[CL Editor’s note: This article analyzes in detail an action that took place in North Dakota in April. Though very lengthy and extremely detailed, it deserves careful attention from all pro-lifers who are involved with state legislation. It illustrates how vital is the grasp of every nuance of how legistlatures work, and that very careful debriefing and dissection of outcomes is necessary in order for pro-lifers to understand what measures and individuals they should support.]
On Thursday, April 7, observers in the North Dakota Senate chambers were treated to a rare display of cynicism and manipulation, as Senator Curt Olafson of of District 10 and Lieutenant Governor Drew Wrigley used what the Bismarck Tribune’s Dale Wetzel called a “rarely used” “procedural gambit,” to kill a bill designed to protect all human life in North Dakota Criminal Code. The final maneuver, which was designed to provide cover for waffling senators by providing anonymity and preventing a vote on the bill itself, was the culmination of three and a half weeks of maneuvers, deceptions, delays, and a final rush orchestrated by Olafson, apparently in collusion with the Senate Republican leadership. Here’s what happened.
The language of House Bill 1450 simply placed into North Dakota criminal code the scientifically sound definition that a “human being means any individual member of the species homo sapiens at every stage of development.” It then defined every human being as a “person,” therefore entitled to protection under State criminal code. Prosecution under the bill would have been limited to the “principle actor” harming an unborn person, and the bill exempted accidental or arguably negligent conduct on the part of the mother, legitimate treatment for life-threatening conditions, contraception administered before the time when a pregnancy can be determined, and the creation of a new human being through in-vitro fertilization, providing that human persons are not knowingly destroyed.” The bill was sponsored by Representatives Dan Ruby, Karen Karls, and Jim Kasper, and by Senators Ole Larsen, George Nodland, and Margaret Sitte. HB 1450 was supported by virtually all State pro-life advocacy groups, including North Dakota Right to Life, the North Dakota Catholic Conference, The North Dakota Life League, the North Dakota Family Alliance (the ND Focus on the Family Affiliate), Concerned Women of North Dakota, and Personhood U.S.A.
House Bill 1450 passed the House by an overwhelming margin of 68 to 25. Bill sponsors requested that the bill be heard in the Senate Human Services Committee, but instead it was assigned by Senate Majority Leader Bob Stenjehem to the Senate Judiciary Committee, chaired by Senator David Nething. During the Committee hearing on March 15, Sen. Olafson voiced concerns over what he considered to be inadequate protection for the in vitro fertilization industry and the necessity for exemptions for rape and incest. Chairman Nething assigned Sen. Olafson to work on compromise amendments with bill supporters. Compromise amendments were negotiated principally between Sen. Olafson and Sen. Sitte, with input from bill proponents and opponents.
Prelude to Olafson’s Gambit
Following the Committee hearing, the process of negotiation dragged on for three and a half weeks during which Sen. Olafson was presumably acting as an honest broker to improve the bill by meeting his own and the opposition’s principle concerns. Several amendments were offered which would have entirely negated the purpose of the bill and virtually allowed for abortion on demand after defining the victim as a human person. Interim proposals in the process of negotiation are not in themselves onerous, provided the negotiator is acting in good faith. However, Olafson’s actions in preliminary negotiations can only be fully evaluated through the prism of his subsequent actions.
The prolonged negotiations delayed action on the final bill until the last week, and indeed up to the deadline of the session. The effect of prolonged delays was that the final form of the bill was unknown to proponents, and they were therefore unable to effectively promote the bill. To ask a legislator to vote for something when you don’t know what it is only causes confusion and loss of credibility. It wasn’t until Wednesday morning of the final week before conference committees that the Committee acted on a final bill. The amended language exempted from prosecution the following:
a. Medical treatment for life-threatening conditions provided to a person by a physician licensed to practice medicine under chapter 43-17 which results in the accidental or unintentional injury or death of another person.
b. Medical treatment for life-threatening conditions in pregnancy.
c. The screening, collecting, preparing, transferring, or cryopreserving of a human being created through in vitro fertilization for the purpose of being transferred to a human uterus.
