four years. In February 1990, Senator Joseph Montoya, D-Whittier, was sentenced to prison after he was acquitted of two bribery charges but found guilty of racketeering. Recently, Senator Alan Robbins, D-Van Nuys, is reported to have agreed to plead guilty to political corruption charges and help prosecute other corrupt politicians. Robbins reportedly admitted his guilt after federal agents produced recordings in which "Robbins suggested that both he and some of his colleagues wanted substantial campaign contributions in return for legislative favors.” Robert Gunnison, Susan Sward, and Bill Wallace, Sen. Robbins Resigns in Corruption Probe, S.F.Chron., Nov. 20, 1991, at A16, col. 3.
. In addition, the inter-candidate transfer ban, which the majority agrees operates as a contribution limitation, is constitutional. The reason given for invalidating the inter-candidate transfer ban is that it serves no important state interest if the accompanying contribution limitations are invalid. Because Proposition 73’s contribution limitations are valid, as discussed above, the inter-candidate transfer ban does serve an important state interest by preventing the circumvention of the contribution limitations. Thus, the inter-candidate transfer ban must be upheld as well.