The Moore Affair Is in the Hands of Alabama

The allegations of sexual improprieties with minors against GOP senatorial nominee Roy Moore have created tumult in Republicans circles. Several sitting U.S. senators have opined that Mr. Moore is unfit to serve. We’ve even heard some wonder whether Moore, if elected, should be seated.

The issue of whether the Senate can refuse to seat a new senator was explored back in January of 2009 in a scholarly paper by Hans von Spakovsky of the Heritage Foundation: “The Constitutional Requirement to Seat the Senator from Illinois: Upholding the Rule of Law.” It’s so scholarly that it has 22 endnotes, but it’s eminently readable. You might want to read the pristine PDF version, as the main page has suffered some formatting problems, but the print version might be more to your liking as its endnote numbers are clickable. What Spakovsky addressed was the seating of Sen. Obama’s replacement:

The refusal of the United States Senate led by Harry Reid to seat Roland W. Burris fails that test. Burris was appointed by Illinois Governor Rod Blagojevich under the authority of the 17th Amendment to replace outgoing Senator Barack Obama.[1] It is clear from a review of the applicable constitutional provisions, Supreme Court case law, and the history of the Constitutional Convention and the Constitution's subsequent ratification that the Senate does not have the constitutional authority to exclude Burris. There are no political or other objectives that the Senators opposing his seating could possibly have that would in any way justify such a stark and direct violation of the Constitution.

Mr. von Spakovsky made a solid case that the Senate does not have the authority to deny any duly elected senator his rightful seat. He also asserted that “certain Senators are not even questioning the ‘qualifications’ of the designee but the qualifications (and actions) of the executive who appointed him as a Senator”; the Illinois governor was having a mess of legal problems. In any event, Sen. Burris was sworn in on Jan. 15, 2009, Mark Kirk succeeded Burris on Nov. 29, 2010, and Gov. Blago was convicted in 2009 and remains imprisoned to this day.

If the U.S. Senate were to not seat Moore, it would surely set off a constitutional contretemps between the feds and a state, and the Senate would ultimately lose. However, the Senate does have the authority to expel its members, and expulsions are final, not appealable.

Of course, Congress rarely expels its corrupt members. For instance, if Sen. Bob Menendez is found guilty of his current corruption charges, you can be sure that few Democrat members would vote to expel him. (Even if Menendez is acquitted, the Senate should make its own judgment about the senator’s guilt and then decide whether he really should be in Congress, as an acquittal could be another case of jury nullification or some other miscarriage of justice.)

If I were an Alabaman and Roy Moore were the GOP nominee, I’d vote for Moore and hope the Senate would seat and then expel him. But expelling Moore would require Democrat votes, and Democrats might not want to cooperate. Dems might want to hang Moore around the necks of Republicans. After all, if they voted to expel, Democrat senators would be fairly certain that a more suitable Republican would soon show up without the baggage of Roy Moore.

Alabama Republicans shouldn’t beat themselves up about their “mistake,” as voters in other states have done the same thing. GOP voters in Nevada erred in 2010 when they chose Sharron Angle, which gave Harry Reid another term. Primary voters in my state of Missouri messed up with Todd Akin, whose comment about “legitimate rape” led to Claire McCaskill, who’s out of step with most Missourians. There are many other examples of primary voters choosing badly, so Alabamans shouldn’t fixate on Moore. (Republican voters in all the states could benefit from a Nov. 10 National Review article by Jonah Goldberg.)

Recently, American Thinker ran “Repairing the U.S. Senate” by yours truly. For you states’ rights folks, the article also appeared at the Tenth Amendment Center under a more provocative headline. The good citizens of Alabama might take a look at my short piece. You see, the Senate is not what it was intended to be.

And that’s because of the dang 17th Amendment, which established the popular election of U.S. senators. With popular elections, a candidate “owns” his nomination. Moore refuses to step aside because he won the primary; the nomination “belongs” to him. And if elected in the general, Moore will “own” his senatorial seat, not the people of Alabama.

If state legislatures still chose U.S. senators, as they did for most of our history, Alabama might not be having her Moore problems. America should repeal the 17th Amendment and go back to having state legislatures choose U.S. senators. Not only that, the repeal should stipulate that senators hold their jobs only at the pleasure of their state legislatures. In other words, state legislatures could sack senators at any time. U.S. senators should be seen as ambassadors of states to the central government in D.C. But with the 17th, they’ve gone rogue, and have forgotten why they’re in D.C., which is to represent the states.

The great state of Alabama is one of the reddest of red states. It would be a pity if she were represented by someone as out of step with Alabama’s culture as Doug Jones, who would immediately become a lackey of “Cryin’ Chuck” Schumer. It is now left to the government of Alabama to fix this problem. That might mean getting “creative.”

Alabamans should take a cue from someone Roy Moore has derided: Senate Majority Leader Mitch McConnell. Conservatives were grateful to McConnell when he sat on Obama’s third nomination to the Supreme Court, which resulted in America getting a strong conservative justice, Neil Gorsuch. I suggest that Alabamans “pull a McConnell” and sit on this thing. Postpone the general election, repeatedly if need be, refuse to sign papers, pass new laws, do whatever you have to do to stretch things out, be” creative” in delay. With Luther Strange, Alabama already has a decent man in the U.S. Senate who’s supporting President Trump’s agenda. Let him stay there, Alabama.

Jon N. Hall of Ultracon Opinion is a programmer/analyst from Kansas City.