author: Justice Marshall Chief Justice Burger, Justice O’Connor,

text:
    COLORADO v. NEW MEXICO et al.
    No. 80,
    Orig.
    Argued October 4, 1982
    Decided December 13, 1982

      MARSHALL, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, White, Blackmun, Rehnquist, and Stevens, JJ., joined. Burger, C. J., filed a concurring opinion, in which Stevens, J., joined, post, p. 190. O’Connor, J., filed an opinion concurring in the judgment, in which Powell, J., joined, post, p. 191.

      Richard A. Simms, Special Assistant Attorney General of New Mexico, argued the cause for defendants. With him on the briefs were Jeff Bingaman, Attorney General, and Jay F. Stein, Special Assistant Attorney General.

      Robert F. Welbom, Special Assistant Attorney General of Colorado, argued the cause for plaintiff. With him on the briefs were J. D. MacFarlane, Attorney General, Richard F. Hennessey, Deputy Attorney General, Mary J. Mullar-key, Solicitor General, and William A. Paddock and Dennis M. Montgomery, Assistant Attorneys General.

        Burton M. Apker filed a brief for Kaiser Steel Corp. et al. as amici curiae.

   Justice Marshall

delivered the opinion of the Court.

This case concerns the proper apportionment between New Mexico and Colorado of the water of an interstate river. The water of the Vermejo River is at present fully appropriated by users in New Mexico. Colorado seeks to divert water for future uses. Invoking this Court’s original jurisdiction under Art. Ill, §2, of the Constitution, Colorado brought this action for an equitable apportionment of the water of the Vermejo River. A Special Master appointed by the Court recommended that Colorado be permitted a diversion of 4,000 acre-feet per year. The case is before us on New Mexico’s exceptions to the Special Master’s report.

f — 1

The Vermejo River is a small, nonnavigable river that originates in the snow belt of the Rocky Mountains in southern Colorado and flows southeasterly into New Mexico for a distance of roughly 55 miles before it joins the Canadian River. The major portion of the river is located in New Mexico. The Colorado portion consists of three main tributaries that combine to form the Vermejo River proper approximately one mile below the Colorado-New Mexico border. At present there are no uses of the water of the Vermejo River in Colorado, and no use or diversion has ever been made in Colorado. In New Mexico, by contrast, farmers and industrial users have diverted water from the Vermejo for many years. In 1941 a New Mexico state court issued a decree apportioning the water of the Vermejo River among the various New Mexico users.

In 1975, a Colorado corporation, Colorado Fuel and Iron Steel Corp. (C. F. & I.), obtained in Colorado state court a conditional right to divert 75 cubic feet per second from the headwaters of the Vermejo River. C. F. & I. proposed a transmountain diversion of the water to a tributary of the Purgatoire River in Colorado to be used for industrial development and other purposes. Upon learning of this decree, the four principal New Mexico users — Phelps Dodge Corp. (Phelps Dodge), Kaiser Steel Corp. (Kaiser Steel), Vermejo Park Corp. (Vermejo Park), and the Vermejo Conservancy District (Conservancy District) — filed suit in the United States District Court for the District of New Mexico, seeking to enjoin any diversion by C. F. & I. that would violate their senior rights. On January 16, 1978, the District Court enjoined C. F. & I. from diverting any water from the Vermejo River in derogation of the senior water rights of New Mexico users. The court found that under the doctrine of prior appropriation, which both New Mexico and Colorado recognize, the New Mexico users were entitled to have their needs fully satisfied because their appropriation was prior in time. C. F. & I. filed a notice of appeal, and the Court of Appeals for the Tenth Circuit has stayed its proceedings during the pendency of this case before us.

In June 1978 Colorado moved for leave to file an original complaint in this Court. New Mexico opposed the motion. On April 16, 1979, we granted Colorado’s motion and appointed the Honorable Ewing T. Kerr, Senior Judge of the United States District Court for the District of Wyoming, as Special Master in this case. 441U. S. 902. After a lengthy trial involving an extensive presentation of evidence, the Special Master submitted a report to the Court on January 9, 1982. The report was accepted for filing on February 22, 1982. 455 U. S. 932.

The Special Master found that most of the water of the Vermejo River is consumed by the New Mexico users and that very little, if any, reaches the confluence with the Canadian River. He thus recognized that strict application of the rule of priority would not permit Colorado any diversion since the entire available supply is needed to satisfy the demands of appropriators in New Mexico with senior rights. Nevertheless, applying the principle of equitable apportionment established in our prior cases, he recommended permitting Colorado a transmountain diversion of 4,000 acre-feet of water per year from the headwaters of the Vermejo River. He stated:

“It is the opinion of the Master that a transmountain diversion would not materially affect the appropriations granted by New Mexico for users downstream. A thorough examination of the existing economies in New Mexico convinces the Master that the injury to New Mexico, if any, will be more than offset by the benefit to Colorado.” Report of Special Master 23.

Explaining his conclusion, the Special Master noted that any injury to New Mexico would be restricted to the Conservancy District, the user in New Mexico furthest downstream, since there was sufficient water in the Vermejo River for the three other principal New Mexico water users, Vermejo Park, Kaiser Steel, and Phelps Dodge. He further found that the “Vermejo Conservancy District has never been an economically feasible operation.” Ibid.

The Special Master’s recommendation appears to rest on two alternative grounds: first, that New Mexico could compensate for some or all the Colorado diversion through reasonable water conservation measures; and second, that the injury, if any, to New Mexico would be outweighed by the benefit to Colorado from the diversion. In its various exceptions to his report, New Mexico challenges the Special Master’s interpretation of the law of equitable apportionment. New Mexico maintains that the rule of priority should be strictly applied in this case to preclude Colorado from diverting any water from the Vermejo River. New Mexico also challenges the factual bases of the Special Master’s conclusions that the recommended diversion would not materially affect New Mexico users and that any harm to New Mexico would be offset by the benefits to Colorado.

We conclude that the criteria relied upon by the Special Master comport with the doctrine of equitable apportionment as it has evolved in our prior cases. We thus reject New Mexico’s contention that the Special Master was required to focus exclusively on the rule of priority. However, the report of the Special Master does not contain sufficient factual findings to enable us to assess the correctness of the Special Master’s application of the principle of equitable apportionment to the facts of this case. We therefore remand with instructions to the Special Master to make further findings of fact.

II

Equitable apportionment is the doctrine of federal common law that governs disputes between States concerning their rights to use the water of an interstate stream. Kansas v. Colorado, 206 U. S. 46, 98 (1907); Connecticut v. Massachusetts, 282 U. S. 660, 670-671 (1931). It is a flexible doctrine which calls for “the exercise of an informed judgment on a consideration of many factors” to secure a “just and equitable” allocation. Nebraska v. Wyoming, 325 U. S. 589, 618 (1945). We have stressed that in arriving at “the delicate adjustment of interests which must be made,” ibid., we must consider all relevant factors, including:

“physical and climatic conditions, the consumptive use of water in the several sections of the river, the character and rate of return flows, the extent of established uses, the availability of storage water, the practical effect of wasteful uses on downstream areas, [and] the damage to upstream areas as compared to the benefits to downstream areas if a limitation is imposed on the former.” Ibid.

Our aim is always to secure a just and equitable apportionment “without quibbling over formulas.” New Jersey v. New York, 283 U. S. 336, 343 (1931).

