The Republicans would love to preserve their two vote majority in the Senate, but is Roy Moore worth the costs?

As a long term resident of the State of Alabama I have had a ring side seat in the Roy Moore circus for many years. When I first heard of Moore he was circuit court judge in Etowah County (the smallest county in Alabama) and he had been sued by the ACLU for displaying a wooden carving of the Ten Commandments behind the bench in his court room and leading prayers in his court before beginning trials. The case generated a lot of publicity when Moore refused remove the Ten Commandments carving from his court room and continued leading prayers even after his positions were ruled unconstitutional in Alabama district court.  In rural Alabama where religion plays a huge part in politics, Moore became an instant celebrity.

I find it ironic that Roy Moore had the Etowah county circuit court bench to use as a political stage in the first place. He had already run for the circuit court judge position twice and lost badly both times before he was appointed to that bench by Governor Guy Hunt after the judge who won the previous circuit court election died in office. That was before Hunt was himself forced out of Governor’s office after he was indicted for theft, conspiracy, and ethics violations.

However, based on his notoriety as the “Ten Commandment Judge” alone, Moore won his next election to his circuit court position by a wide margin. At every opportunity Moore used his new found fame to preach his doctrine that the “laws of God” take precedence over the “laws of man”, apparently including the US Constitution. This struck a cord among politically active “Christians” in Alabama who longed to restore prayer in schools, expand the role of religion in government and the judiciary and banish homosexuals back into their closets.

Moore used his zealotry to twice win elections to become Chief Justice of the Alabama Supreme Court.  Ironically his zealotry was also twice responsible for his removal from the high court by the Alabama Court of the Judiciary (his fellow judges) which presides over cases where judges are charged with ethical violations or malfeasance in office. In both cases Moore refused to comply with the orders of federal courts which, according to the US Constitution, Article VI, Clause 2, take precedence over all state courts.  Strangely enough these incidents failed to hurt his popularity among many Alabamians. They continue to view him as a champion with the intestinal fortitude to stand up against the “immoral” federal judiciary. One cannot help but be reminded of another Alabamian, George Wallace, standing in the school room door until he was removed by federalized national guardsmen.

Now as the Republican nominee to replace Jeff Sessions in the US Senate, Moore’s act is now on display on the national stage. He stands accused in a meticulously documented Washington Post story of pursuing four teen aged girls when he was an assistant district attorney in his 30’s, providing them with alcohol and sexually molesting one girl who was 14 at the time. As I write this article yet another women has come forward and accused Roy Moore of sexually molesting her when she was 16. Moore has vehemently disputed these charges without offering any proof the contrary – “it’s all fake news” according to Moore – and he refuses to drop out of the race.  There is also no evidence that the Alabama branch of the Republican Party will disqualify him from running.  And he still might win.  Unfortunately many of voters in Alabama will view the accusations as a last minute attempt by the liberal media to destroy Moore and there are some would rather vote for a pedophile and sexual molester than a Democrat.  Polls taken after the Washington Post story was released show him still ahead of his Democratic opponent Doug Jones though now his lead appears to be slipping.

This situation has the potential to thoroughly embarrass the entire state of Alabama, but it puts Republican leaders in what I consider an even worst position.  It is too late to replace Moore on the ballot. This means that if Moore were to drop out of the race or be disqualified by the Alabama Republican Party, Moore’s name would remain on the ballot but his votes would not be counted.  Under those circumstances it is very likely that Doug Jones would win the election.  A write in campaign would be a long shot a best unless still the popular former Senator Jeff Sessions could be persuaded to resign from his job as Attorney General and allow his name to be advertised write in candidate. Even then I have my doubts that such a plan would work because I believe that some of Moore’s most ardent supporters, riled by his treatment by the Republican establishment, would still cast protest votes for Moore reducing Session’s total.  I believe that the most likely eventuality if Moore is force to drop out of the race is that the already slim Republican majority in the Senate would be reduced which would put the Republican plans to pass any significant legislation, including tax reform, in severe jeopardy.

On the other hand having Roy Moore in the Senate would be a major problem for the Republican Party on a national level. Aside from being an accused pedophilia and sexual molester, Moore was a very flawed candidate before the Washington Post story was published.  He has abused the public trust in the operation of a charity that he founded and has made many statements which would normally offend a large majority of Americans.

