By Denise Ross

More than a year ago I first heard concerns raised about the role SD Attorney General Larry Long was playing in crafting the abortion ban measure now on the 2008 ballot. The concerns came from a member of the pro-life community, no less.

Ever since, I’ve heard similar concerns from members of the pro-choice community, who say his role as an elected statewide official is incongruous with taking part in a ballot measure effort - especially when it’s his job to write the neutral ballot explanations for ballot measures.

General Long’s role as one of several attorneys who crafted the language of Initiated Measure 11 has been a sort of open secret amongst South Dakota’s political chatterers for many months now.

UPDATE: Via a back-channel communique, I got word that my friend Terry Woster wrote a story in the April 5, 2008, Argus Leader about this controversy. So “open secret” might not have been the correct turn of phrase. How about, “on the record”? (I would love to link to the Argus story, but, alas, the Argus puts its online content behind a wall after a short time. History will judge that as foolishness. Just sayin’.)

BACK TO ORIGINAL POST:

And I got a chance to ask him about it earlier this year, during the legislative session. In his characteristically patient, methodical way, he explained that he decided to participate because it would be he who would have to defend the law in court, should it pass. And he wanted to be sure he wasn’t stuck with a stinker, legally speaking.

Given that explanation, and knowing General Long to be much more a manager than activist, I was more than a little surprised when, as the IM11 folks opened their Rapid City office Monday night, they handed out press releases that describe Long’s role as much more of a leader than as a participant.

One release reads:

Measure 11 was written by a panel of 11 legal experts, under the direction of State Attorney General Larry Long with the purpose of ending unnecessary abortions in South Dakota.

Another reads:

The law was drafted by South Dakota Attorney General Larry Long at the request of leaders of the State Legislature. Attorney General Long assembled and presided over a panel of eleven legal experts for the purpose of insuring that the law was well crafted.

I dashed off a note to Long asking for clarification. Had I misunderstood him so many months ago? Or did the press releases exaggerate his role in the process?

He wrote me back. Here’s the bulk of his response:  

I would not characterize my role as “leader” of that group. It was a team effort.

AND …

Leadership (state lawmakers) asked me to continue the effort to draft a bill which would generally prohibit abortions, but have meaningful exceptions for rape, incest, and the life and health of the mother. They suggested that a drafting team with representation from the various groups generally supporting the concept would be the best approach. I agreed to organize the drafting team.

AND …

Procedurally, my job is to write a neutral ballot explanation and to comment on the “legal consequences” of the enactment of the law including “the likely exposure of the state to liability”. Because of my personal involvement in the drafting, I tasked a group of my staff which had no role in drafting IM 11 to write the ballot explanation. The explanation is their product entirely.

AND …

I think that the quotes you sent me are largely correct, but that they may somewhat over-state my role. 

Here’s my take on all this.

First, there can be little doubt that IM11 would be on the 2008 ballot had Long declined to get involved, so casting him as the leader of the effort, in terms of its organizing momentum, is more than a stretch. Having said that, Long himself said he put together the drafting team, so in that role it seems fair to say he “assembled” the team. Presided over them? Only they would know, and I’m sure a bunch of lawyers is about as easy to preside over as is a bunch of reporters.

Second, there is a distinction to be made between the legal situation and the political one. It is politically shrewd for the Vote Yes for Life folks to emphasize Long’s role, especially given his quiet, competent style. He lends credibility to the proposed law, especially the credibility of the new exceptions.

It’s also politically wise for those who oppose the ban to raise questions about Long’s role, as that will raise doubts about the ballot explanation in at least a few voters’ minds - regardless of the steps Long has taken to protect the integrity of that process.

For Long, it makes far more legal sense than it does political sense to get involved as he did. But Long is much more a lawyer than he is a politician, plus he’s smart enough to know the risks going in. Assuming Long holds true to his pledge that he’s not looking up the political ladder - but wouldn’t that be interesting in 2010 - there’s practically no political risk for him from a purely electoral point of view. 

Given his office and the clout he brings to IM11, it’s entirely possible that Long had the last word on language in the bill. Again, only a handful of folks know. 

Also given his office and his clout, I won’t be surprised if his role in this gets more discussion in the coming weeks now that Vote Yes for Life has cast him as the leader of the pack.  

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