The Washington Legislature will be considering ideas to increase regulation of campaign-finance disclosure in response to the case of Moxie Media. Guest columnist William R. Maurer argues lawmakers should be careful about making heavy-handed changes.
PRIOR to last year’s election, one local political story had people competing to be the most outraged. The Legislature is now considering adding more regulations in response to the scandal. Both lawmakers and the courts must be careful, however, to not overreact and let bad facts create bad law.
The story should surprise no one familiar with campaigns. Moxie Media is a liberal-leaning Seattle campaign firm and state Sen. Jean Berkey is a conservative Democrat who represented the 38th District. According to public investigatory materials, Berkey was a target for left-leaning groups working with Moxie. Because of our “top two” primary system, Moxie sought to eliminate Berkey from the general election by having her come in third behind Moxie’s preferred candidate, Nick Harper, as well as the other candidate in the race, conservative Rod Rieger.
Moxie approached progressive groups and suggested they provide funding for political-action committees with conservative-sounding names to attack Berkey from the right, even though Moxie and these groups are unwavering progressives. The groups agreed and Moxie produced the advertisements promoting Rieger.
The ploy worked: Rieger and Harper moved on to the general election, where Harper easily defeated Rieger. However, after the media started asking questions, the funders backed off and Moxie ended up paying for all the advertisements.
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According to Public Disclosure Commission staff, Moxie did not comply with a number of disclosure requirements. Most significantly, Moxie was required to report the money the groups had pledged, even though the money never came through and the definition of “pledge” under the law is unclear. PDC staff investigated Moxie and negotiated a settlement in which Moxie would pay a $30,000 fine and admit guilt.
The PDC itself, however, rejected the settlement and referred the case to the attorney general’s office for prosecution. Berkey is calling for the Senate to defer seating Harper — even though he had nothing to do with the scheme — and for the courts to order a new election.
That Moxie appears to have violated existing laws is not what seems to have everyone upset. Instead, many are bothered because Moxie set up conservative-sounding groups that attacked Berkey from the right when Moxie and its intended funders were really left-leaning.
This, however, cannot be the basis for prosecution. To the extent that Moxie violated the law, it should be punished like any other person. It should not — and, under the First Amendment, cannot — be prosecuted, or its penalty expanded, because the political speech it produced was disingenuous. Trying to deflate enthusiasm for a strong opponent, and promoting a weaker one, is an age-old political tactic.
Moxie’s critics assume that what is important in campaigns is who is funding speech rather than what is actually said. The substance of the advertisements may have caused some to vote differently. That is the purpose of political speech. Contrary to the assumptions of politicians, voters do more than just act reflexively based on the identity of the speaker trying to convince them. A voter persuaded by Moxie may not have liked Berkey’s votes on spending — the fact that someone who is really a liberal pointed that out to them is irrelevant.
Going forward, the Legislature should not use this incident to further burden the ability of ordinary citizens to participate in the political process. Citizens already need to hire lawyers and accountants before they can risk speaking during elections. Adding more regulations will simply leave politics in the hands of political professionals — people like Moxie Media.
In particular, the Legislature should not give government enforcement agencies and the courts the power to probe the motives, beliefs and intent of those engaging in political speech — actions that are anathema to the idea of free and uninhibited campaigns.
That is far too high a price to pay just to punish a political operator with too much moxie for her own good.
William R. Maurer is executive director of the Seattle-based Institute for Justice Washington Chapter.