The Republicans aren’t powerless to prevent Alabama from sending him to the Senate.
TUSCALOOSA, Ala. — Last week’s allegations of sexual misconduct against Roy Moore, the Republican candidate for Senate in Alabama, have drawn bipartisan denunciations in Washington, with many of his would-be colleagues calling on him to leave the race. Here in Alabama, however, the reaction has been considerably more muted.
If anything, the allegations seem to have forced many of the party faithful to rally around him. Mr. Moore, for his part, is not only refusing to step aside, but is making fund-raising appeals based on the accusations. While his accusers’ accounts no doubt hurt him, there is still a very good chance that Roy Moore will win the special election on Dec. 12.
The national party has made it clear that it wants nothing to do with Mr. Moore; on Friday the National Republican Senatorial Committee severed its ties with his campaign. But as his supporters have defiantly pointed out, there is nothing the Republicans can do to stop Alabamians from electing Mr. Moore.
That doesn’t mean the Senate is powerless. In fact, Mitch McConnell and other Senate leaders have the constitutional authority to prevent Mr. Moore from actually serving if he is elected. The real question is whether the party’s leadership is prepared to use this authority.
Mr. Moore and his allies may draw some encouragement from Powell v. McCormack, a 1969 Supreme Court decision holding that the House could not refuse to seat Representative Adam Clayton Powell Jr. of New York, who had been accused of misusing House funds. The court ruled that Powell met the Constitution’s age, citizenship and residency requirements for membership in the House, and that the House could not add additional qualifications for election.
But in that same ruling, the court also said that although the House had to accept Powell, it didn’t have to keep him — it could vote to expel him. (In the end, it didn’t, though Powell lost his re-election bid in 1970.) The Senate could do the same with Mr. Moore: seat him, then immediately vote to expel him based on his lack of character and fitness to serve.
To the extent that Mr. Moore is entitled to a defense against expulsion, the Senate could initiate fitness proceedings now, before the election, to ascertain whether the accusations against him are credible; alternately, it could suspend his swearing-in until after the investigative proceedings are concluded. If Mr. Moore chose to ignore them, the Senate could simply conclude that he lacks the character and fitness to serve — as Mr. Moore, a former Alabama Supreme Court chief justice, surely knows, failing to contest an adjudicative proceeding results in a default judgment.
The Senate has precedents for this course of action. Most recently, expulsion proceedings have been contemplated against Senator Robert Menendez, Democrat of New Jersey, should he be convicted in his current corruption trial. And two former Republican senators, John Ensign of Nevada and Bob Packwood of Oregon, faced the prospect of expulsion for sexual misconduct, leading both of them to resign instead.
Mr. Packwood’s case is especially instructive. He was accused of serial sexual harassment that went on for years, though he was never charged with a crime. Nevertheless, in 1995, Mitch McConnell, then the chairman of the Senate Ethics Committee, wrote the committee’s report recommending Mr. Packwood’s expulsion for a “habitual pattern of aggressive, blatantly sexual advances, mostly directed at members of his own staff or others whose livelihoods were connected in some way to his power and authority as a senator.” Hours after the report was delivered, Mr. Packwood resigned.
In other words, Mr. McConnell has already concluded that credible allegations of serious sexual misconduct should preclude a person from serving in the Senate. Does he still hold this view and is he willing to act on it?
On principle and precedent, Mr. McConnell’s choice is clear. If the Republican Party is serious about preventing Mr. Moore from becoming a member of an institution that likes to bill itself as the world’s greatest deliberative body (with apologies to Westminster), it could stop the insanity now by simply declaring that, if elected, the party’s Senate caucus will move to immediately expel Roy Moore because he lacks the character and fitness to serve.
The results would be less messy than you might think. Under Alabama law, Gov. Kay Ivey, a Republican, is supposed to appoint an interim senator and order a special election. But the law doesn’t specify a deadline for that election, which means that the state could just wait until the next regularly scheduled elections, in November 2018. That way, the Republicans, who have a narrow Senate majority, wouldn’t lose a seat, and could avoid casting a blind eye on credible allegations of sexual abuse of a minor.
Obviously, things aren’t that simple in practice; Mr. Moore’s supporters, who include Stephen Bannon and most of the conservative media, would surely fight Mr. McConnell with everything they have, and exact revenge if he succeeds. The question comes down to one of principle. The Republicans have the power to block Mr. Moore from joining them. Will they use it?