Across the landscape of America, Republican governors and state legislatures, including Wisconsin’s, are enacting a regressive political agenda. Where you find new state laws restricting a woman’s access to an abortion, requiring photographic identification to vote in elections or funding school vouchers, odds are you will also find a regressive Republican politician.
Citizens of Wisconsin and North Carolina have turned to political protest to voice their fundamental disagreements with their respective political leaders’ regressive political agendas. In Wisconsin, it has taken the form of the Solidarity Sing Along and in North Carolina it has taken the form of “Moral Monday” demonstrations. Recently, Gov. Scott Walker’s administration, through the actions and efforts of Capitol Police Chief Dave Erwin, has unnecessarily cracked down on the Solidarity Singers by either arresting or citing them. The Walker administration and the Capitol Police should cease these unnecessary and counterproductive tactics and let people protest without being arrested or cited.
The Solidarity Sing Along was born out of the collective bargaining protests that rocked Madison in 2011. Ranging from just a few people to more than a hundred people, these protesters sing different songs every weekday in the Capitol rotunda at noon for about an hour. I occasionally walked through the Capitol building during my lunch break last summer and I witnessed the sing along a few times. I don’t remember there being more than 15 people singing on any particular weekday during my lunch break excursions.
In July 2012, Walker appointed David Erwin as Capitol Police chief. As the new chief, Erwin announced in August it was time to strictly enforce a rule promulgated by the Department of Administration in December 2011 that required groups of four or more to get permits to protest at the Capitol. Shortly after this announcement, the number of people participating in the Solidarity Sing Along doubled, at least in comparison to recent sing-along gatherings at the time. Then last September, Capitol police began arresting Solidarity singers for rallying without a permit.
As a result of these arrests and citations, the American Civil Liberties Union of Wisconsin filed a lawsuit in February on behalf of Michael Kissick, a University of Wisconsin professor, in the U.S. District Court for the Western District of Wisconsin. The lawsuit challenged the constitutionality of the permit rules promulgated by the DOA and requested a preliminary injunction. In July, U.S. District Judge William Conley granted Kissick’s request for a preliminary injunction and enjoined the DOA from requiring groups with 20 persons or less to obtain a permit to have a rally within the Capitol building. Conley said, among other things, the DOA’s permit rule “unnecessarily creates a chilling effect on the speech of the majority of individuals who are willing to follow reasonable conduct standards and co-exist harmoniously with tour groups, permitted events and other legitimate state activities.”
After Conley’s ruling in July, Capitol police once again began arresting Solidarity singers like they did last September. After three days of arrests, more than 60 people had been arrested. At the present, police arrested more than 100 people and have issued almost 200 citations. Not only were Capitol police arresting people actively engaged in protesting through the expressive medium of song, but they were also warning passive observers until Aug. 7 that they too could be arrested for observing without a permit. In fact, Capitol policetold Rep. Sondy Pope-Roberts, D-Middleton, that she would be subject to arrest for observing the singing without a permit. On Aug. 7, Stephanie Marquis, a Department of Administration spokesperson,wrote in an email, “Observers will not receive citations,” without explaining why observers had essentially been told previously by police that they could be subject to arrest.
Since Marquis’ email, Capitol police have stopped telling observers they would be subject to arrest or citations, but on Aug. 15, Matt Rothschild, editor of The Progressive magazine, was arrested for photographing those being arrested for singing.
Given that all government entities in one form or another have limited resources, those with the power to enforce laws – such as Walker and Erwin – have to exercise discretion when enforcing them. After all, it would be impossible for either of these men to “fully” enforce the laws or regulations they are empowered to enforce because they don’t have the financial resources to do so. Discretion is implicit in the concept of executive power.
Considering this, neither Walker nor Erwin has used his discretion very wisely. Presumably, the reason for requiring permits for rallies or protests is to ensure that other people can also access the Capitol building unobstructed. But every time Erwin has announced a new crackdown on protesters or has directed Capitol police to arrest protesters, the number of protesters has increased. Thus, by deciding to “crack down” on protesters, he hasn’t removed obstructions from the Capitol – he has augmented them.
When governments enact and enforce bad laws, it is a near certainty that the people will protest – sometimes in the form of song. By deciding to arrest people singing in the Capitol building, Walker and Erwin have ironically demonstrated their commitment to undermining the presumed purpose of the rally permits. Both men should use their discretion wisely and uphold the mandate of the First Amendment by allowing people in the Capitol building to sing without being arrested or cited.
Aaron Loudenslager ([email protected]) is a second year law student.
