Senate Rules May Not Block Roy Moore

Alabama Senate candidate Roy Moore is facing allegations of sexual misconduct involving, among others, a fourteen-year-old girl. The Republican may still win the December 12 special election. But there are bipartisan calls in the Senate to keep Mr. Moore out of Congress. The Senate might do so, but it would be an unprecedented display of power that it should exercise cautiously.

The Constitution vests in each house the power to judge the “Elections, Returns, and Qualifications of its own Members” and may, “with the Concurrence of two-thirds, expel a Member.” The power to exclude and the power to expel differ.

Generally, the Senate has understood that it can only exclude a candidate who failed to demonstrate that he won the election, or one who lacked the qualifications necessary to serve, like being underage or a non-citizen.

The Supreme Court addressed this question when the House of Representatives refused to seat New York’s Adam Clayton Powell due to allegations of corruption. Congress sought to exclude Mr. Powell for his conduct while a member of Congress. He was charged with using congressional committee money to take guests on personal trips abroad.

In Powell v. McCormack, the Court in 1969 concluded that the House could only refuse to seat a member of Congress for lacking a constitutional qualification. It could not add qualifications. The Senate need not heed Powell, but it would likely lose an inevitable lawsuit in the event Mr. Moore was elected.

When it comes to expulsion, the bar is higher. James Madison explained during the constitutional convention that expulsion “was too important to be exercised by a bare majority of a quorum: and in emergencies of faction might be dangerously abused.” The contours of the power to expel are largely left to arguments that can persuade a supermajority of the Senate.

In the entire history of the United States, just fifteen Senators have been expelled—one for treason in 1797, the other fourteen for supporting the Confederate rebellion in 1861 and 1862.

This isn’t to say the Senate’s expulsion power is toothless. Expulsion investigations have prompted senators to resign rather than face expulsion. For example, its investigation into Oregon Senator Robert Packwood’s history of sexual misconduct prompted him to resign in 1995 rather than face expulsion.

But neither chamber of Congress has ever expelled a member for conduct prior to taking office. Indeed, the Court in Powell recognized that both chambers have “distrusted” their power to do so. And the Senate has long been reluctant to expel a member for conduct that arose before he took office.

To name one example, consider the case of Senator William Roach of North Dakota. In 1893, the Senate considered expelling him for embezzlement charges. Several senators argued that they could not expel a member for conduct that arose before he took office, and the Senate ultimately dropped the matter.

It’s within the power of the Senate to reexamine its precedents and decide whether to expel a member like Mr. Moore for pre-election conduct. In doing so, however, it must recognize that it would be an unprecedented exercise of its power. It must carefully and deliberately articulate why this case merits expulsion, what distinguishes this case from past cases, what principles should constrain future expulsions.

It’s worth noting that Congress has refused to expel a number of unsavory politicians. Alcee Hastings was a federal judge who was impeached and convicted for bribery and perjury. He’s been a member of Florida’s House delegation since 1993. At this very moment, New Jersey Senator Bob Menendez is facing federal criminal charges of bribery and fraud arising from his time in office, and the Senate hasn’t moved to expel him.

And we’ve seen bluster from the Senate not too long ago. Illinois Governor Rod Blagojevich appointed Roland Burris to fill Barack Obama’s senate seat. Mr. Blagojevich was then arrested and charged with trying to sell the seat. Senate Democrats insisted that they would never seat Mr. Burris, or that they would expel him. But, after a brief challenge to his credentials, he was seated, and the issue disappeared.

If the Senate chooses to expel Mr. Moore, it risks a major political upset. The Seventeenth Amendment handed the power of electing senators from state legislatures to the people. If the people of Alabama, fully aware of the allegations against Mr. Moore, elect him anyway, how should the Senate respond? Should it defer to the choice of the people of Alabama? Or should it exercise its own judgment and expel a man they deem unfit? And can it meaningfully distinguish between Mr. Moore’s case and the cases of others whose loathsome conduct did not merit expulsion?

Perhaps these questions will be moot. Mr. Moore may withdraw from the race. His opponent, Doug Jones, might win, or a write-in candidate may succeed. In the event Mr. Moore wins, a proper Senate investigation may take weeks, if not months. If it decided to do so, the Senate would consider extensive evidence and weigh the charges leveled against Mr. Moore. And then it must decide whether to act.

Only then will the world’s greatest deliberative body decide how to handle its previous precedent, and what precedent it might be setting for the future. If it does so, we might observe the rare instance of a chamber of Congress combing through English parliamentary practice, Founding-era incidents, and the Senate’s own internal precedent to determine the appropriate scope of its constitutional authority. Let us hope that if it does so, it recognizes the precedent it would set in whatever course of action it takes.