The Right Coast

October 28, 2004
October Surprise, Anyone?
By Mike Rappaport

Tomorrow is the most likely day for an October surprise -- the Friday before the election. I find these surprises -- these last minute revelations that do damage largely because of their timing -- to be outrageous. Without the late release of Bush's DWI conviction four years ago, my guess is that George Bush would have won the electoral college clearly and probably would have won the popular vote. Tweleve years ago, Independent Counsel Lawrence Walsh issued an indictment of Caspar Weinberger four days before the election, including in the indictment prejudicial statements about George H. W. Bush that were completely unnecessary. If memory serves, the Department of Justice had guidelines forbidding the indictment of government officials within a month of an election. At that time, George Bush was surging in the polls and was at a statistical tie with Clinton. After the indictment, which was of course played up in the media, Bush's momentum stopped and he started falling back. To my mind, Walsh's action was an impeachable offense and the worst thing any independent counsel ever did. Yet despite all of the complaints about Ken Starr by Democrats, Democrats have rarely criticized or even mentioned this incident.

Last minute hits should be prohibited. The question is how to do it. One possibility is simply to pass a law prohibiting the publication of information about a candidate within the last week before an election, if the information was known prior to that time. No, I don't like this solution either, since it restrains freedom of speech. But it is still worth noting that the Supreme Court already allows restrictions on freedom of speech at election time (they are called campaign finance laws), that the media support these restrictions, that the media are privileged under these restrictions, and that media outlets who plan their stories right before the election -- yes that means you, CBS -- are behaving as political actors. So it would serve the media right to be subjected to the law prohibiting late hits, but I still don't support the law.

Perhaps a better solution is to move further in the direction of allowing voting in the two weeks before election day. Since there is no one day when we all vote, it is hard to drop a bombshell that will unduly influence us all. Of course, an election fortnight, instead of an election day, may have other problems.