Op-Ed: Could the Senate keep Roy Moore out if he were elected? Don’t bet on it

Roy Moore, the Republican candidate for the vacant Alabama Senate seat left by Atty. Gen. Jeff Sessions, has been accused of sexual misconduct with several teenagers. So far, he has stridently maintained that he will not withdraw from the race, leading to speculation about whether the Senate could refuse to seat him or expel him if he were to win the special election Dec. 12.

Most constitutional law experts agree that under the Supreme Court decision Powell vs. McCormack, the Senate can’t refuse to seat Moore. There is much more uncertainty, however, over whether he could be expelled after he takes his seat.

In 1967, the House excluded New York Rep. Adam Clayton Powell Jr. at the beginning of the 90th Congress because Powell had been accused of misappropriating public funds. He challenged the House’s decision, and the Supreme Court held that, because Powell met the Constitution’s age, residency and citizenship requirements, he had to be given his seat.

The justices rejected the House argument that it had expelled Powell as allowed by the Constitution. Article I, Section 5 states that “each House [of Congress] may determine the Rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two- thirds, expel a member.” Two-thirds of the House had voted against Powell, but because the congressman had never formally been seated, it didn’t count as expulsion.

The justices further pointed out that the misconduct at issue occurred prior to the convening of the 90th Congress, and that the House’s own manual of procedure at the time stated that “both Houses have distrusted their power to punish in such cases.”

In the Senate, there have been 15 expulsions. During the Civil War, 14 senators were unseated for cooperating with the Confederacy. Another was expelled in 1797 for treason. These actions seem justified, even obvious. But how far does the power to expel extend?

Imagine if one political party controlled two-thirds of the Senate or the House; could that party exclude a member solely for partisan reasons? The answer surely should be no. If the power to expel is limited under those circumstance, it is not hard to imagine other limitations as well.

Take Roy Moore. As despicable a figure as he is (besides the allegations of sexual misconduct, he has twice had to leave judicial office for refusing to obey the law), the people of Alabama may want him in the Senate. Is it fair to allow senators from other states to exclude him and, given the court’s comments in Powell, for conduct that he engaged in long ago?

In the Powell decision, the court underlined its doubts about the reach of the expulsion power: A “fundamental principle of our representative democracy is, in Hamilton’s words, ‘that the people should choose whom they please to govern them.’ … As Madison pointed out at the [Constitutional] Convention, this principle is undermined as much by limiting whom the people can select as by limiting the franchise itself.” Allowing the Senate to expel a sitting member for conduct prior to winning the election may appear to the court to also deny people the right to “choose whom they please to govern them.”

The current Congressional Research Service manual for the House employs similar langauge: “The reticence of the House to expel a Member for past misconduct after the Member has been reelected by his or her constituents, with knowledge of the Member’s conduct, appears to reflect the deference traditionally paid in our heritage to the popular will and election choice of the people.” Of course, other legal and political considerations could also come into play should this issue ever reach the court.

Leading figures in the Republican Party, such as Senate Majority Leader Mitch McConnell and South Carolina Sen. Lindsey Graham, have publicly said Moore should withdraw from the race. They should use all the pressure they can muster to convince Moore to withdraw. Otherwise, the people of Alabama may well get their way, for an entire six-year term or more.

Eric J. Segall, a law professor at Georgia State University, is the author of “Supreme Myths: Why the Supreme Court Is Not a Court and Its Justices Are Not Judges.”

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