History Rhymes: Newsom’s Butler Appointment Echoes 1964 Salinger Affair

A vacancy caused by the death of a U.S. Senator from California. The Governor of California appoints a Democratic Party operative living in the Washington, DC-area to fill the vacancy. Questions of residency and qualifications could potentially dash the appointment. Across Pennsylvania Ave., the first-term president, a longtime former senator himself, is preparing for reelection. 2023? Yes, but also 1964.

The recent death of Senator Dianne Feinstein (D-CA) prompted Governor Gavin Newsom to announce his appointment of Laphonza Butler as her successor. News reports indicate that Butler now lives in Maryland  but was previously a longtime California resident and intends to re-establish residency imminently. Butler, until the appointment, ran a well-known political fundraising outfit with ties to the Democratic Party.

Eerily similar circumstances surrounded the 1964 death of Senator Clair Engle (D-CA) and Governor Pat Brown’s (D-CA) appointment of Pierre Salinger to fill the vacancy. Salinger served as White House Press Secretary for Presidents Lyndon B. Johnson and  John F. Kennedy until months before the appointment, and was living in Virginia. Like Butler, he was previously a California resident.

The Senate’s process, debates, and decisions in 1964 might be instructive today if the Butler appointment is challenged.

Process

When Salinger’s certificate of appointment came before the Senate on August 5, 1964, Senate Majority Leader Mike Mansfield (D-MT) already knew there would be trouble, or as he referred to it “a little discussion.” Minority Leader Everett Dirksen (R-IL) moved that the Senate refer the matter to the Committee on Rules and Administration before Salinger be sworn in. Dirksen, however, anticipated correctly that Mansfield would make a substitute motion, stating:

“Obviously and properly the majority leader will offer a substitute motion for the motion that I have presented. While I have not seen the substitute, I would have to presume from past experience that the majority leader would ask that the appointee be allowed to take the oath and to take his seat in the Senate without prejudice, then sending the question to the Committee on Rules and Administration.”

Mansfield ultimately made such a substitute motion and the Senate agreed to have the Rules Committee report back on August 13. Salinger was then administered the oath by the president pro tempore. Debate over the motion clarified that “without prejudice” meant that administration of the oath did not nullify future action by the Senate, any individual, or any other institution—such as the courts.

The Rules Committee’s Subcommittee on Privileges and Elections held hearings and took testimony on August 10 and met in executive session on August 11 to consider the matter. On August 12, the Rules Committee reported a resolution to the Senate resolving, “That Pierre Salinger is entitled to a seat in the United States Senate as a Senator from the State of California.” The committee reported the resolution favorably and adopted its accompanying report by a 7-1 vote, and the Senate agreed to it on August 13 – but only after extensive debate.

The lessons from the Salinger case reinforce and reflect Senate precedents chronicled in Riddick’s Senate Procedure. A senator may, when the appointment credentials are presented, make a motion that the seat be denied, but that is not typical. That motion can also be amended. Significantly, the “proper procedure” is for senators designate to be sworn without prejudice while any disputes are referred to committee. When committees report those matters back to the Senate, “…the resolutions to exclude or affirm their membership in the Senate were disposed of by a majority vote at a later date.”

Major Debates

The processes for dealing with disputed Senate appointments shed little light on the vigorous debates and issues involved. If the Butler appointment is challenged, many of the same questions are likely to resurface as in 1964.

• Who may set qualifications for U.S. Senate? The Constitution requires that a senator be at least 30 years of age, a U.S. citizen for at least nine years, and an inhabitant of the state a senator represents at time of election. In the Salinger case, as in similar prior disputes, senators debated whether states may add additional qualifications. Some believed none may be added. Others contended that only additional qualifications which did not conflict with the Constitution’s qualifications were permitted, but that those did bind the Senate.

 Related, the Senate debated the scope of its own ability to judge those qualifications. The Constitution states simply that, “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members.” Senators held different views as to whether they were bound by court decisions, the Senate’s ability to second-guess a governor, and whether the Senate could judge satisfaction of state-imposed qualifications or only those in the Constitution.

• What does “inhabitant” mean? The Senate had more limited debate about the meaning and breadth of what it means to inhabit a state. Some noted the founders purposefully did not write “resident.” How long does someone have to be in a place and with what intentions to “inhabit” it?
• What does California law say about who qualifies to be appointed to the U.S. Senate? In 1964, California law required that to be appointed to a Senate vacancy, an individual must be an elector of the state. State law at the time required electors to be residents of the state for at least one year, which Salinger had not been according to his own Senate testimony. But state law also allowed new residents to vote for president and vice president if they met certain circumstances. Salinger did qualify in that regard. Some held that that alone qualified him as an elector.
• Are governors bound by state legislatures’ additional qualification when making an appointment? During debate over whether state legislatures may enlarge the qualifications to be a senator, it was argued that the 17^th Amendment, which created the ability of governors to make temporary appointments, did not empower state legislatures to put additional conditions on that power. The 17^th Amendment states:

“When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.”

Proponents of this argument believed the legislature could only grant or not grant that power to the governor. If the legislature applied further conditions to the appointment, such as requiring the appointee to meet certain other qualifications, the legislature had exceeded its own authority. A related debate over “severability” arose as to whether in instances where a state had granted the power and applied additional conditions could the governor still make an appointment or was the entire empowering statute void?

Conclusion

The Salinger appointment in 1964 provides a window into how the Senate might consider the Butler appointment if it is challenged and what debates are likely to arise. It is not, however, a precise analog. Salinger and Butler are not identically situated. For example, Salinger had lived in California for some number of days at the time of the appointment and was already the winner of Democratic primary for the seat in the general election. The California Supreme Court dismissed a challenge to his appointment before the Senate weighed in. The California State Constitution, state law, and judicial precedents have also evolved in the nearly 60 years that have transpired, as have federal law and precedents.

One lesson is clear: If the appointment is challenged, the most likely path is that the Senate will administer the oath, without prejudice, pending further committee investigation and report.