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Alaska's Senate race: What's Joe Miller's motivation?

Jill Burke

1026-miller2The math's against him and his own party says it's time to give up the fight, yet Joe Miller, who was bested by incumbent Lisa Murkowski on Nov. 2, isn't ready to end the intense political combat that got him to this point. Miller is now looking to the courts to give to him what was lost to the will of the people in the General Election -- one of Alaska's two U.S. Senate seats -- and with it the chance to occupy one of the most powerful jobs in the nation.

To date, Miller hasn't had much to say about what strategies are in play. Inquiries about his goals and what he hopes to achieve are deflected and met with a common refrain about how it's not about who wins or loses, but his desire to protect the "integrity" of the process.

"‘The principle of the thing' is always the first refrain, and that may well be part of it," said political analyst Larry Sabato, director of the University of Virginia's Center of Politics, via e-mail Tuesday.

So what other motivations may be lurking in the heart and mind of the man who came close enough to victory to send out Tweets about shopping for furniture while on a post-primary trip to Washington, D.C.? Miller's not saying much beyond he's in it for the principle of the matter. But plenty of other people are talking.

A brief history of Miller's legal fight

While he celebrated the will of the people after his primary win in August, Miller now claims the will of the people in the general election in November was overrun by a corrupt election process and the long-reaching influence of the Murkowski regime.

Miller had the fairy tale story coming out of the primary -- a David who came out of nowhere to slay an Alaskan Goliath. He beat Murkowski in a stunning upset, and the Republican Party of Alaska, following protocol, backed him from there on out as the people's nominee. But by November the tables had turned. Murkowski, who had to mount a long-shot write in campaign to stay in the race, was now the outsider. And against the odds, she pulled it off by securing more than 10,000 more votes than Miller.

Miller spared no time in throwing legal arguments at any possible vulnerability of the election process. He called election officials biased and said differences in the way ballots cast for regular candidates and write-in candidates are handled are unfair. He alleged voter fraud and sloppy management of voter sign-in at precincts. He challenged imperfect ballots and the state's authority to try to determine voter intent when determining which votes to keep and which ones to reject. If the state court doesn't rule his way, he has said he will resume the fight at the federal level.

Even if he's able to get imperfect ballots tossed out, Miller still trails Murkowski by at least 2,000 votes.

Besides providing jobs for election lawyers, why keep up the fight?

Possible strategy no. 1: The tea party likes a rebel

"To keep fighting looks good to the tea party activists, and in Miller's mind, could preserve his political options in the future," said Jennifer Duffy, senior editor with the Cook Political Report, via e-mail Tuesday.

More than a third of voting Alaskans threw their support behind Miller, as did the state's (and now the nation's) mistress of political coups and take-back-the-country missives, Sarah Palin. But his political currency may be short lived if Miller drags out an unwinnable fight for too long.

"He may want to try again, maybe against Sen. Begich in 2014 or for Don Young's seat once he leaves the House. Appearing to be a bad sport does not aid any future effort by Miller," Sabato said.

"It's obvious to just about everyone that Murkowski won the election and will get the six-year Senate term," he said. "I'm sure that it is accepted privately by the Miller camp, no matter what they are saying publicly. These are smart people and they can count."

Possible strategy no. 2: Cripple the victor

Attorneys for the state of Alaska and for Murkowski have suggested that if the legal battle isn't settled quickly, Alaska is at risk of having its Senate seat remain vacant after the new session begins in January. That would be bad for Alaska, and potentially for Murkowski, they say, as she may lose rank and seniority on the very committees she used as a selling point to defend her worth to Alaskans during the campaign.

Murkowski is the ranking member on the Energy and Natural Resources Committee and also sits on the committees for Appropriations, Indian Affairs, and Health, Education, Labor and Pensions.

People who don't take Miller at his word suspect crippling Murkowski is one of his veiled agendas in having a protracted legal battle. Miller's own recent remarks on the subject suggest he wouldn't fret much if life for Murkowski changed on the Hill.


When KTVA Channel 11 anchor Matt Felling asked Miller about potential damage to Murkowski in the event she wasn't seated by the Jan. 5 start of the new Congressional session, and whether he would relent, the response Miller gave could be summed up in three words: Not my problem. While those aren't the words Miller uttered, they might as well be. He told Felling he doesn't think "there is any evidence" that loss of seniority and missed committee assignments might be at risk. But if that level of influence was on the line or even lost, he'd be OK with it. Earmarks are soon to be a thing of the past, he said, adding that "the fight has to be taken in a different direction."

