The Attainder Clause Prohibits Senate Expulsion of Al Franken and Roy Moore.

And Even if it didn’t their expulsion would still be unconstitutional, and even if it weren’t it would still be a sin against sound political theory

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two-thirds, expel a Member. (Article 1, Section 5.)

Yes, it’s a little early to worry about the expulsion of Mr. Moore. (My editorial board disapproves the use of an honorific title for any official twice removed for misconduct from office to which that title attaches.) Moore has not yet been elected, and it is just conceivable that he won’t be. Still, Senate leadership has suggested expelling Moore if elected. In the normal course the Governor of Alabama will then make an interim appointment to be followed by a Republican-safe, safer Republican, election down the road. So the Moore question may well be on the horizon, and as Franken is already headed to the Ethics Committee, the issue is ripening.

To Expel Would Be to Attaint.

I am going to assume that expulsion would be for conduct before election to the Senate and bearing no direct connection to that body. This is not quite as safe an assumption for Franken as for Moore, but for both it is the current state of things. That the predicate acts were prior to and independent of Senate membership seems to me to be of the first order of importance.

No Bill of Attainder or ex post facto Law shall be passed. (Art. 1, Sec. 9, Cl. 3)

“Bill of Attainder” is a museum quality specimen of legal-historical technicality. The largest act of attainder in this country was Pennsylvania’s stripping of the rights of citizenship from 500 named Tories in 1777.  For any real understanding of attainder, however, it is to British history that we need to turn. In passing a bill of attainder Parliament dealt out to named individuals punishments including, in rough order of prevalence, confiscations, loss of peerage, corruption of blood (making the foregoing applicable to heirs), removal from office or from the Parliament, death and incarceration. Attainder is based upon a legislative “conviction” of what the Parliament would call “high treason,” “treason,” or “felony,” whether or not the conduct the Parliament found repugnant fell under prevailing legal definitions of those terms. 

In the US Constitution the ban on bills of attainder serves a separation of powers and a due process function. It is, with very few, and expressly delineated, constitutional exceptions, the judicial function to convict and punish for unlawful conduct. 

One of the express constitutional exceptions has been a frequent topic of conversation for months now: Article 2, Section 4, impeachment. Article 1, Section 5, expulsion is only now getting notice. That provision expressly gives the House and the Senate power to punish their own members. For what may they be punished without running afoul of the Attainder Clause?  Clearly Senators can be punished at least for violation of the “Rules and Proceedings” of the Senate.  Franken is not and Moore could not be accused of violating Senate rules.

No one doubts that the Attainder Clause bars Congress at this point in time from punishing Moore for an attempted rape committed 40 years ago and bars its punishing Harvey Weinstein for any of his sexual transgressions. As far beyond doubt would be attainder invalidity were Congress to legislate a prison sentence for the alleged attempted 1970s rape once Moore became a Senator or to impose 6 months community service upon Franken for harassment.  Can the Senate nonetheless exercise its power of expulsion as punishment for these offenses?

Expulsion Is an Attainder-Prone Punishment.

It might be objected at this point that although imprisonment, community service, or confiscation for pre-Senate conduct would count as acts of attainder, removal from office is just not a punishment within the meaning of “attainder.”  If this is intended as an objection based on the meaning of “attainder” when the Constitution was written and ratified, it fails. It is inconsistent with the history. British acts of attainder could and did involve removal of the attainted from offices counseling or serving the English monarch and from their seats in Parliament. 

Probably the most famous of attainders was that of Thomas Wentworth, Earl of Strafford in 1641. Wentworth lost his peerage and place in Parliament, losses somewhat overshadowed, to be sure, by the circumstance that he also lost his head. That he was expelled Parliament is made clear enough, however, by the fact that his son 20 years later had to have the attainder reversed for his own return to the peerage and Parliament.  

