A Thought on Gavin Newsom's Recent United States Senate Appointment - It's Time to Change the System

Elective Statewide Offices in California Should be Filled by Special Elections Rather Than Gubernatorial Appointment

Last week, Governor Gavin Newsom appointed Maryland resident, Uber lobbyist, political consultant, and Mark Ridley-Thomas character witness, Laphonza Butler, to the United States Senate to replace Senator Dianne Feinstein, who died at the age of 90.¹

Most Californians are still mourning the loss of Senator Feinstein, who was laid to restlast Thursday. She was one of California’s greatest leaders and we are truly better off because of her life of devoted public service.

While many mourn Senator Feinstein, some have criticized the appointment of Senator Butler (loudly if they’re Republicans, rather quietly if they’re Democrats, particularly if they’re politically active). But many more are questioning the process.

This year, Senator Feinstein announced she was not seeking re-election in 2024. Three highly accomplished and politically experienced candidates, Congressman Adam Schiff (D-Glendale), Congresswoman Barbara Lee (D-Oakland), and Congresswoman Katie Porter (D-Irvine), had been running credible campaigns to succeed her.

With Governor Newsom’s appointment, some are speculating about whether Senator Butler might run for Senator Feinstein’s seat and up-end the current Senate race. She has not said whether she will. As the former President of Emily’s List and powerful labor union leader, she likely would have the fundraising ability to do so.

While Republicans have openly criticized Governor Newsom’s appointment, many Democrats, including supporters of Congressman Schiff, Congresswoman Lee, and Congresswoman Porter, have been quietly mouthing the same thing. They dislike that their chosen Senate candidate could be forced out of the race in favor of someone who had not even previously served in elected office.

However, there are deeper issues at play beyond simple politics. In a democratic system, should vacant elective offices be filled by appointment rather than election? Is it fair that unelected candidates can run for election with the benefit of incumbency they did not earn? Is upending competitive elections a good idea? Given the enormous power of the Governor, is there a potential for corruption?

Governor Newsom’s appointment of Senator Butler follows a multi-year political drama that included:

1. Vulture-like speculation and covert lobbying over who Governor Newsom would replace Senator Feinstein with after she died (while she was still very much alive).

2. A promise from Governor Newsom to a daytime MSNBC political talk show host that he would only appoint a black woman to Senator Feinstein’s seat.

3. Angry demands of Congresswoman Lee’s supporters that Governor Newsom appoint Congresswoman Lee to Senator Feinstein’s seat.

4. Accusations of racism labeled against Governor Newsom when he promised that he would only appoint a caretaker to replace Senator Feinstein out of concern for having a fair democratic process and not giving one candidate an advantage over another. Apparently wanting a fair process and open democracy is now “racism”.

5. Congresswoman Lee, along with her supporters, demanding that Governor Newsom appoint a black woman to Senator Feinstein’s seat who would not be a caretaker but someone who would run for election to the Senate seat in their own right with a decided electoral advantage.

6. Governor Newsom then seemingly rescinding this public promise after appointing Senator Butler, suggesting she might not be a caretaker after all and was free to run for the seat (legally, she would be anyway).

7. An extreme attempt at gaslighting by some to claim that Senator Butler in fact currently lived in California, after Senator Butler changed her own social media pages to no longer show that she lived in Silver Spring, Maryland and Emily’s List changed her biographical page on their website biographical page. (Though many had already taken screenshots and the Los Angeles County Registrar reported she had registered to vote, online, in Los Angeles County on October 1).

None of this makes me feel particularly good or confident about the state of politics or democracy in California. Having watched this all unfold, I conclude that the system for filling United States Senate vacancies and vacancies in statewide elected office in California should change.

The reason that so many forces scrambled to manipulate the appointment process is because incumbency creates a significant advantage for a political candidate.² In American politics, a challenger typically has the burden of making the case to the electorate to remove the incumbent from office. Absent extraordinary circumstances, most voters prefer to keep an elected official in their job.

Candidates who are appointed to an elected office often receive these same advantages of incumbency when they run for election to that office even though they did not gain the advantage of incumbency electorally.³ Appointments to fill an elected office can also change the trajectory of an election.

Governor Newsom’s previous appointments demonstrate this. In 2021, Governor Newsom appointed California’s current senior Senator, Alex Padilla, Secretary of State Shirley Weber, and Attorney General Rob Bonta.

In all three cases, Governor Newsom’s appointment changed the trajectory of the elections. In the case of Senator Padilla, no other Democratic candidates emerged to run as might have occurred in an open election. Instead, prominent Democrats avoided the race and endorsed the incumbent. Other Democratic candidates running for Secretary of State and Attorney General ended their campaigns.

