Why Senators Will Likely Agree to Moore Taking His Senate Seat

This article first appeared on Dorf on Law.

My latest Verdict column explores the reasons for the difference in reaction time to sexual harassment, sexual assault, and other sexual misconduct in the private sector (thus far mostly Hollywood and the media) versus in government.

I note that actors, directors, journalists, etc., have been meeting with swift termination, while elected officials have not been.

I offer a couple of factors as key to the explanation of the disparity.

First, polarization makes people likely to view both the seriousness and truthfulness of the allegations through a partisan lens.

And second, even when people accept that "their guy" did the thing and it was bad, it is instrumentally rational to stick with your scoundrel if he will vote as you expect, rather than to jump ship in favor of an upstanding citizen of the rival party.

There are other factors at work too, but here I want to focus on those circumstances in which the constitutional replacement mechanism prevents members of a party from abandoning a compromised official, whether the problem is sexual misconduct or something else.

To make matters concrete, suppose that a Senator is embroiled in a scandal that would justify his expulsion under Art. I, Sec. 5, cl. 2. Let's imagine that he has repeatedly exposed himself to members of his staff.

However, the Senator is a Democrat from a state that happens to have a Republican governor--or vice-versa. Or perhaps the Senator has only just narrowly won election, so that even if a governor of his own party would appoint a temporary successor, a special election for the balance of the term would risk flipping a seat.

GettyImages-875051592 Republican candidate for U.S. Senate Judge Roy Moore, November 16, 2017, at a press conference in Birmingham, Alabama. Moore refused to answer questions regarding sexual harassment allegations and pursuing relationships with underage women. Drew Angerer/Getty

Under such circumstances, Republicans will be reluctant to expel a Republican Senator and Democrats will be reluctant to expel a Democratic one. And because it takes a 2/3 vote of the Senate to expel a member, that could mean that the scoundrel will serve out his term.

Gaming this scenario out, the only time that Republicans would be willing to vote to expel a bad-acting Republican would be when he hails from a state with a Republican governor that reliably elects Republicans to the Senate, and likewise for Democrats.

Indeed, even this scenario may not be safe, as reliably Democratic Massachusetts discovered after the death of Ted Kennedy led to the Senate victory of Republican Scott Brown in a special election.

That's not to say that it would never be in a party's institutional interest to expel a member. If Roy Moore wins the Alabama special election and the Republican leadership concludes that he taints the Republican brand too much, Senate Republicans might vote to expel him ( assuming they have the power to do so for pre-Senate misconduct).

But even if so, Alabama is a special case. It is hard to imagine a Democrat winning against a Republican who is not a likely pedophile. After all, the Democrat running right now still might lose to one who is.

Thus, it is fair to assume that there will be some number of Senators who would be expelled based on the awfulness of their conduct alone but will manage to serve out their terms because members of their own party do not want to risk losing the seat either temporarily (to a governor of the other party) or for the balance of a six-year term (in a special election).

This is not the largest problem facing the republic, to be sure, but it is a problem. In principle, this same problem could occur in the House, but I focus on the Senate because each seat is worth so much more, given the length of terms and the number of members.

Can anything be done about the problem I've just identified? Or is it pretty much baked in via Art. I, Sec. 5, cl. 2 (requiring a 2/3 vote for expulsion) and Section 2 of the 17th Amendment (authorizing special elections and temporary appointments by governors if so authorized by state legislatures)?

It is hard to argue that there ought to be a change in the expulsion procedure. A supermajority requirement for expulsion prevents either party from using an ordinary majority to expel members of the other party based on political disagreements disguised as charges of wrongdoing. So we should not want to lower that threshold.

What about the 17th Amendment? An argument can be made for changing it to allow party continuity. Wording it right would be tricky, however, because Senators do not necessarily come from either major political party.

Suppose Bernie Sanders were caught in a scandal warranting expulsion. Sanders is an independent. A rule that said something like Democrats must be replaced with Democrats, Republicans must be replaced with Republicans, and Independents must be replaced with Independents would be easily abused depending on who does the replacing. Vermont currently has a Republican governor who would have an easy time finding a conservative independent to effectively flip the seat.

Indeed, this problem would arise even for Senate seats held by members of the two major parties, unless some mechanism were specified by which actors who share the overall ideological convictions of the person to be replaced get to do the replacing.

I assume that problem is not insuperable, but it would appear to require a constitutional amendment to adopt the right mechanism. By its terms, the 17th Amendment allows for governors to make interim appointments (if so authorized by a state legislature) and for voters to choose a replacement to fill out a term in a special election. There is no mechanism by which other entities--the leadership of the Democratic or Republican party, say--could be designated to do the job.

But might there be a workaround? Some people who dislike the Electoral College argue that it can be circumvented without a constitutional amendment through an interstate compact among states with sufficient Electoral votes to decide a presidential election.

Whether the so-called National Popular Vote (NPV) compact would be valid and binding is an open question that I won't address here, but I think there are serious obstacles to circumventing the 17th Amendment via a statute or a compact.

If the NPV compact would be constitutional, that would have to be because Article II and the 12th Amendment do not forbid states from instructing their electors. Thus, it could be said that the NPV formally leaves the Electoral College intact.

Whatever one thinks of that argument, it's harder to see how one could have a law -- whether a federal statute, a state law, or an interstate compact -- that designates some selection method for filling Senate vacancies that does not involve either an election or gubernatorial selection and still comply with the 17th Amendment.

I do not think that a state law must leave either the voters or the governor completely unfettered choice. E.g., states could enforce reasonable filing deadlines for candidates getting on the ballot for a special election.

However, I do think that the 17th Amendment requires that either the voters of the state or the governor must be the primary actor and thus cannot be relegated to the part of rubber-stamping someone selected by a wholly different mechanism.

Accordingly, I don't see a good way out of the problem I've identified here short of a constitutional amendment to modify the 17th Amendment. I regard such an amendment as extremely unlikely. And that makes sense.

There are more serious flaws in the US Constitution, so that once one starts thinking about how to amend it, the interim-selection method ends up pretty far down on the list.

Michael C. Dorf is the Robert S. Stevens professor of law at Cornell University. He blogs at DorfOnLaw.org.

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