Q:
I need you to settle a debate. I am an Alaska voter and had always presumed that if the trial of Sen. Ted Stevens (R) resulted in a conviction, he would be required to leave the Senate. However, now that he has been convicted, a friend of mine says that I am wrong. He says that if Stevens is re-elected, the Senate would not expel him. Who is right?

[IMGCAP(1)]A: Unfortunately, I’m not sure that I can settle this debate. While Stevens’ conviction does not disqualify him from serving in the Senate, it is possible that the Senate might expel him anyway, even if he is re-elected. Those who favor expulsion and those who favor Stevens staying both have arguments supporting their position.

As a preliminary matter, there is no law that requires that a Senator who is convicted of a crime to be expelled. Under the Constitution, there are just three qualifications to be a Senator. Article I, Section 3, Clause 3 states that a Senator must be 30 years old, a U.S. citizen for at least nine years and an inhabitant of the state he or she represents. Absent an amendment to the Constitution, these qualifications cannot be changed.

Moreover, under the Constitution, only one thing automatically disqualifies a Senator from continuing to serve. The 14th Amendment provides that no person shall be a Senator if he or she has previously taken an oath to support the Constitution, and then engages in insurrection or gives aid or comfort to the country’s enemies.

Beyond the Constitution, there are no other laws directly addressing the fate of a Senator who is convicted of a crime. In the absence of any such laws, it is left to the discretion of the Senate to determine whether to expel a convicted felon. Article I, Section 5, Clause 2 authorizes Congress to punish its Members for “disorderly behavior.” This is the clause under which the House and Senate created their respective ethics committees. The Senate Ethics Committee investigates potential violations by Members and staffers, and it recommends sanctions where it deems appropriate. The Senate then decides whether to implement the committee’s recommendation. The harshest sanction is expulsion. Under the Constitution, this requires a two-thirds majority vote.

As to Stevens’ case, it is anybody’s guess. Because the Senate has wide discretion in disciplining its Members, political considerations are often at least as important as legal ones, meaning that precedents are not as reliable a guide as in other areas of the law. Moreover, the few times that the Senate has actually expelled a Member all predated the Civil War and were all based on disloyalty to the country.

As for more recent precedents, they are not much help either. The last time a Senator was convicted of a felony was 1980, when Harrison Williams (D-N.J.) was convicted of bribery and conspiracy after accepting bribes in the FBI’s Abscam sting operation. Before taking any action, the Senate allowed Williams’ appeal process to run its course. Ultimately, Williams’ conviction was upheld. The Ethics Committee then recommended expulsion. The Senate scheduled a vote, but Williams resigned before the Senate could decide on his fate. You could argue that the Senate should schedule an expulsion vote for Stevens, just like it did for Williams.

However, there are distinctions between Williams’ and Stevens’ cases. For one, Stevens’ appeal process has not yet run its course. Moreover, Stevens was convicted not of bribery but rather of filing false disclosure forms.

Perhaps most significantly, your friend is right that Stevens’ re-election itself would make expulsion particularly problematic. Williams’ conviction came in the fourth year of a six-year term, meaning that the voters who had elected him were not aware of his conviction when they voted. If Stevens were to prevail, however, this would come after his conviction. Stevens could say that the voters had therefore condoned his conduct. Constitutionally, Alaska should be permitted to elect any qualified candidate it chooses. Any other result, Stevens could argue, would deprive the people of Alaska of their right to elect whomever they see fit. As the 17th Amendment states: “The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years.”

On the other hand, some Alaska voters — e.g., absentee voters — may have voted before Stevens was indicted. If Stevens does come out on top, his margin of victory will be very small. Thus, it is possible that votes made prior to Stevens’ conviction could be determinative of the outcome. If that were the case, it would raise some question as to the basis for Stevens’ constitutional argument that the will of the people should not be denied. Yet even then, it would be difficult for the Senate to justify overriding the results of an election on the basis of something about which most Alaska voters presumably knew.

But, we’re getting ahead of ourselves. As you know, votes are still being counted in Alaska, with a final tally expected by Dec. 1. The only way we’ll know for sure what the Senate would do if Stevens were re-elected is if he is.

C. Simon Davidson is a partner with the law firm McGuireWoods LLP. Click here to submit questions. Readers should not treat his column as legal advice. Questions do not create an attorney-client relationship.