Moore claimed that he didn’t take a salary as president of the tax exempt charity he founded, the Foundation for Moral Law, because he “didn’t want to be a financial burden on the organization”. However, a recent audit of the organization by the IRS revealed that the organization secretly paid Moore over one million dollars from 2007 to 2012, an amount that exceeded the charities total contributions during that time period. According to a recent Washington Post article, when the organization could no longer afford to pay Moore, he received a promissory note of $540,000 secured by a second mortgage of the organization’s headquarters building.  The foundation also employed Moore’s wife and children. His wife served as president 2013 to 2015 and received $65,000 a year in salary.  Apparently the charity’s sole purpose was to promote Roy Moore and his message and support him and his family.

However, accusations of pedophilia, sexual molestation and the misuse of his charity are far from being the only baggage which Roy Moore would carry with him to the Senate floor if he is elected.  He also has a habit of making appalling statements. He has stated that “Homosexual conduct should be illegal” and equated it to bestiality. At another point he said, “Homosexual behavior is crime against nature, an inherent evil, and an act so heinous that it defies one’s ability to describe it.”  He called Islam “a false religion” he wrote in an editorial that Rep. Keith Ellison, the first Muslim elected to Congress, shouldn’t be allowed to serve because he intended to take the oath of office on Koran. Moore was also an ardent supporter of the Obama “birther” conspiracy theory. Moore has also argued on several occasions that 9/11 terrorist attack and recent shooting disasters have occured because God is “upset with our godlessness” and because “we legitimize sodomy and legitimize abortion.”

It is clear that many establishment Republican Senators in Washington do not want Roy Moore to serve with them in the Senate.  His very presence in that august chamber would be an embarrassment. They understand that a religious zealot who many now believe to be a hypocrite would reflect very poorly on their party if he is allowed to serve. I am sure that they also fear the kind of irresponsible and provocative statements that Moore might make in the future.  In addition public perception nationwide has turned against Moore. In a recent national poll 58% of those polled believed that he should drop out of the race while only 17% believe he should not. The problem is that Republicans leaders in Washington have little or no control over whether Moore drops out of the race or is forced out by the Alabama Republican Party.

Under no circumstance will Moore voluntarily withdraw.  Such action would be seen by many as essentially an admission of guilt which could cause many of his ardent followers to desert him.  So that is not going to happen.  Also the politicians who control the Republican Party in this state are not members of the “establishment” and they are not impressed by national polls.  They are more aligned with the disruptive elements of the Republican Party lead by Steve Bannon because that is the large part the political disposition of their constituents. So unless there is a dramatic change in the situation, The Alabama Republican leaders are not going to disqualify Moore.

Probably the best result for Republicans on a national level is for Moore to lose the upcoming election to Democrat Doug Jones. The Democrats have to defend many more Senate seats than the GOP in 2018 so they may well be able to compensate for that loss in a year or so. However, it far from a given that Alabama voters will cooperate. National polls have no bearing on Alabama elections. There are still many ardent Moore supporters in this state and Alabamians are loath to take directions from “outsiders”.  Most Alabama Republicans will not vote for a Democrat; the most that can be hoped for is that some will decide to say home and not to vote.

If Roy Moore does win the election, nothing can be done about it, right?  Well, not quite.  Article 1, Section 5, Clauses 1 and 2 of the US Constitution state:

[Clause 1] Each House shall be the judge of the elections, returns and qualifications of its own members, and a majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner, and under such penalties as each House may provide.

[Clause 2] 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.

Now in the case of Powell v. McCormack the Supreme Court ruled in 1969 that Clause 1 does not allow a house of Congress to refuse to seat a elected member with a simple majority except if he/she is not duly elected or does not meet the qualifications for the office (such as not meeting the age requirement of 30 for the Senate).  However, it is clear that according Clause 2 the Senate by a two thirds majority could expel Roy Moore once he is seated. In fact, Sen. Cory Gardner (R-Colorado), chair of the Senate Reelection Committee, has stated that if Moore wins the Senate “should vote to expel him, because he does not meet the ethical and moral requirements of the United States Senate.”

If the Senate were to expel Moore, his seat would immediately become open and there would be a good chance that he would be replaced by another Alabama Republican in another special election. But how would it look if the Senate summarily rejected the judgment of a state’s voters immediately after an election.  At a bare minimum it would start an open war between establishment Republicans and Bannon’s followers.

So Republicans on the national level have no good options. If Doug Jones wins they are stuck with a Democrat representing a very red state until at least 2020 when former Senator Jeff Sessions’ term expires. This would put their agenda in jeopardy. If Roy Moore wins they are stuck with his malignant presence for the next three years as well and quite possibly much longer.  If Senate Republicans decide to try to expel Moore, they could well start a civil war within the Republican Party which could destroy it.  If anyone is interested, I favor the first possibility.

Cajun   11/14/2017 (updated 11/15)