d. The disposal or destruction of a fertilized human ovum, zygote, or embryo, created through in vitro fertilization, which has been subject to medical testing and analysis, and in the reasonable judgment of a medical professional, if transferred to a human uterus, would not produce a live birth.
e. The disposal or destruction of a fertilized human ovum, zygote, or embryo, created through in vitro fertilization which has not progressed in development for thirty-six hours in culture.
f. Contraception administered before a clinically diagnosable pregnancy of a woman.
g. The termination of a pregnancy that resulted from gross sexual imposition, sexual imposition, sexual abuse of a ward, or incest, as those offenses are defined in chapter 12.1-20.
From the standpoint of proponents amendments c, d, and e were undesirable but acceptable compromises: Amendment g was considered to be inconsistent with the spirit of the bill, and an attempt was planned to remove the amendment in the following Senate action. To this writer’s knowledge, however, its retention would not necessarily have drawn their opposition to the final bill. The bill, as amended, was passed from the Committee with a 5:1 “do pass” recommendation, including a “do pass” vote from Sen. Olafson. Sen. Olafson was assigned to “carry the bill” to the Senate. The expectation at this point was that the Senate would first debate and vote on the amendments, during which an attempt would be made by proponents to remove amendment g. The Senate would then debate and vote on the bill with amendments as approved or rejected by the Senate. Both proponents and opponents would have their say, and all would have an opportunity to vote on the final bill. Sen. Olafson, Lt. Gov. Wrigley and, it appears, the Republican Senate leadership had other plans.
Duplicity and Political Expedience
To understand what transpired on the North Dakota Senate floor, we need to understand how many senators interact with pro-life supporters. Many voting districts in North Dakota are strongly pro-life. It is therefore advantageous for many elected officials to have pro-life credentials. Some, almost half of the Senate, are now staunchly committed to protecting human life in all of its stages. However, a substantial group of senators court the pro-life movement as a political block, but really are more sympathetic with a pragmatic compromise with abortion providers as a regulated industry. Since pro-life groups, like North Dakota Right to Life and the Family Alliance, rate legislators using quasi-objective criteria, some legislators pad their ratings by voting for limited regulatory actions, but really have no sympathy with attempts to end the abortion industry in North Dakota.
There are several methods by which waffling senators can avoid the ire of their constituents. First, they can often use the disunity of the pro-life organizations. When several organizations disagree on a measure, like the “personhood” initiative in the 2009 session, legislators can appeal to agreement with the dissenting organizations. The unity of pro-life organizations on House Bill 1450 did not present this opportunity. Second, they can act anonymously by avoiding roll call votes. A voice vote offers some anonymity, but is identifiable to their neighbors and potentially to gallery observers focused on specific legislators. A tally, or verification vote, without name identification, offers almost complete anonymity. Third, they can pad their resumes by voting pro-life only on lost causes – adding one vote in favor of a lost bill, often straggling in on the end after sniffing the wind. Fourth; the more abstracted their opposition from the bill itself, the more protected they are. If a bill is tabled, for example, they can claim that they didn’t vote against the bill. Finally, when more sophisticated ploys are used, it is advantageous to move as quickly as possible and to have as few observers as possible, and to exploit the confusion of some senators in the rush. Almost all of these were employed in Olafson’s gambit.
Olafson’s and Wrigley’s Gambit: Manipulating the Senate
The linch-pin of Olafson’s strategy was a seldom used peculiarity of Senate rules in which tabling an amendment automatically tables the bill itself. The ostensible purpose of this rule is a courtesy to the work of the Committee. Its purpose is to prevent proponents of a bill from putting aside the amendments resulting from the work of the Committee without due floor consideration of their work. As explained by Dale Wetzel in the Bismarck Tribune, the strategy is, however, used on rare occasions to side-track and kill a bill that is considered be contentious. Because the amendment tabling stratagem is rarely used and likely to cause confusion, it provides an ideal tool for skilled manipulation of the floor by adept bill opponents. The advantage is even greater when the procedure is rushed, offering no time for orientation of thought.
