Four Senate Stories That Might Shape Moore’s Fate
Past election and ethics controversies offer precedent for GOP
Torricelli, Murkowski, Burris & Ensign: That’s not the newest lobbying law firm on K Street, but rather a roster of senators whose extraordinary political careers point toward the four tough paths for Republicans intent on keeping Roy Moore out of the Senate.
The lateness of the electoral hour, combined with Alabama’s deeply red nature and solid support from the state’s GOP base, continue to afford the 70-year-old, twice-removed chief justice of the state Supreme Court big advantages if he persists in his campaign — notwithstanding allegations that while he was a prosecutor in his 30s he sexually assaulted two teenage girls and pursued romantic relationships with others.
Moore is giving every indication he’s pressing ahead to the special election in four weeks. And that’s as a growing number of would-be congressional colleagues have urged him to get out of the race or face the possibility that, should he win, he’ll be ostracized at best or, at worst, prevented from taking his seat or quickly expelled.
Watch: Who in Congress Is Pushing Roy Moore to Drop Senate Bid?
That is a shift from last week, when most Republican senators said Moore should abandon his campaign against Democratic former federal prosecutor Doug Jones only if the allegations were proven true — which is the position President Donald Trump continues to maintain.
A pivotal question is whether, after his return to Washington this week after a dozen days in Asia, the president will move off that middle ground and take the lead in either muscling Moore toward the exits or helping him win Dec. 12.
The choice involves a profound political calculation for Trump, and how he makes it could have lasting consequences for his presidency.
If he sides with the Republican establishment and condemns Moore unequivocally, he would ease the panic at the prospect of having an alleged child predator as a senator — and remove a millstone from GOP efforts to hang on to control of Congress next year.
If he takes the side of the nationalist culture warrior wing of the GOP and stands with Moore unequivocally, he’d gain their gratitude for sticking by an avatar of their ascendant movement — ensuring that his hard-core conservative base stays with him through the midterm election.
But if the president does not make himself clear very soon, Republicans out to stop Moore will have to move fast to decide which of these named-after-a-senator scenarios to pursue:
The ‘Murkowski’ option
The most plausible possibility, but still a long shot, is to put together a winning write-in campaign in just two dozen days.
This requires finding a willing Republican with strong name recognition and nothing really to lose by trying. That means Luther Strange, unless Jeff Sessions concludes now is the time to try to get his old job back, or former Gov. Bob Riley decides at age 73 that he’s ready to return to public life seven years after his two-term tenure ended.
After six years as Alabama’s attorney general, Stange was appointed in February to fill the seat vacated when Sessions became U.S. attorney general. But then in September he lost to Moore in a runoff for the GOP nomination.
The state’s “sore loser” rule prevents people defeated in a primary from getting their names on the general election ballot another way. But that does not bar Strange from running as a write-in, the Alabama secretary of state says. And last week Sen. Lisa Murkowski went to pitch him on the idea of a write-in candidacy. She was the ideal messenger, because in 2010 she became only the second person to ever win a Senate election as a write-in candidate.
After an upset in the Republican primary in which she lost to lawyer Joe Miller, a tea party challenger railing against the establishment much the way Moore is now, Murkowski launched her write-in effort just six weeks before Election Day. She ended up triumphing by 11,000 votes. (The only other write-in winner was Strom Thurmond, in his initial Senate campaign in a 1954 special election in South Carolina.)
The ‘Torricelli’ option
Some Republicans hold out the slim hope of replacing Moore on the ballot — and maybe even delaying the election to give the new nominee time to campaign.
State law gives GOP Gov. Kay Ivey the power to delay the vote, but she has said she won’t do so. Also, the ballots are printed, absentee votes have been cast and state law sets a candidate withdrawal deadline of 76 days before the election — essentially the day in September when Moore won the runoff.
All that aside, if Moore declares he’s no longer running, a last-minute switch could be made possible by the partisan nature of how elections are administered and how election laws are interpreted.
The precedent here is what happened in New Jersey in 2002.
A month after running unopposed in the Democratic primary for a second Senate term, Robert G. Torricelli was “severely admonished” by the Ethics Committee for accepting thousands of dollars in improper gifts from a New Jersey businessman. His poll numbers sank steadily, but Torricelli waited until Sept. 30 before pulling out of the race — by which point it was two weeks too late, under state law, to replace him as the nominee.
But state Democratic Party officials sued to get new ballots printed with the name of their chosen replacement, former Sen. Frank R. Lautenberg. The Democrat-dominated state Supreme Court voted unanimously to do so, on the grounds that voter interest in having a choice between viable major party candidates should supersede a strict reading of statute. The U.S. Supreme Court declined to get involved, and Lautenberg won his old job back by 10 points.
The ‘Burris’ option
Should Moore win, his antagonists must turn their attention to Capitol Hill. Their first option could be to bide their time — in the hope that news even more damning to Moore comes to light and compels him to leave public life.
Another would be for a senator to challenge a new arrival’s right to take the oath of office, a prerequisite for membership under Article VI of the Constitution. Denying someone a seat hasn’t happened since Reconstruction, and in the past century only seven challenges have been heard. Six of the members were eventually admitted; the seventh died while his case was being debated.
Of the four challenges based on questions of character, all involved public corruption rather than personal morality.
An alternative is for the Senate to find something wanting in the official paperwork certifying a newcomer’s election or appointment. The latter happened eight years ago, when the Democratic leadership blocked one of their own, Roland W. Burris of Illinois, from taking office for 11 days because of the odor of corruption infusing his appointment.
By the time Burris arrived at the Capitol in January 2009, Democratic Gov. Rod Blagojevich had been charged with selling his appointment to the open Senate seat — created when Barack Obama resigned to prepare for the presidency — to the person who promised to raise the most cash for the governor in return.
Burris insisted he’d done nothing untoward, but Democratic leaders asserted he could not take the seat because his certificate was missing a signature. The state Supreme Court ruled no such signoff was required, right as the Democratic leaders concluded Burris would not be going away easily and Obama urged an end to the impasse before his inauguration. That November, the Ethics Committee admonished Burris for being disingenuous about what he’d promised to get the job. He did not seek election in his own right the next year.
The ‘Ensign’ option
The ultimate move against Moore would be to allow him to take office and then trump the will of the electorate by expelling him.
Article I, Section 5, of the Constitution gives the Senate power to “punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member.” But no one has been kicked out since the Civil War, when 14 were removed for supporting the Confederacy. Since then, only 13 senators have faced serious expulsion drives, and those who have not beaten the rap on the Senate floor have almost always chosen to resign in the face of near-certain removal.
Both of the most recent cases centered on sexual misconduct by Republicans, who saw their own caucus abandon them en masse once the evidence against them grew overwhelming. John Ensign of Nevada quit in 2011 just before the ethics panel detailed a series of financial improprieties stemming from an extramarital affair with the wife of the senator’s chief of staff. Bob Packwood of Oregon quit in 1995 just after the committee (with McConnell as chairman) detailed his “habitual pattern of aggressive, blatantly sexual advances” on Hill aides and lobbyists.
Each of those investigations took two years or so. What seems different now is that the Ethics Committee will be under serious political pressure to act more quickly, maybe even to the point of starting its inquiry before Moore could become a senator-elect.