Keeping Roy Moore Out of the Senate: The GOP's Difficult Options

(Bloomberg) -- It’s too late to take Roy Moore’s name off Alabama’s U.S. Senate election ballot, so Republican Party leaders are exploring ways to keep him out of office -- one way or another.

Someone could mount a write-in campaign against Moore for the Dec. 12 vote, but that’s a longshot. If he wins, the Senate could vote to expel him after he arrives in Washington, but that isn’t easy either. Moore is refusing to leave the race, denying the allegations that he sexually pursued and assaulted teenage girls while he was in his 30s.

“There’s no question that there’s deep concern here," Senate Majority Leader Mitch McConnell of Kentucky told reporters Tuesday while reiterating that Moore is "unfit" to serve. The majority leader said he’s discussing "all the options" with the White House to keep Moore out without handing the seat to Democratic nominee Doug Jones.

"From a Republican point of view, we would hope to save the seat and that might require a write-in, and all of those things are under discussion," McConnell said.

On Monday, the majority leader suggested to Vice President Mike Pence that Attorney General Jeff Sessions could be appointed to his old Senate seat if Moore wins election but then is expelled, according to a person familiar with the exchange.

Here are some other options.

A Write-in Candidacy:

Such efforts are a long shot, with Alaska Republican Lisa Murkowski in 2010 pulling off the first successful write-in campaign since the late Strom Thurmond of South Carolina in 1954.

Murkowski has urged Senator Luther Strange -- who was appointed to the Alabama seat earlier this year but lost the GOP primary to Moore in September -- to start a write-in campaign. Murkowski, however, had two months before election day to mount her write-in effort.

Strange didn’t rule out a candidacy on Monday, but he showed little appetite for it. “Let’s let the facts unfold,” he said. “I think right now a write-in candidacy is highly unlikely.”

If Moore Quits the Campaign But Still Gets the Most Votes:

The Alabama Secretary of State’s office says that would result in the election results being declared null and void. A new election would need to be called.

However, Alabama law is subject to interpretation. 

The law says that when candidates withdraw less than 76 days before an election, their names must still appear on the ballot but the votes for that person can’t be certified. Given that, those who challenge the secretary of state’s view argue that the highest vote-getter among any other candidates would win.

If Moore Stays in the Race and Wins:

State election officials would certify his win, and the Senate would be required to seat him once he presents an election certificate signed by Alabama’s governor and secretary of state.

A number of Republican senators said this week they don’t see a possibility of refusing to seat Moore under the 1969 Supreme Court ruling that the House couldn’t deny Adam Clayton Powell Jr. of New York his seat amid allegations that he misused public funds. The court said Congress can’t keep duly elected members from taking office if they meet the Constitution’s qualifications. Senators are required to be a U.S. citizen, live in the state they’ll represent, and be at least 30 years old.

Senators could take punitive action against Moore, which could include denying him committee assignments, shunning him, or expelling him.

Taking punitive action would hold big risks for Republicans who control the chamber. Every senator has the power to slow the chamber to a crawl by denying unanimous consent on procedural matters. Republicans have a narrow 52-48 majority and would likely lose votes on key policy matters without Moore’s support. Mike Pence has already cast several tie-breaking votes, including on the confirmation of Education Secretary Betsy DeVos.

How an Expulsion Would Work:

Senate expulsions are extremely rare. Only 15 senators have been formally discharged since 1789, and the last was Senator Jesse D. Bright of Indiana in 1862, among 14 thrown out for supporting the Confederacy during the Civil War.

Several senators have resigned prior to expulsion, including former Finance Committee Chairman Bob Packwood, an Oregon Republican, in 1995 amid allegations of sexual misconduct and financial impropriety. Packwood quit the day after the Ethics Committee, led by McConnell, recommended his expulsion.

The Constitution requires a two-thirds Senate vote to expel a member, meaning at least 19 Republicans would have to join all 48 Democrats. GOP Senator Susan Collins of Maine said such a case would go first to the Ethics Committee, led by Johnny Isakson of Georgia. That means an expulsion vote wouldn’t be immediate.

The allegations against Moore date to the late 1970s, and it would be highly unusual for the panel to examine possible misconduct predating Senate service. The Supreme Court said in the Powell case that House members questioned their power to expel a member for pre-election misconduct. In 2008, the Senate Ethics Committee declined to act against Senator David Vitter, a Louisiana Republican, after he admitted to “a very serious sin” when his phone number turned up in the records of the a Washington-based prostitution service. The panel said the conduct occurred before he ran for the Senate and he was never charged with a crime.

If Moore Runs and Loses to Jones:

Senate Republicans’ majority would narrow to just 51-49. As it is, Republicans need Democratic support on legislation that can be filibustered, because 60 votes are needed to overcome the minority’s delaying tactics. On matters that can be passed with a simple majority -- including tax and health-care repeal legislation and nominee confirmations -- McConnell couldn’t afford to lose more than one GOP vote.

Jones would serve through 2020, meaning the Democrats would inch closer to winning control of the Senate in next year’s elections. It still would be a hard task because Republicans have just eight seats on the ballot, compared with 25 seats held by members of the Democratic caucus.

To contact the reporters on this story: Laura Litvan in Washington at llitvan@bloomberg.net, Steven T. Dennis in Washington at sdennis17@bloomberg.net, Arit John in Washington at ajohn34@bloomberg.net.

To contact the editors responsible for this story: Joe Sobczyk at jsobczyk@bloomberg.net, Laurie Asséo, Justin Blum

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