For United States Senate appointments, a basic fairness issue arises. California only has two United States Senators for 40 million residents. Unlike our statewide elected officials, who may serve just two terms in office, United States Senators have no term limits.⁴

Thus, even the most talented, hardworking, and accomplished elected officials in California will rarely make it to the United States Senate. Appointing a Senator who skips a competitive process against others receives an unearned advantage instead of having won the office after a fair fight for the seat.

Additionally, a problem of public perception arises with appointed statewide constitutional officers. Our statewide elected officials are not subordinates of the Governor but instead run their own constitutionally independent offices.⁵ When the officeholder owes their job to the Governor rather than the voters, the public will question how independent they really are and whose interests they are serving.

I found the fact that many people wanted an unfair advantage to be conferred upon their preferred candidate or even privately lobbied Governor Newsom to give them an unfair advantage as an appointed incumbent United States Senator to be unseemly.

We should want a fair electoral process that benefits the electorate, not a way in which a privileged few can gain unearned advantage through undue means.

Competitive elections are what constitutes a true democracy. Even in jurisdictions that are safe seats for one party or the other, competitive primaries, non-partisan elections, and California’s top two system ensure competitive and fair elections where candidates are not simply handed an office without voters having their say.

Uncompetitive elections aren’t something we should want in American politics. And it deeply bothers me that so many in politics actively pushed for this outcome.

I say this even when the appointment is of someone who I deeply like and respect, like Senator Padilla. I would have voted for Senator Padilla over other potential Democratic candidates in a competitive U.S. Senate election.⁶ However, I can acknowledge the inherent unfairness to other potential candidates in his appointment.

Many potential prominent Democratic candidates were viewed as potential candidates for the United States Senate. However, once Senator Padilla was appointed, those candidates did not run. They would have had to face a powerful incumbent and would have likely lost.

While unfair to those potential candidates, it was even more unfair to the voters.

Competitive races make our elected officials better and stronger. Those who win contested races are ultimately more attuned to the needs of constituents and more willing to listen to alternative views on major policy issues. This is a natural consequence of being more aware of the possibility of defeat. And having had to persuade voters rather than the Governor to place you into office.

In California, competitive statewide elections help ensure elected officials understand the very different and highly complicated constituent needs of this large and very diverse state.

Among other topics, a statewide elected official will have to be able to comfortably converse about subway expansion with Nob Hill and Downtown Los Angeles residents, environmental protection of Lake Tahoe with rural Northern Californians, BART funding with Bay Area suburbanites, agricultural water issues with Central Valley farmers and ranchers, Salton Sea preservation with Lower Mojave Desert residents, and major roadway infrastructure projects with Inland Empire and Orange County exurbanites.

A statewide elected official needs to be equally fluent in the languages spoken by those working in the agricultural, tourism, entertainment, oil and gas, heavy manufacturing, military defense, and technology industries. Just to name a few.

None of these constituent needs are subordinate to each other in importance. Competitive races ensure that our statewide elected officials can grasp these needs and act responsively.

Some acknowledge the problematic nature of the current appointment process but argue that Senator Butler’s diversity (she is an openly lesbian black woman) outweighs all other concerns regarding democracy and electoral fairness.

Although I value diversity, especially for those serving in elected office, I disagree with this conclusion. For one thing, the need for diversity in elected office does not outweigh the interests of free and fair elections and integrity of the political process.

More importantly, these arguments fail to consider the reason for why diversity is so important. The same reasons for valuing diversity in elected office are the same reasons why we want a fair process for replacing vacant elective offices.

Diversity is not an end to itself. After all, when we speak of diversity in terms of race, ethnicity, religion, sex, sexual orientation, or gender identity, we speak of an individual’s immutable characteristics that have no impact on one’s ability to perform in society and are (or might as well be) an accident of birth. These are characteristics that should never be used to treat individuals differently.

The purpose of valuing diversity is to advance our democratic system. California is home to every race, ethnicity, sexual orientation, religion, and gender identity on the planet. No racial or ethnic group comprises the majority. We want to ensure that every Californian has equal opportunity to compete regardless of their identity and where the people have the opportunity to be led and represented by the very best.

When an individual is held back politically solely because of their race, ethnicity, religion, sex, sexual orientation, or gender identity, it’s not just that individual candidate who loses out. Everyone else in society loses out too. We are deprived of the best leaders and the best representatives because society as a whole was unwilling to consider them for reasons that are spurious at best.

Appointments to vacancies in elected offices present the same problem. The public does not get the opportunity to select from a full panoply of the best possible candidates. Instead, the public has its elected officials picked for them. We lose out just like we do when societal prejudices prevent the best and the brightest from getting elected to lead and represent us.

