WASHINGTON -- Sen. Benjamin L. Cardin isn't letting this flier thing go.
In the end, the "Democratic sample ballot" distributed by his Republican opponents last Election Day had little effect on Cardin's campaign for Maryland's open Senate seat. He rolled up 3-to-1 margins in the predominantly black precincts where the fliers were distributed on his way to a 10-point victory over Republican Lt. Gov. Michael S. Steele.
Still, Maryland's junior senator seems to be making it his mission to outlaw a broad array of campaign abuses. Last week, he went before the House Judiciary Committee, where he showed blowups of the brochure that suggested incorrectly that former Rep. Kweisi Mfume and Prince George's County Executive Jack B. Johnson were backing Steele.
In the Senate, Cardin is co-sponsoring legislation that would make it a federal crime to make false claims about a politician's party affiliations or endorsements. He raised his concerns during a private meeting last week with U.S. Attorney General Alberto R. Gonzales and has been in contact with Maryland Attorney General Douglas F. Gansler.
Cardin, a candidate who campaigned on ending the war in Iraq and expanding access to health care has added a new issue to his agenda. He says he is not seeking payback for the roughest campaign of his 40-year political career, but is attempting to prevent tactics that would violate voters' rights.
"What I am trying to do is to make it clear that that cannot be part of a campaign strategy," he said in an interview. "What we've been trying to do now for almost 150 years is to make sure that we don't disenfranchise people because of the color of their skin or their ethnic background. And when you have literature that is targeted at confusing minority voters ... it is an effort to marginalize minority votes."
Skeptics say that criminalizing materials like the "Ehrlich-Steele Democrats" voting guide probably would prove unworkable - and might be unconstitutional.
"How long is it going to take for cases to come up under this law?" asked Matthew A. Crenson, a political scientist at the Johns Hopkins University. "If you can prosecute politicians for saying things that are untrue, the truth is going to come out, maybe, but it's going to come out too late to do any good.
"I doubt very much whether it will deter politicians from making up stories about one another," Crenson added. "Because the more immediate goal they have is to win the election."
Donald F. Norris, director of the Maryland Institute for Policy Analysis and Research at the University of Maryland, Baltimore County, says attempts to regulate the content of campaign literature are likely to run afoul of free-speech provisions of the First Amendment.
"I can understand the motivation behind it," Norris said. "I just don't see how you can craft a constitutional law to deal with it."
Misleading campaign literature - inflated claims about oneself, exaggerated charges about one's opponent - has long been common at all levels of American politics. But Cardin says 2006 was the first time he faced anything like the fliers that were distributed in predominantly black precincts in Baltimore and Prince George's County.
The brochures, in the African liberation colors red, black and green, appeared to indicate that Mfume and Johnson had endorsed Steele for the Senate. In fact, the influential black leaders were backing Cardin.
Ronald Walters, director of the African American Leadership Institute at the University of Maryland, said the impact of such material is difficult to measure.
"But it's clear that it has some effect, because some people are drawn by it," he said.
Sen. Charles E. Schumer of New York, chairman of the Democratic Senatorial Campaign Committee, complained to the Justice Department after the election, but the attorney general's office said there was "an insufficient legal basis to initiate a formal investigation."
When Cardin raised the issue with Gonzales again at a hearing in January, the attorney general told him that federal statutes "do not provide much in terms of tools [for] going after campaign tactics or rhetoric by candidates."
Cardin is linking the fliers to efforts in Maryland and elsewhere to keep voters away from the polls with telephone calls and letters that give incorrect election dates or polling places, or that tell eligible voters that they are not eligible to vote. The measure he is backing - filed in January by Democratic Sen. Barack Obama of Illinois - would make the intentional communication of such false information a federal crime, punishable by up to five years in prison and a $100,000 fine.
Cardin, testifying alongside Obama in the House last week, said the legislation "properly respects the First Amendment's guarantee of freedom of speech while recognizing the power of Congress to prohibit racially discriminatory tactics to be used in elections."