Reprinted, with permission, from the March 7, 2000 Wall Street Journal
Keep this in mind tonight as the theme music rises on the soundtrack and Bernard and Peter and Dan and Tom blather earnestly into the TV cameras about the Super Tuesday primaries, building suspense until the polls close and they find out who's winning:
It's all an act.
Whether dropping hints about which candidate is doing well or playing the poker face, the anchormen's performances are informed by exit-poll data that start streaming to the networks at 2 p.m. from Voter News Service, the election research consortium run by and for CBS, NBC, ABC, CNN, Fox and the Associated Press.
The networks aren't the only ones in the know. All day long, media and political elites fill their friends' e-mail and voice-mail boxes with the latest numbers. The exit-poll numbers are the worst-kept secret in the world.
By around 5 p.m., the networks' statistical engines usually have all the data they need to call winners. Yet a VNS embargo blocks its members and its 100-plus media subscribers (including this newspaper) from revealing the data or declaring the victor until the polls have closed.
Why do the networks censor themselves and leave the voters in the dark? I began asking this question at the beginning of the primary season from my vantage point at the online magazine Slate. Starting with the New Hampshire primary and continuing through the South Carolina and Michigan contests, I posted exit-poll numbers on Slate as they became available to me. (Slate was not bound by the embargo, because we aren't VNS subscribers.) Almost immediately, VNS threatened Slate with a lawsuit claiming copyright infringement, unlawful interference with VNS's contractual relations and misappropriation of "hot news."
The first two charges are frivolous. You can't copyright information, only words. As for the claim that Slate unlawfully interfered with VNS's contractual relations with its members and subscribers, this is identical to the charge Brown & Williamson used a few years ago in an effort to suppress a 60 Minutes segment on whistleblower Jeffrey Wigand. Does anybody at CBS appreciate the irony of the network, through its membership in VNS, resorting to the same tactics Big Tobacco used against it?
Not so easily dismissed is VNS's accusation that Slate violated the "hot news" doctrine in passing along the numbers. This legal theory dates to a 1918 Supreme Court case, International News Service v. Associated Press, in which the court ruled that a newswire service was engaging in unfair competition by lifting and rewriting AP stories.
The curious thing is that VNS is invoking the hot-news doctrine to bottle up the news until it turns cold. As Justice Mahlon Pitney wrote in the 1918 case: "The peculiar value of news is in the spreading of it while it is fresh; and it is evident that a valuable property interest in the news, as news, cannot be maintained by keeping it secret."
Why does the VNS cartel insist on suppressing the news? Because the news organizations that make its policies fear reprisals from members of Congress who oppose early projections on the grounds that they depress voter turnout. The federal government might retaliate by revoking broadcast licenses, passing legislation to curb or ban exit polls, or even go after networks on antitrust grounds. (In 1967, the first year the three networks pooled election tabulations, they obtained a Justice Department ruling that pooling would not activate the antitrust tripwire.) The broadcasters' cowardice about reporting the news became official policy in 1985, after behind-the-scenes negotiations with members of the House Task Force on Elections.
All of which begs the question: Why should news organizations care about voter turnout? Their job is to report the news, not to get citizens to the polls. In any case, the notion that publicizing exit polls suppresses voter turnout is questionable. In 1980 all the networks projected that Ronald Reagan would win the presidency 2 1/2 hours before the West Coast polls closed. President Carter even conceded while Westerners were still voting. Yet William Adams of George Washington University found that the early projections deterred less than 3% of voters from casting ballots. Richard Smolka of American University told National Journal in 1989 that "voting was up on the West Coast in 1980."
Perhaps voters are smarter than the networks and the politicians give them credit for. After enduring presidential preference polls for two years before the first primary and tracking polls leading up to Election Day, perhaps they discount polls and vote their conscience. Our view at Slate was that if VNS couldn't keep its allegedly secret information secret, if the anchors were going to drop clues and occasionally blurt out who was winning, and if viewers didn't know that the early-evening broadcasts on Election Day were phony, then we'd inform our readers of this continuing fraud.
As the letters from VNS's lawyers grew more threatening, Slate decided to declare victory and leave the battlefield. We've made our point about the networks' hypocrisy, and our scooplet has encouraged several newspapers to examine the underscrutinized workings of VNS. Meanwhile, other Web sites are posting the exit-poll news as they hear it. Both Nationalreview.com (www.nationalreview.com) and Bushwatch.com (www.bushwatch.com) posted the early exit-poll numbers from last week's Virginia primary, and both promise to do so again today.
If the Slate spark turns into a prairie fire, VNS won't be able to hire enough lawyers to put it out. Maybe then the networks and the AP will come to their senses and realize that they're better at disseminating the news than at suppressing it.