The eight-member commission lost an Independent and a Democrat late last year, both of whom George W. Bush replaced with Republicans, creating what would have been a five-member GOP majority in violation of § 701.10 of the Electronic Code of Federal Regulations. Evidence suggests that on the same day Bush made the Republican appointments, Abigail Thernstrom, who had been appointed to the board as a Republican in 2001, changed her party affiliation to Independent in an attempt to skirt federal regulations.
Federal Regulations Governing the USCCR
From 45 CFR 701:
Authority: 42 U.S.C. 1975, 1975a, 1975b.
Source: 67 FR 70482, Nov. 22, 2002, unless otherwise noted.
§ 701.10 Membership of the Commission.
(a) The Commission is composed of eight members (or “Commissioners”), not more than four of whom may be of the same political party. The President shall appoint four members, the President pro tempore of the Senate shall appoint two, and the Speaker of the House of Representatives shall appoint two.
(b) The Chairperson and Vice Chairperson of the Commission are designated by the President with the concurrence of a majority of the Commissioners. The Vice Chairperson acts as Chairperson in the absence or disability of the Chairperson or in the event of a vacancy in that office.
(c) No vacancy in the Commission affects its powers and any vacancy is filled in the same manner and is subject to the same limitations with respect to party affiliations as previous appointments.
(d) Five members of the Commission constitute a quorum.
Section 701.10 is particularly important considering that as the panel stands right now, with four official Republicans and one “Independent” Republican, a legal quorum can be called with no quarter given to any dissenting viewpoint. Not only that, but because the president appoints the chair and vice chair “with the concurrence of a majority of the Commissioners,” two Republicans (one now ostensibly an Independent) were named to replace the departing Independent chairman and Democratic vice chairman.
The two vacancies on the commission occurred when Independent Chairman Mary Frances Berry and Democratic Vice Chairman Cruz Reynoso left their positions in early December 2004, following a dispute with the Bush administration over the date of their terms’ expiration. Berry, a harsh critic of the Bush administration’s failure to address the alleged widespread voter disenfranchisement in Florida during the 2000 presidential election, disputed the administration’s claim that her time on the panel was up, according to a December 6, 2004, UPI report in The Washington Times:
A member of the commission for 24 years, Berry said she had no intention of leaving her post, setting up a clash with the Bush administration. The White House, citing court precedents, said the terms of Berry and Vice Chairman Cruz Reynoso expired at midnight Sunday. Berry said commission documents show her appointment expires Jan. 21.
(This incident was also discussed in The Washington Post two days later).
The UPI report also detailed Bush’s appointment of Republicans Gerald A. Reynolds and Ashley Taylor, on the same day, to fill the Berry and Reynoso vacancies.
Both Berry and Reynoso had been presidential appointees, leaving the choice for their replacements up to Bush. At the time of their departure, according to its Web site the commission comprised:
With Berry and Reynoso gone from the commission, Bush’s appointment of Reynolds and Taylor caused a shift in the numbers — from three Republicans, three Democrats and two Independents — to five Republicans, two Democrats and one Independent. The shift was in violation of the Code of Federal Regulations limiting membership on the commission to no more than four individuals from a single political party.
Bush’s “Out”: The “Independent” Republican, Abigail Thernstrom
While no publicly available evidence exists to show that Thernstrom changed her party affiliation from Republican to Independent prior to Bush’s GOP appointments on December 6, 2004, the current USCCR Web site lists Thernstrom as an Independent on the Commissioners page. [Editor’s note: ePluribus Media attempted to locate Thernstrom’s voter registration records, but laws in Massachusetts (the state in which Thernstrom resides) prohibit the release of those records].
Click a layer deeper, to her individual biography page, and note that Thernstrom was still listed as a Republican as of late July 2005:
Additionally, Thernstrom’s biography posted at the USCCR Web site details many of her conservative affiliations:
The Manhattan Institute, the Independent Women’s Forum and the Ashbrook Center for Public Affairs (the latter, where Thernstrom was an invited speaker in 1998) were all cosponsors of the Conservative Political Action Conference’s CPAC 2005 convention.
The Manhattan Institute and The Institute for Justice are associate members of the State Policy Network; and the Center for Equal Opportunity and the Independent Women’s Forum are also under the umbrella of the State Policy Network.
Additionally, Thernstrom donated to $500 to George W. Bush’s reelection campaign on July 9, 2004, according to Open Secrets.
Not only is Thernstrom serving as the actual fifth Republican on the commission, the Bush administration also named her as its vice chair.
Thernstrom was transformed, courtesy of The Washington Times and United Press International, from a Republican into an Independent on December 6, 2004, the same day as Bush’s appointment of two Republicans to the USCCR.
The text in the December 6 issue of The Washington Times carried this article on Bush’s appointments:
…Another commission member said that Mr. Reynolds will be the new chairman of the commission, while Abigail Thernstrom, a Republican appointee who is a registered independent, will be vice chairman. Both those posts require the approval of the sitting commissioners….
And within a matter of hours, UPI broke the news that, indeed, “…current Commissioner Abigail Thernstrom, an independent, was designated the new vice-chairman.”
These are the first documented reports of Thernstrom’s change of political affiliation. From her appointment in 2001 until as late as October 2004, nearly every newspaper article in the U.S. press — including reports in The New York Times, the Pittsburgh Tribune-Review and The Washington Times — referred to her as a Republican. Those that didn’t, referred to her as a conservative.
The only reporter to address the issue of Thernstrom’s transformation was Dan Froomkin of The Washington Post. On December 9, 2004, Froomkin wrote about Thernstrom’s switch in political affiliation, pointing out that Bush’s nominations to replace the departing commissioners overloaded the panel with Republicans. In his column on December 10, 2004, he relayed the explanation of “a USCCR spokesperson,” who said that Thernstrom was registered as a Republican in the March primary election but had become an Independent “sometime before the November election.” Apparently taking the spokesperson’s word and obtaining no public statement from Thernstrom, neither the columnist nor his newspaper revisited the Independent/Republican issue again.
In an ironic coda to the complex commission-stacking affair, The Denver Post’s Washington bureau blog reported in June 2005, “Commission vice chair Abigail Thernstrom, a political Independent, said the current panel is trying to avoid past partisanship.”
Contributors to this article: Jill Lehnert, SusanG, Sue in KY, Biblio, Sawcielackey, Ron Brynaert, JeninRI.