Alexander Hamilton, in opposing attainder in 1784, apparently understood it to include among the legislative punishments, “disqualification” as well as “disfranchisement and banishment.”  The practice, he thought, could lead to “an aristocracy or an oligarchy,” where “no man can be safe, nor know when he may be the innocent victim of a prevailing faction.” If the prevailing faction commanded 2/3 of the Senate, expulsion could serve just this function. It seems to me clear that lawyers of the 1780s would have advised that a vote of the Senate to remove one of its own members was potentially an act of attainder.

The Clause precludes Congress’s purporting to act as an alternative to or backup for the judicial system for criminal offenders who happen to become members.  The Senate’s power to punish is not an anti-crime provision or an anti-bad-behavior provision. It is a Senate-control-of-its-own-functioning provision. 

Expulsion of Moore or Franken Would Be an Act of Attainder.

Of course, not all expulsions from the Senate are attainders because some fall within the express exception of punishments for disorderly behavior sufficiently closely related to the rules and proceedings of the Senate. Conduct unrelated to and pre-dating Senate membership is simply not, in general, within the Section 5 exception, and so to punish it would be attainder. 

Even if not Attainder, these Expulsions Would Be Beyond the Competence of the Senate.

Erase the Attainder Clause. As already argued, the expulsion of neither Moore nor Franken would be licensed by Clause 5.  The Senate could surely with a straight fact call the conduct of either Moore or Franken “disorderly Behavior” which was not a general legal term of art. As their particular disorderly behavior had no relation at all to the Senate, however, and occurred well before or long before Senate membership, it would be a matter for the local district attorney or for a civil tort action, not Senate discipline. 

An Egregious Conduct Exception?

You may be tempted to agree that the Senate cannot normally expel for conduct prior to or otherwise well outside Senate membership but yet think there should be an exception if that conduct is sufficiently egregious. Don’t certain kinds of really bad past acts in fact endanger the standing or functioning of the Senate? I see two possible theories along these lines. (1) The prior behavior might be evidence that the senator, while a senator, will with high probability engage in conduct that would directly affect the functioning of the Senate. (2) The membership of a person who engaged in such conduct in the past lowers the political or moral standing of the Senate and diminishes public’s respect for the institution. This, in turn, could be expected to impede the proper democratic functioning of the Senate in various ways. 

1. Risk of new bad conduct.
It is possible to imagine evidence from past conduct that would be highly probative on the proposition that a senator would likely abuse his or her office. Suppose, after election, a witness and a briefcase full of documents surfaced showing that a statute of limitations time ago, while in the state legislature, the senator had systematically over many years accepted bribes and voted quid pro quo. Moreover, post-election he was surreptitiously taped saying, “as a man with a big, expensive family, I consider it my duty to accept any bribe that is rich enough and can be well enough hidden.” I concede that there would be neither an attainder nor a Section 5 issue in the expulsion of this hypothetical senator. This is a “Proceedings” case, and even if those proceedings have not yet been corrupted, the risk is great enough for the Senate to act.  

There is, of course, a risk in recognizing a future risk exception to the constitutional limits on the Senate’s predicate for punishing by expulsion. Small risks, especially under the influence of partisan politics and personal antipathies, can be blown up to appear to be great risks. Still, I think that an exception along these lines has to be recognized in principle.

In principle, but that principle would not apply to either Moore or Franken. The likelihood of either of them engaging in sexual misconduct with any connection to the Senate is surely now very low indeed. An expulsion predicated on this risk would be sham, and would not escape constitutional objection. 

2. Moral standing of the Senate and its public perception. 
 It is not entirely crazy to think that the moral status of a public body is diminished if one of its members has behaved really wretchedly in the past, even if not projected to do so in the future. The institution is to some extent and for some purposes a sum of its members. It could be contended that it would simply be wrong to have someone in the Senate who had committed a serious crime, however long ago the offense, however little likely was future wrongful behavior, however sincere and complete the repentance for the conduct, and however serious the criminal sanctions already endured.

