Article by Erik Smith. Published on Friday, December 22, 2011 EST.
By Marty Trillhaase
Lewiston Morning Tribune

Al (Scarface) Capone never went to prison for bootlegging or rubbing out his fellow mobsters in Chicago.

What sent him to Alcatraz was federal income tax evasion.

Which is something two Washington political consultants, Moxie Media partners Lisa MacLean and Henry Underhill understand.

Credit MacLean and Underhill with winning the Sleazy Political Stunt of the Decade Award.

MacLean and Underhill charted new ground by creating a dummy political campaign and using it to fool the voters of Everett. What’s remarkable about all this is that it works and the tactic is entirely legal.

Where MacLean and Underhill tripped up was in not meeting deadlines for filing campaign financial disclosure reports. In a settlement with Attorney General Rob McKenna, the two Democratic operatives last week agreed to pay $250,000 in fines and $40,000 in legal fees. By not breaking any more campaign finance laws in the next four years, they can avoid paying $140,000 of it.

Working with some 17 Democratic constituencies in last year’s Aug. 17 primary election, Moxie Media raised and spent $1.5 million on independent expenditure campaigns in 15 state races. Moxie distributed money through some 40 political action committees, making it virtually impossible to trace the origins of those dollars.

Among Moxie’s targets was centrist Democratic Sen. Jean Berkey, D-Everett. It invested $275,000 in a campaign to elect her more liberal Democratic challenger, Nick Harper. But Washington’s Top Two primary guaranteed both Democrats would make it to the November ballot unless Republican Rod Rieger took second place.

And Rieger was a candidate without a pulse. He had no money, no campaign and no love for the GOP. Then as the primary headed into its final days, two of Moxie Media’s shells – Cut Taxes PAC and Conservative PAC – launched direct mail and robocalls urging voters to oust Berkey and support Rieger.

Election Day went just as the Moxie operatives had hoped – Rieger nudged Berkey out by 122 votes in the primary. In the November 2010 election, Harper went on to win the seat.

But what were Democratic operatives doing supporting a Republican candidate and where did they get their money? As reported by Washington State Wire’s Erik Smith and the Everett Herald’s Jerry Cornfield, investigators at the Public Disclosure Commission eventually tied the campaign to $9,000 in pledges from the Washington State Labor Council, the Washington State Federation of Employees and the Washington State Association for Justice, which is largely made up of trial lawyers.

Moxie had concealed that information, in violation of the state’s sunshine laws. In taking the deal, however, McKenna opted not to force a trial and possibly overturn the election. McKenna acted after arranging for University of Washington political science professor Matt Barreto to look into it. Barreto observed there was no proof Moxie’s misdeeds swung the outcome.

Of course McKenna, the Republican candidate for governor, no doubt finds the idea of taking on two Democratic operatives in a trial a tad awkward.

So here’s where the case stands:

    Misleading the voters not only works, but it’s constitutionally protected free speech. In fact, the scheme has exposed a vulnerability within Washington’s Top Two primary system, where voters are free to ignore party labels.
    Playing “hide the ball” with information about who is paying for the clandestine campaign is illegal. So campaign consultants may be chastised into observing the rules – or they may just conclude the fines are now a cost of doing business.
    Harper, by the way, doesn’t face the voters again until 2014.

So the incentives remain for others to follow suit. It’s not hard to imagine the strategy metastasizing across the state and even into eastern Washington elections.

“This does absolutely nothing,” Berkey told the Everett Herald. “They’ll keep on doing the same thing.” – M.T.

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