The laws of the contending States concerning intrastate water disputes are an important consideration governing equitable apportionment. When, as in this case, both States recognize the doctrine of prior appropriation, priority becomes the “guiding principle” in an allocation between competing States. Nebraska v. Wyoming, supra, at 618. But state law is not controlling. Rather, the just apportionment of interstate waters is a question of federal law that depends “upon a consideration of the pertinent laws of the contending States and all other relevant facts.” Connecticut v. Massachusetts, supra, at 670-671 (emphasis added).

In reaching his recommendation the Special Master did not focus exclusively on the rule of priority, but considered other factors such as the efficiency of current uses in New Mexico and the balance of benefits to Colorado and harm to New Mexico. New Mexico contends that it is improper tc consider these other factors. It maintains that this Court has strictly applied the rule of priority when apportioning water between States adhering to the prior appropriation doctrine, and has departed from that rule only to protect an existing economy built upon junior appropriations. Since there is no existing economy in Colorado dependent upon the use of water from the Vermejo River, New Mexico contends that the rule of priority is controlling. We disagree with this inflexible interpretation of the doctrine of equitable apportionment.

Our prior cases clearly establish that equitable apportionment will protect only those rights to water that are “reasonably required and applied.” Wyoming v. Colorado, 259 U. S. 419, 484 (1922). Especially in those Western States where water is scarce, “[tjhere must be no waste ... of the ‘treasure’ of a river. . . . Only diligence and good faith will keep the privilege alive.” Washington v. Oregon, 297 U. S. 517, 527 (1936). Thus, wasteful or inefficient uses will not be protected. See ibid.; Nebraska v. Wyoming, supra, at 618. Similarly, concededly senior water rights will be deemed forfeited or substantially diminished where the rights have not been exercised or asserted with reasonable diligence. Washington v. Oregon, supra, at 527-528; Colorado v. Kansas, 320 U. S. 383, 394 (1943).

We have invoked equitable apportionment not only to require the reasonably efficient use of water, but also to impose on States an affirmative duty to take reasonable steps to conserve and augment the water supply of an interstate stream. In Wyoming v. Colorado, Wyoming brought suit to prevent a proposed diversion by Colorado from the Laramie River. This Court calculated the dependable supply available to both States, subtracted the senior Wyoming uses, and permitted Colorado to divert an amount not exceeding the balance. In calculating the dependable supply we placed on each State the duty to employ “financially and physically feasible” measures “adapted to conserving and equalizing the natural flow.” 259 U. S., at 484 (emphasis added). Adopting a position similar to New Mexico’s in this case, Wyoming objected to a requirement that it employ conservation measures to facilitate Colorado’s proposed uses. The answer we gave is especially relevant to this case:

“The question here is not what one State should do for the other, but how each should exercise her relative rights in the waters of this interstate stream. . . . Both States recognize that conservation within practicable limits is essential in order that needless waste may be prevented and the largest feasible use may be secured. This comports with the all-pervading spirit of the doctrine of appropriation and takes appropriate heed of the natural necessities out of which it arose. We think that doctrine lays on each of these States a duty to exercise her right reasonably and in a manner calculated to conserve the common supply.” Ibid,.

We conclude that it is entirely appropriate to consider the extent to which reasonable conservation measures by New Mexico might offset the proposed Colorado diversion and thereby minimize any injury to New Mexico users. Similarly, it is appropriate to consider whether Colorado has undertaken reasonable steps to minimize the amount of diversion that will be required.

In addition, we have held that in an equitable apportionment of interstate waters it is proper to weigh the harms and benefits to competing States. In Kansas v. Colorado, where we first announced the doctrine of equitable apportionment, we found that users in Kansas were injured by Colorado’s upstream diversions from the Arkansas River. 206 U. S., at 113-114, 117. Yet we declined to grant any relief to Kansas on the ground that the great benefit to Colorado outweighed the detriment to Kansas. Id., at 100-101, 113-114, 117. Similarly, in Nebraska v. Wyoming, we held that water rights in Wyoming and Nebraska, which under state law were senior, had to yield to the “countervailing equities” of an established economy in Colorado even though it was based on junior appropriations. 325 U. S., at 622. We noted that the rule of priority should not be strictly applied where it “would work more hardship” on the junior user “than it would bestow benefits” on the senior user. Id., at 619. See also Washington v. Oregon, swpra, at 522. The same principle is applicable in balancing the benefits of a diversion for proposed uses against the possible harms to existing uses. See, e. g., Wyoming v. Colorado, supra (placing upon Wyoming, the State with senior water rights, a duty to conserve water in order to facilitate a diversion for a proposed use in Colorado); Connecticut v. Massachusetts, 282 U. S. 660 (1931); New Jersey v. New York, 283 U. S. 336 (1931).

We recognize that the equities supporting the protection of existing economies will usually be compelling. The harm that may result from disrupting established uses is typically certain and immediate, whereas the potential benefits from a proposed diversion may be speculative and remote. Under some circumstances, however, the countervailing equities supporting a diversion for future use in one State may justify the detriment to existing users in another State. This may be the case, for example, where the State seeking a diversion demonstrates by clear and convincing evidence that the benefits of the diversion substantially outweigh the harm that might result. In the determination of whether the State proposing the diversion has carried this burden, an important consideration is whether the existing users could offset the diversion by reasonable conservation measures to prevent waste. This approach comports with our emphasis on flexibility in equitable apportionment and also accords sufficient protection to existing uses.

We conclude, therefore, that in the determination of an equitable apportionment of the water of the Vermejo River the rule of priority is not the sole criterion. While the equities supporting the protection of established, senior uses are substantial, it is also appropriate to consider additional factors relevant to a just apportionment, such as the conservation measures available to both States and the balance of harm and benefit that might result from the diversion sought by Colorado.

t — 4 ► — I * — I

Applying the doctrine of equitable apportionment, the Special Master recommended that Colorado be permitted to divert 4,000 acre-feet of water per year from the headwaters of the Vermejo River. Because all of the water of the Vermejo River is currently consumed by New Mexico appropriators, the recommended diversion would necessarily reduce the amount of water available to New Mexico.

In explaining the basis for his recommendation, the Special Master stated that the diversion would not “materially affect” existing New Mexico appropriations. This conclusion appears to reflect certain assumptions about the ability of New Mexico users to implement water conservation measures. See supra, at 181, and n. 7. The Special Master also concluded that any injury to New Mexico would be “more than offset” by the benefits to Colorado. Report of Special Master 23. Both the availability of conservation measures and a weighing of the harm and benefits that would result from the diversion are factors relevant to the determination of a just and equitable apportionment. However, the Special Master did not clearly state the factual findings supporting his reliance on these factors. Accordingly, we remand for additional factual findings. In particular, we request specific findings concerning the following areas:

(1) the existing uses of water from the Vermejo River, and the extent to which present levels of use reflect current or historical water shortages or the failure of existing users to develop their uses diligently;

(2) the available supply of water from the Vermejo River, accounting for factors such as variations in streamflow, the needs of current users for a continuous supply, the possibilities of equalizing and enhancing the water supply through water storage and conservation, and the availability of substitute sources of water to relieve the demand for water from the Vermejo River;

(3) the extent to which reasonable conservation measures in both States might eliminate waste and inefficiency in the use of water from the Vermejo River;

(4) the precise nature of the proposed interim and ultimate use in Colorado of water from the Vermejo River, and the benefits that would result from a diversion to Colorado;

(5) the injury, if any, that New Mexico would likely suffer as a result of any such diversion, taking into account the extent to which reasonable conservation measures could offset the diversion.

