Wants Court to Overturn Election Result – Dem Chairman Pelz Urges Peace

Attorney Phil Talmadge

By Erik Smith

Staff writer/ Washington State Wire

OLYMPIA, Sept. 3.—Jean Berkey, the Everett senator who was knocked out in last month’s primary election by a pair of phony Republican mailings from the left, is taking the fast road to court -- and a lawsuit to overturn the results appears all but certain.

            Berkey has retained Phil Talmadge, a former Supreme Court justice and one of the state’s most formidable attorneys. Talmadge got the ball rolling on a lawsuit Friday. He sent formal letters to state Attorney General Rob McKenna and Snohomish County Prosecutor Mark Roe demanding that they take legal action. If neither of them files suit, he said, his client will.

            All of which means there might be an election in November for the Senate seat in the 38^th Legislative District, but it also might not count for much. And a hugely costly effort from labor groups and activist organizations will have gone for naught, because of a last-minute campaign tactic that aimed to make it look like Berkey was being slammed from the right.

            It was a clear violation of campaign-disclosure laws, he said. “You can’t misrepresent who you are and what you are,” he said.

            The Nasty Business

Berkey, a moderate two-term Democrat from Everett, was targeted by a coalition of labor unions and “progressive” activist organizations in this year’s primary. They spent a whopping $275,000 on an independent-expenditure effort, hammering Berkey for voting with her party to cut state programs, and for resisting the large tax increases on business that those groups favored.

            The labor and progressive groups put their money on Democrat Nick Harper, a political unknown who supported their issues. But in the final days of the election, a curious tactic unfolded. The same political consulting firm that had handled most of the mailings for the left, Moxie Media of Seattle, sent a pair of mailers to GOP voters. Those mailings denounced Berkey as a taxer and a spender, and extolled self-described “conservative” candidate Rod Rieger as a true-blue Republican.

            The squeeze play did the trick. Ballots mailed in the final days showed a huge surge for Rieger, who had eschewed the Republican-party label and had done little campaigning of his own. The final results put Berkey in third place, out of the running, by a narrow margin of just over 100 votes.

            Berkey and her campaign manager Larry Vognild, a former leader of the Senate Democratic Caucus, filed a complaint with the Public Disclosure Commission last week. They say the mailers did not make their sponsorship clear.

            Courts Have Say

            Talmadge, who served in the state Senate as a Democrat in the ‘80s and early ‘90s, said the tactic warrants considerably more than a nudge and a wink. State law stipulates that sponsorship of campaign materials must be made clear.

The mailers indicated that they were paid for by a pair of political action committees that had been created by Moxie Media, the Cut Taxes Political Action Committee and the Conservative Political Action Committee. But neither one of them ever raised any money, or paid any. The $7,906 bill for the mailers was recorded as a debt owed to Moxie Media by the Cut Taxes PAC.

            But if the PAC didn’t have any money, where did the money come from? If it came from Moxie Media itself, the mailers should have indicated Moxie’s sponsorship, Talmadge said.

            There’s a law on the state books that speaks directly to the point, he said. It states:

“No contribution shall be made and no expenditure shall be incurred, directly or indirectly, in a fictitious name, anonymously, or by one person through an agent, relative, other person in such a manner as to conceal the identity of the source of the contribution or in any other manner so as to affect concealment.”

             The courts have the authority to overturn an election and call a special election if they believe an egregious violation has been committed, Talmadge said. And this one qualifies.

            “If you can play these kinds of games, if you can create a fictitious entity to do damage to a political candidate and say you expect to be reimbursed by some unnamed third party, where is the disclosure?” Talmadge asked. The tactic “destroys the spirit of the Public Disclosure Act,” he said.

            Interesting Choice for McKenna

            Moxie Media owner Lisa MacLean has maintained publicly that her firm complied with the letter of the law. Last week she said the consulting firm was the only entity that put money toward the mailer. Yet there was nothing wrong with calling the PACs the major contributors because someday they might receive contributions that could be used to pay off the debt. 

            Talmadge calls the maneuver a shell game. The PACs never raised a dime -- did they ever plan to?

            In one sense, Talmadge's letters to the state attorney general's office and the Snohomish County prosecuting attorney are a matter of form. The law requires him to make a formal request before he can file a civil lawsuit on Berkey's behalf. The two agencies have 55 days to decide whether they want to take up the case themselves.

            But the legal move also poses an interesting choice for Attorney General Rob McKenna. Not only is it a chance to defend the state's public disclosure laws -- a top priority for McKenna -- but Berkey's enemies have been attacking McKenna as well. Many of the same groups are supporting -- or at least cheerleading -- legal challenges to the Republican attorney general on health reform litigation and a power-line case in Okanogan County. The two high-profile cases are scheduled to be heard in the state Supreme Court on the same day in November. Dan Sytman, spokesman for the attorney general's office, said the office was not prepared to comment on Talmadge's letter Friday. 

            The move does not affect the complaint Berkey filed with the Public Disclosure Commission. The commission staff is investigating. If the commission believes that a violation has been committed, it can refer the matter to the attorney general’s office. Talmadge’s move accomplishes the same thing in a more direct way.

            Pelz Urges Acceptance

            The clash is starting to create concern on the Democratic side. State Democratic chairman Dwight Pelz, another veteran of the state Senate, said Berkey ought to accept the results of the election, hard feelings notwithstanding.

            “Sen. Berkey has done a great job for the state of Washington, but she is not going to be on the general election ballot,” he said. “This is a tough election year and we certainly have some strange bedfellows – we saw that in the 38^th District. But the people have spoken, and we will have an election between Nick Harper and Rod Rieger.”

            Just try telling that to Berkey.

            “I disagree,” she said. “I do not agree with Mr. Pelz, and I’m surprised Mr. Pelz isn’t more outraged by the lack of ethics that changed the outcome of the election.”

            And Talmadge said, “It’s easy for him to say.”