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Republicans Say Senate Should Deny Seat to Nick Harper — and Force Dems to Make a Mighty Uncomfortable Decision

Article by Erik Smith. Published on Tuesday, November 16, 2010 EST.

Curious Silence From Senate Ds – One of Their Own Defeated by Massive Fakeout of Everett Voters


Sen.-elect Nick Harper, D-Everett.

UPDATE, 12 noon Nov. 16.– Lisa Brown responds, says Republican campaigns were just as awful. See story.

By Erik Smith

Staff writer/ Washington State Wire


OLYMPIA, Nov. 16.—Republicans say the Senate should deny a seat to Sen.-elect Nick Harper while the courts consider a lawsuit that could overturn this year’s election in the 38th Legislative District.

            And the suggestion has roughly the same effect as tossing a live grenade into the Senate Democratic caucus. It could force Democrats to end their curious silence about a wildly deceptive campaign tactic that defeated one of their own members. It might even force them to show a bit of backbone to the powerful labor, lawyer and “progressive” activist groups that were behind it.

            Or maybe not.

            But whether they’ll fight back is a question they can’t duck anymore. Senate Minority Leader Mike Hewitt, R-Walla Walla, made a formal offer Monday that gives Democrats nothing to fear from the GOP. If the Democrats decide not to seat Harper while the nasty affair makes its way through the courts, and if a Senate vote comes down to a partisan tie, Hewitt said he will recuse himself from voting and let the Democrats win.

So now it’s all up to the Senate Democrats. They have yet to respond.


            Declared War on Democrats


It’s a complicated story, and if you don’t know it already, here’s the short version. It all started when labor unions and their allies declared war on the Democrats. Enraged by this year’s spending cuts, a tax increase they deemed insufficient and what they considered a general lack of appreciation from their friends in the Legislature, they set out to teach the Dems a lesson. They spent $400,000 on independent campaigns to take out two vulnerable senators in Snohomish County – Berkey and Steve Hobbs, D-Lake Stevens.

The primary sin of the two lawmakers seems to be that they joined a legislative faction called the “Roadkill Caucus” – a group of 27 moderate Democrats who occasionally took business-friendly votes and opposed the interests of labor unions. But the real beef was with the Democratic party as a whole. The TV ads, robo-call and hit pieces hammered the two senators for voting for bills that were supported by Democratic party leaders. The same charges could have been made against virtually every Democrat in the Legislature. The message to Olympia was loud and clear.

Hobbs survived, just barely. But what has leapfrogged the matter beyond ordinary campaign nastiness is the tactic that was used to defeat Berkey in the primary. The coalition’s political consulting firm, Moxie Media, created a phony Republican campaign to build up a hopeless candidate who basically did nothing after he filed for office. While the left attacked Berkey openly for not raising taxes enough, the clandestine campaign attacked her for raising taxes, period. The tactic worked; Berkey lost by 122 votes, and Everett voters never had a clue who was behind it.

Ultimately everything went according to plan – Democrat Harper won in the general election.

But because Moxie failed to file proper campaign reports and deliberately aimed to conceal sponsorship, the firm is now being sued by Attorney General Rob McKenna. Among the remedies – the courts could order a new election. A hearing is set Jan. 18 in Thurston County Superior Court.


            A Curious Silence


The Senate Democrats have so far said little about the affair, and they have been much nicer to their friends than their friends were to them. The Democrats didn’t cry foul when Berkey was attacked in the primary. When the coalition was attacking Berkey for supporting her party, Berkey’s party said nothing in her defense. And even after the phony campaign became public knowledge, Senate Majority Leader Lisa Brown said she wanted proof before she made a judgment.

That proof was established weeks ago by an extensive investigation by the state Public Disclosure Commission. The actors behind the phony campaign were the Washington State Labor Council, the Washington Federation of State Employees and the Washington State Association for Justice, a trial-lawyers’ organization. All three pledged money for the fake campaign, though Moxie declined to collect after things got hot.

The Senate Democrats’ inaction has been a frustration for Berkey, a 10-year member of the Legislature. Why haven’t they rallied to her side? Berkey has an answer: “They have a more liberal Democrat now.”


            Republicans Force Issue


Now it appears the Democrats will have to express an opinion. Last week Berkey’s attorney, former Democratic state Sen. Phil Talmadge, wrote to Lt. Gov. Brad Owen and the leaders of the two parties to urge that Harper not be seated until the courts have a chance to rule. “Berkey was the victim of one of the most reprehensible efforts in recent Washington state history to mislead voters and to defeat her in the 2010 primary election,” Talmadge wrote.

            The violations were so profound that a new election is warranted, he said.

            And Hewitt, the leader of the Republicans in the state Senate, maintains Talmadge is on the right track.


            Senate Can Say No


            It’s not that he wants to second-guess the courts, Hewitt said Monday in a letter to Majority Leader Brown. But to seat Harper before the courts rule might be “sanctioning improper electioneering.”

            The Senate has the ability to refuse to seat a member. The power is established by the state constitution, and it has been used at least once before, in 1941, when the Senate refused to seat a former member of the Communist party.

            “I want to be very clear,” Hewitt wrote. “I am not passing ultimate judgment on the matter; that is for the courts to decide. Nor am I casting aspersions on any of the candidates involved. I have had the great pleasure of serving with Sen. Berkey over the years, and I have found her to be a person of unquestionable integrity and a great asset to the Senate.

“By the same token, I have no reason to believe that the presumptive senator-elect, Mr. Nick Harper, is anything but an outstanding citizen of great integrity also deserving of the office for which he ran, and I am sure I would be pleased to welcome him as a colleague.

“I am not suggesting that we substitute our judgment for that of the voters by preferring one candidate over another; indeed, it is this precise result that I wish to avoid. My fear is that seating anyone from this district prior to a resolution of this case in our courts sends the wrong message.”


            No Response From the Dems


Brown, contacted at midday Monday, said she had not read the letter and did not feel ready to respond.

An attempt to reach Brown later in the day was not successful.

The issue raises an interesting point: Even if Democratic leaders favor seating Harper, Republicans could lock up, and they wouldn’t need many Democratic crossover votes to win. If things work as they did in 1941, Harper wouldn’t vote, and the Democrats would have a bare 26-22 advantage.


            Wasn’t Me, Harper Says


For his part, Harper said it wouldn’t be fair to the voters of the 38th District to deny him a seat.

“The allegations of wrongdoing have tremendous merit, and the individuals involved should be punished,” he said. “But I think this unfairly denies the citizens of the 38th District their representation in the Legislature. I don’t see how allowing the top vote-getter to be seated takes away from the attorney general’s ability to pursue this case.”

Harper is careful to put things in terms of the rights of voters, and not his own. But when asked by Washington State Wire, Harper said he had nothing to do with the phony campaign. And he worked hard to win.

            “I knocked on 26,000 doors,” he said. “I believe I was the hardest working candidate in the race. I believe I won fairly and squarely.”