Why Moore Will Win, Be Seated in the Senate, and Not Expelled

Roy Moore beats the MoE in large-sample likely voter polls. The Senate must seat him. They won't expel him. Here's why.

We're just under three weeks away from Alabama's special election, and Roy Moore, against most predictions (including my own) is still leading the polls. The polls with the largest likely-voter samples have consistently showed Moore leading and beating or matching the margin of error.

Moore will win

Despite his thumbless defense against very credible charges of sexual misbehavior against teen girls less than half his age, Moore continues to completely deny the accusations. The steadfast denials have blunted the effects of the accusations, it appears, but that's probably not the biggest reason Moore will win.

He's running against a typical Democrat, Doug Jones. By "typical" I mean passing all the Democrat litmus tests: pro-choice, pro-big-government, pro-identity politics. And President Trump has finally, carefully, weighed in.

“He says it didn’t happen,” the president told reporters at the White House. “You have to listen to him, also.”

Trump's reminder that Moore has consistently denied the allegations is important. It may sway enough voters who are undecided whether to stay home or vote for Moore to give him a small benefit of the doubt.

The race will be closer than it would have been without this bombshell--that goes without saying. But it won't be close enough to give Jones the win. I might be wrong here, but, barring more accusers coming forward, or some admission from Moore, the scandal seems to have played out and is now up to the voters.

Remember, in order for Moore to lose, Jones has to win. And the voters don't want Jones.

The Senate must seat Moore

An excellent piece in Politico by Stan Brand reminds us that the Senate's authority, though almost completely autonomous regarding its own members, is still constrained by the Constitution. The Senate must seat Moore because the Constitution sets forth the qualifications for office, which Moore meets.

One Supreme Court case provides a clue about the limits that may be placed on the Senate if it attempts to either deny Moore a seat or expel him once he has been seated. In 1967, a special House committee determined that New York Rep. Adam Clayton Powell’s staff had falsified travel expenses and had caused illegal payments to his wife. Rather than censure and fine Powell for this misconduct, the House voted by a simple majority to exclude—meaning, refuse to seat—Powell after his reelection. Powell sued, and when Powell v. McCormack made it to the Supreme Court, the court held that the House had acted illegally. The court held that while, according to Art I sec. 5 of the U.S. Consitution, “each House shall be the judge of the ... qualifications of its Members,” those qualifications are limited to age, citizenship and residency, as stipulated by Art. I sec 2. In other words, as long as Powell fit the age, citizenship and residency criteria for serving in Congress, the House had no right to refuse to grant him his seat.

If the Supreme Court ruled that the House must seat an elected member according to Article I, Sec. 2, then it will almost certainly rule that the Senate must seat an elected member (in accordance with the 17th Amendment) according to Article I, Sec. 3. Moore is qualified and elected, and therefore must be seated.

The Senate will not expel Moore

Article I, Sec. 5 of the Constitution allows the Senate to expel a member with "Concurrence of two thirds." Here's the sentence, in context.

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

No senator has been successfully expelled since 1862, and that was for supporting the Confederacy. Senators have been subject to votes for expulsion, but have either resigned first, their terms have ended, or they have survived the attempt. Expelling a senator for allegations outside of a courtroom, not subject to rules of evidence, from four decades ago that occurred well before the member was elected is a long shot.

In fact, based on cases and precedents going back to 1798, it's probably a non-starter. Why would the Senate waste its time with this kind of circus show when certainly the voters and the president will be pushing for legislative agendas. Once Moore is seated, his vote will be required. It is his vote, not his friendship, the GOP will need.

Moore will remain a pariah in the Senate, but no more than Al Franken. I don't expect Franken to withhold his vote, and neither should Moore.

In six months time, more Senators and other politicians will likely get hit with their own scandalous behavior, and Roy Moore will fade out of the news cycle.

Comments
No. 1-18
MarkBerwind
MarkBerwind

These words deserve repeating. They are the most reasonable words I have heard on the subject, and, in a way the most sincere and kind: curtmilr says above, "I expect that Judge Moore will win the special election that would have been a certainty had these accusations not arisen in such a suspicious manner.

We must be thankful that Judge Moore has been chastised in this most public way to encourage not only the courage of his convictions, but the humility in his heart to truly be a servant leader for the nation for his term(s) in the Senate.

He must always stand on principle, while submitting to true authority, and be a clear voice for truth, reason, and strict constitutional observance whenever possible." Thank you! What I quoted is all that really needed to be said. The rest is just fluff, and those accusers, if they had anything to back up their story, it would have come out, and been their challenge to his and their convictions.

haypa2
haypa2

Someone who has done what Moore was accused of will have done other things as well: maybe cheating on wife with coworker, tax/ financial irregularities or some sort of reckless behavior that may or may not be illegal, ex frequenting bars or strip clubs and drinking to excess or being that obnoxious dad at a little league game. Some of these should have shown up in the last 10 yrs, if there is anything.

commenter
commenter

The thing about pedophiles (and most other sexual deviants) is that they are incurable. A pedophile cannot help but keep indulging in his (or her) perversity regardless of what jeopardy he or she may place themselves in. By all observational evidence Moore has not engaged in pedophile-like behavior since his alleged misconduct many decades ago. He may or may not deserve to be elected but Moore is not a pedophile.

mikwcas
mikwcas

I think the best thing to do after Moore is elected is to follow Mitch and his actions or non-actions regarding Mr Moore. For whatever reason and whether he is guilty as heck or not, when I first heard this story all I could think of was, "Huh Moore beat Strange and Strange was Mitch's guy, strange."

johntfs
johntfs

I admit I tend to think Moore was guilty. I also think he can't be criminally charged with anything unless he commits some secondary offense (lying to a Senate committee or somesuch) since the statue of limitations has almost certainly long since expired even for what he allegedly did in 1991. As for the "what difference after 40 years," argument, I don't know. Perhaps exposing his shameful actions might give the victims a measure a peace and justice. I will say that if what he'd done had been done to my child, I'd support his or her decision. I know for certain my take wouldn't be "Honey, it's been 40 years. Just keep it to yourself. Your pain and shame is far, far less important than the GOP keeping its majority in the Senate."

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