Although we are not a perfect society, California has demonstrated that these immutable characteristics will often not serve as a barrier to major elected office. The success of black women in California politics demonstrates this.

African Americans comprise just 5.8% of California’s population yet three of our eight statewide constitutional officers are African American, two of whom are women.⁷ While African Americans comprise only 5.1% of of San Francisco, both its Mayor and District Attorney are black women. And while African Americans comprise only 8.3% of Los Angeles, our Mayor is a black woman.

These individuals did not get elected to high office because they were black women. These are highly accomplished individuals who got elected to high office because of their own hard work and merit and record of accomplishments.

Their respective electoral victories demonstrate that while societal prejudices and bigotry undoubtedly still exist, their race and sex was not an unbreakable barrier to them getting elected to high office. While many highly qualified candidates have been held back because of stereotypes about what a leader should look like, enough voters in California will vote for the best candidate instead.

That’s something to proudly acknowledge.

By and large, California voters are not voting as ethnic blocs, as seen in recent competitive Senate elections in 2016 and 2018.⁸ These races featured general elections between two Democrats where race and ethnicity would be more likely to play a deciding factor.

In 2016, Kamala Harris defeated Congresswoman Loretta Sanchez (D-Anaheim) despite the fact that Hispanics/Latinos far outnumber African Americans in California, with a majority of Hispanic/Latino voters preferring Harris over the rival candidate of their same ethnicity.

In 2018, Senator Feinstein faced then State Senate President Pro Tempore Kevin De Leon (D-Los Angeles) who is Hispanic/Latino. While De Leon won California’s most rural and whitest counties, Senator Feinstein handily won urban and suburban counties with large Hispanic/Latino populations. Most voters did not use race as the criteria for choosing who would represent them in the United States Senate.

If Californians can remove barriers to elected office based upon immutable characteristics, there should be no reason that we can’t also remove unfair advantages gained through appointments to elected offices.

Now, some are attempting to make these appointments an issue to attack Governor Newsom over. This is a mistake. Governor Newsom hasn’t done anything wrong by appointing these officeholders.

Currently, California law requires the Governor to appoint vacancies to the United States Senate.⁹ The California Constitution requires the Governor to fill vacancies of statewide elected office.¹⁰ Thus, Governor Newsom is using the power he has been constitutionally and statutorily given. Whether he wants this power, he’s required to exercise it.

Elsewhere, we have witnessed Senate appointment malfeasance. Some Governors have used their power of appointment to (1) appoint their wives, (2) appoint their children, (3) attempt to sell a Senate seat, (4) arrange to have themselves appointed to the Senate, (5) carry on bizarre public selection processes demonstrating personal favoritism, and (6) appoint individuals who had just lost an election to the Senate.

Governor Newsom hasn’t done any of that with his appointments. However, the fact that the potential for a governor to do these types of things exists is exactly why we need to change the system. The unseemly lobbying over Senator Feinstein’s seat in order to obtain undue advantage for individual candidates more than demonstrates the possibility exists and the need for that change.

How can this change be accomplished?

There are proposals to amend the United States Constitution to require elections for all United States Senate vacancies. This amendment could allow for temporary appointed Senators provided that those appointed Senators could not run for the office. Although constitutional amendments are very difficult to enact, this is something that should garner broad political support across the ideological spectrum.

However, California does not have to wait for the federal constitutional change to occur. Moreover, a federal constitutional amendment will not change our process for appointing vacancies in statewide elected constitutional offices.

California can switch to requiring special elections for all vacant United States Senate seats without a federal constitutional amendment.¹¹ This would only require a statutory change that could be made by the State Legislature or through the ballot initiative process which would prevent the Legislature from changing it.

The California Constitution can be amended to require that all vacancies in statewide elected offices other than the Governor’s office be filled by a special election. The special election could require a top two system to ensure that no one is elected by fluke in a low turnout election and without a majority of the vote. These two changes could also be combined into one single constitutional initiative.

Regardless of political party or place on the ideological spectrum, we should be able to agree on the importance of fundamental fairness in our electoral system. Requiring elections for vacancies in elected office will only strengthen our democratic system.

No candidate should be given an unearned advantage in an election. When there are vacancies in elected office, these vacancies should be filled by the voters, not the Governor.

1. I use this description slightly tongue-in-cheek. Senator Butler is quite individually accomplished even if she is largely unknown to the public and is very politically knowledgeable. For a temporary appointment to the United States Senate, one can see why Governor Newsom would want to appoint her. She has pre-existing relationships with many other Democratic Senators. She has a deep knowledge base of what the Democratic Senate Caucus, currently possessing only a one seat majority, needs. The description I use for her is not meant as a criticism of her. However, the descriptions are factually accurate and they are what many Californians though have undoubtedly woken up to hear who their new United States Senator is.

