July 16, 2013 By Paula Mohan
[What follows are written comments submitted to the Wisconsin Department of Administration as part of the public input process on the promulgation of emergency administrative rules. – Editors]
I testified at the public hearing on Friday and would like to supplement those comments with this written testimony.
There is an important balance that needs to be preserved between the freedom of citizens to assemble and the need to maintain public safety in the capitol. It can often be difficult to find that balance since it is tested during stressful times.
One recent stressful time was the spring of 2011 when many citizens, aggrieved with their government, flooded the capitol, occupied it 24/7, and participated in huge rallies which overflowed into the streets of the city of Madison.
Those historical incidents and the tremendous demands placed on the Capitol Police and other law enforcement are being used as the pretext for the proposed changes in the administrative code which seeks more restrictive policies on access and activities within the capitol. In other words, to be certain that another situation like the occupation of the capitol cannot occur, the DOA would like to preempt the traditional ways in which the permitting process has been employed, prior to September 2012 when Chief Dave Erwin took his position as chief of capitol police, and give more enforcement and control to the capitol police by institutionalizing a more repressive interpretation of the policies.
The irony of this is that during the actual “emergency” at the capitol, very few citations were issued. Instead, the acting chief of the capitol police, Charles Tubbs, used conflict resolution techniques, communication, and negotiation to work out conflicting needs and succeeded in maintaining public safety, but still respected the rights of citizens to assemble and petition their government. This need is reflected in the mission statement of the capitol police. Former Chief Tubbs recognized that balance and respected it and his officers were exemplary in following his lead.
Others in the current state administration did not see the need for that balance and, instead, viewed any sign of dissent as an indicator that the chief was not “doing his job”, especially if dissenters were critical of policies passed by the current administration. That unwillingness to allow or respect dissent by those in majority party in the state is what seems to be behind this effort to build more restrictions into the administrative code so that crackdowns can occur and the citations issued would be upheld in court, and not dismissed as the majority have been.
But, it’s short-term thinking at best- if legislators don’t have to view signs that are critical of their policies or listen to songs that are critical, does that mean those sentiments don’t exist? Or does the crackdown, in fact, end up legitimating those grievances? Further, is it appropriate to misuse the capitol police to quell dissent and to clog the court system, at tremendous public expense, in order to prevent legislators from having to listen to people sing: “Scott Walker won’t be governor someday”?
It also means that the capitol police’s role has been distorted to remove the balance between ensuring public safety and facilitating the free expression of ideas into and all of their discretionary judgment has been taken away by the directive that they enforce these restrictive policies. You’re asking highly trained public safety officers to gather in the rotunda at noon and do head counts to see if over 20 people appear and are therefore, in violation without any sense of the difficulties involved implementing these policies.
And, there will be difficulties. What is someone is in the bathroom? Does that person count as a participant? What is someone comes just as someone else leaves? When will you determine quorum? If someone brings a child, will the child count as a separate person, or will age 6 and under be subsumed under the parent’s personhood? Given the recent legislation governing abortions, will a pregnant woman be considered to be two people for the purposes of the quorum count, or only if she is at least 20 weeks along? What if her fetus is not singing?
Ultimately, the courts will be stuck figuring out what these new draconian policies mean, just as they have had to parse out what participation vs. conducting means. I doubt they appreciate their time being spent figuring out which parts of the code are applicable and which are blatantly unconstitutional. Ultimately, they will restore the balance between free expression and ensuring public safety by continuing to throw out the majority of the citations, as they have up until now. If the courts have determined that the current administrative code goes too far in the direction of security to the neglect of the need to ensure free assembly and speech, why would the DOA feel that an even more restrictive policy would be found constitutionally credible?
And, just as in any situation in which those in power become more repressive, you will spawn a counter-reaction that will likely mean larger numbers of citizens assembling at the capitol. So, ironically, in an effort to prevent another “emergency” situation, you may be creating one instead.
A better policy is to respect the wiser and more farseeing approach to protesters at the capitol, espoused by former chief Tubbs. Allow the capitol police to use the skills they have to discern real risks to public safety and allow citizens to freely assemble and express their political views in the rotunda, a place designed for public expression. A reservation system could be used by the solidarity singers which means they would agree to sing outside if any other group wishes to use the space over the noon hour.
Let’s stop wasting public resources on this stand-off and restore the appropriate balance between the need for public safety and the facilitation of the free expression rights of citizens. We can coexist peacefully and Scott Walker won’t be governor someday.