IV

The flexible doctrine of equitable apportionment clearly extends to a State’s claim to divert water for future uses. Whether such a diversion should be permitted will turn on an examination of all factors relevant to a just apportionment. It is proper, therefore, to consider factors such as the extent to which reasonable conservation measures by existing users can offset the reduction in supply due to diversion, and whether the benefits to the State seeking the diversion substantially outweigh the harm to existing uses in another State. We remand for specific factual findings relevant to determining a just and equitable apportionment of the water of the Vermejo River between Colorado and New Mexico.

It is so ordered.

Chief Justice Burger,

with whom Justice Stevens joins,

concurring.

This case arises from an understandably intense competition between two States over rights to a small, nonnavi-gable, interstate river. Because on the record before it this Court cannot make an appropriate apportionment of the water, the Court remands the case to the Special Master for further factual findings.

I emphasize that under our prior holdings these two States come to the Court on equal footing. See Kansas v. Colorado, 206 U. S. 46 (1907). Neither is entitled to any special priority over the other with respect to use of the water. Colorado cannot divert all of the water it may need or can use simply because the river’s headwaters lie within its borders, Wyoming v. Colorado, 259 U. S. 419, 466 (1922). Nor is New Mexico entitled to any particular priority of allocation or undiminished flow simply because of first use. See, e. g., Colorado v. Kansas, 320 U. S. 383, 393 (1943). Each state through which rivers pass has a right to the benefit of the water but it is for the Court, as a matter of discretion, to measure their relative rights and obligations and to apportion the available water equitably. As the Court’s opinion states, in the process of apportioning the water, prior dependence and inefficient uses may be considered in balancing the equities. But no state has any priority over any other state. It is on this understanding of the Court’s holding that I join the opinion and the judgment.

Justice O’Connor,

with whom Justice Powell joins,

concurring in the judgment.

The doctrine of prior appropriation includes the requirement that the appropriator’s use of water be beneficial and reasonable. What is reasonable, of course, does not admit of ready definition, being dependent upon the particular facts and circumstances of each case. In this case, the Special Master has cast an accusatory finger at the Vermejo Conservancy District, concluding that “[t]he system of canals used to transport the water to the fields is inefficient.” Report of Special Master 8.

Undoubtedly, there is evidence in the record indicating that large losses of water occur through seepage and evaporation in transporting waters of the Vermejo through open ditches for irrigation and stock watering. Tr. 1315. It is a leap, however, from observing that large losses occur to concluding, as Colorado would have the Court do, that the practices of the Conservancy District are wasteful or unreasonable. As the Court observes, ante, at 185, the extent of the duty to conserve that may be placed upon the user is limited to measures that are “financially and physically feasible,” Wyoming v. Colorado, 259 U. S. 419, 484 (1922), and “within practicable limits.” Ibid. Nevertheless, in concluding that the Conservancy District’s distribution system is “inefficient,” the Special Master made no factual finding that improved economy in that system is within the practicable means available to the District.

Colorado would have the Court assess the Conservancy District’s “waste” and “inefficiency” by a new yardstick— i. e., not by comparing the economic gains to the District with the costs of achieving greater efficiency, but by comparing the “inefficiency” of New Mexico’s uses with the relative benefits to Colorado of a new use. The Special Master has succumbed to this suggestion. His recommendation that Colorado be permitted a diversion embodies the judgment that, because Colorado can, in some unidentified sense, make “better” use of the waters of the Vermejo, New Mexico may be forced to change its present uses.

Today the Court has also gone dangerously far toward accepting that suggestion. The Court holds, ante, at 186, that it is appropriate in equitable apportionment litigation to weigh the harms and benefits to the competing States. It does so notwithstanding its recognition, ante, at 187, that the potential benefits from a proposed diversion are likely to be speculative and remote, and therefore difficult to balance against any threatened harms, and its concession, ibid., that the equities supporting protection of an existing economy will usually be compelling.

In equitable apportionment litigation between two prior appropriation States concerning the waters of a fully appropriated river, this Court has never undertaken that balancing task outside the concrete context of either two established economies in the competing States dependent upon the waters to be apportioned or of a proposed diversion in one State to satisfy a demonstrable need for a potable supply of drinking water. In the former context, the Court may assess the relative benefit and detriment by reference to the actual fruits of use of the waters in the respective States. In the latter context, the compelling nature of the proposed use reduces the speculation that might otherwise attend assessment of the benefits of a proposed diversion. Where, as here, however, no existing economy in Colorado depends on the waters of the Vermejo and the actual uses in New Mexico rank in equal importance with the proposed uses in Colorado, the difficulty of arriving at the proper balance is especially great.

This case therefore highlights the restraint with which the Court should proceed in apportioning interstate waters between a State seeking a future use and a State with an existing economy dependent upon the waters to be apportioned. The Court can only invite litigation within its original jurisdiction if it permits one State to obtain a diversion for a new use upon that State’s allegation that the second State is engaging in “wasteful” practices or that it can make “better” use of the waters, even if the second State’s uses are entirely reasonable.

I do not suggest, of course, that the Court must blind itself to compelling evidence of waste by one State. Protection of existing economies does not require that users be permitted to continue in unreasonably wasteful or inefficient practices. But the Court should be moved to exercise its original jurisdiction to alter the status quo between States only where there is clear and convincing evidence, ante, at 188, n. 13, that one State’s use is unreasonably wasteful. To allow Colorado a diversion upon a lesser showing comports neither with the equality of rights of the litigants before us, see Connecticut v. Massachusetts, 282 U. S. 660, 670 (1931), nor with the sparing use that should be made of the Court’s equitable powers, see id., at 669. Further, such action would seriously undermine the Court’s affirmation, ante, at 184, that priority of appropriation is the “guiding principle” in allocating waters between two prior appropriation States.

The Court’s remand reflects its judgment that the paucity of the factual findings before us furnishes an inadequate basis upon which to make “the delicate adjustment of interests” at stake, Nebraska v. Wyoming, 325 U. S. 589, 618 (1945). I concur in that disposition insofar as the Special Master’s findings and conclusions do not provide a basis for determining whether Colorado has demonstrated by clear and convincing evidence that the Conservancy District has engaged in unreasonably wasteful practices.

         Phelps Dodge Corp. v. W. S. Land and Cattle Co., No. 7201 (Dist. Ct. Colfax Cty., Nov. 13, 1941).

         In re Application for Water Rights of C. F. & I. Corp., No. W-3961 (Dist. Ct., W. Div. No. 2, June 20, 1975).

         Kaiser Steel Corp. v. C. F. & I. Steel Corp., Civ. No. 76-244 (NM 1978). The injunction was not based on a determination of the right of the two States under the law of equitable apportionment, since neither Colorado nor New Mexico was a party to the action.

