If Roy Moore is elected to the Senate, Republicans are promising the unprecedented. The former Alabama Supreme Court judge, accused of pursuing and molesting underage girls while in his 30s, could face an ethics investigation as soon as he’s sworn in.
“If he wins, we have to seat him,” Sen. Tim Scott (R-SC) told NBC’s Meet the Press on Sunday. “Then there will immediately be an ethics investigation.” Senate Majority Leader Mitch McConnell has said the same — adding that he had hoped Moore would withdraw from the race.
In November, the Washington Post published the accounts of four women who said Moore had engaged with them sexually when they were teenagers, including Leigh Corfman, who was 14 at the time; Moore was then 32. Other accusers have since come forward.
This is not the kind of behavior the Senate’s Select Committee on Ethics, which investigates allegations of “improper conduct,” was originally created to address — it is a body known to execute investigations into corruption and fraud well. But the committee, founded in 1964, has since been charged with considering allegations of inappropriate sexual behavior. Most notably, former Sen. Bob Packwood resigned in 1995 after an ethics investigation found allegations that he had harassed and assaulted members of his staff to be credible.
But Moore adds an additional layer of complication. An investigation into his alleged wrongdoing would be an inquiry into accusations and actions predating his time in office. The people of Alabama know of the reports against him, and — should he be elected — they would have voted for him in spite of those allegations. It poses an ethical and constitutional dilemma: Should the moral compass of those currently serving in the Senate be placed above that of voters? Does this Senate body even have jurisdiction to expel someone over actions that predated his term?
“It’s uncharted territory,” Sen. Jeff Flake (R-AZ) said.
Who should be the judge of Moore?
The White House and the national Republican campaign arm are backing Moore’s candidacy. Senators, both Democrat and Republican, have voiced their opposition. Sen. Richard Shelby (R-AL) said he didn’t vote for Moore, and that “Alabama deserves better.” Many others pulled their endorsements, or called for a congressional investigation.
But in some of these disavowals is language that opens room for debate about Moore’s position, should he be elected.
"The most appropriate course of action, in my view, is to leave the final judgment in the hands of Alabama voters — where it has always belonged — and withdraw my endorsement," Majority Whip Sen. John Cornyn said, according to Politico.
Alabama Rep. Bradley Byrne issued a statement with similar language.
"The decision is ultimately up to the people of Alabama to evaluate the information they have before them and make an informed decision. We must respect the voters' decision," he said.
Whether or not it’s the Senate’s place to conduct an investigation into allegations made prior to Moore’s election, which voters knew about and which regard events that predate his term, is both a political question and a constitutional one.
Eyes are on Washington as a breeding ground for unfettered corruption and workplace harassment. At the same time, allegations of sexual assault and harassment can both have career-altering consequences, even without the admission of guilt, as they did with Sen. Al Franken, or be invalidated by electoral victory, as they have with President Donald Trump, who himself is accused of more than a dozen incidents of sexual harassment.
Then there is a constitutional argument — one that can easily be made political. Should the Senate investigate allegations of child molestation that predate Moore’s position in the Senate? There has been an institutional lack of clarity on this very question that dates back to an ethics case in 1893, James Wallner, a former senior US Senate aide and now a senior fellow with the conservative think tank R Street Institute, writes.
William N. Roach, a North Dakota Democrat, was charged with “certain criminal offenses, committed while cashier or officer of a bank in the city of Washington.” The Republicans called for a congressional investigation but received pushback from Democrats.
What ensued was an inconclusive debate as to “whether the Senate has authority or jurisdiction to investigate charges made against a Senator as to conduct or offenses occurring or committed prior to his election, not relating to his duty as Senator or affecting the integrity of his election." Ultimately, Roach served until 1899.
It’s a debate that rocks the core of American democracy, and the Constitution is vague on the matter.
“Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and with the Concurrence of two thirds, expel a Member,” it says. Should that right extend past a senator’s time in office? As Wallner points out, that would set a new and powerful precedent in Congress.
“The Senate wasn’t meant to be a very responsive chamber,” Wallner said. “Now, if [Moore] tried to get Alabama to secede from the union, then that would be grounds for expulsion.”
The Senate Ethics Committee is good at investigating corruption and fraud. Sexual assault is more complicated.
According to the congressional record, the Senate Ethics Committee is meant to “receive complaints and investigate allegations of improper conduct which may reflect upon the Senate.”
If the Senate does decide to pursue an investigation into Moore, as members have said it would, Moore — who has vehemently denied the allegations against him on the campaign — would be put on the record. There would be a call for testimony and evidence. For example, in Packwood’s case, it was the investigation that brought to light the senator’s diary — and tampering with the diary — recounting his illicit encounters with female staffers.
Even so, sexual misconduct cases always have a lot of gray area. While the Ethics Committee has been tasked with investigations surrounding sexual assault in the past, its original creation was to address much more black-and-white issues.
“It’s geared toward a certain thing: Historically it’s all been corruption, embezzlement, fraud,” Wallner said.
It’s a valid question whether the committee is equipped to handle allegations like those against Moore. Senators adamant about holding Moore accountable say yes, it has to.
“They have a tradition of taking these cases as they come along,” Sen. Luther Strange (R-AL) said.
The body rarely gets to the point of an expulsion vote — such a vote hasn’t successfully passed since 1862, when Indiana Democrat Jesse Bright was expelled from the Senate for allegedly committing treason by writing a letter to “His Excellency, Jefferson Davis, President of the Confederation of States.” In US history, 15 senators have been expelled from the Senate — 14 of whom supported the Confederacy. Many more have been considered for such an action, and usually resign from the pressure of a vote.
Meaning, following a review and recommendation from the Senate Ethics Committee, 67 senators would have to vote Moore out. Since Democrats would likely all support expelling Moore, 19 Republicans would have to join the effort for it to happen.
But make no mistake: If Moore wins the Alabama Senate race, and it comes to an investigation, the steps of the investigation won’t be anything like the national spectacle of James Comey’s hearing on Russian election meddling.
Senate ethics investigations are historically a very private process and take time.
Asked repeatedly whether the Senate Ethics Committee is equipped or responsible for allegations that predate a Senate term, Sen. Brian Schatz (D-HI), who sits on the committee, said three times he couldn’t comment on anything related to the committee.
Is it like Fight Club?
“Your words, not mine,” Schatz said.