According to a comprehensive review of the first two presidential debates, Mitt Romney broke the official debate rules more often than Barack Obama, with few major consequences. As the candidates prepare for their final face-off, it’s an open question whether the debate rules are even working.

During the first two debates, Romney posed more direct questions and ran over his allotted time more often, while Obama broke the rules less frequently.

Overall, according to a review of debate infractions by The Nation:

Romney posed eight direct questions, while Obama posed none;

Both candidates made a single reference to a questioner;

Both candidates entered each other’s designated space on two occasions;

Obama was the only candidate to benefit from prohibited applause, when Michelle Obama cheered his remarks on Libya.

Both candidates also routinely ran over their allotted time.

It was not all fouls and fudging, however. Neither candidate ever broke the blanket bans on using notes, props, diagrams or electronic devices, nor the rule against challenging each other to sign “proposed pledges.”

Romney not only broke the rules more often, he also invoked them more to pursue an edge during the debates. That tic was satirized by Saturday Night Live and lamented by conservatives, such as the Times’s Ross Douthtat, who wrote after the second debate that Romney tends to “argue pointlessly with the moderator and his opponents over the rules of order.” While appealing to the moderator can certainly make a candidate look petty, it turns out that the only penalty for infractions mandated in the debate rules is a moderator interruption.

Under Section 5 of the rules, which were negotiated by the campaigns and the debate commission, the moderator is supposed to interrupt and cite the rules when candidates go over time, reference an audience member or use banned props.

Jim Lehrer rarely took that tack in the first debate. While he was roundly criticized on style points, of course, his approach also abdicated the moderator’s technical duty under the rules. At one point, Lehrer even prompted Romney to pose “a question that you’d like to ask the president directly about something he just said.” Since the rules specifically bar the nominees from asking “each other direct questions,” it was quite odd for the moderator to invite such an infraction. Romney carefully replied without technically posing a direct question—he appeared mindful of the rule in the first debate, and did not break it until the feistier town hall session.

By the second debate, of course, Candy Crowley had telegraphed her plan to scrap the ban on her follow-up questions. While more assertive than Lehrer, she rarely cited the rules and broke other rules for the moderator.

Crowley spared both candidates from chiding on a range of violations, and patroling time violations strictly was implausible, given that 122 total interruptions occurred in ninety minutes. But for Crowley, it is evident that not all rules were created equal. In the significant exchange over the Libya attack, Crowley gave Romney the ultimate political yellow card by fact-checking him with 70 million people watching. But her firm correction on a pivotal point, and repeated at the president’s request, technically violated the rules’ prohibition against a moderator commenting on “the answers of the candidates during the debate.”

According to many journalists and fact-checkers, Crowley was right to address an empirical fact to advance the discussion. If breaking the rules was right, however, then the rules must be wrong.

That would not be surprising from a journalistic perspective. After all, the rules were not written by the press, the public, or even a government body like the FEC. They are a product of secret, self-interested negotiations between the candidates and a private organization run by the two political parties.

The Debate Commission, which the parties established to replace more independent debate organizers, does not even pretend to answer to the public or journalistic management—the reporter-moderators are simply picked, long after the rules are negotiated with the campaigns, by the commission (not the other way around). As a private body, the debate commission is less transparent than the federal government or any public company on the stock market, which are at least subject to disclosure laws.

In the end, the emerging debate over the debate rules is something of a breakthrough. The rules are usually kept secret, but were leaked after the scuffling over Crowley’s plans to press the candidates. Now the twenty-one-page agreement between the campaigns—a lawyerly deluge of minute orchestration designed to limit the range of topics and suffocate any unexpected interaction—has been set free on the Internet. (The commission is so allergic to transparency, however, that there is no indication the rules are available on its own website.)

Going forward, it should be difficult for the commission to keep its rules secret. The leak enhanced the journalistic pressure and public understanding of the debate; the only “damage” caused was to the campaigns’ control over an event that is supposed to help the public judge the candidates—not help the candidates manage their images.

The larger question is whether an old, closed, top-down institution like the commission can maintain legitimacy in an increasingly open, bottom-up world.

With reporting by Stefan Fergus

Peter Van Buren lists six questions"> that probably won't (but should) be asked in tonight's foreign policy debate.

For more election coverage, subscribe to The Nation's Election 2012 mailing list.