The theory that Miller may be working to minimize Murkowski's power within the Senate by delaying the certification of election may have merit, Duffy said, but cautioned it is a "very flawed" and "ineffective" strategy.

"In my dealings with Senate Republicans since the election, it strikes me that all is forgiven," she said. "In fact, some members are just in awe of what she was able to do. Murkowski is in D.C. and has gotten a very warm reception from her Republican colleagues, at least in my observation."

That good will may very well work to Murkowski's benefit even if she's not able to be seated on time, Duffy said. "The leadership controls committee assignments and many of the rules about seating senators.  They have a number of options, including leaving the ranking slot open or appointing a temporary ranking member."

While one of Murkowski's Senate detractors during the election, Sen. Jim DeMint, R-S.C., has become a Miller ally, the benefits of that affiliation, for Miller, may also have a delicate shelf life.

"DeMint's effort to strip Murkowski of her ranking slot is why she still has it. That effort (and a speech he made to the conference on the subject) was not looked upon kindly by members.  More to the point, if Miller is carrying water for DeMint on this issue, it may cost him a political future if the seat is declared vacant in January," Duffy said.

"There have been a number of candidates in Miller's position who have taken different approaches to recounts, and all will tell you that at some point it's counterproductive and time to fold your tent and go home with some dignity.  Miller may have passed that point.  If not, he's really close to it," she said.

Possible strategy no. 3: Show me the money

Others theorize that for Miller, a drawn out legal battle over the election outcome comes down to nothing more than the age old desire for money and more of it.

"Fundraising probably plays a part in this, both to pay his lawyers and to build a fundraising database for the future," Duffy said.

Miller and Murkowski both established legal funds to help raise money for a broad range of legal aspects of the election, from paying attorneys to monitor the ballot counts to keeping up the fight in court. Miller is also getting a financial boost from DeMint's Senate Conservatives Fund. On its website, the political action committee is actively soliciting donations for the "Joe Miller Recount Fund," and states it has already raised more than $152,000.

Campaign finance reports due Dec. 2 to the Federal Elections Commission, and provided to the press by her campaign, show Murkowski has raised nearly a quarter of a million dollars for her election-related legal fees. Miller's reports have not yet become available.

"Once the committee is set up there are no obstacles to running that committee for decades," said Paul Ryan, an attorney with the Campaign Legal Center in Washington, D.C., whose main job is be a FEC watchdog.

The benefit to a candidate in setting up accounts other than a primary campaign committee is the ability, with each new account, to increase the amount of money you can bring in, Ryan said. "A donor can essentially double their giving," he said.

Once the election is over, money raised for the main campaign itself can only be used to either pay down debts from the last cycle or cover expenses related to the next election, Ryan said. Money pulled in for a "legal," "defense" or "recount fund" may only be spent on things related to legal fees associated with monitoring the outcome of election and any dealing with any legal questions or challenges that may arise. But there's nothing to prevent someone from running a "perpetual campaign," he said. FEC accounting rules simply dictate whether you apply contributions to a past or future election and prohibit a candidate from using campaign donations for personal expenses.

When Minnesota's Al Franken and Norm Coleman were dueling in the courts in 2008, the FEC advised Franken there were limits to the number of funds they'd be comfortable with. In addition to his main fund and his recount fund, Franken wanted to add a third fund -- an "election contest" fund -- to be able to go back to donors a third time. But, Ryan said, the FEC ruled that it wasn't a good idea to set up a third pot of money, and Franken never set up the third account.

‘All's fair in love and war'

Political analysts agree the various motives -- principle, image, weakening Murkowski, money -- are plausible, but don't think they're all wise undertakings. The balancing act between hurting your enemy and hurting yourself is one they're not convinced will work to Miller's advantage.

"All's fair in love and war, and this particular Senate battle is all-out war. Yet if Miller succeeds in shaving Murkowski's power in the Senate, he also hurts Alaska's influence in Washington. There could be some public backlash if that happens," Sabato said.

"The betting is things will be resolved in time for the early January swearing-in, but where courts and politics mix, you can't be 100 percent certain," he said.

Contact Jill Burke at jill(at)alaskadispatch.com.