A Dozen (or so) Thoughts on Senate Expulsion (With Special Reference to the Roy Moore Affair)

Updated:

Because many political pundits, legal commentators, and even Republican senators themselves are openly discussing the possibility of the Senate voting to expel Senate candidate Roy Moore from Alabama, should he gain the largest number of votes in next month’s special election, the time is ripe to identify what is clear, and what is not clear, concerning the Senate’s power to expel members, and the possibility of judicial review of any such decisions. To that end, I offer the following cluster of observations:

  1. Article I, §5 of the Constitution provides that “Each House shall [presumably by a majority vote] be the Judge of the Elections, Returns and Qualifications of its own Members” and “may . . . punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.”
  2. Unlike each chamber’s power to “be the Judge” of certain, specified matters, each chamber’s power to “expel a member” is not textually limited to certain bases, suggesting that the grounds for permissible expulsion can be considerably broader than for “judg[ing]” eligibility to be seated (the so-called power to exclude).
  3. No Senator has been expelled since 1862, and all Senators who have been expelled since the Constitution was ratified were removed for disloyalty. But a few Senators in recent decades (including Senator Bob Packwood, from Oregon, who had been accused of sexual harassment) have resigned under threat of possible expulsion for misconduct other than disloyalty.
  4. Individual members of and relevant bodies in both the House and the Senate have repeatedly over the last two centuries taken the public position that the two chambers in Congress lack the constitutional power–or at least should not exercise powerto expel a member for conduct that took place prior to the member’s election to the congressional session in which the expulsion is being contemplated. But in recent decades (again, see the Packwood episode), many Senators seem to have disagreed with that traditional understanding. The Supreme Court, in Powell v. McCormack (which involved the House of Representatives’ attempt to deny Adam Clayton Powell the House seat to which he had been duly elected), disclaimed any view on whether this traditional stance concerning the scope of expulsion powers articulated by both chambers is constitutionally proper.
  5. However broadly one construes the Packwood chapter, it may be worth noting that the misconduct there occurred while Senator Packwood was exercising his authority as a Senator, albeit during earlier sessions of Congress. As then-Chair of the Senate Ethics Committee, Mitch McConnell, wrote explaining the Committee’s support of expulsion, Mr. Packwood had engaged in “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.”
  6. Commentators have correctly criticized Congress’ traditional stance that conduct prior to a member’s election should not be the basis of expulsion, arguing that such a view finds no warrant in the Constitution’s text and is too narrow insofar as it allows plainly unfit people to continue to serve in Congress (since, it should be borne in mind, members of Congress are not subject to impeachment). Note that the traditional stance would foreclose expulsion even when the pre-election misconduct that is proven only after the election would, had it been known to the voters, have resulted in a different election result.
  7. Things seem quite different if the voters were aware of the actual, established, or admitted misconduct that occurred prior to the election, and nonetheless decided to elect the member. In those circumstances, expulsion of the member on grounds of character unfitness that was demonstrated by pre-election misconductbased on an apparent disagreement between the House or Senate and the electorate about the kind of people who are appropriate to servecould be seen as legislators improperly undoing the results of a full and fair election and essentially vitiating the will of the people. Use of the expulsion power in those circumstances could implicate a scary parade of horribles. And the fact that it may take a 2/3 vote to expel does not fully solve the problem; although a 2/3 majority perhaps can impose its legislative will in adopting substantive legislation with regard to many legislative agenda items, many votes are close to the passage line, and the literal absence of the voice of the expelled members might change the legislative dynamic.
  8. It seems intuitive that if a candidate lies about his or her alleged misconduct from the past during the course of an election campaign, and is later proven to have lied, then the election results should be entitled to less respect.
  9. To the extent that the most forceful argument in favor of permitting expulsion for conduct that occurred prior to the election is that the voters, had they known of the misconduct, would never have willingly elected the candidate, then there is at least an argument to made that such an expulsion could be understood as the Senate “judg[ing] the election” within the meaning of Article I, §5in effect the Senate’s determining that the election is not valid and entitled to respect. If that is the proper characterization, then perhaps the expulsion could be understood as a failure to seat the person (exclusion) under the Senate’s power to judge elections, which itself might be subject only to the requirement of a majority vote. (This would present the mirror image of Powell v. McCormack, where the Court had to address the argument that a vote to exclude should be understood as a de facto expulsion.)
  10. The question of what powers the Constitution gives the Senate in the realm of expulsion and exclusion is distinct from the question whether a federal court (including the Supreme Court) would ever review the Senate’s actions. Thus, even if there is reason to believe the courts would stay out under the “political question” doctrine, a constitutionally faithful Senate should still try to interpret and abide by the meaning of Article I, §5.
  11. The Supreme Court in Powell v. McCormack rejected the House of Representatives’ argument that judicial review of the House’s decision not to seat Adam Clayton Powell was foreclosed by the political question doctrine, where the House did not rest its decision to exclude Mr. Powell on his failure to be validly elected or his failure to satisfy the age and residency qualifications in the Constitution, the only “qualifications” the Court said that a House member needs to have and that the House has the power to judge.
  12. The majority in Powell gave no indication of whether judicial review of a chamber’s decision to expel (rather than exclude) a member was available, although one justice, William O. Douglas, intimated that no judicial review should be available in expulsion cases.
  13. Things in the Roy Moore case are quite messy, and the additional allegations, evidence, and facts that will come to light (and the actions and statements of Alabama and federal officials that will emerge) over the next few weeks are very hard to predict. Stay tuned.