It may well be that Senator Young had something of this sort in mind when, in the context of the harassment allegations, talked about the “integrity of Senate” and Senator Gardner expressed concern about “the ethical and moral requirements of the United States Senate." 

The theory that pollution of the Senate by the mere presence of a former malefactor is enough to license his expulsion, independent of whether or not that presence produces public consternation, we might fairly call a “purity theory.” Purity theories of this ilk have some special problems from both  the side of philosophical moral theory and our shared practical ethics. More on that in the appendix.

The concern for the collective virtue of the Senate is, in the real world, always going to be accompanied by a concern for the public perception of that collective virtue. It is not only that a senator with a criminal past may lower the worthiness of the body as a whole, if that senator’s history is known to the public, the perceived worthiness of the Senate will go down, maybe a little, maybe a lot.

Diminished public respect for the Senate is significant.  It is not any less so because there are other and more important reasons that the Senate stands lower in the public regard than it should – the relation between senators, their donors, and their votes on the Senate floor, for example.

Diminished public standing of the Senate has bad consequences for the robustness of democracy and for the likelihood that the Senate will legislate well.  

The standing of the Senate in the eyes of the citizenry is a legitimate matter of concern for the Senate. It is appropriately taken into account in various sorts of decisions the Senate might take – far stricter anti-corruption rules being one obvious area that could well be explored.  The public perception of the body is surely relevant in deciding whether to expel a member for bad acts connected directly to the Senate while a senator. However, when it comes to expulsion of a senator for acts prior to Senate membership and unrelated to the Senate, these considerations cannot license an expulsion that does not also fall into the high risk of future Senate-related misconduct category. The argument follows. 

Attempted rape is a very serious criminal offense. Yet when the question is the politico-moral standing, real and perceived, of the Senate, the most serious of all crimes is treason. Could the Senate remove a senator when it was discovered that she participated in the sabotage, years ago, of an aircraft carrier in wartime?  Of course, she should not be in the Senate. The Senate’s removing her from office on its finding her guilty of treason would, however, be attainder in its paradigm historical form. The House can impeach for treason, and the Senate can convict, but neither house can attaint for treason. What the Senate can certainly do is expel the incarcerated traitor for dereliction of duty after she is convicted by the courts. Corollary to conclusions above, even without the Attainder Clause the naval sabotage would have insufficient relation to the Senate, its rules, or its proceedings for it to expel pursuant to Clause 5.

  

So only the “high future risk” theory provides a plausible egregious conduct exception to the constitutional impermissible of expulsion for past non-Senate conduct. That exception I helped along by imagining a case in which significant evidence of past bad conduct and likely future bad conduct turned up when the culprit was Senator Elect. More on why I had to build this in to get a plausible exception in the next section.

Absolution by Election.

The contention that the Senate can expel members for pre-election conduct runs into a particularly telling objection if the conduct in question was known by the electorate prior to their voting.  The electorate would have been in a position itself to gauge all of the supposed evils of having a person who so behaved as their Senator.

Democratic theory and the Constitution support a principle that the power of the electorate is plenary. “A fundamental principle of our representative democracy is, in Hamilton's words, "that the people should choose whom they please to govern them." 2 Elliot's Debates 257. (Powell v. McCormack  p. 547.) The 17^th Amendment places the power of electing senators in the hands “the people of the states.” To expel for something the electorate chose to ignore in voting would abrogate that power. It would amount to the Senate’s adding a new qualification for Senate membership beyond the Article 1, Section 3 requirements of state residence, age 30 or older, and 9 years citizenship. In Powell v. McCormick, which held unconstitutional the exclusion of Adam Clayton Powell from the House of Representatives, the Court was firm on the proposition that the Senate could not add qualifications. Expulsion based on predicates known to the electorate would do that just as effectively as the exclusion of Powell on such predicates.

Perhaps “electoral absolution” puts the point a little strongly, but the principle is itself surely strong enough to provide Moore, though not Franken, a constitutional defense against Senate expulsion.

The Senate Has the Power to Expel.

