×

If Roy Moore pulls off Senate win, expelling him is no slam dunk for McConnell

  • Alabama GOP Senate candidate Roy Moore has been hit by a wave of sexual misconduct allegations. Four new women came forward on Wednesday.
  • Senate leader Mitch McConnell is now threatening to oust Moore if he is able to pull off a win in December.
  • But a look at history says expulsion from the Senate could be hard to do.

Republican candidate for the U.S. Senate in Alabama, Roy Moore, displays a pistol to express his support for Second Amendment as he speaks at a campaign rally on September 25, 2017 in Fairhope, Alabama.
Getty Images
Republican candidate for the U.S. Senate in Alabama, Roy Moore, displays a pistol to express his support for Second Amendment as he speaks at a campaign rally on September 25, 2017 in Fairhope, Alabama.

With a wave of sexual misconduct allegations hitting Alabama GOP Senate candidate Roy Moore, Republicans in the upper chamber have largely withdrawn support for him and appear to be searching for a way to oust Moore if he is able to pull off a win in the December special election. Leadership is even threatening to expel him from the chamber by a two-thirds vote. A look at the paltry history of congressional expulsions suggests that Senate Majority Leader Mitch McConnell will have a real challenge if he is forced to go that route.

Only fifteen senators have been formally expelled from the Senate, and of those 14 were Civil War era members who were tossed for supporting the Confederacy. The only other expelled Senator was William Blunt from Tennessee way back in 1797 for treason. Since the Civil War, the Senate has held three separate votes on expelling members – for charges ranging from being a Mormon in 1909 to speaking in opposition to America's entry in WWI to conflict of interest. In each case, the Senate voted against expelling the member.

In lieu of expulsion, the Senate has managed to force members to resign when faced with serious ethical clouds or actual criminal convictions. McConnell himself was very active in the last two such efforts - Nevada Senator John Ensign (R) who resigned in 2011 following an investigation into conflict of interest charges during his cover-up of an affair, and Oregon Senator Bob Packwood (R), who resigned in 1995 before facing an expulsion vote for multiple sexual harassment charges.

The House of Representatives has a similar record with expulsions. Only two have been expelled for non-Civil War related reasons. In 2002, Representative James Traficant (D) in 2002 was kicked out following convictions of racketeering and bribery and Rep. Michael Myers (D), who was convicted in the Abscam sting.

"For McConnell and the Republicans, an expulsion vote is no sure thing. There is a reason that there have been so few expulsion attempts – they are a real rejection of the right of the voters to choose their own representatives"

This is not to say that an expulsion or forcing an official out is impossible. These days, with 24/7 news cycle shining its harsh light, members of Congress may find themselves very wary of the political fallout for letting a wayward official stay in office. The result may be that members of Congress are willing to exert much more pressure on misbehaving officials than in the past. In the House, we've seen bipartisan resignations a plenty from a cavalcade of politicians accused of sex-related hijinks over the last decade, including Tim Murphy (R-PA), Anthony Weiner (D-NY), Eric Massa (D-NY) and Christopher Lee (R-NY). A corruption conviction was the end of the line for Chaka Fattah (D-PA) and a cocaine conviction toppled Trey Radel (R-FL).

Based on his political career, which includes two separate instances of being pushed out as Alabama Supreme Court Chief Justice, and especially based on his refusal to back away from the current Senate race, Moore appears to be exactly the type of official who is immune from resignation pressure. For McConnell and the Republicans, an expulsion vote is no sure thing. There is a reason that there have been so few expulsion attempts – they are a real rejection of the right of the voters to choose their own representatives, especially one, like Moore, who the voters would know going in faced these specific complaints.

There are also basic electoral questions for the GOP. Before the scandal, Moore had shown that he is popular with a significant subset of the Republican base. Voting to expel him could engender electoral backlash for Senators already facing potential primary challengers on the right. However, if Moore's support cratered enough due to the nature of the charges, conservative voters might forget about Moore and not hold it against GOP Senators who vote for expulsion. But, as with everything else, that is no sure bet this electoral cycle.

Commentary by Joshua Spivak, a senior fellow at the Hugh L. Carey Institute for Government Reform at Wagner College in New York. He blogs at The Recall Elections Blog. Follow him on Twitter @recallelections.

For more insight from CNBC contributors, follow @CNBCopinion on Twitter.