One Possible Ending to the Roy Moore Saga—Expulsion

The Senate has essentially unchecked power to remove its members.

A watertight Washington Post report last Thursday charged that, in 1979, Judge Roy Moore—the Republican candidate in the Alabama’s December 12 special election for the U.S. Senate—had, as a 32-year-old assistant district attorney, made sexual advances on a girl who was then 14. The woman, who spoke to the Post in multiple on-the-record interviews, is joined by three others who also say that Moore also pursued relationships with them around the same time period, when they were between the ages of 16 and 18. (Another woman came forward on Monday afternoon another in a press conference with Gloria Allred to say that Moore sexually assaulted her outside a restaurant where she worked, weeks after her 16th birthday.)

Moore has given no indication he will drop out, calling the Post story “intentional defamation,” and yesterday’s allegations “absolutely false.” Meanwhile, Alabama election laws are complicated, and Democratic candidate Doug Jones likely still may not win in deeply conservative Alabama. What follows is a tangled, but plausible hypothetical that now has top Republicans openly discussing what would be the first expulsion of a U.S. Senator since 1862.

Shortly after Moore dismissed the Post story last week, his defeated primary opponent Senator Luther Strange said he was researching his options for a potential candidacy, and probably learned quickly that none of them were good. Alabama has a “sore-loser” law barring Strange’s name from appearing on the ballot if he tries to run as an independent, and the party cannot replace Moore this late in the race. In a Strange write-in campaign scenario, even one in which Moore drops out, Moore’s name stays on the ballot with an “(R)” next to it, which could split the GOP vote and make Doug Jones the first Democratic Senator from Alabama in a quarter century. On Monday night Strange told NBC, “right now a write-in candidacy is highly unlikely.”

If Strange stays out, recall that Alabama is redder than a Crimson Tide football helmet. Doug Jones is outperforming Hillary Clinton, who got blown out in Alabama by 28 points last November, but he still trailed Moore by 9 points in the RealClearPolitics average before the Post story broke. None of the three public polls since the allegations against Moore surfaced have shown Jones leading outside the margin of error, and an Emerson College poll released today in which Moore took a sizable hit still has him winning by 10 points.

In a scenario floated by anonymous White House officials to the Times, Alabama Gov. Kay Ivey could simply preempt the special election entirely by immediately appointing Jeff Sessions to the seat, which he held until his appointment as attorney general. That could be wishful thinking from the West Wing—as recently as yesterday afternoon, Ivey was telling reporters that the election would proceed as scheduled.

For now, the Republican Party appears saddled with a United State Senate candidate facing credible allegations of sexually abusing high schoolers and the serious possibility that said candidate might win.

What happens if he does?

In an interview with the New York Times this weekend, Mitch McConnell “declined to say whether he would agree to seat Mr. Moore should he win.” That’s likely because if Roy Moore wins, the Senate has to seat him.

For a long time, Congress took the Constitution to mean they could could refuse to seat members for any reason. That changed in the late 1960s, when Adam Clayton Powell, a Harlem Congressman, was expelled by the House of Representatives following an investigation into financial impropriety and a separate contempt of court ruling by a New York State judge.

Powell decamped to the islands of Bimini, but in the ensuing special election, 86 percent of his constituents voted to send him back to Capitol Hill. When the House then resolved not to seat him, Powell sued the House Speaker for denying his constituents’ wishes and for back pay on his congressional salary. In 1969, the Supreme Court ruled 7-1 that the House could refuse to seat duly elected members only for the reasons explicitly stated in the Constitution—age, residency, and citizenship. If Roy Moore wins the election, he will be sworn in.

At that point, the Senate could adopt a resolution censuring Moore for “bringing dishonor and disrepute” to the chamber, as it has done for numerous members in the past, including Joseph McCarthy. But since censures don’t carry any formal punishments, a post-election resolution reprimanding Moore might only have the effect of dredging up a (relatively, in this day and age) old scandal, and giving Moore receipts for his anti-establishment brand. Since he wouldn’t be up for reelection until 2020, the negative electoral pressures that are supposed to come out of censure motions would have three full years to diffuse. Moore seems inured to those anyway—when McConnell told reporters that he believes Moore’s accusers and thinks Moore should step aside, Moore responded with this tweet:

The Constitution leaves the Senate one final procedural out if Judge Moore becomes Senator Moore next month and doesn’t resign of his own volition. From Article I, Section 5:

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two-thirds, expel a Member.

