Anyone Looking for a Smoking Gun is Bound to be Disappointed -- Under State Rules, Source of Money is Concealed

State Sen. Jean Berkey, D-Everett

By Erik Smith

Staff writer/ Washington State Wire

OLYMPIA, Aug. 25.—Looks like a last-minute campaign attack from the left managed to do in state Sen. Jean Berkey after all – but because of a gaping hole in state campaign-disclosure rules, we may never know precisely who paid for it.

            Even though it doesn’t take a lot of imagination, if you step back and squint your eyes a little.

            Berkey, an Everett Democrat, was slammed hard by labor organizations and left-leaning activist groups in last week’s primary election as they sought to make an example of a senator who didn’t toe the line. And in one of the most singular campaign tactics ever employed in a Washington state legislative race, the same political consulting firm that had been firing from the left sent another mailer to Republican voters in the 38^th District that denounced Berkey as a taxer and a spender.

            Now the last few ballots are finally trickling in for the by-mail election. And it looks as though the tactic worked.

            Berkey is in third place in the latest count at the Snohomish County Auditor’s office. She trails by 79 votes. Unless something changes dramatically when the last hundred or so ballots arrive in the mail this week, she will have been knocked out in the primary.

            Last week Berkey called the tactic sleazy. “It’s the most unethical thing I’ve ever seen,” she said. And Senate Majority Leader Lisa Brown said she wanted proof the labor and activist groups were behind it. But it looks as though that may never come.

            With a Little Help From Their Friends

Leading in the race is Democrat Nick Harper, the beneficiary of $275,000 in independent-expenditure spending by a group of public-employee labor unions, the Washington State Labor Council, and Fuse Washington, a “progressive” activist organization based in Seattle.

In second place is Rod Rieger, a self-described “conservative” who ran without Republican party support – and who failed to do much campaigning at all. His total campaign budget was $800.

And the trend is unmistakable. When the first batch of ballots was counted Tuesday night, Berkey was in second place, and Rieger trailed by about 300 votes. Those ballots had been mailed in the weeks before the Aug. 17 deadline.

The big shift in the count came after election night. Ballots started arriving in the elections office that had been mailed over the weekend and right up to election day.

And that means something happened in the final days of the campaign that turned everything upside down.

            ‘Republican’ Mailers from the Left

What was it?

The only thing that really happened those last few days was that two mailers arrived at the homes of Republican voters. One denounced Berkey and the Democrats for their free-spending ways at the state Capitol. The other touted Rieger as a true exemplar of Republican-party principles – even though Rieger had disdained the party label when he registered as a candidate.

The mailers came from Moxie Media, the same Seattle political consulting firm that had been firing off mailers for Stand Up for Citizens, the umbrella campaign for the state Labor Council and FUSE Washington. Major contributors to the effort were the United Food and Commercial Workers, the Public School Employees of Washington, Service Employees International Union, and the Washington Federation of State Employees. A separate independent-expenditure campaign was run by the Washington Education Association.

Moxie had already sent out at least 10 mailers attacking Berkey on behalf of Stand Up for Citizens. They slammed her for supporting measures that had been favored by Democratic party leaders in the state Legislature – the budget, unemployment-insurance bills, and so forth. Like nearly every other Democrat, Berkey had voted to cut programs in order to balance the state budget, and she had supported a tax compromise the left didn’t think hit business hard enough.

            But in the Republican mailer, Moxie argued just the opposite – and it looked like Berkey was being hit from both sides.

So who was behind this one? That’s where the story gets tricky.

Disclosure Laws Shed No Light

According to the official records at the state Public Disclosure Commission, the responsible party was the Cut Taxes PAC, an organization that had been created on Aug. 11. The mailers went out on the 12^th and hit mailboxes on the 13^th.

It contracted with Moxie Media to pay $7,906 for the mailing.

The funny thing is that the Cut Taxes PAC didn’t have any money at the time. It still doesn’t. The PDC records show its fund-raising efforts are stuck at $0.00.

 Political consultants seldom work on credit, but that’s what the records make it look like. The records show that the Cut Taxes PAC is $4,764 in debt – the reason for the discrepancy is not immediately apparent.

But that’s just part of the story. Lori Anderson, public information officer for the Public Disclosure commission, said the PAC was created by an employee of Moxie Media, Henry Underhill.

“It’s not that common for vendors to extend credit, but in this case, the Cut Taxes PAC was created by an employee of Moxie Media. Whether or not they’ll find someone to pay them for it is something we’ll have to see.”

And there’s a twist to the story. There’s no rule that says Moxie Media ever has to be paid. Unlike campaigns that work directly for candidates and initiatives, there’s no final settlement deadline for independent-expenditure campaigns.

In a traditional campaign, if Moxie Media were to go unpaid, that would eventually have to be recorded as an in-kind contribution to the Cut Taxes PAC. In other words, free work.

But even that doesn’t have to happen here. Under state rules, independent-exependiture campaigns don't have a "cycle" -- there is no definitive end-point. So their debts can be carried indefinitely.
            Either way, the only thing the records may ever show is that Moxie Media ate the bill. Because it funneled the expenditure through a separate committee, there is no direct connection between the faux Republican mailer and the labor and activist groups that paid for the big independent expenditure effort. Their hands are clean. Anyone looking for a smoking gun is bound to be disappointed.

Meanwhile, presumably Moxie Media made money from the groups that paid for the Stand Up for Citizens effort -- maybe even enough to cover the tab.

Gives Politics a Bad Name

In an interview with the Everett Herald the day the phony Republican mailers hit, Majority Leader Brown said she wanted proof. If the same forces that were trying to knock Berkey out from the left were behind the new mailing, she said it demonstrated a lack of principle.

“When you’re attacking people from both sides, it’s unprincipled,” she said. “It’s basically what gives politics a bad name.”

Moxie Media owner Lisa MacLean declined comment.