10 tough questions Senate Republicans will have to ask themselves if Moore wins

US Senate candidate Roy Moore rides a horse to vote in Gallant, Alabama. Photo / AP

If Roy Moore wins a Senate seat today in Alabama, he could be the first sitting senator in more than a century to be kicked out by his colleagues.

Or not.

Although the Constitution gives Congress the authority to punish its members however it sees fit, the Senate has never done that to a newly elected lawmaker for anything other than election fraud.

The will of the voters has traditionally weighed heavily on senators when deciding whether to police them. And Moore may win an election after allegations he initiated sexual or romantic contact with at least half a dozen teenagers when he was in his 30s became public.

"If the allegations are known prior to the election ... then we have a very tough decision to make about whether it's our role as senators to overturn the will of the people," Senator Susan Collins, (R), said on CBS over the weekend about Moore.

Here are 10 other tough questions senators will have to answer if they want to investigate or even expel Moore:

1. Will Moore get sworn in?
Actually, this one's easy. The Supreme Court has said the Senate can't refuse a fairly elected lawmaker his or her seat. Alabama's results are expected to be certified by the new year, which means the winner of the seat could officially be a senator by early January.

2. Will Moore get seated on committees?
Maybe not. Senate Majority Leader Mitch McConnell, (R), declined to answer that question when CNN asked him yesterday. Leaving Moore off committees, where legislation is drafted and debated, would leave him unable to do much of his job.

3. Will Moore face an official Senate Ethics Committee investigation?
Almost certainly. Ethics investigations only happen by request, but there are no restrictions on who in the Senate can file a complaint against him.

One of the 99 other senators will likely ask the committee to look into allegations of past sexual misconduct against him. It might even be the majority leader: "If he were to be elected I think he would immediately have an issue with the Ethics Committee," McConnell told reporters last week.

4. How public should the investigation be?
The Ethics Committee tends to do its work quietly, ostensibly to protect any innocent lawmaker's reputation. But Republicans are already queasy about being tied to Moore, so they might decide to open the investigation to the public.

Plus, the committee also has been more open than usual regarding sexual misconduct allegations. They made a rare announcement this month, confirming they were investigating Senator Al Franken, (D), for groping allegations. Franken announced his resignation days later.

Former GOP Sen. Rick Santorum: "A lot of people in Alabama voted for Roy Moore with the expectation that the Senate would do its job" https://t.co/jTqjsVE6mV

— CNN (@CNN) December 13, 2017

5. Is the Ethics Committee able to deliberate Moore's future fairly?
It was set up to be as fair as possible. The committee is made up of six senators, three Republicans and three Democrats.

But the committee hasn't changed much since senators set it up in the 1960s.

Ethics experts and some lawmakers have criticised the secretive, peer-to-peer review as unequipped to fairly investigate something as resonant and politically momentous as sexual misconduct. When Senator Kirsten Gillibrand, (D), called on Franken to resign over groping allegations, she suggested the ethics process was too slow and outdated to fully investigate the allegations.

"We're in uncharted territory here," said congressional ethics expert Norm Ornstein. "... The way they handled the Franken case was an example of where they should have said: 'We need a different ethics process, an open one and transparent one and some independent actors involved.' "

Also noteworthy: The committee that would be investigating Moore is made up of five men and just one woman, Senator Jeanne Shaheen, (D).

Will the real Alabama please stand up? #AlabamaSenateElection https://t.co/bz8GIyMmSl

— The Daily Beast (@thedailybeast) December 13, 2017

6. Can the Senate even investigate conduct that happened 40 years ago?
Technically, the committee can investigate any senator who engages in "improper conduct which may reflect upon the Senate".

But the committee also has declined to investigate a senator's misconduct if it happened before that senator won a fair election to the Senate. In 2008, the same committee decided not to punish then-senator David Vitter for a prostitution scandal that happened when he was in the House.

Senator Pat Roberts, (R), one of the veterans of the committee, told reporters he's not sure the committee can or should look into conduct that happened before Moore was a senator for that very reason.

7. Will Moore's accusers be willing to testify?
If the committee does decide it wants to look into Moore's past, then the real work begins. They'll hold hearings, which will likely include talking to Moore and as many of his accusers as possible, all under oath.

Only one accuser, Beverly Young Nelson, has said she'd be willing to testify. Others, like Leigh Corfman, have shared their story on national TV and in open letters. But would all the women who accused Moore of misconduct be willing to put themselves through such public scrutiny? Especially if the hearings are publicised?

.@rickklein says Pres. Trump's approval rating in preliminary exit poll results is "high by national standards, but not by Alabama standards...This tells me the resistance is on to something." https://t.co/MosG6vyEQA pic.twitter.com/JQ1QUl3hsm

— ABC News Politics (@ABCPolitics) December 13, 2017

8. How long would an investigation take?
It depends on what senators find - and how easily they find it. It could take months. Meanwhile, Moore is free to go about his job.

9. How should they punish Moore if they think he initiated sexual contact with teenagers?
The committee could choose to do any number of things.

It could suggest the full Senate reprimand him with a formal statement of disapproval (called a censure). That wouldn't directly affect his job, but it could tangentially affect it, said the Senate historian's office: "It . . . can have a powerful psychological effect on a member and his/her relationships in the Senate." Only nine senators have been censured in the history of the Senate.

It could recommend the Republican Party find a way to discipline him.

Or it could mete out the most serious punishment and suggest the full Senate vote to expel him. That hasn't happened since the Civil War, when the Senate voted to expel more than two dozen members on the grounds of supporting the Confederacy during the Civil War.

10. Would the Senate expel Moore?
If the Ethics Committee finds grounds to expel Moore, two-thirds of the Senate would have to vote to expel him. That means all 48 Democratic senators, plus 19 Senate Republicans, would need to agree that Moore should go.

Lately, a number of senators who have been extremely critical of Moore aren't sure the Senate should overturn his election. Barring any other allegations coming out, it's a realistic possibility that Moore might be able to keep his job.

"Ultimately, this is a question of representation," said former Senate historian Donald Ritchie. "Senators would prefer that the voters make the decision of who will represent them, and not have to do it themselves."