Paul Kiel January 8, 2008, 2:54 PM

Back in November, The Boston Globe’s Charlie Savage reported on how the Bush administration had stacked the U.S. Civil Rights Commission with Republicans — two GOP commissioners had switched their registration to independents after being appointed, clearing the way for the administration to appoint two more Republicans. The scheme was entirely legal, the administration said, and the Justice Department, in a memo from the Office of Legal Counsel, had said so. But now a report by the nonpartisan Congressional Research Service has found the OLC memo “problematic” and says that if someone were to challenge the arrangement in court, the administration would probably lose.

You can read the report, which was prepared at the request of counsels on the Senate Judiciary Committee staff, here.

The commission was created by the Civil Rights Act of 1957 and is supposed to serve as a watchdog for discrimination. But there hasn’t been much of that during this administration. Savage reported that the coup shifted “the commission’s emphasis from investigating claims of civil rights violations to questioning programs designed to offset the historic effects of discrimination.”

Here’s how the scheme works. The commission has eight members. By law, no more than four of them can be from any one party — usually meaning that there are four Dems and four GOPers. But since two of the commissioners changed their party affiliation to independents after they were appointed, the commission now has only two Dems, two “independents,” and four Republicans.

The whole thing unfolded in December of 2004. After two of the Republican commissioners re-registered as independents, Daniel Levin, then head of the Office of Legal Counsel, signed a memo finding that what really mattered for the political balance of the commission was “the party affiliation of the other members at the time the new member is appointed.” So it was a-ok if the president tapped two more Republicans, even if they were joining four others who were Republicans at the time they were appointed. That was ancient history. Right after the memo was issued, Bush appointed the two Republicans, creating a 6-2 GOP balance.

The CRS report, prepared by a legal specialist, finds that the OLC memo ignored a whole lot to get that conclusion. Perhaps most importantly, the report points out that the law governing the commission had been changed in 1983 when President Ronald Reagan tried to stack the commission with his own appointees. The law was specifically tailored to prevent such scheming. But Bush found a way anyway. And so the report concludes: “it is likely that a reviewing court would find the OLC opinion unpersuasive and the recent appointments violative of the political balance requirements of the statute.”

Update: We’ve add the original OLC memo to our document collection.

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