Guest Commentary: For Republicans, Roy Moore Saga Is a Stew of Problems

By Charlie Gerow

New allegations about Alabama U.S. Senate candidate Roy Moore continue to roll like the Crimson Tide.

At the same time so are charges, complete with photographic evidence, about U.S. Sen. Al Franken (D-Minn.).

Meanwhile, we’re getting the first details of a secret “shush fund” that for more than two decades has been shelling out taxpayer money to quietly settle allegations against members of Congress. No wonder they call it “the swamp.”

For Republicans, the Roy Moore saga is a multitude of problems.

Charlie Gerow

Politically, there aren’t many good options for the GOP. With a scant two-vote majority in the Senate, there’s very little wiggle room for Republicans who badly need to get legislation, starting with tax reform, passed.

Despite that fact, there’s a growing awareness that the GOP brand is also impacted by what goes on in Alabama. As a result, there are a growing number of Republicans who have called on Moore to step aside.

They include U.S. Sen. Pat Toomey (R-Pa.), who told Meet the Press that he thought Moore should leave the race. He suggested that current U.S. Sen. Luther Strange, who lost the primary to Moore, could be a write-in candidate. Several other Republicans have followed Toomey’s call.

There’s a very practical problem with simply having Moore step aside. Even if Moore decides to give up his candidacy, which is far from likely, his name will remain on the ballot.

We’re already past the point when ballots can be changed. Under Alabama law, names can’t be added or deleted from the ballot within 76 days of an election.

The special election to fill the seat vacated by Attorney Jeff General Sessions is scheduled for Dec. 12. Ballots were printed and distributed a month ago when absentee voting began in the Yellowhammer State.

Without the ability to substitute candidates, the options are very limited. Some have talked about a write-in candidacy.

That’s a Herculean task under the best of circumstances. There are multiple practical problems. Without detailing each of them, proof of the difficulty is that no Alabaman has ever won a statewide race through a write-in.

Others have suggested that the date of the special election be changed.

While Gov. Kay Ivey (R) apparently has the legal power to do that, she has given no indication that she’d even consider such an extraordinary move. In any event, how would changing the date change things? Bad news doesn’t improve with age.

Another theory being tested by some in Washington, is to have Strange resign his seat, declare the special election scheduled for Dec. 12 as null and void, and schedule a new special election for the seat then opened by Strange’s resignation.

Whether that’s a legally plausible scenario remains to be seen. At best, it’s a last-gasp approach.

But gasping means there’s still life.

That leaves things in the hands of Alabama voters. If they elect Moore, there’s not much question that he must then be seated.

Moore meets the constitutional requirements and the election would be valid. Those are the only reasons the Constitution provides for refusal to seat someone.

The question then becomes whether or not the Senate would seek to expel him.

Expulsion is an extraordinary action and it overrules the express wishes of the voters. As a result, the process requires a two-thirds vote. That’s a very high bar.

The bigger question is whether the Senate would act on allegations of behavior that occurred prior to Moore being in the Senate.

I’m willing to be corrected, but I can’t think of any senator who’s been expelled for something they did prior to their election.

The theory is that acts or alleged acts that occurred before a senator got elected is an issue for the voters to decide. Once a senator is in office, the theory continues, voters don’t have that opportunity, so the full Senate acts in their stead.

The last time a senator was expelled was more than a century and a half ago.  Pledging allegiance to the Confederacy was enough to get you thrown out.

The House has expelled members more recently.

The late Ohio congressman, Jim “Beam Me Up” Traficant, was expelled 15 years ago after his bribery conviction.

If Moore is elected, seated and then expelled, it’ll be up to Ivey, a Republican, to appoint his successor.

What becomes of Franken, in this context, will be interesting. His conduct was also before he took office, but voters didn’t know about it at the time of his election.

Moore’s political fortunes don’t look good from here, but they might be brighter in the heart of Dixie.

Alabama hasn’t elected a Democrat to the Senate in a quarter of a century (and he switched to Republican after his election).

However, some polls now show Moore trailing the Democrat, Doug Jones, and some by double-digit margins. Other polls show down-the-middle results on the question of whether he should even stay in the race.

President Trump hasn’t said much about Moore’s candidacy. He supported Luther Strange over Moore in the primary election. He might figure that’s enough said.

Charlie Gerow is the CEO of Quantum Communications which has a Maryland office in Annapolis. He can be reached at [email protected].

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