295 

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 postappointment 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. 
Opinions of the Office of Legal Counsel in Volume 28 

296 

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 appointed 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. AlvarezMachain, 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