Article by Erik Smith. Published on Friday, August 28, 2010 EST.
K.O.’d by Phony Republican Mailer in Primary, Senator Files Complaint With Public Disclosure Commission
Sen. Jean Berkey, D-Everett, and former Senate Majority Leader Larry Vognild field press questions via speakerphone from Berkey’s campaign headquarters Friday.
By Erik Smith
Staff writer/ Washington State Wire
OLYMPIA, Aug. 27.—State Sen. Jean Berkey, D-Everett, fuming over what she calls underhanded tactics that knocked her out in last week’s primary election, says she wants the state Public Disclosure Commission to set the results aside.
Berkey, with campaign chairman Larry Vognild at her side, filed a complaint Friday with the state’s election-watchdog agency alleging campaign misconduct by the consulting firm that delivered most of the hit pieces against her in the race. Two last-minute attacks appeared to have cost her the election — and she says she wants a do-over.
The mailers, sent to Republican voters in the 38th Legislative District, denounced her for raising taxes while the same firm, Moxie Media of Seattle, was sending others to Democratic voters accusing her of not raising taxes enough. Berkey said the mailers ought to be seen as part of a massive $275,000 independent-expenditure campaign coordinated by labor unions and activist groups that aimed to unseat her in the primary.
And the problem with that is?
Berkey alleges the consulting firm played a shell game by creating sham political action committees in order to conceal the true source of the money.
“We believe their intention was to mislead voters with deceptive tactics and hidden spending,” Berkey said.
Moxie Media denies the charge.
Last-Minute Mailers Changed the Outcome
Berkey wound up the loser in the three-way primary race when the Snohomish County auditor’s office tallied the final ballots Thursday. The final count gave first place to Democrat Nick Harper, the favored candidate of the labor unions and the activist organizations.
But second place went to Rod Rieger, a self-described “conservative” candidate who disdained the Republican-party label, did little campaigning, and raised only $800 for his effort.
Berkey trailed in third place, just 116 votes behind Rieger.
The results make it clear that something turned the results around in the final days of the by-mail election. When the first batch of ballots was counted on election day, Aug. 17, the count put Berkey in second place, about 300 votes ahead of Rieger. Under Washington’s “top-two” primary rules, both Democrats would have advanced to the general election.
That first batch of ballots was mailed in the weeks before the election. The ones counted after that were mailed in the final days before the deadline. That’s when the mailers hit. The late ballots showed an enormous surge for Rieger.
Former Democratic Leader Takes Berkey’s Side
Vognild represented Berkey’s district in the ’80s and early ’90s and served as leader of the Senate Democratic Caucus. He said the tactics smell to high heaven. What makes them especially distasteful is that the anti-Berkey effort was backed by groups that are traditional friends of Democratic candidates.
They included the Washington State Labor Council and FUSE Washington, a Seattle-based “progressive” activist group. Top contributors were the United Food and Commercial Workers, the Public School Employees of Washington, Service Employees International Union, and the Washington Federation of State Employees. They operated an umbrella campaign calling itself Stand Up for Citizens. Meanwhile, a separate independent-expenditure campaign was run by the Washington Education Association, and the Washington Community Action Network did canvassing work in the district.
“What you’re seeing here is that people who express support for the Democratic Party are also putting the Democratic Party in jeopardy of losing control of the Senate,” he said.
They’re assuming Harper can beat Rieger in the general election, Vognild said. But he said the tactics have outraged voters in the Everett area, and there is a good chance of a backlash. “I think they’re going to be very surprised,” he said. “A lot of Democrats in the district are very angry about what happened.”
The mailers from the left called the senator “Big Business Berkey,” and attacked her votes on tax and spending bills. The sponsorship of those mailers is clear, though they didn’t mention the context. They were bills supported by the Democratic party leadership and virtually every Democratic member of the Legislature.
Vognild Charges Deception
Vognild said distortions are par for the course in a political campaign. It’s the phony mailer from the right that gets him. That’s out-and-out deception.
“During the course of the campaign, they sent out a lot of misleading information,” he said. “That you kind of expect. But at the end of the campaign they sent out two pieces of literature that called her opponent a Republican, even though he wouldn’t call himself that. The records show they were sent by a PAC that had no income, no expenditures, nothing. We know Moxie Media did both of these, but there were absolutely no PDC filings that covered the financing for these pieces.”
The Republican mailers indicated that they were sponsored by the Cut Taxes PAC and the Conservative PAC. The PDC records indicate that the Cut Taxes PAC contracted to pay Moxie Media $7,906 for the mailers. But no money ever changed hands. The two campaign committees were created by an employee of Moxie Media, and neither of them raised any money. The mailing expenses are recorded as a debt owed by the Cut Taxes committee.
