Wisconsin lawmakers, journalists and members of the public returned to the Capitol last week for a packed slate of committee hearings and executive sessions but for the first time in nearly 20 years, WisconsinEye was not broadcasting daily legislative proceedings. Wisconsin State Capitol on a snowy day. (Baylor Spears | Wisconsin Examiner)

After WisconsinEye, the state’s version of C-Span, went off the air in December, Republican lawmakers rediscovered rules that bar members of the public from making video and audio recordings of committee hearings and decided to start enforcing them.

Wisconsin lawmakers, journalists and members of the public returned to the Capitol last week for a packed slate of committee hearings and executive sessions but for the first time in nearly 20 years, WisconsinEye was not broadcasting daily legislative proceedings.

A notice passed around Assembly committees listed two rules. Assembly rule 11, related to committee procedures, states that “insofar as applicable, the rules of the Assembly apply to the procedures of standing committees and special committees.”

Assembly rule 26, which relates to members of the public observing from visitor galleries in the Assembly chambers, states that they “may not use any audio or video device to record, photograph, film, videotape, or in any way depict the proceedings on or about the Assembly floor.” 

Senate rule 11 also states that “no persons other than members of the chief clerk’s staff, members of the staff of the sergeant at arms, members of a senator’s staff, and accredited correspondents of the news media may engage in any audio or video recording of the proceedings of the Senate or any committee without permission of the committee on Senate organization.” According to the Senate Chief Clerk Cyrus Anderson, the rule was first adopted in 2005. 

Wisconsin’s open meetings law expressly states that governmental bodies “shall make a reasonable effort to accommodate any person desiring to record, film or photograph the meeting,” but the law includes a provision that says that “no provision of this subchapter which conflicts with a rule of the senate or assembly or joint rule of the legislature shall apply to a meeting conducted in compliance with such rule.”

Rep. Jerry O’Connor (R-Fond Du Lac) told the Wisconsin Examiner that the rules were reviewed in caucus at the start of the year.

“Many of [the members], like me, I didn’t know there was a rule,” O’Connor said. “So it was a reminder.” 

Rep. David Steffen (R-Howard), who has served in the Assembly since 2015, said he couldn’t remember looking at the rule in the last decade. 

“How many times have I just kind of breezed past it? I guess I never really thought of it, primarily because I’ve always had WisconsinEye to rely on to assist with that coverage, as well as present media and in-person public,” Steffen said. 

Steffen said lawmakers, seeking to understand their options in the absences of WisconsinEye, looked over the Assembly rules.

“One of the things that immediately became apparent is that under our Assembly rules, we already have some things that are readily available — for example, credentialed media — but we also have things that have always been prohibited,” Steffen said. “It remains the rule of the day, so this isn’t a new rule… In terms of the enforcement, I think it’s more of an awareness campaign than anything.”

The rule enforcement caused some confusion throughout last week.

Notices related to the rules were passed around and posted outside committee rooms. Committee chairs issued directions at the start of meetings. Reporters in committees were asked to show their credentials as they set up cameras and stood to take photos, and others, including staff members and members of the public without credentials, were stopped from doing so.

Rep. Clinton Anderson (D-Beloit), seeking to help fill the gap left by the absence of WisconsinEye, livestreamed on Facebook the meeting of the Assembly Local Government Committee on Wednesday, writing that “we have to step up and do what we can.” Anderson said on Thursday that he sought to do the same in the Assembly Agriculture Committee but was stopped from doing so as Rep. Travis Tranel (R-Cuba City) reminded the room of the rules related to recording.

“We’re now hearing that this will become standard practice across committees. If that’s the direction Republican leadership is heading, it represents a clear move to restrict public access,” Anderson said in a statement. “After WisconsinEye went dark, the response should have been to expand transparency, not quietly close another door on the public. I am disappointed to see the Assembly GOP go after the public’s First Amendment rights.”

Testimony from two Republican lawmakers on a bill to exempt overtime from income taxes was interrupted during an Assembly Ways and Means committee meeting on Thursday afternoon by  a point of order relating to video recording.

