Tuesday, January 3, 2012

How Do Indiana Politicians Avoid Hearing From Those With Different Opinions? By Suppressing Constitutional Rights!

Tomorrow is the first day of the Indiana General Assembly’s 2012 session (a “short session”). If you’ve followed the news at all, I’m sure that you’re aware that Indiana’s Republican legislators have indicated that their top priority is passage of a so-called “right to work” bill (or, as union supporters refer to it, a “right to work for less” bill). This bill, when introduced in the 2011 session, was the principal issue that led to the walkout of the Democratic delegation in the House.

Now, before getting into the primary issue that I want to discuss, there are is one preliminary matter worth discussing, albeit briefly: Query why Indiana’s Republican legislators (and Governor) are so gung-ho for this type of legislation, especially given the public reaction to efforts to target unions in Wisconsin and Ohio. You’d think that the large public outcry against those efforts (successful recall elections in Wisconsin and a public overturning of the law in Ohio) might make Indiana’s legislators consider whether they really have a mandate for this kind of legislation.

(If I have time, I’ll try to write another post at a later date examining the pro and con arguments for the legislation.)

But what I really want to talk about is the apparent fear that the Republican members of the General Assembly have for actually hearing what opponents of “right to work” legislation have to say. Recall that during the 2011 session, unions and others opposed to Republican overreaching staged huge rallies in Indiana (and Wisconsin and elsewhere). One of the great things about American democracy is that people can and do protest against (or for) legislation and engage in peaceful efforts to make their voices heard. It is one thing for a legislator to vote for a particular piece of legislation that will (or may) harm or have a negative impact on some; it is much more difficult to do so when those who may be aggrieved by the legislation are participating in the democratic process and telling the legislator that the legislation is bad.

So how have Indiana’s Republicans decided to avoid having to hear angry protests against their efforts to pass “right to work” legislation? How will they keep members of Indiana’s unions who believe that they will be harmed by this legislation from making their voices heard (or at least heard too much)? Easy. By suppressing constitutional rights for some.

How have constitutional rights been suppressed and why do I say “for some”? Read on.

Last week, just days before the session was to begin and during a shortened holiday week, Indiana released new “Security Policies” for the Indiana Statehouse. Before discussing the content of these security policies, ask yourself the following questions: Why are those policies being implemented now, just days before the new session opens, a session which promises to be extremely contentious with a highly charged partisan issue at the forefront? If you believe that the policies really are about security, then why weren’t those policies implemented two weeks ago, a month ago, over the summer, or any time in the past? Why weren’t they implemented during protests last spring or during previous sessions for which protests were staged? Why now?

So let’s get to some of the policies:

In order to comply with State fire code occupancy limits, assembly will occur in official meeting rooms, offices, or other pre-designated areas as established by Indiana Department of Administration. No congregation in hallways will be permitted which might interfere with pedestrian flow, entry and exit from offices or meeting rooms, or emergency ingress/egress.

On its face, this limitation at first seems fine. But note the lack of specifics concerning fire code occupancy limits. What precisely are the limits for the Statehouse (and when were they adopted). More importantly, how is a member of the public who wants to protest at the Statehouse supposed to “assembl[e]” in a meeting room or office? Do they get to pick the room or office they’d like to use? Why do I doubt that most meeting rooms or offices are available to protestors. For that matter, how effective will a protest be if it’s limited to a meeting room or office. People can also assemble in “pre-designated areas as established by Indiana Department of Administration”. In other words, Gov. Daniels’ administration can designate areas for protesters, like the basement or perhaps a conference room in Government Center South (which connects to the Statehouse via a tunnel but is not near where legislators meet). And do you have any doubt that some groups will get preferential treatment on their “pre-designated area”? If you don’t think that there will be preferential treatment, keep reading… And then the policy goes on to prohibit “congregation in hallways” if it might interfere with pedestrian flow. Well, now. Isn’t that precisely how protests work? Bring hundreds or thousands of people to the Statehouse and make legislators (and others) have to pass through the throngs in order to get to or from the Statehouse or the House or Senate chambers? For that matter, anyone who has ever been to the Statehouse during a legislative session knows that lobbyists and those wishing to see or speak to their legislators congregate in the hallways outside the respective houses in hopes of capturing the attention of a legislator. Are lobbyists now banned from gathering in such a manner?

Exterior steps at all Statehouse doors should remain clear for emergency egress.

Again, this seems fine on its face. Except that the use of both the east and west steps of the Statehouse as a staging point for political speeches has a long and cherished history in Indiana. Politicians use those steps all the time. And so too do protest groups. Funny, but I seriously doubt that legislators will be prevented from giving speeches on the steps while protestors will be charged with violating the security policy.

The south Statehouse lawn has been designated as the exterior assembly and gathering area. The south steps of the Statehouse and adjacent sidewalks are to be kept clear for emergency egress. An additional area for assemblies and gatherings may be designated by the Indiana Department of Administration if the south lawn is not large enough to accommodate an assembly. Gathering and assembly areas elsewhere on the Statehouse grounds may be authorized by the Indiana Department of Administration and Indiana State Police upon approval of the required application and issuance of a permit as long as state fire code restrictions are observed.

