Monday, November 10, 2008

Sen. Stevens and Senate Expulsion

Senate Majority Leader Harry Reid (D-NV) seems confident that the Senate will expel Alaskan Senator Ted Stevens over his recent conviction for violating federal ethics laws for failing to report tens of thousands of dollars worth of gifts and services from friends.

Others are not so sure.  Sandy Levinson at Balkinization started a discussion on the constitutionality of expulsion here.  The post and comments are well worth a look.  Levinson starts with U.S. Term Limits v. Thornton and the qualification clause in Article I, section 5, clause 1, which states:

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members . . . .

A commenter moves the exchange in the direction of Powell v. McCormack and the punishment and expulsion clauses in Article I, section 5, clause 2, which states:

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

Because Stevens is clearly qualified to sit in the Senate--see Article I, section 3, clause 3, requiring senators to be 35 years old, "nine Years a Citizen of the United States," and "an Inhabitant of that State for which he shall be chosen"--the Senate could only punish him for "disorderly Behaviour" or expel him by a two-thirds vote under Article I, section 5, clause 2.  But what is "disorderly Behaviour," who gets (ultimately) to decide, and does "disorderly Behaviour" (or some other qualifier) apply to the expulsion clause (or may the Senate expel for no reason at all with a two-thirds vote)?  And of what relevance, if any, is his re-election by Alaskan voters after the verdict?

Senate rules and practices give little guidance.  The Standing Rules of the Senate mention punishment or expulsion as a consequence only for "disclosing a secret of confidential business" of the Senate.  Only 15 senators have been expelled since 1789; 14 of those were expelled for supporting the Confederacy during the Civil War.  A CRS report explores the practices in the House, from which we might make some inferences about practices in the Senate.  Point of Order (blog) has a discussion here.

SDS

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