Charges were filed against Gianforte late Wednesday night, hours before polls open. The outcome of the race is very much up-in-the-air, though in a state that backed Trump by 20 points less than six months ago, Gianforte has a natural advantage.
It’s safe to assume that many Republicans are understandably not excited about the prospect of welcoming Gianforte to D.C. under this self-created cloud, particularly with the tricky 2018 elections looming. (Some have resorted to passive-aggressive tweets.) It raises the question: Is there anything they can do to keep Gianforte from serving, if he wins?
The Constitution stipulates that the House “shall be the Judge of the Elections, Returns and Qualifications of its own Members,” an articulation that seems as though it grants the body broad leeway in determining who gets to be a member. But as with so many arcane parts of the Constitution, it’s been tested before, and the result offers Gianforte a clear path to Washington.
In 1966, Adam Clayton Powell won reelection to the House. He’d won every two years since 1944, but came into 1967 under an ethical cloud. The House decided to exercise its ability to judge its members’ qualifications and voted to exclude him from the body. But in a 1969 decision, Powell v. McCormack, the Supreme Court determined that the House had overstepped its bounds and that, while the House could determine if a member met the proper qualifications, it couldn’t create new qualifications — like mandating that an official not be facing criminal charges — in allowing members to serve.
Michael Dorf, professor of law at Cornell, confirmed by phone on Thursday morning that the Powell decision made it all but impossible for Gianforte to be excluded.
“The House could not by a simple majority vote deny him his seat because to do that they would have to say he lacks the qualifications — and not being under indictment for assaulting a reporter is not one of the qualifications,” Dorf said.
That said, the House is not without recourse. It could, for example, choose to seat Gianforte — and then almost immediately expel him. The Constitution stipulates that the House can remove a member by a two-thirds vote, a higher margin that was meant to avoid “partisan mischief,” in Dorf’s words. (In the Powell decision, the court made clear that it would view the expulsion of Powell differently than it did the attempt to exclude him.)
In other words, the House could seat Gianforte and then vote to remove him fairly quickly, after a recommendation from the House Ethics Committee that he be ousted. But don’t count on it.
Such expulsion votes have been attempted numerous times, but were only successful five times. Three of those instances were to punish representatives for supporting the Confederacy during the Civil War. The other two were for misconduct, including the expulsion of Jim Traficant in 2002.
“Because of the democratic spirit, you don’t deprive the voters of the person they chose,” Senate historian Don Ritchie told the Atlantic in 2010, “so they’d rather have the voters throw them out in the next election rather than do something in between, but if the person has been convicted and is going to jail it makes the institution look bad.”
Such a vote for Gianforte is particularly unlikely in this moment of heightened partisanship. The odds that nearly 100 Republicans would join every Democrat to prevent the elected representative of the state from serving out his term certainly seems unlikely.
Nor is it clear that Democrats would want to oust Gianforte so quickly, setting up another special election for his replacement — an election in which they would face the same structural disadvantages as they saw on Wednesday morning but likely a candidate who didn’t share Gianforte’s flaws. Having a Republican serving under an ethical cloud in a Republican-leaning seat is not a worst-case scenario for the party, nor is having someone that Democrats can position as the embodiment of the Republican Party of 2017.
All of this hinges on what happens in Thursday’s voting. If Gianforte wins, it’s likely he’ll serve in the House for his two-year term. If he doesn’t, there may be a surprising number of Republicans who join their opposition in breathing a sigh of relief.