       N. M. Const., Art. XVI, §2; Colo. Const., Art. XVI, §§5, 6. The administration of water rights in each State is governed by statute. Colo. Rev. Stat. §37-92-101 et seq. (1973 and Supp. 1982); N. M. Stat. Ann. § 72-1-1 et seq. (1978 and Supp. 1982).
      The prior appropriation doctrine and the riparian doctrine are the two basic doctrines governing the rights to the use of water. Under the prior appropriation doctrine, recognized in most of the Western States, water rights are acquired by diverting water and applying it for a beneficial purpose. A distinctive feature of the prior appropriation doctrine is the rule of priority, under which the relative rights of water users are ranked in the order of their seniority. Under the riparian doctrine, recognized primarily in the Eastern, Midwestern and Southern States, the owner of land contiguous to a watercourse is entitled to have the stream flow by or through his land undiminished in quantity and unpolluted in quality, except that any riparian proprietor may make whatever use of the water that is reasonable with respect to the needs of other appropriators.
      Appropriative rights do not depend on land ownership and are acquired and maintained by actual use. Riparian rights, by contrast, originate from land ownership and remain vested even if unexercised. Appropri-ative rights are fixed in quantity; riparian rights are variable depending on streamflow and subject to the reasonable uses of others. See generally 1 R. Clark, Waters and Water Rights (1967); W. Hutchins, Selected Problems in the Law of Water Rights in the West (U. S. Dept. of Agriculture, Mise. Pub. No. 418, 1942); 1 W. Hutchins, Water Rights Laws in the Nineteen Western States (U. S. Dept. of Agriculture, Misc. Pub. No. 1206, 1971).

       An acre-foot is a volumetric measurement which means the amount of water required to cover one acre of ground one foot deep. One acre-foot equals 43,560 cubic feet or 325,900 gallons of water.

       The Conservancy District is the largest user of water from the Vermejo River in New Mexico. It consists of over 60 farms irrigated by an extensive system of canals and reservoirs. The United States Maxwell Wildlife Refuge is also located within the District. In the early 1950’s the District was part of a large reclamation project funded by the Federal Government.
      Vermejo Park diverts water primarily to irrigate land used to grow hay for its cattle operation. Kaiser Steel uses water primarily for its coal facilities. Phelps Dodge leases its rights to Kaiser Steel and to the C. S. Springer Cattle Co.

         This is a fair reading of the Special Master’s conclusion that New Mexico users would not be “materially affected” by the recommended diversion. While the report does not expressly state that Colorado’s diversion might be offset by reasonable conservation efforts, it does refer specifically to the waste and inefficiency of the Conservancy District’s system of water canals. Report of Special Master 8, 28. In addition, in its second exception to the report New Mexico acknowledges that the Special Master based his conclusion that New Mexico users would not be materially affected on certain findings concerning waste and inefficiency within the Conservancy District.

       New Mexico contends that the Special Master relied on a third ground, namely, that the mere fact that the Vermejo River originates in Colorado automatically entitles Colorado to a share of the water of the Vermejo River. See id., at 8. To the extent that the Special Master applied such a per se rule of apportionment, we reject it as inconsistent with our emphasis on flexibility in equitable apportionment.

       New Mexico also contends that Colorado is improperly suing directly and solely for the benefit of a private individual — C. F. & I. — in violation of the Eleventh Amendment, and that Colorado’s suit is barred by laches. We find no merit to these claims.
      Because the State of Colorado has a substantial interest in the outcome of this suit, New Mexico may not invoke its Eleventh Amendment immunity from federal actions by citizens of another State. The portion of the Vermejo River in Colorado is owned by the State in trust for its citizens. Colo. Const., Art. XVI, § 5. While C. F. & I. will most likely be the primary user of any water diverted from the Vermejo River, other Colorado citizens may jointly use the water or purchase water rights in the future. In any event, Colorado surely has a sovereign interest in the beneficial effects of a diversion on the general prosperity of the State. Faced with a similar set of circumstances in Kansas v. Colorado, 206 U. S. 46, 99 (1907), we concluded that “[t]he controversy rises . . . above a mere question of local private right and involves a matter of state interest and must be considered from that standpoint.”
      We also conclude that Colorado is not barred by laches from seeking an equitable apportionment. For the reasons that we elaborate infra, at 186-188, we hold that under some circumstances the countervailing equities supporting a diversion of water for a future use in one State may justify the detriment suffered by existing users in another State. Therefore the mere fact that Colorado has no existing uses of the waters of the Vermejo River and that current users in New Mexico may suffer some detriment from a diversion does not bar Colorado’s suit for an equitable apportionment for future uses. These circumstances, however, do bear on the burden of proof that Colorado must satisfy to justify the possible disruption of existing uses. See infra, at 187-188, and n. 13. A contrary conclusion is not dictated by Washington v. Oregon, 297 U. S. 517, 528 (1936), or Colorado v. Kansas, 320 U. S. 383, 394 (1943) (dictum), which merely require established users or holders of water rights to exercise diligence in protecting their rights and putting them to beneficial uses. See infra, at 184.

       This description is only roughly accurate, since we did not rigidly follow this procedure in apportioning the Laramie River, but instead departed from a strict application of the rule of priority in numerous respects. For instance, our decree in Wyoming v. Colorado granted Colorado an unqualified right to divert 22,500 acre-feet, even though there were Wyoming appropriations senior to the Colorado appropriations underlying the 22,500 acre-feet grant. 259 U. S., at 480-490. In addition, we granted to Colorado priority to divert a total of 37,750 acre-feet, even though some of the underlying appropriations were junior to a number of Wyoming appropriations. Id., at 495-496. The effect was to guarantee water to junior appropriators in Colorado to the potential detriment of senior appropriators downstream in Wyoming. See 2 R. Clark, Waters and Water Rights § 132.4 (1967).

       We thus required Wyoming to enhance and equalize the water supply through “practicable storage and conservation” measures, such as the use of storage facilities similar to those already in use in Wyoming. 259 U. S., at 485.

       In Connecticut v. Massachusetts we declined to enjoin Massachusetts’ proposed diversion for future uses. We took into account the impending “serious water shortage” in the Boston area and the absence of “real or substantial injury or damage” to Connecticut. 282 U. S., at 664, 672. Although Connecticut v. Massachusetts, as well as New Jersey v. New York, involved States that follow the riparian rather than the prior appropriation doctrine, see n. 4, supra, our allocation of water for future uses rested on the federal common law of equitable apportionment, which, as we made clear, “is not governed by the same rules of [state] law that are applied . . . for the solution of similar questions of private right.” Connecticut v. Massachusetts, 282 U. S., at 670; see also New Jersey v. New York, 283 U. S., at 342-343. Nothing in those two cases suggested that the apportionment of water for future uses in any way depended on the adherence of both States to the riparian doctrine.

