Police surround the Capitol on March 1 (Madiston Capitol Times)

With recall petitions filed against Republican Senators in Wisconsin, the Governor realizes that his time is running short. In acts of desperation, he is violating a Dane County judge’s order to reopen protester access to the Capitol. In addition, the Wisconsin Constitution states in Article I, Section 4:

Right to assemble and petition. SECTION 4. The right of
the people peaceably to assemble, to consult for the common
good, and to petition the government, or any department thereof,
shall never be abridged.

There is also related legal precident and it is outlined in 59 Attorney General 8, listed immediately below Section 4 in notes on case law:

The legislature cannot prohibit an individual from entering the capitol or its
grounds.
–59 Atty. Gen. 8.

so it seems that any orders to prevent protesters into the Capitol are unconstitutional. Yet Capitol police are enforcing restricted access rules as of Thursday morning.

Several officials have spoken against the policy of restricted access. The Madison Capitol Times reports of DNR Secretary George Meyer describing that the current level of law enforcement at the Capitol:

“…was an immense amount of overkill.”

“The amount of law enforcement that is up there is beyond the pale,” says Meyer, now the executive director of the Wildlife Federation. “There is no need for law enforcement. It’s a poor use of financial and staff resources and the show of force is not to keep the peace. It’s to intimidate people exercising their First Amendment rights. It’s wrong.”

“Under this extraordinary show of force you cannot even carry out your responsibility and represent people before their government.”

The Capitol Times reports that there is so much downtime for the present officers that many were taking tours of the Capitol, hosted by staff on site.

A Democratic Legislator, Senator Fred Risser, says:

“The Wisconsin State Capitol is, and has always been, the people’s building. It should not be treated like an armed fortress. I continue to commend the thousands of Wisconsin residents who have exercised their right of assembly for the past three weeks for the peaceful manner in which they have spoken. I expect that the demonstrators will continue to be respectful of the building and its occupants.”

There is more – Wisconsin Congressman Obey was denied access when he refused to use his title to enter the Capitol.

In other news circulating around Governor Walker, the Wisconsin State Employees Union (WSEU) has filed a formal complaint against the Governor for his refusal to negotiate with the union – a violation of Wisconsin state law.

The Walker side has replied, with the Republicans in the State Senate voting 19-0 in an unconstitutional measure to call for the arrest of the 14 Democratic Senators who have left the state. According to Senate Majority Leader Fitzgerald, “They have pushed us to the edge of a constitutional crisis.” Indeed, because the Wisconsin Constitution prohibits the arrest of any legislators while they are in office. Article IV, Section 15 states:

Exemption from arrest and civil process. SECTION 15.
Members of the legislature shall in all cases, except treason, fel-
ony and breach of the peace, be privileged from arrest; nor shall
they be subject to any civil process, during the session of the leg-
islature, nor for fifteen days next before the commencement and
after the termination of each session.

So with all of this unconstitutional activity swirling around the Governor and the Republican Legislature, one should also think a little bit about the State Supreme Court, for which there is a pending election this spring. Wisconsin Judicial races have historically been state financed because it is the best way to prevent special interest money from driving the election. A less-commonly discussed provision in Walker’s Budget “Repair” Bill essentially zeroes funding for state funded Judicial campaigns. The result would be that the Koch brothers, for example, would be able to spend inordinate amounts of money to get their candidate (Prosser) into the Supreme Court again.

Stay tuned. Recall petitions have been filed against the Legislature
and there is a lot of activity. Governor Walker and the Republicans are engaging in unconstitutional activity because they have no other recourse. They are losing the fight and the protests are winning. Once the recalls happen, there will be one chamber of the legislature to balance the other.

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