Capitol Must Remain Open to Public During Business Hours

Mar 4, 2011

A Dane County Circuit Judge ordered all remaining demonstrators to leave the state Capitol late Thursday. There were about 100 there at the time. Judge John Albert says the building should return to normal business hours. For more than two weeks, the Capitol has been filled the protesters around the clock, most demanding that Governor Walker or the Legislature drop his plan to rescind most collective bargaining rights for public workers. WUWM’s LaToya Dennis is here in the studio with me this morning, with the latest developments. To recap the situation, Capitol police asked protesters to vacate the Capitol late Sunday, so the building could be cleaned. Most did leave, but officers allowed the rest to remain, rather than risk confrontation. Then, the DOA, the Department of Administration began limiting access to the building in order to minimize disruption and return a sense of normalcy. But unintended consequences resulted.

Demonstrators were ordered out of the Capitol Thursday night after nearly three weeks of protests.

Hundreds of demonstrators followed and cornered Republican Senator Glenn Grothman as he searched for a way to get into the building. Under the new rules, lawmakers and staff must present an ID when entering the building, constituents must be escorted by the person they are there to visit and legislators are not allowed to have more than eight guests at a time. Democratic Representative Kelda Roys of Madison says the rules have been more disruptive to business than the protesters.

“I have personally been refused entrance into the Capitol multiple times, in some cases where I refused to show my identification card; in other cases where I did show my identification card I was still refused entrance. I haven’t been able to get constituents in the building, my interns and staff have not been able to sometimes get in the building themselves or bring constituents in. And in one instance, I actually had to climb through a colleague’s window to get back into the building,” Roys says.

A few Democrats set up desks outside the building, in order to meet with constituents and demonstrate unhappiness with the rules. In the meantime, a court battle has been underway, over the public’s right to access the Capitol, balanced with the right to conduct business there. DOA officials say some demonstrators slept overnight with their pets, prepared food in the hallways and disrupted legislative business with chants and noisemakers. So it issued the rules, insisting they are in compliance with a judge’s order to keep the building open to the public during regular business hours. Howard Schweber is a constitutional and first amendment law professor at UW-Madison.

“The general rule is that the government may have neutral time, place and manner restrictions designed to preserve order, or to otherwise serve the needs of public security,” Schweber says.

Yet, Schweber believes that if DOA rules were tested in federal court on First Amendment grounds, they would be declared unconstitutional.

“When a rule is made that limits access to what is called a traditional public forum the rule has to be the narrowest possible means to affect a substantial government interest. I think the argument that there’s a substantial government interest in maintaining efficient operations of government is fine. The argument that this is the narrowest possible means to do so, that is the means that infringes the least on First Amendment rights of assembly and speech, I think that’s a very hard argument to make,” Schweber says.

Stacy Harbaugh is with the Madison branch of the ACLU. She says the groups challenging the ruling by the DOA want reasonable accommodations during normal business hours.

“It simply asks that the public have free and open access to their Capitol building during normal business hours. Or when there’s a hearing and Capitol business that’s occurring. And I think that that’s really a quite simple ask, and we really need to go back to that same basic level of access,” Stacy Harbaugh.

And that’s exactly what should happen according to the Dane County Judge that ruled last night that the building must be open during business hours to members of the general public by Monday morning. But protesters will no longer be allowed to sleep at the Capitol. There will also be a permitting process limiting the times and places where demonstrations can be held.