       Our cases establish that a State seeking to prevent or enjoin a diversion by another State bears the burden of proving that the diversion will cause it “real or substantial injury or damage.” Connecticut v. Massachusetts, supra, at 672. See also New Jersey v. New York, supra, at 344-345; Kansas v. Colorado, 206 U. S., at 117; Colorado v. Kansas, 320 U. S., at 393-394. This rule applies even if the State seeking to prevent or enjoin a diversion is the nominal defendant in a lawsuit. In Colorado v. Kansas,
        for instance, Colorado sued Kansas seeking to enjoin further lawsuits by-Kansas water users against Colorado users. Although Kansas was the defendant, we granted Colorado an injunction based on Kansas’ failure to sustain the burden of showing that the Colorado diversions had “worked a serious detriment to the substantial interests of Kansas.” Id., at 400; see also id., at 389-390.
      New Mexico must therefore bear the initial burden of showing that a diversion by Colorado will cause substantial injury to the interests of New Mexico. In this case New Mexico has met its burden since any diversion by Colorado, unless offset by New Mexico at its own expense, will necessarily reduce the amount of water available to New Mexico users.
      The burden has therefore shifted to Colorado to establish that a diversion should nevertheless be permitted under the principle of equitable apportionment. Thus, with respect to whether reasonable conservation measures by New Mexico will offset the loss of water due to Colorado’s diversion, or whether the benefit to Colorado from the diversion will substantially outweigh the possible harm to New Mexico, Colorado will bear the burden of proof. It must show, in effect, that without such a diversion New Mexico would be using “more than its equitable share of the benefits of a stream.” Id., at 394. Moreover, Colorado must establish not only that its claim is of a “serious magnitude,” but also that its position is supported by “clear and convincing evidence.” Connecticut v. Massachusetts, supra, at 669. See also Colorado v. Kansas, supra, at 393; Washington v. Oregon, 297 U. S., at 522.

       The Special Master may make any other factual findings that he considers relevant. Additional hearings may be held, although they may be unnecessary in light of the extensive evidence already presented at trial. Upon remand, the Special Master is free to reaffirm his original recommendation or make a different recommendation on the basis of the evidence and applicable principles of equitable apportionment.

       It is significant to note that in Wyoming v. Colorado, upon which the Court relies for the proposition that an affirmative duty to conserve may be imposed on the States, ante, at 185, the Wyoming appropriators already had storage facilities in place for equalizing the river’s natural flow. In answering Wyoming’s objection that it should not be burdened with conservation measures in order to permit a diversion by Colorado, the Court observed:
      “We think [the] doctrine [of appropriation] lays on each of these States a duty to exercise her right reasonably and in a manner calculated to conserve the common supply. Notwithstanding her present contention, Wyoming has in fact proceeded on this line, for, as the proof shows, her appropriators, with her sanction, have provided, and have in service reservoir facilities which are adapted for the purpose and reasonably sufficient to meet its requirements.” 259 U. S., at 484-485 (emphasis added).

       Evidence in the record indicates that the Conservancy District has employed an engineering firm to investigate the feasibility of constructing an enclosed system to deliver stock water to the District’s landowners. Tr. 1318.

       See Nebraska v. Wyoming, 325 U. S. 589 (1945); Washington v. Oregon, 297 U. S. 517 (1936); Kansas v. Colorado, 206 U. S. 46 (1907).

       See New Jersey v. New York, 283 U. S. 336 (1931); Connecticut v. Massachusetts, 282 U. S. 660 (1931). It is also significant to note that these disputes occurred between two riparian States.

        Wyoming v. Colorado, supra, does not represent an exception to the pattern stated in the text. The Court did not engage in any wholesale balancing of the relative harms and benefits to the two States from the proposed diversion. Rather, the Court imposed a very limited duty on Wyoming to make use of the storage facilities its appropriators already had in place, see n. 1, supra, for the purpose of calculating the dependable supply of water available to Wyoming. 259 U. S., at 484. The Court was thereby able to determine that the waters of the Laramie River were not fully appropriated and that a share of the waters was available for Colorado’s proposed use.

       For example, in Kansas v. Colorado, supra, Kansas sought to restrain Colorado from diverting waters of the Arkansas River for the irrigation of lands in Colorado. Colorado had diverted waters from the river since the 1880’s. As a result of irrigation, the population of the irrigated areas, the number of acres cultivated, and the value of farm products produced in these areas escalated dramatically. 206 U. S., at 108-109. The Court compared this demonstrated salutary effect of the irrigation on the economy of Colorado with the corresponding population changes and changes in acreage and production of com and wheat in the affected Kansas counties for the same period. Id., at 110-118. Using these concrete data, the Court was able to discern some minimal injury to Kansas as a result of the diminution of the flow of the Arkansas River. Id., at 113-114. Viewing the overall impact of the available water on the two economies, however, the Court concluded:
      “[W]hen we compare the amount of this detriment [to Kansas] with the great benefit which has obviously resulted to the counties in Colorado, it would seem that equality of right and equity between the two States forbids any interference with the present withdrawal of water in Colorado for purposes of irrigation.” Ibid.

      Quite clearly, the Court was not forced to speculate about the benefit and detriment of the diversion to the competing States.
      Similarly, in Washington v. Oregon, supra, the Court was equipped to assess the balance of harm and benefit to the economies from the diversion at issue. Washington sought an injunction against Oregon’s diversion of waters of the Walla Walla River for irrigation in Oregon. On the one hand, Oregon had an existing agricultural economy dependent upon irrigation from the Walla Walla. On the other hand, the evidence revealed that there would be absolutely no benefit to Washington in prohibiting Oregon’s diversion during periods of water shortage; the nature of the river channel was such that even if the water was not diverted by Oregon users, it would be absorbed by the gravel beneath the channel and never reach Washington users. 297 U. S., at 522-523. The Court therefore concluded that “[t]o limit the long established use in Oregon would materially injure Oregon users without a compensating benefit to Washington users.” Id., at 523.

       According to Colorado, the diverted water would be used “in industrial operations at coal mines, agriculture, timbering, power generation, domestic needs and other industrial operations . . . .” Reply Brief for Colorado 8.


source: Caselaw Access Project

author: Justice Rehnquist

license: Public Domain

text:
    FEDERAL ELECTION COMMISSION et al. v. NATIONAL RIGHT TO WORK COMMITTEE et al.
    No. 81-1506.
    Argued November 1, 1982
    Decided December 13, 1982
    Rehnquist, J., delivered the opinion for a unanimous Court.

      Charles N. Steele argued the cause for petitioners. With him on the briefs were Richard B. Bader, Miriam Aguiar, and Jeffrey H. Bowman.

      Richard H. Mansfield III argued the cause for respondents. With him on the brief were George D. Webster, Edith D. Hakola, and Richard J. Clair

        J. Albert Woll, Laurence Gold, and Margaret E. McCormick filed a brief for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae urging reversal.

        H. Richard Mayberry, Jr., filed a brief for the Public Service Research Council et al. as amici curiae urging affirmance.

   Justice Rehnquist

delivered the opinion of the Court.

The question in the case ultimately comes down to whether respondent National Right to Work Committee (NRWC or respondent) limited its solicitation of funds to “members” within the meaning of 2 U. S. C. §441b(b)(4)(C).

In April 1977, petitioner Federal Election Commission (Commission) determined that there was probable cause to believe that NRWC had violated the above-cited provisions of the Act by soliciting contributions from persons who were not its “members.” Shortly thereafter, respondent filed a complaint in the United States District Court for the Eastern District of Virginia seeking injunctive and declaratory relief against the Commission. One month later, the Commission filed an enforcement proceeding against respondent in the United States District Court for the District of Columbia, seeking to establish respondent’s violation of 2 U. S. C. §441b. The actions were consolidated in the latter court, which granted summary judgment in favor of the Commission on the basis of stipulated facts. 501 F. Supp. 422 (1980). The judgment of the District Court was reversed by the Court of Appeals for the District of Columbia Circuit, 214 U. S. App. D. C. 215, 665 F. 2d 371 (1981), and we granted certiorari. 456 U. S. 914 (1982).