I have argued that the Senate cannot expel Franken or Moore without passing a constitutionally prohibited act of attainder and without going beyond their constitutionally delegated authority. Yet the constitution does give the Senate the raw power to expel by a 2/3 vote.

What will be the effect of such a vote?  The member will no longer sit in the Senate, and the senators who voted to expel will have violated their oath to uphold the Constitution.

Expulsions Are Beyond Judicial Review.

I am pretty much convinced that the power of the Senate to expel members is unreviewable.  The “Each House may determine” language looks to be exclusive delegation of this power to congress. So this is one of those cases placed beyond judicial review by the constitutional text, separation of powers, and the precedents of the political questions doctrine.

I concede that an argument for the judicial reviewability of expulsion is fairly easily extracted from Powell v. McCormick, which held that the exclusion of Adam Clayton Powell from the House of Representatives was reviewable. The Court held that Powell could sue to require the House to seat him, his suit not raising a “political question” because there was no Baker v. Carr “textually demonstrable constitutional commitment of the issue to a coordinate political department."   The constitutional provision governing the seating of members seems to me to be a text demonstrating exactly such a commitment: “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members” (Art. 1, Sec. 5, emphasis added.)

For expulsion the relevant text commits the issue unambiguously to the Senate.  Still, if you wanted to maintain that the Supreme Court can second guess the Senate on a matter of expulsion, Powell would certainly be a good place to start, even though the Court did go out of its way to distinguish exclusion from expulsion. (The chief reason for distinguishing the two, however, seems a matter of the substantive consideration that the super-majority vote required for expulsion might provide a wider set of qualification-like predicates for expulsion than are proper for exclusion.)

A notable feature of the Powell understanding of the Speech and Debate Clause, is that it would require any suit challenging expulsion to be brought not against any senators, individually or collectively, but against the Sergeant at Arms, Doorkeeper, or some such other functionary.  The necessity of  this contrivance ought, I think, have stimulated the Court to think a little more deeply about the political question question.

Appendix.

What I have called a “purity theory” would have it that Senate must keep itself free of members with unsuitable pasts, even if they are unquestionable and fully reformed. It runs head long into two main currents of our moral thought: utilitarianism and Christian moral theology. The problem of a purity ethic from a utilitarian point of view is that pure purity, purity in and of itself, makes no difference to the goodness or badness of future consequences. If a Senate bad apple is, as we assume, thoroughly reformed, then she will vote and conduct herself in every other way no differently than had she always been a good apple. Nothing in the proceedings will be prejudiced in any way. The practical legislator revolts at the idea of the unnecessary harm to be suffered by the expelled member and by the affront to those who elected that member – an affront that may well have bad consequences including a loose of confidence in the Senate or in the efficacy of voting.

As 82 members of the Senate identify as Christians (including here LDS), the Christian teachings on the power of repentance are relevant.  Although it is easy to find patches of extreme purity ethics in the Christian tradition, genuine repentance and divine forgiveness are supposed to wipe the slate clean. The bad apple is a good apple once again.  

Mary Magdalene, even if she was never a prostitute as was the belief in the middle ages, must have behaved as people possessed by seven demons typically behave, which we can safely assume was pretty badly. Yet the penitent Mary was among the select few who traveled with Jesus, is mentioned more often in the Gospels than most of the official 12, and is recognized either as saint or as a heroine of the faith by all branches of Christianity.  

Moore’s followers have it right as a matter of doctrine that there would be no Christian objection to his serving in the Senate if he truly repented his sins.  Of course in Moore’s case, failure to acknowledge and, in fact, lying about his sins would not be a good start. Still, he would have plenty of time to make good on this before the question of his expulsion comes up in the Senate.

The specifics of the theology of this version of the efficacy of repentance is not appropriate for public discourse or constitutional construction, but that someone who has long since repented and reformed ought not be barred from public organizations is an intuition very widely shared. Even those of us who are not religious believe sometimes in redemption.