Historically, this appointment is rather unprecedented. The closest analogue would be 1964 when Governor Pat Brown appointed White House Press Secretary Pierre Sallinger to fill the United States Senate seat of Senator Clair Engel, who died in office. As he was working in Washington, D.C. for the Kennedy and Johnson administrations, there were residency questions raised in his campaign.

However, Sallinger had already been running for the United States Senate when Senator Engel died, so he had already been living in California for some time when he was appointed. Additionally, he had already faced the voters in a competitive Democratic Senate Primary and had become the Democratic Party’s nominee to the seat when he was appointed.

2. Cal. Const. Art. IV, § 1.5 (“The people find and declare that the Founding Fathers established a system of representative government based upon free, fair, and competitive elections. The increased concentration of political power in the hands of incumbent representatives has made our electoral system less free, less competitive, and less representative. The ability of legislators to serve unlimited number of terms, to establish their own retirement system, and to pay for staff and support services at state expense contribute heavily to the extremely high number of incumbents who are reelected. These unfair incumbent advantages discourage qualified candidates from seeking public office and create a class of career politicians, instead of the citizen representatives envisioned by the Founding Fathers. These career politicians become representatives of the bureaucracy, rather than of the people whom they are elected to represent. To restore a free and democratic system of fair elections, and to encourage qualified candidates to seek public office, the people find and declare that the powers of incumbency must be limited. Retirement benefits must be restricted, state-financed incumbent staff and support services limited, and limitations placed upon the number of terms which may be served.”).

3. It should be noted that gubernatorial appointments to vacant elective offices in California do not aways guarantee that individual is elected.

In 1964, when Governor Pat Brown appointed former White House Press Secretary Pierre Salinger to fill the vacant Senate seat of Senator Clair Engle, he was defeated for re-election by George Murphy that November. In 1991, Governor Pete Wilson appointed State Senator John Seymour to fill his vacant U.S. Senate seat. He was defeated for re-election in 1992 by Dianne Feinstein.

In 2005, Governor Arnold Schwarzenegger appointed State Senator Bruce McPherson to serve as Secretary of State after the resignation of Kevin Shelley. He was defeated for re-election to a full term in the 2006 elections. In 2010, Governor Schwarzenegger appointed State Senator Abel Maldonado to serve as Lieutenant Governor after the resignation of John Gariamendi. He was defeated for re-election to a full term in the 2010 elections.

However, appointed incumbents to vacant elective offices will typically win re-election if they seek an election to the full term of office.

4. Cal. Const. Art. V, § 11 (“No Lieutenant Governor, Attorney General, Controller, Secretary of State, or Treasurer may serve in the same office for more than 2 terms.”).

5. See Cal. Const. Art. V, § 6 (“Authority may be provided by statute for the Governor to assign and reorganize functions among executive officers and agencies and their employees, other than elective officers and agencies administered by elective officers.”).

6. Senator Padilla has long been considered a political moderate. And he has a long political record. A native of Pacoima whose parents immigrated from Mexico, Senator Padilla returned to LA after graduating from MIT to run for City Council at the age of 27. He won in what was considered an upset.

Senator Padilla had won election statewide twice as Secretary of State including a highly contested 2014 election. While serving as Secretary of State, he helped rebuild the office, successfully oversaw massive transition to new voting systems and implementation of new voting procedures, and navigated our elections fairly smoothly through the COVID19 pandemic.

He also had the integrity to refuse to enforce an unconstitutional statute regarding the boards of publicly traded corporations. His appointment also did not come out of nowhere. He had built up a strong political record. He had previously served in the California State Senate and the Los Angeles City Council, where he had been the youngest Los Angeles City Council President.

In that role, I’ll never forget his strong leadership when he was unexpectedly the acting Mayor of Los Angeles on September 11, 2001. On a day when many elected officials were missing in action, Senator Padilla’s calming presence helped reassure Angelenos that we would be safe and protected. I once brought this up at the 2015 annual gathering of the California Political Attorney’s Association when he was the guest of honor and in the list of introductory remarks praising his accomplishments, this one was omitted.

7. The first black candidate to win statewide elected office in California was Democrat Wilson Riles. He ran for Superintendent of Public Instruction in 1970. He ran against arch-conservative Republican incumbent, “Mad” Max Rafferty. Although most doubted that a black candidate could win statewide, Riles defeated Rafferty for re-election.

8. There are still jurisdictions where racial voting patterns unfortunately do still exist and where the California Voting Rights Act is still needed to promote the opportunity to elect minority candidates to office. But by and large, we are seeing a much more enlightened electorate.