Not the Senate’s job to second-guess Alabama voters

If Roy Moore is elected tonight, his first act as a United States senator may be to testify before the Senate Ethics Committee.

Should it be? That’s the question that senators calling for an Ethics Committee investigation should be asking themselves.

{mosads}An investigation into Moore would be groundbreaking for the Senate, which has, until now, intentionally chosen not to investigate a senator for conduct occurring prior to election. Rather, the Senate has deferred to the judgment of voters who, in most cases, knew about the allegations against candidates and sent them to Senate anyway.

Take, for example, Sen. Robert Byrd (D-W.Va.). In addition to being the longest serving United States senator in history, he also served as the Exalted Cyclops of his local Ku Klux Klan chapter.

In that era, the Klan was responsible for castrations, lynching and the bombing and burning of countless buildings. Despite his former allegiance to the group, Byrd became a revered member of the Senate. Over 50 taxpayer financed buildings in West Virginia are named for “Big Daddy” Byrd, or his wife, Erma.                             

Sen. Ted Kennedy (D-Mass.) also faced a string of charges and allegations, most notably over the Chappaquiddick incident that resulted in the death of 28-year-old Mary Jo Kopechne. Kennedy received a two-year suspended sentence and was easily reelected in 1970. In future years, Kennedy’s tawdry behavior became well known, including his solicitation of underage girls.

The Senate Ethics Committee never investigated Kennedy, who went on to have an illustrious career as the “dean of the Democratic Party.” The Kennedy Caucus room in the U.S. Capitol is named after him.

Nor has the committee ever investigated Sen. Sherrod Brown (D-Ohio), despite accusations of “extreme cruelty” and physical abuse made against him by his ex-wife in the 1980s.

The committee also declined to pursue a case against Sen. David Vitter (R-La.) for soliciting prostitution, reasoning that the conduct at issue had occurred prior to Vitter’s time as a senator. Sen. John Cornyn (R-Texas), then a member of the Ethics Committee and now a member of Senate Republican leadership, signed the letter to Vitter dismissing his case.

Majority Leader Mitch McConnell (R-Ky.), a former chair of the Senate Ethics Committee, said of Vitter’s case, “It appears that whatever might have occurred, occurred before this individual came to the Senate, therefore raising serious questions as to whether the Senate has jurisdiction over it.”

Yet McConnell, an ardent critic of Moore, has called an ethics probe into his behavior “almost certain.”

So, what has changed?

The cultural climate has obviously shifted, and for the better. An open discussion about sexual assault and harassment is a welcome development and should be encouraged. 

But with Moore, the situation for the Senate goes beyond the matter of the 40-year old allegations at hand. The question the Senate must ponder is this: If a candidate is duly elected — that is, elected in proper accordance with the Constitution, the law, and freely chosen by those he seeks to represent — should his prior behavior be subject to investigation and perhaps the basis for expulsion?

It is a difficult question because of the nature of the allegations against Moore. But setting that aside, the implications of what the Senate decides will resonate beyond Moore’s election, and speak more broadly to the characteristics of our democracy.

It is one thing for the Ethics Committee to police the behavior of a member while he or she is serving, and thus sworn to faithfully discharge the duties of the office. It is quite another for the Senate to take the majority choice of voters from a particular state and turn it on its head.

The voters of Alabama are well aware of the allegations against Roy Moore. If they choose to send him to the United States Senate, the nature of our federalism — and, indeed, the history of the Senate’s actions in similar cases — hardly suggests that it is the role of the Senate to determine they know better.

To put it another way, the Constitution prescribes the selection of senators as two “from each state, elected by the people thereof.” 

Notably, it does not render to the Senate the role or authority to second-guess those voters.

Rachel Bovard (@RachelBovard) is the senior director of policy for The Conservative Partnership, a nonprofit group headed by former South Carolina Sen. Jim DeMint aimed at promoting limited government.