A few years ago, there was a flurry of discussion about the possibility of expelling Roy Moore in the event he won the Senate election in Alabama. There’d been discussion in recent years about Senator Roland Burris, Senator Bob Menendez, Senator Al Franken, and Representative John Conyers.

A new question has arisen: can the Senate expel Senators Ted Cruz and Josh Hawley for their actions during the counting of electoral votes? (I use “actions” broadly, subject to what I write below.)

Here’s the text of the Constitution:

Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.

As I’ve explained before, there are few contours to the power to expel, except that it must occur by a two-thirds vote. That vote is mostly a procedural check, and the substance has largely been left to the Senate to flesh out. (Congress can also punish—censure or reprimand are the usual forms—by a simple majority.) No one’s been expelled from the Senate since the Civil War, but investigations have prompted resignations in recent years. And most recent cases have turned on criminal charges, but not all. Wikipedia has a quick and convenient summary of Senate and House cases.

I also note a couple of precedents in some of these Senate decisions (and I noted here, Congress can always overturn its own precedents, but it usually loathe to do so): “First, the Senate has typically wondered whether it has the power to expel members for conduct that arose prior to the candidate taking office. (Some earlier debates actually focused on whether it had to arise during that existing term in office and not from a preceding term, but recent Senate investigations have moved away from that view.) Second, the Senate has generally refused to expel a member for conduct known to the voters at the time of the election, the notion being that it's not for the Senate to expel a member with such baggage sent by the voters.”

The actions of Messrs. Cruz and Hawley arose during their time in office and were not known to voters, so these precedents don’t materially address these concerns.

Another might be for Congress to specify with some precision what was the inappropriate behavior—signing onto an objection under the Electoral Count Act, that, in my view, was shameless and lacking in law and fact; speaking in support of an attempt to overturn the presidential election; voting after the riot consistent with the demands of the rioters; and so on. Speech might be different from behavior. The timing of events may matter, too.

But the fact that a member of Congress engaged in what might otherwise be constitutionally-protected speech is not enough to insulate one from punishment—although, to date, it hasn’t risen to anyone’s expulsion. Consider (on the House side) Representative Joe Wilson’s “You lie!” moment, which led to a formal House reprimand. Lesser charges like censure or reprimand—the Constitution authorizes these by a simple majority—are easier to secure.

Beyond that, it becomes a political judgment of the Senate. I don’t have much more insight to offer at the moment than that. It might be that the Senate would not move forward with anything that would result in failure (i.e., if it did not feel it could secure a majority vote or a 2/3 expulsion vote), but I don’t know how it would assess that. I also think it would look hard at any precedent it would set. My assumption is the Senate would not move forward with expulsion, although it might choose to censure (even then, it might conclude that branding them as martyrs might embolden such actions in the future, another political judgment). But beyond that, it remains within the purview of the Senate’s power to determine what constitutes actions rising to the level of expulsion-worthy behavior. Its history since the Civil War (and in recent years) suggests it’s unlikely to do so.