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Published: Friday, December 16, 2011, 5:05 p.m.

Settlement with state orders Moxie Media to pay $290,000 for campaign violations

OLYMPIA — A Democratic political consultant was slapped with a huge penalty Friday for concealing the source of money behind mailers and phone calls attacking former Democratic state Sen. Jean Berkey in the final days of the August 2010 primary.
Moxie Media and its principals Lisa MacLean and Henry Underhill must pay $250,000 in fines and $40,000 in legal fees under terms of a settlement announced Friday by Attorney General Rob McKenna. The firm can avoid paying $140,000 of the fine by not breaking any campaign disclosure laws through 2015.
“They are admitting to multiple violations of the campaign finance disclosure laws,” said Janelle Guthrie, spokeswoman for McKenna.
But the settlement does not overturn the results of that primary which drove Berkey from office. She finished third behind Rod Rieger and Nick Harper, a Democrat who went on to win the 38th District seat in the general election.
“This does absolutely nothing. They got away with it,” a bitterly disappointed Berkey said Friday. “This fine will not be a deterrent. They'll keep on doing the same thing.”
Berkey remains convinced the campaign hijinx of Moxie Media in support of Rieger deceived enough voters to affect the outcome. She wound up 122 votes behind Rieger, who appeared on the ballot as Prefers Conservative Party and did not mount any visible campaign.
Berkey wanted a new election. She figured a trial slated for February would expose the illicit machinations and convince a judge to order a do-over. But that trial won't happen now.
“Corruption in elections is a serious offense. If there was a public trial the voters would be able to see all that went on in this campaign,” Berkey said.
McKenna's office did study whether Moxie Media's actions were serious enough to seek another vote. He hired Matt Barreto, a University of Washington political science professor, to provide an expert opinion based on a review of all the attorney general's office uncovered in the case.
Barreto's analysis “could not conclude with any certainty the defendants' campaign finance violations probably affected the outcome of the election,” according to a statement from McKenna's office.
“This settlement holds Moxie Media, Lisa MacLean, Henry Underhill and their two political action committees accountable for their campaign finance disclosure violations and preserves the integrity of state law while avoiding the additional expense to taxpayers of taking this case to trial,” McKenna said.
The penalty, one of the highest ever levied in an election-related case, ends a lawsuit filed in October 2010.
“My clients are pleased to resolve this case,” Will Rava, the firm's attorney, said in a prepared statement. “We agree the state should not have sought new elections as a result of this matter. Any entitlement to such a remedy could not be proven here, and, after the Senate seated Senator Harper almost a year ago, we do not believe that a court would have had the authority to order new elections.”
McKenna filed the lawsuit after the state Public Disclosure Commission rejected an agreement reached between its staff and Moxie Media. In that deal, MacLean admitted wrongdoing and was prepared to pay a $30,000 fine.
What the PDC and McKenna discovered is Moxie Media played both sides of the political fence in the 2010 primary.
A coalition of labor unions, trial lawyers and progressive groups targeted Berkey for defeat because they found her voting record too conservative and backed the more liberal Harper.
The coalition hired Moxie Media to run a roughly $280,000 campaign of television and radio ads, mailers and phone calls supporting Harper and opposing Berkey.
Then, in early August 2010, MacLean created two new political action committees for the purpose of building up support for Rieger. And through these two committees — Conservative PAC and Cut Taxes PAC — she funneled $9,000 to pay for postcards and robocalls to likely Republican voters.
The PDC found she masked her role in those committees and failed to disclose the source of the funds, which turned out to be pledges from the Washington State Labor Council, the Washington State Federation of Employees and a political committee funded mostly by trial lawyers.
MacLean, who works exclusively with liberal Democratic candidates and progressive causes, initially denied all wrongdoing.
“Moxie Media has always complied scrupulously with all PDC and other election disclosure requirements,” MacLean wrote in a statement issued in September 2010. “Moxie Media's compliance record is unblemished; Moxie Media has never been fined or otherwise sanctioned or reprimanded by any election disclosure regulatory agency.”
Meanwhile, Harper said Friday he's not thought about the case in a while.
“I haven't let this pre-occupy my mind the last year,” he said. “I've just been focused on doing this job to the best of my abilities and that is what I will continue to do.”

Jerry Cornfield: 360-352-8623; jcornfield@heraldnet.com.

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