July 28, 1977


77-45    MEMORANDUM OPINION FOR THE
         COUNSEL TO THE PRESIDENT

         National Commission on Neighborhoods—
         Appointment of Members


  This memorandum responds to your request for our opinion on the
meaning of the phrase “members of the same political party” in § 203(b)
of the National Neighborhood Policy Act, Pub. L. No. 95-24, 91 Stat.
57, establishing the National Commission on Neighborhoods. The perti­
nent language reads as follows:
    The two members appointed pursuant to clause (1) may not be
    members of the same political party, nor may the two members
    appointed pursuant to clause (2) be members of the same political
    party. Not more than eight of the members appointed pursuant to
    clause (3) may be members of the same political party.
   At the outset, we would note that the statute does not require that an
appointee be a member of any political party. In particular, an appoint­
ee need not be a registered Democrat or Republican; the statute im­
poses no such requirement, and in fact would raise serious constitution­
al questions if it did. Williams v. Rhodes, 393 U.S. 23 (1968). The
President thus remains free to appoint those only tangentially affiliated
with the two major parties, members of lesser-known political parties,
and independents. Indeed, such appointments would further the statu­
tory purpose of fostering a political diversity on the Commission. See
H.R. Rep. No. 42, 95th Cong., 1st Sess. 6 (1977); 123 Cong. Rec. H.
1946 (daily ed. March 10, 1977) (remarks of Rep. Annunzio).
   The only statutory restriction is a prohibition on the appointment of
more than one-half of the members of the Commission from the same
political party. Despite its initial appearance, this is not a prohibition
susceptible o f easy application. While in may instances an appointee’s
status will be obvious, in may other situations it may not be so clear
w hether a certain individual is a “member” of a “political party.” The
determination will often depend on all the facts and circumstances o f a
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 particular case; we will, nevertheless, give our own general views on
 this subject.
    A political party is generally defined as an organization consisting of
 electors who have the same basic theories or principles of government,
see, Socialist Labor Party v. Rhodes, 290 F. Supp. 983, 988 (D. Ohio
 1968), a ffd in part, modified in part, 393 U.S. 23; United States v. Shirey,
  168 F. Supp. 382, 385 (D. Pa. 1958), rev'd on other grounds, 359 U.S. 255
 (1959), which they strive to put into effect through the election of
 party members to public office. State v. Cleveland-Cliffs Iron Co., 169
 Ohio St. 42, 157 N.E. 2d 331, 333 (1959); People v. Kramer, 328 111. 512,
 160 N.E. 60, 64 (1923); Kelso v. Cook, 184 Ind. 173, 110 N.E. 987, 994
(1916); Chambers v. I. Ben Greenman Ass'n., 58 N.Y.S. 2d 637, 640
(N.Y. Sup. Ct. 1945), affd, 58 N.Y.S. 2d 3. We doubt that this defini­
 tion occasions great problems. The Republican and Democratic parties
are obviously political parties, and the President is unlikely to appoint
members of other political organizations in such numbers as to give rise
to many questions.
    More substantial problems arise in determining whether a potential
appointee is a “member” o f a political party. In contrast with some
other statutes, see, e.g., 50 U.S.C. § 844, the provision in question lists
no criteria to be considered in determining membership; the legislative
history is also of little help. The courts, in construing the term
“member” in other contexts require that the individual have the desire
to belong to an organization and the organization recognizes him as a
member. Killian v. United States, 368 U.S. 231, 249-51 (1961); Fisher v.
 United States, 231 F. 2d 99, 107 (9th Cir. 1956). We think that this
construction, even though rendered in a criminal context, can at least
provide the framework of a definition here. To elaborate on this frame­
work, we believe that a “member” o f a political party must (1) share
the basic beliefs o f the party, since a party is composed of individuals of
similar principles; (2) desire to belong to the party; and (3) perform
certain actions in furtherance of its goals. This last requirement is
draw n from the fact that the party must “recognize” one’s membership;
because party affiliation is usually a m atter of great informality, Alexan­
der v. Todman, 337 F. 2d 962, 974 (3rd Cir. 1964), it would appear that
party “recognition” may be achieved upon an individual’s active sup­
port o f the party and its goals.
   T he type o f active support sufficient to constitute membership is a
question that must depend on all the facts and circumstances of a
particular situation. We doubt, however, that mere support of a party’s
candidates in a general election, even if over a long term, is sufficient
by itself to constitute membership. While such a pattern may show
interest in, and sympathy for, the party’s goals, this has not been
deemed sufficient to fulfill the definition of “membership” in other
contexts. See, National Council v. Subversive Activities Control Board, 322
F. 2d 375, 388 (D.C. Cir. 1963); Travis v. United States, 247, F. 2d 130,
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 136 (10th Cir. 1957). Moreover, if Congress had intended to allow mere
electoral support to be determinative here, it presumably would have
used a term less connotative of belonging to a group—such as, for
example, “affiliation” or “sympathy.” Bridges v. Wixon, 326 U.S. 135,
 143 (1945).
   On the other hand, registration in a party would most often be
indicative of membership in that party, since it usually reflects a commit­
ment to the party’s goals and involves a role in choosing the party’s
candidate. C f, Bendinger v. Ogilivie, 335 F. Supp. 572, 576 (D. 111.
1971). In the absence of a formal registration, membership might be
shown by other evidence of active support of a party—financial sup­
port, attendance at meetings, volunteer activity, speeches, or service as
an officer might all be considered in determining whether an individual
is a member of a party. Cf. 50 U.S.C. § 844; Galvan v. Press, 347 U.S.
522, 528-29 (1954); National Council v. Subversive Activities Control
Board, supra, at 388; Fisher v. United States, supra, at 107.
   In short, there is no definitive formula for determining membership,
although reliable indicia of memberhsip are available.
                                                L eon U lm an
                                 Deputy Assistant Attorney General
                                                Office o f Legal Counsel




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