What can and should the Senate do if Roy Moore becomes Senator Moore? If the polls are any indication, Moore stands a great chance of winning the special election Tuesday in Alabama, in spite of the accusations of sexual misconduct that hit the media about a month ago. Moore has maintained his innocence, and just last week one of his accusers admitted she added a note to the now infamous yearbook inscription that she previously presented as key evidence to bolster her story.
The pro- and anti-Moore camps are sharply divided. Many believe there is still sufficient question surrounding the controversy to render Moore unfit for office, while others are staunch supporters and believe he is innocent until proven guilty. Unfortunately for the election, the “proving” part won’t happen before Alabama voters cast their ballots (if ever, since no allegations thus far reported will result in criminal prosecution).
This feels like the 2016 presidential election all over again, with still others calling for an independent or third-party vote, refusing to support what they call “the lesser of two evils,” which ironically has been used to describe both Moore and Jones (just ask Sen. Jeff Flake, R-Ariz.). But unlike the presidential election, the Republican candidate is still the clear favorite to win.
Sen. Cory Gardner, R-Colo., has said he would support expelling Moore from the Senate if Moore wins Tuesday’s special election, and the GOP made no secret of its disdain for him during the primaries, even though both the Trump administration and the RNC have reinstated their support for Moore.
Assuming Moore wins, what can the Senate do about it? There is a clear constitutional distinction between expulsion and exclusion. Exclusion would occur if the Senate refused to allow Moore to take his seat, whereas expulsion would be by process of the Senate after Moore took his oath of office.
The Supreme Court, as recently as 1969, heard a very similarly situated exclusion challenge in Powell v. McCormack. Adam Powell, a duly elected representative, was clouded with allegations of misdeeds prior to winning his election, including misappropriating congressional travel funds. Powell was still elected in 1966 and when the 90th Congress convened in January 1967, then-Speaker of the House John McCormack insisted that Powell refrain from taking his oath of office.
The House adopted a resolution which, among other things, excluded Powell from taking his seat and created a committee to investigate the allegations against Powell. He filed suit, which claimed that excluding him amounted to an expulsion. Constitutional law enthusiasts would find the rest of the case history quite fascinating, but related to Moore and our current Senate’s likely forthcoming question, we’ll skip the case history to the Supreme Court ultimately taking up Powell’s case.
The Supreme Court in Powell held that the Qualifications of Members Clause of Article I pertaining to the House of Representatives is an exclusive list of qualifications, and that Congress does not have the constitutional authority to develop its own qualifications additionally to those specified. In other words, Congress in each House may only exclude a duly elected member for reasons actually enumerated in that clause.
Article 1, Section 3.3 provides the qualifications of senators and says in its entirety:
No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.
Moore clearly meets the enumerated criteria specific to the Senate’s qualifications clause. The Powell Court held that Congress has no constitutional authority to exclude a duly elected member, but rather that their Article I authority for expulsion is post facto—only after the member takes up his seat.
Interestingly, Powell was decided after Amendment 17 was ratified in 1912, which changed the process of electing senators. Originally in the constitutional design, senators were elected by their state legislatures because the Founders intended Congress to be representatives of both the people and the states as a sovereign entity. The Senate would represent the several states and the House would represent the people of the several states. That is also why the Senate has two members for each state by constitutional mandate, but the number of Representatives may change.
There are some scholars, myself included, that support a repeal of Amendment 17 and a return to the original federalist design. Consider how differently this special election would have gone had the Alabama legislature determined the fate of Attorney General Jeff Sessions’ vacated seat. Beyond this special election, consider how drastically different our Senate composition might be, and how much more important the people of the several states might realize state and local elections are. I think the Founders had an excellent rationale for the original election process, and Amendment 17’s history is full of unintended collateral consequences.
Nevertheless, the Supreme Court has made it quite clear that Moore would indeed constitutionally take his oath of office and cannot be excluded from doing so if he wins the special election.
But the Constitution has another clause specifically for expulsion, found in Article 1, Section 5. This clause provides that “Each House may determine the Rules of its proceedings, punish its members for disorderly behavior, and, with the concurrent of two-thirds, expel a member.”
The process differs between each chamber, and in the Senate the process begins with the Select Committee on Ethics; however, expulsion constitutionally requires the two-thirds vote to actually expel a member.
There is clear congressional precedent and history that would likely support the Senate’s authority to expel Moore if the ethics committee recommended his expulsion after investigation and the recommendation received the required two-thirds vote.
However, the precedent and history have also indicated that Congress generally pursues expulsion for events that are alleged to have happened while the member is in office. The history of matters pursued for expulsion have ranged from campaign finance violations to expulsion for supporting the Confederacy.
In 1983, a North Dakota senator was accused of embezzlement, alleged to have occurred 13 years prior to his election. The Senate in that instance determined that it lacked jurisdiction to punish a member prior to their election. In other cases, such as the 1907 expulsion proceeding against a Utah senator, the Senate decided not to expel the alleged offender because he otherwise fit the constitutional requirements to hold office.
Regarding Moore, the Senate may very well choose to initiate an ethics investigation and pursue expulsion. Whether those leading the charge would attain a two-thirds vote to expel remains to be seen, and depending on what the investigation yields in terms of fact, not just political interests, coupled with the fact that Roy Moore historically has not been a person to go quietly, we also could see the Supreme Court take up a new constitutional issue and look to interpret Article 1, Section 5.
The Powell Court determined that it is the sovereign will and responsibility of the people to determine the candidacy of members of Congress, and the Constitution’s process for congressional administration and discipline of members is only once members have taken office. The question becomes whether that process for discipline then is properly jurisdictionally confined to actions occurring while a member of Congress is in office.
But even if the Senate ultimately can expel Moore, should they? Sen. Susan Collins, R-Maine, said recently on "Face the Nation" regarding Moore, “If the allegations are known prior to the election … then we have a very tough decision to make about whether it’s our role as senators to overturn the will of the people.”
Because Amendment 17 still stands, constitutionally it falls to the will of the Alabama voters whether or not to seat Moore in the first place. Absent a clear showing of the validity of allegations from 40 years ago (in which case Moore should voluntarily resign), the Senate in my view has no business expelling Moore.
We the people have the privilege to vote for those who represent us. If the people of Alabama choose Roy Moore, he should be seated and serve his elected term.
Jenna Ellis (@jennaellisorg) is a contributor to the Washington Examiner's Beltway Confidential blog. She is an attorney and professor of constitutional law at Colorado Christian University, fellow at the Centennial Institute, radio show host in Denver, Colo., and the author of The Legal Basis for a Moral Constitution.
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