In the current Congress, this means that Senate Democrats plus 19 Republicans could remove Moore following his swearing in.

Dozens of Republican senators have commented on the allegations against Moore since Thursday, with the grand majority following a format along the lines of “if these allegations are true, Moore should step aside.” Most importantly, Mitch McConnell and NRSC Chairman Cory Gardner have already raised the expulsion option, probably to dial up the heat on Moore to exit.” Here’s McConnell on Sunday, discussing how he extracted a resignation from Bob Packwood, then a five-term senator from Oregon:

“I ended up making a motion to expel the chairman of the Finance Committee of my own party, which was approved unanimously, and he subsequently resigned,” Mr. McConnell said. “So character does count in America and in the United States Senate.”

But again, if Moore wins, an expulsion motion would turn ugly and complicated. Only 15 senators have been expelled in the Senate’s entire 228-year history. The first was Senator William Blount of Tennessee, who in 1797 conspired with the British and two Native American tribes to seize Spanish-held Florida and Louisiana in exchange for British cash. After one of Blount’s letters implying as much fell into the hands of President John Adams, the Senate removed him by a vote of 25-1. The other 14 were all senators who sided with the Confederate secession and were expelled during the first two years of the Civil War.

Thus, the only scandals that have caused the upper chamber to remove one of its own members are out-and-out disloyalty to the country. And even that hasn’t always guaranteed removal. Senator John Smith of Ohio co-conspired with Aaron Burr to separate western territories from the United States, but his expulsion petition failed by one vote. He resigned in 1808 on the last day of his term.

If the Senate did expel Moore, it could do so with the knowledge that a GOP governor would appoint Moore’s replacement, and leave the tenuous ratio of the Senate’s Republicans and Democrats unchanged. According to state law, Ivey would have to call for yet another special election—Ronald Krotoszynski, a law professor at the  University of Alabama, said that would likely come in the November 2018 general election, the date originally set by Gov. Robert Bentley before he resigned in disgrace this past April. And yes, if expelled, Moore would be eligible to run for Senate again. As would Strange.

Still, expulsion would be an extraordinary and incredibly convulsive process in the absence of a criminal conviction or a Senate inquiry, and the question is whether the Senate would have any appetite for it. Bob Packwood’s expulsion petition and preemptive resignation in 1995 came after, coincidentally, a front-page Washington Post story documenting harassment allegations, but also a long investigation and a 10,145 page report by the Senate Ethics Committee. Nearly three years passed between the Post exposé and Packwood’s leaving office.

Expulsion for Moore would also break with how Congress sees itself and its constitutional role. Consider this, from a 1914 report of the House Judiciary Committee, quoted in a Congressional Research Service report [emphasis added]:

As a matter of sound policy, [expulsion], in our judgment, should be exercised only in extreme cases and always with great caution and after due circumspection, and should be invoked with greatest caution where the acts of misconduct complained of had become public previous to and were generally known at the time of the Member’s election. To exercise such power in that instance …might exceed the just limitations of [the House’s] constitutional authority by seeking to substitute its standards and ideals for the standards and ideals of the constituency of the member who had deliberately chosen him to be their Representative. The effect of such a policy would tend not to preserve but to undermine and destroy representative government.

By now a substantial majority of the Senate has preemptively (albeit contingently) declared Roy Moore unfit for office. But if he becomes the duly elected Junior Senator from Alabama, he will force those senators’ statements into conflict with that old H.L. Mencken saying—“Democracy is the theory that the common people know what they want, and deserve to get it good and hard.”

It will not be pretty.

Alex Caton

Alex Caton is a former intern at Washington Monthly. He has previously written for Politico Magazine and the Washington Post.