Senate GOP has constitutional option on Moore; last senator ousted in 1862

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If you’re a Senate Republican, do you want the good news or the bad news?

The good news is that your already paper-thin, 52-48 majority may shrivel to a single seat should Democrat Doug Jones win the Alabama Senate special election December 12.

The bad news is that Alabama voters could preserve the GOP’s 52-48 majority by electing Republican nominee Roy Moore.

Let’s begin with the premise that the following could all be academic.

If Jones wins, the earth could very tilt off its axis and Alabama would boast a Democratic senator for the first time since the late Sen. Howell Heflin retired in January 1997.

That is a very real possibility.

There is also the very real possibility that Alabamians could send to Washington a right-wing zealot who is accused of having sex with an underage girl, purportedly dated teenagers, was permanently ousted from the Alabama Supreme Court for defying a U.S.

Moore has denied all of the allegations.

Supreme Court decision on same-sex marriage, pins terrorist attacks on secularism and suggested that Rep. Keith Ellison, D-Min., shouldn’t be allowed to serve in Congress because he’s a Muslim.

Senate Republicans are flipping out.

Imagine the avalanche of questions and daily drumbeat of atrocious stories about the “GOP brand” and “values” of the party if voters dispatch Moore to Washington.

Of course, if Jones wins, the GOP could discover its Senate majority shriveled to 51-49,  all while trying to approve tax reform, avoid a government shutdown and maybe hike the debt ceiling.

Did we mention that Sen. Rand Paul, R-Ky., is laid up in throes of pain after police charged his neighbor with going Vontaze Burfict on the Bluegrass State’s junior senator?

Or Arizona GOP Sen. John McCain’s brain cancer treatments? Or the health of Sen. Thad Cochran, R-Miss., who needed coaching from an aide when voting on multiple amendments to the budget last month — following an extended absence due to illness?

“Every day is a Maalox moment anyway,” conceded Senate Majority Leader Mitch McConnell, R-Ky.

One can only speculate on the supply of TUMS, Pepto-Bismol, Alka-Seltzer and Imodium that McConnell stashes in his medicine cabinet these days.

Republicans don’t know what to do. Can they move the special election — after appointed Sen. Luther Strange, R-Ala., lost the primary? Is that fair to Jones? For that matter, is it fair to Moore? Might Republicans just have to eat this seat — whichever scenario plays out — and deal with the consequences?

A phalanx of reporters, TV cameras and U.S. Capitol Police officers trudged up Capitol Hill on a rainy morning in January, 2009. The throng formed a human cocoon around then-Senator-designate Roland Burris, D-Ill., who then-Illinois Democratic Gov. Rod Blagojevich appointed to succeed Barack Obama in the Senate upon his election to the White House.

But several hurdles stood between Burris and his desk in the Senate chamber.

Political leaders of both parties decried Blagojevich’s selection of Burris as “tainted.” Authorities had just arrested Blagojevich on bribery charges a few days before. Opponents of Burris’s appointment argued that any selection by Blagojevich was sullied. Illinois Secretary of State Jesse White refused to sign Burris’s certificate of appointment.

That gave then-Secretary of the Senate Nancy Erickson reason to reject Burris, citing a violation of Senate Rule II. The rule governs the validity of credentials for senators-elect/designate. Article I, Section 5 of the Constitution declares that regardless of whom voters elect, “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members.”

Then-Senate Majority Leader Harry Reid, D-Nevada, initially used Article I, Section 5 as a reason not to seat Burris. Guards blocked Burris when he attempted to enter the Senate chamber.

A few days later, the Illinois Supreme Court ruled that Burris’s appointment was valid despite lacking White’s signature. Reid and Erickson relented, and Burris succeeded Obama in the Senate.

If Moore wins, it’s conceivable that Alabama election officials could decline to certify the special election. That could touch off a court battle and at least preserve McConnell’s stock of Maalox and TUMS for a while. Regardless, McConnell could contest Moore’s fitness for office under Article I, Section 5 and potentially block him from being seated.

However, McConnell & Co. could deploy another constitutional remedy to stymie Moore, also authorized under Article I, Section 5.

Senators could move to expel Moore once he’s been sworn-in. Granted, one could make the case that the alleged transgressions didn’t take place while Moore was a senator. Moreover, the Senate is often concerned about process.

One could see where Moore may demand at least a formal Senate Ethics Committee investigation. If that becomes the case, committee Chairman Johnny Isakson, R-Ga., may want to accompany McConnell on his trips to Costco to purchase Maalox in bulk.

Regardless, Article I, Section 5 of the Constitution grants the House and Senate broad powers to “punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.”

Considering the political furor, it’s hard to see how Moore would survive such a vote.

That said, the latter remedy is rare.

The House has only expelled five members in history. The last House member to get the boot was the late-Rep. Jim Traficant, D-Ohio, in 2002. He later went to jail.

The Senate’s expelled 15 members. But senators haven’t kicked out any of their colleagues since January 10, 1862. That was quite a day on Capitol Hill as the Senate voted to can three senators in 24 hours. The last was Sen. Jesse Bright, D-Ind.

Bright was accused of harboring sympathies for the confederacy.

There was chatter about ousting the late-Sen. Ted Stevens, R-Alaska, after his conviction (later overturned) in 2008. But Stevens then lost re-election.

The Senate was also prepared in 1995 to bounce former Sen. Bob Packwood, R-Oregon after the Ethics committee unearthed a prolific trail of sexual harassment and sexual assault. Packwood then declared he was “aware of the dishonor,” adding it was “his duty” to step aside.

Senate Republicans also have a less dramatic option available. They could shun Moore. House and Senate members aren’t guaranteed a lot on Capitol Hill.

It’s not written anywhere that lawmakers automatically get to sponsor bills or write amendments — or hold committee assignments or caucus with either the Democrats or Republicans. The only thing that’s pledged to a lawmaker is their right to vote on the floor.

Senate Republicans could refuse to assign Moore to any committees. They could also bar him from joining the Senate Republican Conference.

Senate Republicans stripped former Sen. Larry Craig, R-Idaho, of his committee assignments after he pleaded guilty to disorderly conduct following an encounter with an undercover police officer in a Minnesota airport restroom.

House Republicans did the same with Rep. Trey Radel, R-Fla., after police arrested him on cocaine charges.

Democrats tinkered with evicting former Sen. Joe Lieberman, I-Conn., from the Democratic Caucus after he  supported McCain for president and spoke at the 2008 Republican Convention. But Democrats later relented.

So, if you’re a Senate Republican, do you want the good news or the bad news? Either way, McConnell may want to install a lock on his medicine cabinet for fear GOP colleagues may drain his supplies.

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