“I don’t have a problem, video all you want,” said Rep. Mike Bare (D-Verona), the committee’s ranking member, to someone who was holding up a cellphone “You’ve got nothing to hide. These guys have nothing to hide, but if we’re going to have a rule…”

“I know that there was staff taking a photo, yes, and I gotta challenge that if you’re videoing… if you’re doing a video that you’re not allowed in the committee area,” O’Connor said. 

O’Connor told the Examiner after the meeting that he is fine with photos being taken in his committee and he believes committee chairs can use their discretion on whether to allow photos. He said video is different because of  its potential use for political purposes.

“If it’s staff taking photos of their rep, I don’t have a big problem of it,” O’Connor said. “You could have somebody, an outsider, come and testify, and their best friend is sitting in this seat and wants to take a picture, that’s not the issue.”

“Trying to capture video, quite frankly, it gets down to it can be used politically,” he added. “So WisconsinEye tapes this, you cannot use a WisconsinEye clip in political campaigns. That’s why the rules originated, and I get that… I don’t want either side to violate that or benefit from it adversely.”

Bare said he wanted to ensure that the rules were being applied evenly if they were going to be enforced. 

“We have a long, rich tradition in Wisconsin of open government, open access to government, and we shouldn’t have be limiting that access to members of the public to staff to members and to the media in any way,” Bare said, adding that the enforcement of the rules is “clearly a response to WisconsinEye being offline, being dark, which seems like a preventable problem.”

“There’s plenty of states in the country who provide funding for broadcasting… We shouldn’t be in the situation where we members or our staff have to livestream onto social media,” Bare said. “We’ve got decades now of precedent of these things being broadcast out to the public.”

WisconsinEye halted its coverage in December due to a lack of funding after failing to raise sufficient funds to meet a matching requirement for the release of $10 million in state funds.  WisconsinEye leadership has been in discussions with lawmakers about a potential solution, including releasing part of the  $10 million that is intended to build an endowment.

“We’re only going to be in session for maybe eight to 10 more weeks, and if we’re unable to get WisconsinEye back up and running in that timeframe, I’m hopeful the public isn’t going to be impacted any more than they already have been,” Steffen said. 

Bill Lueders, president of the Wisconsin Freedom of Information Council, told the Examiner that the enforcement of the rule is a bad idea.

“Regardless of the law, denying the public the ability to record and film legislative meetings, especially in the absence of a functioning WisconsinEye, is deeply undemocratic and, in my opinion, foolhardy. Nothing that goes on in these meetings is anywhere near as insidious as what people will assume is happening if the ability to film and record it is being curtailed,” Lueders said.

Lueders said the Wisconsin Freedom of Information Council (WFIC) doesn’t support anything that treats the media differently from ordinary citizens.

“Although they may legally be able to pass their own rule and enforce their own rule to deny people an opportunity, it doesn’t make it any less of a good idea,” Lueders said.  

Steffen said he would be open to having options for the public to record and photograph meetings as long as they are not obstructing the activity of a committee. “I think that this situation, this hopefully short-term downtime, has created an opportunity to discuss some of those rules that have been on the books for some time, and perhaps there’s some that need to be modified.”

In the meantime, Steffen said lawmakers are focused on finding a solution to make up for the loss of  WisconsinEye and options for the public are limited to attending in person and consuming coverage by journalists in the Capitol.

Steffen called on local reporters to “fill the gap” in a press release on Friday.

“All of them have the ability to record, maybe sometimes just audio, but they all have the ability to record a proceeding and put that on their website,” Steffen said. “That at least would provide some opportunity for transparency during this interim.”

Lueders said local media “absolutely does not have the resources to film as many legislative hearings and sessions as WisconsinEye was doing; it just doesn’t have that capacity. Cameras can come and show up for part of a hearing, but they’re not there filming entire meetings on a daily basis, and that’s not a function that can be replicated… It’s more important than ever that ordinary citizens who attend these meetings are able to film and record it.”

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