Appointment of Member of the Federal Election Commission Who Resigned From Federal Service Immediately Prior to Appointment ( 1977 )

July 22, 1977
78-80 MEMORANDUM OPINION FOR THE COUNSEL
TO THE PRESIDENT
Federal Election Commission—Appointment of
Members (2 U.S.C. § 437)
This is in response to your memorandum seeking an interpretation of 2
U .S.C . § 437(c)(3), which provides that members of the Federal Election
Commission—
. . . shall be chosen from among individuals who, at the time o f their
appointment, are not elected or appointed officers or exployees in the
executive, legislative, or judicial branch of the Government of the
United States. Members of the Commission shall not engage in any
other business, vocation, or employment . . . .
You specifically inquire, first, whether the statute permits appointment o f an
individual who had resigned from Federal service immediately prior to his
“ appointm ent,” and, second, if the answer to that question is in the affirmative,
whether the “ appointm ent” is deemed to occur upon nomination, the execution
o f the commission, or the taking of the oath of office.
First. It is our view that the purpose o f the statute is satisfied if the member
of the Commission resigns his Federal position immediately prior to his
appointment. The purpose o f the provision is to insure that the members of the
Commission serve on a full-time basis. M oreover, if Congress insists on more
than an “ immediate break” in government service prior to the appointment to a
position, it uses the formula that he be “ appointed from civilian life.” See, e .g .,
10 U.S.C. §§ 133-137. That clause has been interpreted as requiring that the
appointee has not only ceased to engage in Government service but also has
entered civil life and civil pursuits. See 36 Op. A .G . 389, 402 (1930), and
G uilmette v. U nited States, 49 Ct. Cl. 188 (1914).
Second. Having concluded that the resignation may take place immediately
prior to the “ appointm ent” to the Com m ission, we turn to the question as to
what constitutes “ appointm ent” within the meaning of the statute. Construing
Article II, Section 2, Clause 2, o f the Constitution, the Supreme Court has held
that the appointment process consists of three steps: nomination, advice and
consent o f the Senate, and appointment itself, which is usually evidenced by
the execution of the commission by the President. See, M arbury v. M adison, 5
Cranch 137, 155 (1803). In our view, the statute uses the term “ appointm ent”
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in the same sense as does the Constitution; hence, a prospective member of the
Commission must have resigned from his Federal position by the time the Presi­
dent formally appoints him to the Commission by executing his commission.
We note that in at least one situation, the interpretation of Article I, Section
6, Clause 2 ,1 an Attorney General took the position that a person who is
disqualified from holding a civil office may not be nominated to it, even though
the disqualification would be lifted by the time of the actual appointment by the
President. 17 Op. A .G . 522 (1883).2 We believe, however, that this interpreta­
tion of the term “ appointm ent” is based on the need to avoid an evasion of the
purpose o f Clause 2. The aim o f that constitutional provision is that, where
Congress creates new offices or increases the emoluments of existing ones, mem­
bers o f that Congress should not be appointed to those offices during the terms
for which they were elected. The constitutional purpose could be seriously eroded
if a disqualified member o f Congress could be nominated and confirmed during
the period of his disqualification— in particular by the same Senate that partici­
pated in the creation o f the office involved or increased its emoluments— and thus
be virtually assured o f the appointment as soon as the disqualification ended.
The purpose o f § 437(c)(3), however, is not to disqualify persons because of
their past status as Federal officers, but merely to prevent them from serving in
that capacity while they are on the Com m ission. This statutory intent does not
require that the prospective appointee resign his Federal office prior to
nomination, at which time he cannot know whether he will be confirmed. We
regard it as sufficient for the resignation to occur prior to the execution o f the
commission. This reading o f the statute is supported by the Conference Report
on the Federal Election Campaign Act Amendments of 1974, H. Rept.
93-1438, 93rd C ong., 2d sess. 90 (1974), which states:
[N]o member may be appointed to the Commission who at the time of
taking office as such a m em ber is an elected or appointed official of
any branch o f the United States Government.
It should be observed that the report uses the nontechnical, loose term “ at the
time of taking office,” which perhaps could be interpreted as the time when the
appointee enters into office. In our view, this language of the report does not
alter the meaning o f the statutory term “ appointm ent.”
Finally, we assume that the appointment in question concerns an individual
who is not subject to the disqualification imposed by Article I, Section 6,
Clause 2 o f the Constitution.
Jo h n M . H arm on
A ssistan t A ttorn ey G eneral
Office o f L egal Counsel
'T hat clause prohibits the appointm ent o f a Senator or Representative to any civil office, if the
office was created or its em olum ents were increased during the tim e for which the Senator or
Representative w as elected.
2The A ttorneys General still adhere to that interpretation o f this particular constitutional
provision.
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