First, the south lawn is not a terribly large area, certainly not as large as the plaza on the west of the building. Nor is the south lawn very convenient. And, unlike the west plaza, the south lawn doesn’t have a good speakers podium (i.e., the stairs at the west entrance). In other words, the policy is trying to shove protests off to the least convenient and effective location. Once again the Department of Administration can designate another area for larger protests but only upon approval of an application and issuance of a permit. In other words, in order to gather in particularly large numbers at the Statehouse, groups will now need to apply for a obtain a permit. How many weeks will that take? And how freely will permits be issued? Will some groups be granted permits while other groups are denied? Will some receive permits more quickly than others? And since when is a permit required to protest at the Statehouse? And why? And why now?

The new security policies also now prohibit “Creating a volume of noise that disrupts the work of the executive, judicial or legislative branches of government, or any committee thereof”. Again, though, isn’t that just what a real protest seeks to do? Don’t protestors want to be loud, to make their voices are heard, to try to force the legislators to hear their complaints before voting on the issues? And I know you’re wondering about the First Amendment; we’ll get to that soon enough.

And the new security policies also prohibit “Signage larger than two feet by two feet (sticks to hold up signs are not permitted)”. Um, why? What does a large sign have to do with security? For reference, most standard poster boards are larger than this (usually 22” x 28”). If the issue is safety, then simply prohibit sticks from being used to hit people (I suspect that is already against the law…).

Finally, as has also been reported (though it isn’t stated in the security policy to which I’ve linked), the maximum occupancy of the Statehouse is going to be 3,000 people, including employees. The estimate is that 1,700 people work in the Statehouse, so only 1,300 additional people will be allowed in (though apparently lobbyists will not be included in this count). Furthermore, I’ve seen reports that the protests last spring drew around 8,000 people. Funny, but I don’t recall hearing any safety concerns back then…

(It’s also worth noting that an initial draft of the security policies went so far as to limit the number of guests that legislators could bring with them, would have required 24 hours’ pre-screening of those guests, and would have prohibited audio-video recording devices in the House and Senate galleries. But those restrictions were apparently omitted at the last minute.)

Anyway, as expected, as soon as these policies were posted, people began to complain and argued that the policies violated the First Amendment (emphasis added):

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

While I think that the First Amendment is both applicable and worth noting, I think that an even better point of analysis begins with Indiana’s Constitution, specifically Article 1, Section 31:

No law shall restrain any of the inhabitants of the State from assembling together in a peaceable manner, to consult for their common good; nor from instructing their representatives; nor from applying to the General Assembly for redress of grievances.

In other words, so long as protests are peaceful, the State of Indiana cannot restrain people from assembling, consulting, instructing their representatives, or applying to the General Assembly for redress. And those are precisely the sorts of conduct prohibited by the new security policies.

And finally, before you say, “But, hey, it’s OK because it’s all for safety,” then consider this:

A prayer group is getting special access to the Statehouse for the opening day of the 2012 session.

People attending Capitol Commission Indiana’s prayer day at the Statehouse can show a copy of an email message to skirt an expected large crowd of union members protesting proposed right-to-work laws on the Legislature’s opening day Wednesday. News of the waivers emerged after state safety officials set a new 3,000-person limit on the number of people inside the Statehouse at one time.

Seriously. If you’d like to attend, here’s the email with the necessary waiver (though it’s also worth noting that the email waiver is no longer available on the website of the group sponsoring the prayer day; they deleted it after word of the waiver went public). And it’s worth noting that the sponsors (and participants) in the prayer day are almost exclusively Republican. Do you still think that certain groups won’t be given preferential treatment? You do? Hmm. Then ask yourself this: How did this group know to obtain a waiver (or go about getting a waiver) before the security policies were announced or implemented?

So, let’s sum up. The week before a highly contentious session of the Indiana General Assembly is scheduled to commence, new “security policies” are implemented that target (anticipated) protests at the Statehouse in violation of both the United States and Indiana Constitutions. The security policies are supposedly aimed at security, not content, but a prayer group is given a waiver to the access rules for the same day that perhaps thousands are expected to show up to protest.

Thus, I think that the conclusion that I drew in the title to this post is accurate: How Do Indiana Politicians Avoid Hearing From Those With Different Opinions? By Suppressing Constitutional Rights!

Whether “right-to-work” is a good idea or bad idea isn’t the issue; rather, the issue is whether the government of the State of Indiana can use “security policies” to try to prevent legislators from having to hear the voices of those who will be aggrieved by their actions. The Founding Fathers in 1789 and Indiana’s Constitutional Framers in 1851 both recognized the core value and importance of permitting protest speech. Now is not the time to decide that the right of people to be heard, to instruct their representatives, to peacefully assemble, and to apply for redress of grievances are simply quaint ideals of the past that can’t stand up to modern safety guidelines, especially when the use of “safety” appears to be nothing more than a pretext.

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