Will the Senate Expel Roy Moore If He's Elected?

Despite threats from GOP lawmakers, the likelihood of them taking action remains low.

Roy Moore waits to speak in Birmingham, Alabama, on November 11, 2017.  (Brynn Anderson / AP)

Some Republican senators, including Majority Leader Mitch McConnell, have suggested that if Alabamians elect Roy Moore to the chamber in the special election, they’ll expel him. 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.

But the chances of McConnell and his colleagues following through on this threat are extremely small. Historically, the House and Senate have been very reluctant to deploy their most punitive power.

Under the Constitution (Article I, Section 5) the House and Senate each have the authority to punish their members for “disorderly behavior.”  Under the rules Congress has adopted, each chamber has three options for dealing with problematic colleagues. The House and Senate can censure or reprimand a member by a majority vote. This, the least of the possible acts of punishment, is a formal condemnation that still allows the person to remain in office. The House and Senate can also each exclude someone by a majority vote, which prevents an elected member from taking their seat because they lack the technical credentials. Finally, the most severe punishment available to the House and Senate is to expel a seated member for improper behavior, which requires the consent of two-thirds of the membership.

Both chambers have been willing to exercise the least drastic power without much hesitation. During the 19th century, there were numerous censures in the House of Representatives when decorum broke down—ranging from physical acts of violence to unruly language. William Stanberry was censured in 1832 for insulting the speaker; Lovell Rousseau was censured in 1866 for assaulting a member. The Senate famously censured Joseph McCarthy in 1954. Democratic Senator Thomas Dodd was censured in 1967 for having used campaign funds for his own personal benefit. In 1979, Georgia’s Herman Talmadge had to face the badge of shame as a result of his misconduct using campaign monies. In 1979, the House censured Michigan Representative Charles Diggs, who had to stand in the well as Speaker Tip O’Neill rebuked him, when he was convicted for payroll fraud and kickbacks. Representatives Dan Crane and Gerry Studds were censured for improper sexual relations with pages in 1983. More recently, the House reprimanded South Carolina Representative Joe Wilson after he shouted “You lie” at former President Obama while he addressed Congress.

The other form of congressional punishment against a member that only requires a majority vote is exclusion. In 1929, the Senate excluded William Vare from taking his seat as a result of allegations of election fraud. The most famous example of exclusion, however, took place when the House voted to exclude New York Representative Adam Clayton Powell from his seat in 1967, a case that actually ended up reducing the interest of either chamber in ever doing it again.

Powell’s Achilles heel was that he lived a flamboyant life, using public money to pay for exotic trips with his many female companions and putting family members on the payroll. Southern conservatives used this against him (though they found support from a few liberals like Sam Gibbons of Florida). His supporters warned that Southerners were leading this drive against him because he was black and a strong proponent of civil rights. They pointed to the fact that many of his accusers were just as bad, if not much worse, in their personal and professional behavior.

On March 1, 1967, the House voted to exclude Powell by a vote of 307 to 116. Powell’s constituents, 89 percent of whom were African American, were outraged. They flooded the streets of Harlem to protest, arguing that they had been disenfranchised by Southern racists. On November 1968, they reelected him and the House voted to seat him in January 1969. Five months later, the Supreme Court ruled that the House had misused its power since he filled all the technical requirements to fill a seat. Chief Justice Earl Warren stated: “A fundamental principle of our representative democracy is, in Hamilton’s words, that ‘the people should choose whom they please to govern them.’”

Expulsion, the virtual equivalent of impeachment, is the boldest action that Congress can take, and what Senate Republicans promise will be on the table if Moore is victorious. Yet history shows that, in contrast to censure, this has been a power rarely used.

The biggest burst of expulsions in both chambers took place around the time of the Civil War when support for secession and the Confederacy were deemed intolerable. Bribery has also been a stimulant to action. In October 1980, the House expelled Pennsylvania Representative Michael Myers, who had been convicted of bribery as part of the ABSCAM scandal, when members were caught on tape taking bribes from FBI agents dressed as Arab sheiks. And in July 2002, the House expelled the eccentric James Traficant of Ohio, who had been convicted for racketeering, bribery, and tax evasion. The last time a senator was expelled was in 1862.

The other cases of expulsion remain “might-have-beens” since members resigned before colleagues had to vote on a course of action. In 1862, for example, Rhode Island Senator James Simmons resigned when it looked like he would be expelled as a result of corruption charges. Oregon Senator Robert Packwood resigned in 1995 following allegations of sexual harassment. New Jersey Senator Harrison Williams, who had also been caught up in the ABSCAM sting, stepped down under the threat of expulsion. Nevada Senator John Ensign resigned in 2011 as the ethics committee was investigating financial wrongdoing involving an affair with a staffer. When House Speaker Jim Wright faced an unfavorable ethics committee report in 1989, based on an investigation driven by the hyper-partisan Newt Gingrich, he resigned from Congress rather than allowing the process to go forward.

The pressures against expulsion will remain just as strong today as in the past. Republicans will likely be concerned about pushback from Alabama voters if they decide to elect Moore. Moore, for his part, is attempting to provide himself some insurance by portraying this as a campaign by the corrupt establishment to take him out of the race. It’s also possible that senators will be leery about expelling Moore, given sexual-misconduct allegations against other members in Congress. Partisanship might shape their response too, as Republicans look to move forward agenda items like health care and tax policy.

Of course, expelling Moore would not really solve the problem that has been front and center in the national dialogue for months now. The real question is whether a male-dominated institution that has a sordid history of skirt-chasing and workplace harassment finally changes its ways. Even after Anita Hill’s shocking testimony during Clarence Thomas’s confirmation hearings in 1991, when senators in both parties seemed to dismiss the issues at hand, Congress remained a government body that looked too much like the Wild West when it came to how men treated women. Kicking out one member won’t solve the bigger problem of the culture and lack of rules that govern Capitol Hill with regards to sexual relations.

The question America now faces is whether it has reached a moment of reckoning, when institutions such as Congress finally take seriously the problem of sexual harassment and assault, or whether this becomes another Anita Hill moment when the sound and fury quickly fade, and the status quo prevails.