With accusations swirling around Alabama Republican senatorial candidate Roy Moore, there's been increasing speculation that if Moore wins election in December, other legislators might try to keep him out of the Senate.
But how would they do that? They can't bar Moore from taking office. According to a 1969 U.S. Supreme Court decision, Congress only can deny a seat to someone if that person doesn't meet the constitutional requirements of being a U.S. citizen, doesn't reside in the state he or she has been elected to represent, and in the case of a U.S. senator, isn't at least 30 years old.
That's why Sen. Cory Gardner, a Republican from Colorado who heads the National Republican Senatorial Committee, has advocated an unorthodox solution. In a statement issued on Nov. 13, Gardner said that if Moore wins, "the Senate should vote to expel him."
In a scenario sketched out in this Politico article, Moore first would have to be sworn into the Senate, so that the body could start the process of kicking him out. Article I, Section 5 of the U.S. Constitution gives the Senate the power to expel a member, provided that a two-thirds majority approves the resolution. As this 2012 Congressional Research Service report explains, expelling a senator is simpler than removing a U.S. president from office, which requires the House of Representatives to pass articles of impeachment and the Senate to hold a trial and vote for conviction.
But that doesn't mean it would be easy. Only 15 senators have been expelled in the nation's history, and the last one was in 1862, according to a list on the U.S. Senate website. And none have been expelled for actions that occurred before they became senators. As the CRS report notes, the Constitution doesn't specify the grounds for expulsion, but most instances "have generally concerned cases of perceived disloyalty to the United States, or the conviction of a criminal statutory offense which involved abuse of one's official position."
The History of Senate Expulsions
The first senator to be expelled was William Blount of Tennessee in 1787. His offense: Trying to instigate a rebellion in then-Spanish-controlled Florida and Louisiana that would allow the British to seize those colonies, which in turn would have allowed him to make money in land speculation. Unfortunately for Blount, an incriminating letter that he wrote fell into the hands of a political adversary, President John Adams. The Senate expelled him by a 25-1 vote. (Strangely, afterward, the Senate tried to subject him an impeachment trial as well, but eventually decided that he wasn't an impeachable officer under Article II, Section 4 of the U.S. Constitution.)
The other 14 expulsions occurred in the early years of the Civil War. Historian Fergus M. Bordewich, author of "The First Congress" and currently at work on a book about Congress during the Civil War, explains in an email that they were "Senators from the South and border states who had defected to the Confederacy, and were essentially condemned as traitors by their former Senate colleagues." The last senator to be kicked out of the body, Democrat Jesse D. Bright of Indiana, was voted out on Feb. 5, 1862. Bright "was a Northerner, but he had expressed what were deemed to be traitorously pro-Confederate views, and had recognized the legitimacy of the Confederacy in writing," Bordewich says.
In all these cases, there wasn't much difficulty getting the needed two-thirds. "With the Southerners gone, Republicans held huge majorities," Bordewich explains.
Failed Expulsion Attempts
According to the Senate website, there have been nine other failed attempts to expel senators. In 1907, for example, Sen. Reed Smoot, a Republican from Utah and a leader in the Church of Jesus Christ of Latter-day Saints, was accused of having taken a religious oath that made him ineligible to serve in the Senate, and of being part of a church that had once sanctioned polygamy. But Smoot survived a floor vote by 27 yeas to 43 nays. In 1919, Sen. Robert M. La Follette, a Republican from Wisconsin, was accused of disloyalty and sedition for giving a 1917 speech opposing U.S. entry into World War I. But in the end, the Senate voted 50 to 21 to dismiss the charge, and eventually paid La Follette $5,000 to cover his legal expenses.
Additionally, five other senators have avoided an expulsion vote by giving up their office. The most recent was Sen. Robert Packwood, an Oregon Republican, who resigned in a speech on the Senate floor in 1995, after the Senate Select Committee on Ethics issued a lengthy report recommending his expulsion, according to the U.S. Senate website.
The Process Today
Today, a senator's potential downfall probably would start with an ethics complaint to the committee, which would investigate and make a recommendation about whether the full chamber should vote on expulsion. That could lead to an expulsion resolution that would be put up for a vote by the full chamber. The accused most likely would testify in the proceedings.
"A Senator could take the Fifth, if he thought that his testimony might be used against him in a court of law," David F. Forte, a professor at the Cleveland-Marshall College of Law and author of an essay on the expulsion clause in the Heritage Guide to the Constitution, says. "Outside of that, if he simply refused to testify, he might be held in contempt as well." But even if the senator wasn't punished, remaining silent might well backfire. "It probably would just increase his chances of losing," Forte said.
Originally Published: Nov 17, 2017