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A secret memo controls the rules of the presidential debates - should it?—A Commentary by Aaron Zelinksy ’10

The following commentary was published in the San Francisco Chronicle on October 14, 2008.

A secret memo controls the rules of the presidential debates - should it?
By Aaron Zelinksy ’10

There is a confidential agreement between presidential candidates John McCain and Barack Obama. Its secret contents control a critical aspect of the upcoming election.

This isn't the plot for novelist Dan Brown's next thriller, but rather the true story of the 2008 presidential debates. The McCain and Obama campaigns have negotiated and signed a 31-page memorandum of understanding. This document governs every aspect of the presidential debates, from speaking times to follow-up questions.

This is the document to which moderator Tom Brokaw repeatedly referred last Tuesday as he tried to maintain control of the debate. This is the document that dictated how much time vice presidential candidates Joe Biden and Sarah Palin each had to speak at their Oct. 2 debate. This is the document that governs the final presidential debate Wednesday.

The memorandum of understanding is a vital part of the 2008 election and the democratic process. However, both campaigns have refused to divulge the memorandum's contents. Such a stance is antithetical to the fundamental American notion of transparency in government. For the good of the country, the rules of the presidential debate should be released immediately.

From examining last week's debate, media leaks about the memorandum, and past memoranda of understanding, we know that this memorandum will play a pivotal role in the structure of the final presidential debate - the last opportunity the American public will have to see the candidates side by side.

We've already seen the memorandum's impact in the earlier debates. For instance, the memorandum prevented Brokaw from asking meaningful follow-up questions, and also controlled the candidates' answer times. After a tepid response from both candidates on the future of Social Security and Medicare, Brokaw refrained from pushing further, declaring, "I'm going to stick by my part of the pact and not ask a follow-up."

Brokaw's deference to the memorandum squares with the historical record, in which memoranda dictated almost every aspect of the debate, ranging from relatively minor details, such as where the candidates must stand during the debate, to major issues, such as whether the candidates may ask each other direct questions.

The American people have a right to know the memorandum's contents. The memorandum contains no state secrets or classified information; there is no reason to keep it confidential. There is no downside to releasing its contents. Indeed, the campaigns have never proffered a persuasive rationale for their obsessive confidentiality.

There is historical precedent for releasing the memorandum. In 2004, the Bush and Kerry campaigns consented to the memorandum's release before the debates. No cataclysm resulted. Rather, there was a healthy discussion of the agreement between the campaigns, and voters were able to understand the restrictions the candidates had placed on themselves.

As lampooned on "Saturday Night Live," last week's town-hall-meeting-style debate broke records for boredom. Many blamed the format; none of us watching knew what the actual rules of the format were. Without knowledge of the memorandum, watching the presidential debates is like seeing a baseball game without foul lines or base paths: The general idea is to round the bases, but we don't have any idea about the critical rules of the game.

Both McCain and Obama talk about change in Washington and reform on Wall Street. McCain calls for an end to secretive earmarks; Obama criticizes the lack of oversight in the bailout package. The path to new, principled and transparent governance begins with the immediate release of the memorandum of understanding before Wednesday's debate. If these campaigns are truly committed to transparency and the rule of law, they should start where it counts: at home.

Aaron Zelinsky is a member of the Yale Law School class of 2010 and the editor of the Presidential Debate Blog ( www.PresidentialDebateBlog.com).