Respondent NRWC is a nonprofit corporation without capital stock organized under the laws of the Commonwealth of Virginia. Given the central role of the congressional use of the word “member” in this litigation, it is useful to set forth respondent’s organizational history in some detail. In 1975, respondent’s predecessor and another corporation merged; the articles of merger filed in the District of Columbia by the successor corporation stated that NRWC “shall not have members.” A similar statement is contained in the articles of incorporation of NRWC that are presently filed in Virginia. Likewise, respondent’s bylaws make no reference to members or to membership in the corporation. The stated purpose of NRWC, according to its Virginia articles of incorporation, is “[t]o help make the public aware of the fact that American citizens are being required, against their will, to join and pay dues to labor organizations in order to earn a living.” App. to Pet. for Cert. 17a. In pursuance of this objective, NRWC regularly mails messages to millions of individuals and businesses whose names have found their way onto commercially available mailing lists that the organization has purchased or rented. The letters do not mention membership in NRWC, but seek donations to help NRWC publicize its opposition to compulsory unionism and frequently contain a questionnaire that the recipient is requested to answer and return.

In late 1975, in order to comply with § 441b, NRWC established a separate segregated fund, see §441b(b)(4)(C), “to receive and make contributions on behalf of federal candidates.” The fund was denominated the “Employees Rights Campaign Committee” (ERCC); its operation was completely subsidized from the NRWC treasury, which paid all the expenses of establishing and administering the fund, and of soliciting contributions. During part of 1976, NRWC sent letters to some 267,000 individuals, who had at one time contributed to it, soliciting contributions to ERCC. As a result of these solicitations, the fund received some $77,000 in contributions.

In October 1976, another lobbying group, the Committee for an Effective Congress, filed a complaint against ERCC with the Commission, alleging violation of 2 U. S. C. §441b(b)(4). The complaint asserted that NRWC had violated this section of the Act by using corporate funds to solicit contributions to ERCC from persons who were not NRWC’s stockholders, executive or administrative personnel, or their families. NRWC did not deny these assertions, but took the position that the recipients of its solicitation letters were “members” of NRWC within the proviso set forth in § 441b(b)(4)(C). The Commission found probable cause to believe that a violation had occurred, and after completing the investigative procedures set out in the statute and unsuccessfully attempting to resolve the matter through conciliation, see 2 U. S. C. §437g (1976 ed., Supp. V), it authorized the filing of a civil enforcement suit. This litigation followed.

Essential to the proper resolution of the case is the interpretation of § 441b(b)(4)(C)’s statement that the prohibition against corporate solicitation contained in § 441b(b)(4)(A) shall not prevent “a . . . corporation without capital stock . . . from soliciting contributions to [a separate segregated fund established by a corporation without capital stock] from members of such. . . corporation . . . .” (Emphasis added.) The Court of Appeals rejected the Commission’s contentions regarding the meaning of “member,” and went on to hold that the term “embraces at least those individuals whom NRWC describes as its active and supporting members.” 214 U. S. App. D. C., at 220, 665 F. 2d, at 376. The opinion of the Court of Appeals indicates that this construction was reached at least in part because of concern for the constitutional implications of any narrower construction. Id., at 218-220, 665 F. 2d, at 374-376. As explained below, we reject this construction.

The statutory purpose of §441b, as outlined above, is to prohibit contributions or expenditures by corporations or labor organizations in connection with federal elections. 2 U. S. C. §441b(a). The section, however, permits some participation of unions and corporations in the federal electoral process by allowing them to establish and pay the administrative expenses of “separate segregated fund[s],” which may be “utilized for political purposes.” 2 U. S. C. §441b(b)(2)(C). The Act restricts the operations of such segregated funds, however, by making it unlawful for a corporation to solicit contributions to a fund established by it from persons other than its “stockholders and their families and its executive or administrative personnel and their families.” 2 U. S. C. § 441b(b)(4)(A). Finally, and of most relevance here, the section just quoted has its own proviso, which states in pertinent part that “[t]his paragraph shall not prevent a . . . corporation without capital stock, or a separate segregated fund established by a . . . corporation without capital stock, from soliciting contributions to such a fund from members” of the sponsoring corporation. 2 U. S. C. § 441b(b)(4)(C). The effect of this proviso is to limit solicitation by nonprofit corporations to those persons attached in some way to it by its corporate structure. Ibid.

The Court of Appeals, as we have noted, construed the term “member” in § 441b to embrace “at least those individuals whom NRWC describes as its active and supporting members.” 214 U. S. App. D. C., at 220, 665 F. 2d, at 376. The two categories of members recognized by NRWC were described in the following terms by the Court of Appeals:

“NRWC attracts members by publicizing its position on issues relating to compulsory unionism through advertisements, personal contacts, and, primarily, letters. These letters describe the purpose of NRWC, urge the recipient to assist NRWC (by, for example, writing to legislators), request financial support, and ask the recipient to respond to a questionnaire that will determine whether that person shares a similar political philosophy. A person who, through his response, evidences an intention to support NRWC in promoting voluntary unionism qualifies as a member. A person who responds without contributing financially is considered a supporting member; a person who responds and also contributes is considered an active member. NRWC sends an acknowledgement and a membership card to both classes. In the regular course of operations, NRWC’s members receive newsletters, action alerts, and responses to individual requests for information. They respond to issue surveys and are asked to communicate with their elected representatives when appropriate. See Joint App., vol. II, at 387 et seq.” Id., at 217, n. 1, 665 F. 2d, at 373, n. 1.

In respondent’s view, both categories satisfy the membership requirement of § 441b(b)(4)(C).

The Commission, however, insists that these standards of “membership” are too fluid and insubstantial to come within the statutory term “member,” and argues further that they do not comply with the Commission’s regulation defining the term:

“(e) ‘Members’ means all persons who are currently satisfying the requirements for membership in a membership organization, trade association, cooperative, or corporation without capital stock .... A person is not considered a member under this definition if the only requirement for membership is a contribution to a separate segregated fund.” Federal Election Commission Regulations, 11 CFR § 114.1(e) (1982).

The Commission also contends that NRWC’s Virginia articles of incorporation, filed by respondent, which state that respondent has no members, are dispositive. While we do not feel sufficiently informed at this time to attempt an exegesis of the statutory meaning of the word “members” beyond that necessary to decide this case, we find it relatively easy to dispose of these arguments that respondent’s solicitation was limited to its “members,” since in our view this would virtually excise from the statute the restriction of solicitation to “members.”

Section 441b(b)(4)(C) was one of several amendments to the Act enacted in 1976. The entire legislative history of the subsection appears to be the floor statement of Senator Allen who introduced the provision in the Senate and explained the purpose of his amendment in this language:

“Mr. President, all this amendment does is to cure an omission in the bill. It would allow corporations that do not have stock but have a membership organization, such as a cooperative or other corporations without capital stock and, hence, without stockholders, to set up separate segregated political funds as to which it can solicit contributions from its membership; since it does not have any stockholders to solicit, it should be allowed to solicit its members. That is all that the amendment provides. It does cover an omission in the bill that I believe all agree should be filled.” 122 Cong. Rec. 7198 (1976).

