Much discussion continues on whether the Senate can or will expel Senator Stevens. Several Senators, including Majority Leader Reid, have suggested that expulsion is a virtual certainty. Minority Leader McConnell, on the other hand, has indicated that Stevens should be given a chance to pursue his appeal before expulsion, leaving open the question of what happens should Stevens be required to report to prison while his appeal is still pending.
Stan Brand, the former General Counsel of the House, is quoted today as saying that “given the voter condonation of [Stevens’s] conduct, I think there are serious [constitutional] questions about whether they could expel him.”
Thus, possible resolutions range from immediate expulsion without regard to what might happen in the appeals process, on the one hand, to respecting the will of the voters and allowing Stevens to remain in the Senate without regard to whether he is required to serve time in prison, on the other. In my judgment, the proper course is somewhere in the middle, close to what Senator McConnell has suggested.
I do not believe that the re-election of Senator Stevens constitutes a jurisdictional bar to Senate expulsion in this matter. Although there is some Senate precedent to support such a position, the better view would be that the Senate retains the constitutional power of expulsion even for conduct known to the voters at the time of re-election.
Nevertheless, in my view the fact of Stevens’s re-election is more than merely a “political” issue as suggested in Professor Rick Hasen’s Election Law Blog today. To my mind, this implies that the Senate’s constitutional authority is unconstrained by the fact of the voters’ verdict, and the only issue is whether there would be some sort of political fallout for Senators who vote for or against expulsion. On the contrary, I believe that the Senate has a constitutional obligation, supported by its own precedents (and similar precedents in the House), to consider the decision of
Professor Hasen cites a CRS report to the effect that while each House of Congress has the authority to expel for misconduct known to the voters at the time of election, “it has been a general practice and policy in Congress not to expel a Member for past offenses if the electorate knew of the offenses involved, and still chose to elect or reelect that individual as their Representative or Senator in Congress.” (emphasis in original).
True enough as far as it goes, but it should not be inferred that this policy is one that each House could simply ignore or change. As one of the precedents cited by the CRS report explains, the policy is one of constitutional dimension:
As a matter of sound policy, this extraordinary prerogative of the House, in our judgment, should be exercised only in extreme cases and always with great caution and after due circumspection, and should be invoked with greater caution where the acts of misconduct complained of had become public previous to and were generally known at the time of the Member’s election. To exercise such power in that instance the House might abuse its high prerogative, and in our opinion might exceed the just limitations of its constitutional authority by seeking to substitute its own standards and ideals for the standards and ideals of the constituency of the Member who had deliberately chosen him to be their Representative. The effect of such a policy would tend not to preserve but to undermine and destroy representative government.
VI Cannon’s Precedents, § 398 (emphasis added).
In my next post, I will propose how the Senate might think about the issue of whether Stevens should be expelled.