The Senate Has A Roy Moore Problem

Can Senate Republicans keep Moore from taking his seat? Would they even want to?

On May 22, 1856, Congressman Preston Brooks, a Democrat representing South Carolina, made his way onto the Senate floor and savagely beat Senator Charles Sumner, a Republican representing Massachusetts, within an inch of his life.

Brooks assaulted Sumner with a gold-tipped cane, hitting him with such force that the cane snapped, though that didn’t stop Brooks from continuing to slash at Sumner with unsparing viciousness. Sumner’s injuries were so severe they required a three year leave, and caused him permanent brain damage. Brooks did this in response to a speech Sumner gave in which he mocked and denounced Brooks’ cousin for his pro-slavery views.

Of course, Brooks would be expelled from Congress and even imprisoned, right?

Not quite. He was convicted, and forced to pay a fine, but the resolution to expel him from the House failed, falling far short of the two-thirds support necessary to oust him from office.

To recap: Brooks violently assaulted a fellow congressman, an action which would trigger a 10–20 year prison sentence today, and didn’t even lose his job over it.

Does that episode inspire confidence that, were Roy Moore to defeat Doug Jones for the open Senate seat in Alabama, the chamber would vote to expel him over allegations he had improper sexual contact with underage girls?

It would be one thing if the Democrats controlled the Senate. Roy Moore, after all, is not like the garden-variety Republican. He attracts a measure of contempt in the manner of our current president, the sort of foaming-at-the-mouth mania on the part of Democrats that sees impeachment or expulsion as the only suitable remedy.

But it’s the Republicans who control Congress, which makes the political calculus less straightforward.

Replacing Moore on the Ballot

For instance, do they attempt to run somebody else in Moore’s place? The GOP would love to be able to substitute Moore’s name on the ballot with a last-minute replacement. Yet the cutoff point to do this was two-and-a-half months prior to the election, a point we are very much past. The ballots are already printed and absentee voting started a month ago; the GOP can’t do anything to change that. The unfortunate reality is that Moore’s name is etched on the ballot the way signatures are etched on yearbook pages.

Bypassing Moore on the Ballot

Of course, the party can run somebody else by coordinating an agreed-upon write-in candidate. But this is arguably too difficult to pull off with three weeks to go. Organizationally, the hurdles are formidable. Doug Jones and Roy Moore are on the ballot, which means that on election day their supporters will only have to check their names to register a vote for them; on the other hand, for a write-in candidate to secure a plurality, the level of mass synchronization would need to be remarkable. There’s no evidence this can be achieved.

Opposing Moore on the Ballot

Should the GOP push their voters to support Jones, instead? Ordinarily, doing so would be unthinkable. But our moment is one of roaring outrage over sexual misbehavior. The advantage to helping Jones be the first past the finish line is that doing so would spare the GOP from adding a radioactive member to their conference.

The Democrats are truly in a can’t lose situation: even if Jones were to fall, Moore’s presence in the Senate would serve as a fundraising and electoral boom to Democratic hopes in 2018. Though Moore would be up for reelection in 2020, his excruciating offensiveness would galvanize the opposition during next year’s midterms.

Backing Jones would also ensure the Democrats secure a crucial Senate seat — one they haven’t held in 25 years. When you factor in the success rate for incumbent senators winning reelection in 2016 — 93 percent — the chances only get better for Jones to win again in 2020 and keep a state as deep-red as Alabama from having two Republican senators at any point in the next decade.

Expelling Moore from the Senate

But what if Moore wins?

To be sure, it’s not looking good for him at the moment. The very graph that shows his change in fortunes looks, from a side angle, to be shaped like a turtle. What else could this be but an undeniable omen that Senate Majority Leader Mitch McConnell — whose appearance is uncannily turtle-like — is set to get the last laugh?

But should Moore win, some Senate Republicans, including Majority Leader McConnell, see expulsion as a real possibility.

A report in Politico quotes McConnell as saying:

If [Moore] were to be sworn in, he would immediately be in a process before the Senate Ethics Committee. He would be sworn in and be asked to testify under oath and it would be a rather unusual beginning, probably an unprecedented beginning.

McConnell is referring to the process by which a senator can be ousted from his or her position. If another senator were to file an ethics complaint — a virtual certainty, if Moore were to take his seat in the chamber — it would trigger expulsion proceedings.

The Atlantic’s Julian Zelizer points out that this may be the GOP’s best play:

This promise from the GOP might be the best way that leadership can signal to Republican voters that they can vote for Moore despite the multiple allegations of sexual misconduct against him. If he is elected, they will handle the problem.

Zelizer doesn’t spell it out, but the reason this might be the GOP’s best play is because it’s the best chance they’ve got to keeping the seat in their column. In the event Moore is expelled from the Senate, the seat once again becomes vacant. The task of choosing a temporary replacement would fall to Governor Kay Ivey, a Republican, and the interim senator would fill the position until a new special election is planned and we get the marvelous privilege of running the same process all over again.

This is not new to Alabama — in fact they’ve just gone through this very process. Senator Jeff Sessions was picked up by Trump to be U.S. Attorney General, so the governor appointed Luther Strange to fill Sessions’ place until a special election could be held to determine the people’s choice for that position.

But expulsion has its difficulties. First, it requires two-thirds support, which means clearing 66 votes in the Senate. Assuming every Democrat votes in favor of it, 19 Republicans would need to sign on. To put matters into perspective, two-thirds support is the same requirement that is needed to amend the Constitution. The last time a senator was expelled, Abraham Lincoln was president. Although the House expelled a member in 2002, the expulsion followed a bribery conviction.

Making matters even more difficult, it would be taken as stridently anti-democratic for the Senate to jettison a member for behavior voters were well apprised of before they cast their votes. Zelizer quotes Chief Justice Earl Warren as saying: “A fundamental principle of our representative democracy is, in Hamilton’s words, that ‘the people should choose whom they please to govern them.’”

It’s not like this is a case of a scandal breaking post-election; if Moore is swept into office, the wave that carries him there will have swallowed up his victims along the way.