This statement suggests that “members” of nonstock corporations were to be defined, at least in part, by analogy to stockholders of business corporations and members of labor unions. The analogy to stockholders and union members suggests that some relatively enduring and independently significant financial or organizational attachment is required to be a “member” under § 441b(b)(4)(C). The Court of Appeals’ determination that NRWC’s “members” include anyone who has responded to one of the corporation’s essentially random mass mailings would, we think, open the door to all but unlimited corporate solicitation and thereby render meaningless the statutory limitation to “members.”

We also assume, since there is no body of federal law of corporations, see Burks v. Lasker, 441 U. S. 471, 477 (1979), that Congress intended at least some reference to the laws of the various States dealing with nonprofit corporations. In an analogous situation, where Congress had authorized state taxation of “real property” of subsidiaries of the Reconstruction Finance Corporation, the Court said:

“We think the congressional purpose can best be accomplished by application of settled state rules as to what constitutes ‘real property,’ so long as it is plain, as it is here, that the state rules do not effect a discrimination against the Government, or patently run counter to the terms of the Act.” RFC v. Beaver County, 328 U. S. 204, 210 (1946).

Like property, the structure and powers of nonprofit corporations are defined principally by state law; as in the case of property, state law provides some guidance in deciding whether NRWC’s solicitation was confined to its “members.”

Most States apparently permit nonprofit corporations to have “members” similar to shareholders in a business corporation, although state statutes generally do not seem to require this form of organization, see, e. g., ALI-ABA, Model Nonprofit Corporation Act §11 (1964); in many States the board of directors of a nonprofit corporation may be an autonomous, self-perpetuating body. Given the wide variety of treatment of the subject of membership in state incorporation laws, and the focus of the Commission’s regulation on the corporation’s own standards, we think it was entirely permissible for the Commission in this case to look to NRWC’s corporate charter under the laws of Virginia and the bylaws adopted in accordance with that charter.

Applying the statutory language as we interpret it to the facts of this case, we think Congress did not intend to allow the 267,000 individuals solicited by NRWC during 1976 to come within the exclusion for “members” in 2 U. S. C. § 441b(b)(4)(C). Although membership cards are ultimately sent to those who either contribute or respond in some other way to respondent’s mailings, the solicitation letters themselves make no reference to members. Members play no part in the operation or administration of the corporation; they elect no corporate officials, and indeed there are apparently no membership meetings. There is no indication that NRWC’s asserted members exercise any control over the expenditure of their contributions. Moreover, as previously noted, NRWC’s own articles of incorporation and other publicly filed documents explicitly disclaimed the existence of members. We think that under these circumstances, those solicited were insufficiently attached to the corporate structure of NRWC to qualify as “members” under the statutory proviso.

Unlike the Court of Appeals, we do not think this construction of the statute raises any insurmountable constitutional difficulties. The Court of Appeals expressed the view that the sort of solicitations involved here would neither corrupt officials nor coerce members of the corporation holding minority political views, the two goals which it believed Congress had in mind in enacting the statutory provisions at issue. That being so, the Court of Appeals apparently thought, and respondent argues here, that the term “members” must be given an elastic definition in order to prevent impermissible interference with the constitutional rights enunciated in cases such as NAACP v. Button, 371 U. S. 415 (1963), and Schaumburg v. Citizens for a Better Environment, 444 U. S. 620 (1980). Similarly, respondent places considerable reliance on our statement in Buckley v. Valeo, 424 U. S. 1, 25 (1976):

“The Court’s decisions involving associational freedoms establish that the right of association is a ‘basic constitutional freedom,’ Kusper v. Pontikes, 414 U. S., at 57, that is ‘closely allied to freedom of speech and a right which, like free speech, lies at the foundation of a free society.’ Shelton v. Tucker, 364 U. S. 479, 486 (1960). See, e. g., Bates v. Little Rock, 361 U. S. 516, 522-523 (1960); NAACP v. Alabama, [357 U. S.], at 460-461; NAACP v. Button, supra, at 452 (Harlan, J., dissenting). In view of the fundamental nature of the right to associate, governmental ‘action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny.’ NAACP v. Alabama, supra, at 460-461.”

Under this standard, respondent asserts, the Act’s restriction of its solicitation cannot be upheld.

While we fully subscribe to the views stated in Buckley, in the very next sentence to the passage quoted by the respondent, the Court went on to say:

“Yet, it is clear that ‘[n]either the right to associate nor the right to participate in political activities is absolute.’ CSC v. Letter Carriers, 413 U. S. 548, 567 (1973).” Ibid.

In this case, we conclude that the associational rights asserted by respondent may be and are overborne by the interests Congress has sought to protect in enacting § 441b.

To place respondent’s constitutional claims in proper perspective, we repeat language used in Buckley v. Valeo, supra, at 13:

“The constitutional power of Congress to regulate federal elections is well established and is not questioned by any of the parties in this case.”

The first purpose of §441b, petitioners state, is to ensure that substantial aggregations of wealth amassed by the special advantages which go with the corporate form of organization should not be converted into political “war chests” which could be used to incur political debts from legislators who are aided by the contributions. See United States v. Automobile Workers, 352 U. S. 567, 579 (1957). The second purpose of the provisions, petitioners argue, is to protect the individuals who have paid money into a corporation or union for purposes other than the support of candidates from having that money used to support political candidates to whom they may be opposed. See United States v. CIO, 335 U. S. 106, 113 (1948).

We agree with petitioners that these purposes are sufficient to justify the regulation at issue. Speaking of corporate involvement in electoral politics, we recently said:

“The overriding concern behind the enactment of statutes such as the Federal Corrupt Practices Act was the problem of corruption of elected representatives through the creation of political debts. The importance of the governmental interest in preventing this occurrence has never been doubted.” First National Bank of Boston v. Bellotti, 435 U. S. 765, 788, n. 26 (1978) (citations omitted).

Likewise, in Buckley v. Valeo, supra, at 26-27, we specifically affirmed the importance of preventing both the actual corruption threatened by large financial contributions and the eroding of public confidence in the electoral process through the appearance of corruption. These interests directly implicate “the integrity of our electoral process, and, not less, the responsibility of the individual citizen for the successful functioning of that process.” United States v. Automobile Workers, supra, at 570.

We are also convinced that the statutory prohibitions and exceptions we have considered are sufficiently tailored to these purposes to avoid undue restriction on the associational interests asserted by respondent. The history of the movement to regulate the political contributions and expenditures of corporations and labor unions is set forth in great detail in United States v. Automobile Workers, supra, at 570-584, and we need only summarize the development here. Seventy-five years ago Congress first made financial contributions to federal candidates by corporations illegal by enacting the Tillman Act, ch. 420, 34 Stat. 864. Within the next few years Congress went further and required financial disclosure by federal candidates following election, Act of June 25, 1910, ch. 392, 36 Stat. 822, and the following year required pre-election disclosure as well. Act of Aug. 19, 1911, ch. 33, 37 Stat. 25. The Federal Corrupt Practices Act, passed in 1925, extended the prohibition against corporate contributions to include “anything of value,” and made acceptance of a corporate contribution as well as the giving of such a contribution a crime. 43 Stat. 1070.