Here, then, is what happened. The bill was rushed from the Committee to the floor. It was finalized on Wednesday morning, and was supposed to be heard the same afternoon. Because of delays it was scheduled for the following (Thursday) morning, third on the docket. There was no time to organize support or mobilize a substantial number of observers and supporters. There were, however, several observers in the gallery and the proceedings were filmed.
Sen. Olafson introduced the bill amendments with the Committee’s “do pass” recommendation. Sen. Sitte requested that the amendments be split into two groups, separating the rape and incest amendment (g) from the others. She then offered a motion to remove amendment item (g). After a few minutes of floor debate, Sen. Olafson was recognized and moved to table the amendment. Sen. Sitte immediately flashed her recognition light, but Lt. Gov. Wrigley, presiding, ignored her. Sitte then audibly (clearly heard in the gallery) addressed Wrigley requesting a roll call vote. Wrigley again ignored her and immediately began to initiate a voice vote. As Wrigley began to speak, Sitte strongly addressed Wrigley, calling for a roll call vote. Wrigley stopped, turned toward Sitte and looked at her for a few seconds – then turned away and proceeded with the voice vote. The Yay and Nay votes were not clearly separable, and some observers thought slightly favorable to the Nays. This observer and others assumed that Wrigley would divide the house, but he did not. He immediately ruled that the Yays had prevailed. A group of observers met later to review both the Senate audio tape and video tape several times. All concluded that their initial impression on the floor was confirmed and that no reasonable person would draw a Yay vote from those voices. Some thought the Nay votes were discernibly stronger. Readers can view the sequence of events and judge for themselves on You-Tube at: http://www.youtube.com/watch?v=LqC1NUC84do.
An audio-analysis of the Senate sound tape has indicated that the auditory strength or power of the Nay votes exceeded that of the Yay votes by 1.43 dB. While the difference is not large (1 dB is conventionally considered to be the minimal measurable difference), neither is it negligible, estimably about 10% louder to the human ear. On a vote discerned at best to listeners as “no audible difference” and for some listeners a stronger Nay vote, and for which sound measurements indicate a stronger Nay vote, Wrigley IMMEDIATELY called the Yays as prevailing, and did not exercise a confirmation vote. Had he done so, the sound analysis indicates that the Nays may well have prevailed on the tally, ending Olafson’s motion to table. Of course had Wrigley done so, senate supporters of the bill would have had another opportunity to call for a roll call vote. On an open roll call, a stronger Nay vote would have been even more likely because of the transparency of the vote. Evidence for this will be discussed more below.
Within seconds and without debate on the bill itself, the amendment was tabled and with it the bill. Olafson then moved for reconsideration of the motion, a motion called a “clincher” which, if successful, requires a 2/3 plurality of the Senate to bring the amendment and the bill back to the floor. Wrigley called for a voice vote. The vote was close, but not as close as the previous vote, and Wrigley this time called for a verification vote (anonymous, not a roll call). The clincher was sustained by a vote of 28 to 19. The bill, which had passed the House by 68 to 25 votes, was left in ashes without ever being debated on the floor.
Courage, Confusion and Cowardice
During the afternoon session, Senator Joe Miller brought eight signatures to Wrigley and requested a vote to raise the bill again. Miller and his colleagues requested a roll call vote on the reconsideration. In the following vote, the reconsideration was favored by 26 to 21, an insufficient number to raise the bill again, but fully adequate to have passed the original bill or overturn the motion to table the bill if it would have been voted on using a roll call. While Miller’s motion failed, it shed some light on the effect of the morning’s actions and the anonymous votes. The results show that seven senators had either been confused, or had switched their votes when forced to vote openly. Only five of the seven votes gained would have been sufficient to pass the original bill. Olafson, Wrigley and their colluding colleagues had been fully effective.
