Why the Law Might Not Allow the Senate to Expel Roy Moore

[DonViejo]

By STAN BRAND November 22, 2017

resident Donald Trump might be defending GOP Senate candidate Roy Moore against multiple allegations of sexual misconduct, but many Senate Republicans leaders have lined up in opposition to him. “I believe the women,” declared Senate Majority Leader Mitch McConnell last week, calling for Moore to withdraw from the race. GOP senators are even openly discussing the possibility of expelling Moore if he is elected—a Senate power not exercised since the Civil War. But expelling Moore might not be as easy as many Republicans seem to think, at least from a legal perspective.

One Supreme Court case provides a clue about the limits that may be placed on the Senate if it attempts either to deny Moore a seat or to expel him once he has been seated. In 1967, a special House committee determined that New York Rep. Adam Clayton Powell’s staff had falsified travel expenses and caused illegal payments to his wife. Rather than censure and fine Powell for this misconduct, the House voted by a simple majority to exclude—meaning, refuse to seat—Powell after his reelection. Powell sued, and when Powell v. McCormack made it to the Supreme Court, the court held that the House had acted illegally. The court held that while, according to Article I, Section 5 of the U.S. Constitution, “each House shall be the judge of the ... qualifications of its Members,” those qualifications are limited to age, citizenship and residency, as stipulated by Article I, Section 2. In other words, as long as Powell fit the age, citizenship and residency criteria for serving in Congress, the House had no right to refuse to grant him his seat.

The court did allow, however, that the House could have tried to exercise its power to “punish its Members for disorderly behavior and with the concurrence of two thirds expel a Member,” under the separate power conferred on Congress by Article I, Section 5. But that, of course, would have required a two-thirds vote.

This is what the Senate appears to be contemplating if Moore is elected—to seat him first and then commence an ethics investigation based on the allegations of sexual misconduct, which if proved could form the basis for expulsion.

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https://www.politico.com/magazine/story/2017/11/22/why-the-law-might-not-allow-the-senate-to-expel-roy-moore-215858

[vi5]

1. I haven't seen the latest polls.....

...last I saw Jones had a lead over Moore in the polls. Has that been lost already?

I also read an article on how the state Democratic party did not have the infrastructure to be able to take advantage of the momentum, so it wouldn't surprise me.

[LisaL]

2. I don't think the lead ever was real.

Some might be ashamed to admit they plan to vote for Moore.

[vi5]

4. I know that this is Alabama.....

...so I'm not saying I expect Jones to be leading by 20 points, or even 10. But man, if as a party even in a deep red state, we can't capitalize on and be able to make SOMETHING out of something like this then that points to what I feel is one of the biggest problems with our party.

The problem is (and I think we saw this to some degree last year with Trump), the people in charge of running our campaigns think they can count on people to just connect the dots themselves, or to make the right decisions without anybody on our side having to get their hands dirty or run attack ads or connect people to this reprehensible behavior.

I think one of the most damaging victories we've ever had was when we won against the guy who said the thing about "actual rape" or "real rape" or whatever the specifics of it was. I feel like ever since then our approach to almost every campaign (including presidential 2016) has been to just lay low, wait for the Republicans to say or do something stupid or offensive and then sit back and wait for the people to make the right connections and vote the right way. And other than that one instance, it doesn't happen.

[spanone]

3. if anyone thinks this senate will not seat and champion mr moore if he is elected is delusional

[Igel]

5. It's far from clear they have the authority to refuse to seat him.

It's the people's house. Moore meets the requirements--sort of the point of the OP is to point out what the requirements are.

As for expulsion, it's unclear that this is really an option. If a person's elected given public knowledge of what he's done, that rather carries the seal of public imprimatur. "Sorry, you got a majority of the vote, but we're going to assume that the public was stupid." While I agree that this is often the case, I find it more than a little disingenuous that when the public does something I think is right I declare it "brilliant" and when it does something I think wrong-headed I denounce it as "doltish." As though I'm never wrong and as though I'm not part of the public. I figure, in my moments of clarity, that the public is the public and leave it at that. (I am, of course, part of the public. And have this all-too-human tendency to forget my mistakes and only remember my wins, unless my mistake led to something humiliating, in which case I self-embitter by ruminating on my mistake and the injustice perpetrated upon my person because of some petty error. Again, all too human.)

[struggle4progress]

6. The Powell case suggests the Senate cannot refuse to SEAT Moore; but the authority of the Senate

to EXPEL him (once seated) seems clear from the constitutional text, and SCOTUS would be unlikely to attempt to infringe on the prerogatives of the Senate, since that could provoke a constitutional crisis

Of course, the Senate is unlikely to expel Moore, so the most reasonable way to keep him from the Senate is to be sure he is not elected