The first restrictions on union contributions were contained in the second Hatch Act, 54 Stat. 767, and later, in the War Labor Disputes Act of 1943, § 9, 57 Stat. 167, union contributions in connection with federal elections were prohibited altogether. These prohibitions on union political activity were extended and strengthened in the Taft-Hartley Act, 61 Stat. 136, which broadened the earlier prohibition against contributions to “expenditures” as well. Congress codified most of these provisions in the Federal Election Campaign Act of 1971, 86 Stat. 3, and enacted later amendments in 1974, 88 Stat. 1263, in 1976, 90 Stat. 475, and in 1980, 93 Stat. 1339. Section 441b(b)(4)(C) is, as its legislative history indicates, merely a refinement of this gradual development of the federal election statute.

This careful legislative adjustment of the federal electoral laws, in a “cautious advance, step by step,” NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 46 (1937), to account for the particular legal and economic attributes of corporations and labor organizations warrants considerable deference, see Rostker v. Goldberg, 453 U. S. 57, 64, 67 (1981). As we discuss below, it also reflects a permissible assessment of the dangers posed by those entities to the electoral process.

In order to prevent both actual and apparent corruption, Congress aimed a part of its regulatory scheme at corporations. The statute reflects a legislative judgment that the special characteristics of the corporate structure require particularly careful regulation. See United States v. Morton Salt Co., 338 U. S. 632, 652 (1950). While §441b restricts the solicitation of corporations and labor unions without great financial resources, as well as those more fortunately situated, we accept Congress’ judgment that it is the potential for such influence that demands regulation. Nor will we second-guess a legislative determination as to the need for prophylactic measures where corruption is the evil feared. As we said in California Medical Assn. v. FEC, 453 U. S. 182, 201 (1981), the “differing structures and purposes” of different entities “may require different forms of regulation in order to protect the integrity of the electoral process.”

To accept the view that a solicitation limited only to those who have in the past proved “philosophically compatible” to the views of the corporation must be permitted under the statute in order for the prohibition to be constitutional would ignore the teachings of our earlier decisions. The governmental interest in preventing both actual corruption and the appearance of corruption of elected representatives has long been recognized, First National Bank of Boston v. Bellotti, supra, at 788, n. 26, and there is no reason why it may not in this case be accomplished by treating unions, corporations, and similar organizations differently from individuals. California Medical Assn. v. FEC, supra, at 201.

Respondent also asserts a claim of unconstitutional vagueness, relying on such additional cases as Connally v. General Construction Co., 269 U. S. 385 (1926); Grayned v. City of Rockford, 408 U. S. 104 (1972); Speiser v. Randall, 357 U. S. 513 (1958); and Smith v. California, 361 U. S. 147 (1959). We think the vagueness claim is adequately answered by the language quoted earlier from CSC v. Letter Carriers, 413 U. S. 548, 567 (1973). There may be more than one way under the statute to go about determining who are “members” of a nonprofit corporation, and the statute may leave room for uncertainty at the periphery of its exception for solicitation of “members.” However, on this record we are satisfied that NRWC’s activities extended in large part, if not in toto, to people who would not be members under any reasonable interpretation of the statute. See Broadrick v. Oklahoma, 413 U. S. 601 (1973).

The judgment of the Court of Appeals is reversed.

It is so ordered.

       As will appear from the following discussion, the phrasing of this question is but the tip of the statutory iceberg. The Federal Election Campaign Act of 1971 (Act) makes it “unlawful for . . . any corporation ... to make a contribution or expenditure in connection with” certain federal elections. 90 Stat. 490, 2 U. S. C. § 441b(a). The term “contribution” is defined broadly, 2 U. S. C. § 441b(b)(2)(C), to include any sort of transfer of money or services to various political entities, but excluded from that definition is “the establishment, administration, and solicitation of contributions to a separate segregated fund to be utilized for political purposes by a . . . corporation without capital stock.” The Act goes on to make it unlawful, except as thereinafter provided, “for a corporation, or a separate segregated fund established by a corporation, to solicit contributions to such a fund from any person other than its stockholders and their families and its executive or administrative personnel and their families . . . .” 2 U. S. C. §441b(b)(4)(A). Finally, 2 U. S. C. § 441b(b)(4)(C) states that the prohibition just quoted “shall not prevent a . . . corporation without capital stock, or a separate segregated fund established by a . . . corporation without capital stock, from soliciting contributions to such a fund from members of such . . . corporation without capital stock.”

       The Commission is an independent administrative agency vested with exclusive jurisdiction over civil enforcement of the Act. See 2 U. S. C. §§437c(b)(l) and 437d(a) and (e) (1976 ed., Supp. V).

       The relief awarded the Commission by the District Court included a declaratory judgment that 2 U. S. C. § 441b(b)(4) is not unconstitutional, an order that NRWC refund to contributors the funds it had obtained from unlawful solicitations, and an order that the corporation pay a $10,000 civil penalty. App. to Pet. for Cert. 54a.

       The separate segregated fund may be completely controlled by the sponsoring corporation or union, whose officers may decide which political candidates contributions to the fund will be spent to assist. The “fund must be separate from the sponsoring union [or corporation] only in the sense that there must be a strict segregation of its monies” from the corporation’s other assets. Pipefitters v. United States, 407 U. S. 385, 414-417 (1972). See also Buckley v. Valeo, 424 U. S. 1, 28, n. 31 (1976).

       One commentator has stated:
      “The license provided by the statutes in this respect is further enhanced by their loose use of the term ‘member.’ The New York statute and the Model Act, for example, offer no meaningful definition of ‘member’ at all, but instead provide that a corporation’s articles or bylaws may designate anybody or nobody as members, or may designate different classes of members, and may freely specify the rights, if any, of the corporation’s members or classes of members. The California Act is a bit more carefully drawn in this regard, defining a member, essentially, as anyone entitled to vote in elections either for the corporation’s board of directors or for certain fundamental corporate changes.” Hansmann, Reforming Nonprofit Corporation Law, 129 U. Pa. L. Rev. 497, 578 (1981) (footnote omitted).

       We assume, as have the parties and courts below, that ERCC satisfies the statutory requirements of a “separate segregated fund” and that NRWC is a corporation covered by §441b.

       Our decision in First National Bank of Boston v. Bellotti, 435 U. S. 765 (1978), is entirely consistent with our conclusion here. Bellotti struck down a prohibition against corporate expenditures and contributions in connection with state referenda. Id., at 768. The Court explicitly stated that its decision did not involve “the constitutionality of laws prohibiting or limiting corporate contributions to political candidates or committees, or other means of influencing candidate elections.” Id., at 788, n. 26 (emphasis added). In addition, following its citation of Pipefitters v. United States, 407 U. S. 385 (1972); United States v. Automobile Workers, 352 U. S. 567 (1957); and United States v. CIO, 335 U. S. 106 (1948), the Court specifically pointed out that in elections of candidates to public office, unlike in referenda on issues of general public interest, there may well be a threat of real or apparent corruption. As discussed in text, Congress has relied on just this threat in enacting § 441b.

       We also reject as meritless NRWC’s claim that the Commission’s actions prior to and during conciliation were so misleading and arbitrary as to constitute a deprivation of due process. We leave open for consideration upon remand, inter alia, the propriety of the Commission’s imposition of a $10,000 civil penalty against respondent.