Evaluation: Lessons in Cynicism and Manipulation
Olafson’s actions were cynical. He acted the honest broker in amending the bill and voted for the amended bill in Committee, but he clearly engineered a delay and rush tactic which neutralized proponents’ ability to promote the bill. He then carried the amendments and the bill to the floor with the 5:1 “do pass” recommendation, (including his own vote in Committee), but then switched to the role of the opponents’ “hatchet man,” leading the opposition in misusing an obscure senate rule to table the bill. In doing so he denied the rest of the Senate the privilege of a fair hearing and debate on the bill, likely confused some of the bill supporters into mistaken votes, and built a shelter for any senators who wished to defect from the bill without visibility. Unfortunately, their constituents were also robbed of their right to transparency. Olafson has always touted himself as a pro-life senator and has been fairly thin skinned about it. In a previous session he publicly expressed anger at a state representative who had questioned his pro-life commitment after voting against the “personhood” initiative, and demanded a public apology. Olafson’s blatant treachery in this session has exposed him. Olafson may retort with justification that what he did was perfectly legal. But he must understand that this is of little comfort or concern to the pro-life organizations and proponents that he has just shived in the back.
Drew Wrigley was the surprise of the session for many pro-life supporters. Wrigley is a dynamic and likable young public servant, a successful federal prosecutor, and a rising political presence who many have considered as a prime candidate for governor or national office. It is undoubtedly for this reason that he was appointed to the position of Lt. Governor after Gov. Hoeven was elected to the U.S. Senate. Wrigley has always been considered to be of strong pro-life conviction and has presented himself as such. But there is no question of what Wrigley did as president of the session in ramrodding Olafson’s gambit.
Wrigley deliberately ignored Sen. Sitte’s recognition light, ignored her voice call for a roll call, and then, after looking directly at her, blatantly ignored her stronger address to the chair for a roll call. This, by all accounts, was a singular event, and is not the way business is normally conducted in the Senate. Every senator has a right to be recognized, and every senator has the right to request a roll call. In reply to Sen. Sitte’s request for a parliamentary evaluation of the proceedings, Jay Buringrud of the Legislative Council explained that Sitte was entitled to a roll call under Article 4, Section 13 of the State Constitution, which provides for a roll call vote ‘on any question’ when requested by 1/6 of the members present. A motion to table is a question: thus, on request of 1/6 of the members present a recorded vote is required. The appropriate action for Wrigley, then, would have been to recognize Sitte and, if there were a question of support for the roll call request, to require supporters to stand or otherwise show their support. Sitte would certainly have had the support of enough senators to sustain her request.
The sound impression of several observers in the balcony and observers of the video tape which was filmed from the balcony, and the subsequent sound strength analysis from Senate audio tapes indicate that Wrigley may actually have incorrectly called the Yay vote. The analytical margin for the sound analysis, while significant, is too thin for absolute certainty. But the results leave no doubt that Wrigley was ethically obliged to call for a verification vote. Why he might not have done so can be surmised from two facts. First, sound strength analysis indicates that the motion to table might well have failed. Second, calling for a verification vote would have allowed proponents another opportunity to call for a roll call, something which Wrigley’s previous actions show he was unwilling to recognize, which would have been embarrassing, and which may have further increased the likelihood of defeating Olafson’s motion to table. This likelihood is supported by the vote count on Sen. Miller’s later attempt to restore the bill. Finally, a roll call would have exposed the votes of vacillating senators to transparency before their constituents. If Olafson was the point man, it was Wrigley who ensured the anonymity of the votes and ramrodded the proceedings. While Olafson initiated the gambit, it was Wrigley who assured its success.
In summary, the combined actions of Olafson and Wrigley denied an elected official and her constituents a right, under the State Constitution, to a roll call vote, denied transparency to the electorate, and denied senate supporters a fair debate, hearing and vote on an important bill that had passed the House by 68 to 25. Such a well-orchestrated gambit would appear to be the unlikely brain child of a two session senator and a newly appointed Lt. Gov. alone. As one of the most important bills of the 2011 session lies in ashes, the footprints of the Republican senate leadership seem to be dancing around the incinerator. Pro-life supporters must now reconsider their thinking about just who their supporters are and adjust their strategies. They are newly advised to watch their backs in the byzantine chambers of the North Dakota State Senate.
This article was originally published on July 13, 2010 by The Dakota Beacon and is used by permission of the author.]