If Roy Moore wins the Senate race in Alabama on Tuesday, it may be impossible to expel from Congress, no matter what his fellow lawmakers think of him.
“I don’t believe the Senate has the power to throw him out,” longtime ethics attorney Stanley M. Brand told the Washington Examiner.
Brand, who served as general counsel to the U.S. House of Representatives from 1976-1983, said the allegations against the Alabama Republican date back almost four decades and therefore are outside the jurisdiction of the Senate Ethics Committee, which is tasked with policing the actions of sitting senators.
Moore is accused of sexual misconduct with underage teenage girls and pursuing relationship with teenagers while he was in his 30s. Moore is now 70.
“How are they going to determine what happened 40 years ago?” Brand said. “And from Moore’s perspective, he can say, ‘I’m not testifying about anything other than my standing qualification.'”
Brand points to the 1969 Supreme Court ruling in favor of seating Adam Clayton Powell Jr., who House members refused to seat because he was facing corruption charges.
The court ruled Powell needed only to meet age and citizenship qualifications and House lawmakers had no power to block him from taking office for any other action. The court also ruled Congress held jurisdiction over a lawmaker’s actions only after the oath of office is taken.
A vote by two-thirds of the Senate gives lawmakers the power to expel members “for disorderly behavior.” But Brand and other legal experts argue senators cannot expel Moore based on past actions.
When the allegations about Moore first surfaced weeks ago, some Republicans said he was unfit to be a senator and promised to push him out if he wins. But Senate Majority Leader Mitch McConnell, R-Ky., has avoided pledging to hold a vote to expel Moore if he wins Tuesday.
Instead, McConnell said the matter will be referred to the Senate ethics panel, a bipartisan, secretive body that rarely metes out punishment.
“If he were to be elected, I think he would immediately have an issue with the Ethics Committee, which they would take up,” McConnell said.
Government ethics experts say that panel will have a tough time punishing Moore based on the age of the accusations.
“Having any kind of serious discipline is probably out of the question given that these allegations happened before becoming a member of the Senate,” said Craig Holman, who lobbies Congress for the watchdog group Public Citizen.
Holman predicted the ethics panel will go for a lesser punishment, such as an admonishment or letter of reprimand.
“Democrats will push for something more serious but that’s pretty much out of the question,” Holman said.
A vote to expel Moore, Brand said, would face certain legal challenge.
“I could write the lawsuit today for that,” Brand said. “It would be Adam Clayton Powell II.”
David Mowery, a Republican political consultant based in Alabama, said expelling Moore would anger state voters, since it would serve to overturn the results of the Dec. 12 election.
“That would no go over well in Alabama, I’ll tell you that much,” Mowery said. “It would be like a smack in the face. It would also set a dangerous precedent for them to say, this is how senators are elected but you are not cool enough for our club.”
New polls show Moore and Democrat Doug Jones nearly tied, and some show Moore a few points ahead, even after weeks of Republicans calling on Moore to drop out of the race. Even Richard Shelby, R-Ala., has publicly denounced Moore and said he should not be elected.
“The state of Alabama deserves better,” Shelby said Sunday on CNN. “I think we have got a lot of great Republicans that could have won and carried the state beautifully and served in the Senate honorably.”
Several Republicans, including Sen. Cory Gardner of Colorado, who heads the party’s fundraising arm, have pledged to try to expel Moore if he wins.
“If he refuses to withdraw and wins, the Senate should vote to expel him, because he does not meet the ethical and moral requirements of the United States Senate,” Gardner said on Nov. 13.
But if kicking him out is as tough as the experts say, senators may be stuck with other options, such as refusing to seat him on any committees, which would leave him in a weak position to work on behalf of constituents.
A spokesperson for McConnell said it is up to the GOP conference, made up of all Republican lawmakers, to decided if Moore should sit on any committees if he wins the Senate seat.
“It’s a very interesting case and it pits the disciplinary power of Congress against the right of the people to have who they want in office,” Brand said. “We may think he’s a scoundrel, but it’s not up to us. It’s up to his constituents.”
