Political Balance Requirement for the Civil Rights Commission

Political Balance Requirement for the
Civil Rights Commission
In appointing a new member to the United States Commission on Civil Rights, in order to comply with
the statutory requirement that “[n]ot more than 4 of the members shall at any one time be of the
same political party,” the President should look to the party affiliation of the other members at the
time the new member is appointed.
December 6, 2004
MEMORANDUM OPINION FOR THE DEPUTY COUNSEL TO THE PRESIDENT
You have asked for our opinion concerning the proper interpretation of the
statutory provision that “[n]ot more than 4 of the members” of the United States
Commission on Civil Rights (“Commission”) “shall at any one time be of the
same political party.” 42 U.S.C. § 1975(b) (2000). Specifically, you have asked
whether, in the appointment of a new member to the Commission, the relevant
consideration is the party affiliation of the other members at the time the new
member is appointed (which would take into account any changes in party
affiliation by those other members after their appointment to the Commission), or
whether it is the party affiliation of the other members at the time those other
members were appointed (which would not take into account any such post-
appointment changes in party affiliation). We conclude that the plain language of
the statute makes clear that the relevant consideration is the party affiliation of the
other members at the time the new member is appointed.
The Commission consists of eight members, of whom the President appoints
four and the President pro tempore of the Senate and the Speaker of the House of
Representatives each appoint two. Id. § 1975(b). The statute provides that “[n]ot
more than 4 of the members shall at any one time be of the same political party.”
Id. It also provides that, of the two members appointed by the President pro
tempore of the Senate, “not more than one shall be appointed from the same
political party.” Id. § 1975(b)(2). The statute imposes the same requirement for the
appointees of the Speaker of the House. Id. § 1975(b)(3).
By its terms, the provision that “[n]ot more than 4 of the members shall at any
one time be of the same political party” applies at all times.1 This is in keeping
with its apparent purpose of maintaining some degree of political balance on the
Commission. See 140 Cong. Rec. 27,216 (Oct. 3, 1994) (statement of Rep.
Edwards) (the Commission is a “bipartisan, independent Federal factfinding
agency”). And this means that the relevant consideration when a new member is
appointed is the party affiliation of the other members at the time the new member
is appointed.
1
We do not address what the appropriate remedy would be, should a change in affiliation result in
more than four members from the same political party.
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Opinions of the Office of Legal Counsel in Volume 28
This conclusion is reinforced by the contrast between the “at any one time”
language in the provision at issue and the two appearances of the “appointed from
the same political party” formulation in other provisions of the same statute
dealing with party affiliation. The requirements that, of the two members appoint-
ed by each of the congressional leaders, “not more than one shall be appointed
from the same political party” expressly refer to party affiliation at the time of
appointment. We addressed a similar issue in a Memorandum for Dudley H.
Chapman, Associate Counsel to the President, from Leon Ulman, Acting Assistant
Attorney General, Office of Legal Counsel, Re: The Status of Members of the
Board of Trustees of the Woodrow Wilson International Center for Scholars
(June 27, 1975) (“Status of Members”). There, the statute required that certain
members of the Board of Trustees of the Woodrow Wilson International Center
for Scholars be “appointed” or “chosen” “from” private life. See 20 U.S.C.
§ 80f(b)(8), (d), (e) (2000). “The implication,” we wrote, “is that while Congress
was clearly concerned with the station from which a given trustee is appointed, it
was not concerned with the problem of a trustee who after appointment joins the
government.” Status of Members at 1. We noted that Congress elsewhere had
provided that a member of a different board, upon a change of status, would lose
his position, but had chosen not to use that language for trustees of the Woodrow
Wilson International Center for Scholars. Here, too, the “appointed from the same
political party” language is tied to the time of appointment, not to subsequent
service, 42 U.S.C. § 1975(b)(2), (3), and a change in the political affiliation of
these appointees therefore would not implicate that requirement.
The contrast in language between the “appointed from the same political party”
formulation and the “at any one time be of the same political party” formulation
underscores the differences in the relevant times for the provisions. “‘[W]hen the
legislature uses certain language in one part of the statute and different language in
another, the court assumes different meanings were intended.’” Sosa v. Alvarez-
Machain, 542 U.S. 692, 711 n.9 (2004) (quoting 2A Norman J. Singer, Statutes
and Statutory Construction § 46:06, at 194 (6th ed. 2000)). “[A]ppointed from the
same political party” clearly refers to party affiliation at the time of appointment;
“at any one time be of the same political party” clearly is not limited to the time of
appointment. Consequently, in appointing a new member, in order to comply with
the requirement that ‘[n]ot more than 4 of the members shall at any one time be of
the same political party,” the President should look to the party affiliation of the
other members at the time the new member is appointed.
DANIEL L. LEVIN
Acting Assistant Attorney General
Office of Legal Counsel
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