November 14, 2017
Can the Senate Really Expel a Member?
The most recent allegation levied against Judge Roy Moore, Republican candidate for Alabama’s U.S. Senate special election, has led several prominent GOP lawmakers to call for his immediate withdrawal from the campaign. After the story broke, Sens. McConnell, Collins, Tillis, and Hatch all called for Moore to withdraw – a list that is all but certain to grow in the next several days, especially if more accusers come forward. Judge Moore has yet to give any indication that he is willing to withdraw from the race, and Alabama law does not allow for his name to be removed from the ballot within 76 days of the upcoming election on December 12.
This begs the obvious question, what happens if Roy Moore is elected to the Senate?
Sen. Cory Gardner, Chair of the National Republican Senatorial Committee, proposed that the Senate expel him, rather than allow him to serve his two-year term.
“I believe the individuals speaking out against Roy Moore spoke with courage and truth, proving he is unfit to serve in the United States Senate and he should not run for office,” Gardner said. “If he refuses to withdraw and wins, the Senate should vote to expel him, because he does not meet the ethical and moral requirements of the United States Senate.”
Such a strong statement from Sen. Gardner, coupled with those from other prominent Republicans, suggest that Moore’s removal from office would be possible, if not likely, if he is elected. Senate expulsion, while historically rare, is allowed for in Article I of the United States Constitution.
According to Article I, Section 5 of the Constitution, “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.”
In order for Judge Moore to be removed from office, he would first have to be seated by the Senate. Once seated, a member of the Senate would have to offer a resolution of expulsion for Moore, which would be referred to the Senate Committee on Ethics. After hearing testimony and interviewing witnesses, the resolution must be reported out of committee and sent to the Senate floor. The motion to proceed to it is privileged and non-debatable however the resolution itself is debatable and amendable, an amendment to censure rather than expel him would be in order. Since it requires a 2/3’s vote to expel, if the votes are sufficient for that purpose then breaking a filibuster with 60 votes would be no problem. Assuming all 48 Democrats vote for removal (a fairly safe assumption), 19 Republicans would need to vote to expel Moore.
According to the Senate’s Website, “Since 1789, the Senate has expelled only fifteen of its entire membership. Of that number, fourteen were charged with support of the Confederacy during the Civil War. In several other cases, the Senate considered expulsion proceedings but either found the member not guilty or failed to act before the member left office. In those cases, corruption was the primary cause of complaint.” No member has been expelled since the Civil War.
Expulsion is still a long way off. The easiest way for Judge Moore to avoid Senate expulsion is for him to lose the general election to Democrat Doug Jones on December 12th. Judge Moore may still choose to withdraw on his own. If that happens, Republicans can attempt to put a last-minute write-in campaign together and get another Republican elected, however, Moore’s name will remain on the ballot as the Republican nominee. One scenario now making the rounds in DC has Moore winning the election, he’s then sworn in by the Senate, eventually expelled by the Senate, Attorney General Sessions resigns from his post and is appointed by the Governor to his old seat. You can’t tell your players without a program!
Senate expulsion is not the ideal route for any of the parties involved, not to mention it may prove to be time consuming while the Senate is grappling with funding the government and reaching agreement with the House on the Tax Bill conference. With less than a month to election day, it remains to be seen if it can be avoided.