Constant's pations

If it's more than 30 minutes old, it's not news. It's a blog.

Sunday, October 03, 2004

Lawyers: Did they agree to sanctions of rule violations?

  • Agreement

    What did they agree to?

    The parties agreed to not use any prop or writing, related to the Perot incident. Further, "if there was a breach" of using a note, then the rules "the moderator must interrupt and explain"

    8 of 82 says the duty to ensure rules are complied falls on the moderator. There is no audience participation in the first two debates -- so, if something has/has not happened, it doesn't matter what the audience or bloggers say, it is up to the moderator to make the decision during the debate.

    Was there a duty on the moderator to monitor and prohibit a rule violatoin? Yes. So the responsibilty falls on the moderator, whose standard of performance is "best effort."

    Page 23 of 32 of the agreement also stipulates that it is the commission that has the role to act when the moderator fails to act.

    The rules also stipulated on page 24 of 32 [para (c) vi] that the candidates were to remain seated, implying that there had been chages and waivers to the existing agreement. Further adjustments to camera positions received no sanctions.

    Rules on page 25 of 32 refer back [(d) iii] to para 5(d) in re notes.

    The question becomes: Did the parties agree in advance of the debate that they would take notes; and were any waivers granted to permit indivudals to take notes on paper that they themselves placed on the podium; or that they mutually agreed to allow the others; or were there any provisions to restrict this possibility?

    There may very well have been a side agreement to not put paper in advance, and permit or say nothing if the candidates brought their own paper to the podium. There has yet to be a full accounting of the discussions about the change in podiums; nor has any party raised any substantive issue or provided any evidence to suggest that a "change in rules" related to podiums was or was not also related to "rules related to notes."

    This is to say, the record suggest the agreement was somewhat loosely followed; and we have yet to understand fully the nature of the discussions related to podiums, and understand the nature of the discussions related to notes. There may well have been a private agreement, discussion, or understanding that no notes were to be left on the podium.

    Given the number of personnel in proximity of the podiums, it is reasonable to speculate that there was a genuine concern about whether the necessary paper was made available. Again, had this been a real issue or concern, the parties "should have" made provisions to both ensure the moderators and/or commission had the resources to enforce this agreement at the time of the violation.

    That allegations and evidence may have surfaced by members of the audience and bloggers is outside the agreement and irrelevant. We find that throughout the agreement there are terms related to cameras and seats, but these terms either changed, or were not enforced. We hear nothing from the audience related to these changes, nor is the audience input or observation part of the agreement.

    Page 25 of the agreement also discusses microphone arrangements to allow for candidates to walk around. Yet, it is obvious this changed. At no time did the candidates walk around with handmics. Because these terms of the agreement changed, and were not enforced, we can only speculated as to the range of "other terrms" that were privately waived, not enforced, or adjusted.

    Page 31 and 32 also stipulate that this is the "entire" agreement; and that the agreement will be not changed except by "in writing." We see nothing that suggests this was followed, nor that there are actually any 'writings' to document what was later agreed or not agreed.

    Moreover, the agreement says nothing about sanctions. In short, the agreement has holes, was not enforced, and was materially changed without evidence that the parties followed their own agreement.

    In short, the contract is not enforceable; nor provides any remedies within the contract to permit outside mediation or enforcement; nor does it stipulate any remedies or sanctions. In short, this issue is moot and is purely a matter of politics, not one for the courts to adjudicate.

    More broadly, the public-audience-bloggers have no role in the debate; rather they only have a role in the election. Whether there is or is not an investigation remains to be seen. Unless there are specific sanctions that are in writing that the parties agreed to that stipulation "what will happen" as opposed to what "may" happen, we have nothing before us that would suggest "the issue" is a matter for the courts.

    If anything, the sanctions belong on the Commission for failing to provide a complete agreement; or articulate meaningful sanctions; and failing to ensure that the moderator adequately had the support to ensure he could "with best efforts" ensure the rules were applied and enforced.

    Yet, we find that all the parties agreed to the original agreement, and by engaging in the debates agreed to any perceived "loophole" or "change" that could or could not be enforced. It is up to counsel to identify these flaws and include them in the agreement; it is not the job of the court or the public to ensure that highly paid attorneys are adequately drafting agreements.

    If there is a particular problem with a "loophole," then the problem lies with those who perceive there is a problem: Either with a rule not being adeuately enforced; or with a party's legal council failing to ensure the terms of the agreement were effectively enforced with adeuately sanctions.

    The ultimate sanction will lie with the voters.

  • What happened?

    We're still not sure.

  • What is to be done?


    Side Issues

    Do the rules say "can't bring in blank pieces of paper"? Show me he used the notes. If Kerry had prepared-notes, then his eyes "looking at the notes" would give him away--copying notes, reading notes, glancing at notes? Where's that video? The "audience" has nothing.

    His campaign also allowed the first debate to be on national security, which the Bush campaign believes to be its man's strength. Ref

    Parties agreed to only 4

    Page Do the rules provide any "provision" if the rules are violated. "Uh, we'd like to do that one over again." Great. 4 debates. 4 victories for Kerry. Let's schedule a debate for December.