Yet that money had to come from someplace. The records just don’t show where.
Moxie Media Denies Allegation
In her complaint, reproduced below, Berkey charges that Moxie Media engaged in a shell game to prevent the public from knowing the money really came from the unions and activists. That’s a violation of state campaign laws, she said, which make it illegal to conceal the source of funding for campaign advertising.
Moxie Media owner Lisa MacLean said the company has operated within campaign rules. She said the money came from her firm and nobody else.
“I understand Sen. Berkey is disappointed with the election results, but this complaint is baseless,” she said. “No individual or organization funded this effort besides Moxie Media, at this point. We have an open and ongoing dialogue with the Public Disclosure Commission. We always have and will continue to take proper steps to ensure we are in full compliance.”
Want Election Set Aside
Vognild and Berkey say they want the Public Disclosure Commission to set aside the results of the election. Vognild said he has consulted with Phil Talmadge, a former Democratic state senator and Supreme Court justice who now is in private practice. Talmadge concluded that the Public Disclosure Commission has sweeping authority in election matters and has the authority to overturn the results, Vognild said. That is appropriate in this case because the fake Republican mailer had a material bearing on the outcome of the election, he said.
If the Public Disclosure Commission investigates and fails to take action, Vognild said the Berkey campaign plans to file a lawsuit. Vognild said a special election could be held, or all three candidates could be advanced to the general election ballot.
Lori Anderson, spokeswoman for the Public Disclosure Commission, said the matter is now under investigation by agency staff. If the staff concludes a violation has been committed, it will refer the matter to the full commission for action.
No Mandatory Recount
Meanwhile, it appears there won’t be a mandatory recount in the race after all. Although Berkey’s margin of loss was less than one-half of one percent of the total votes cast in the race, the threshold for a mandatory recount, the Snohomish County auditor’s office maintains that only Berkey’s and Rieger’s votes should be included in the calculation. That scuttles that. Berkey’s campaign might still pay for a recount, if it chooses.
The Mailers That Doomed Jean Berkey
These grainy photocopies, included with Berkey’s complaint to the Public Disclosure Commission, show what the fuss is all about. Disclaimers note that Rieger had nothing to do with them, and say they were paid for by the Cut Taxes PAC and the Conservative PAC. But no money changed hands. The PACs were formed by an employee of Moxie Media. Neither mentions the firm’s support.
Text of Jean Berkey’s Complaint
Public Disclosure Commission
711 Capitol Way #206
P.O. Box 40908
Olympia, Wash. 98504-0908
Aug. 27, 2010
To whom it may concern:
Please find enclosed a packet of documents that substantiate my complaint against Moxie Media, Cut Taxes PAC, and Conservative PAC. During the course of the campaign for the primary election in the 38th Legislative District Senate race, these three groups have conspired to funnel money with the purpose of concealing the funding source for political advertisements aimed at forcing me out of the election during the primary, thinking that their favored candidate would have an easier race in the general election.
Moxie Media is the consulting group that has coordinated the state Labor Council’s attacks against me in this race, all of which came from the political left. After the Labor Council’s PAC, Stand Up for Citizens, paid for polling research, a Moxie Media employee created the Cut Taxes PAC. Moxie Media then paid for the hit pieces, on behalf of Cut Taxes, that I am now filing this complaint about, which attacked me from the political right. The mailers were sent to likely Republican voters who had yet to vote in the final week of the primary election. The first returns showed me significantly ahead of my opponent to the right, but the later returns, consisting of ballots the auditor received after the initial counts, became progressively worse in favor of my conservative opponent. This shows a strong correlation to the timing of the mailers and the votes counted in the later returns.
Moxie Media itself is not mentioned on the mailers, while the Cut Taxes PAC and another recently created PAC, the Conservative PAC, do appear on the mailer. The problem is that neither of those PACs have filed any reports with the PDC; neither has received any contributions; and neither has made any expenditures. By all appearances, those PACs are simply a shell game that Moxie Media is using to hide their efforts to unseat me on behalf of the groups behind Stand Up for Citizens. I believe this is a clear violation of RCW 42.17.120, which makes it illegal to use any means to hide the funding source of political advertisements, and was drafted for situations just like this.
I am asking the Public Disclosure Commission to investigate these PACs and Moxie Media to get to the root of this situation. I am aware that your commission meeting for August has already passed, but because the deception perpetrated by these organizations likely had a material effect on the Senate race in the 38th Legislative District, I am requesting that you hold an emergency meeting to review and act on my complaint.
Sincerely,
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