A hundred years ago--heck, even fifteen years ago--news traveled slowly and the public's right to know something quite often was thoroughly let down by a deficit in the public's ability to know something. Sneaky legislators could collude on underhanded bills, pass them in the middle of the night once the public was sleeping and the press was meeting sources in the parking garage, and only weeks, months, or years later would the full depths of legislators' malicious mendacity come to light.
A hundred years ago--heck, even fifteen years ago--would have been a great time to pass a law prohibiting legislators from having the kind of middle-of-the-night votes that, if not actually reflect such malice, at least arouse the suspicion thereof. Scott Walker, who of course was a legislator fifteen years ago and participated in his share of end-of-session late-night legislative bacchanalia, never proposed such a restriction when he had the chance or, to my knowledge, voiced his concern over the practice. [UPDATE: via capper in comments, Walker not only didn't complain, he voted to eliminate an 8 PM stopping time!]
But Scott Walker apparently finds it convenient to complain today, as he's in the middle of a campaign and needs something more than just lunch bags to talk about for a while. And "OMG! They're passing bills in the dead of night!" can be made to sound quite frightening and earn Walker some free media for the day. (None of the media that I saw or heard asked Walker why he didn't push to stop late-night legislating when he was a state rep. Disappointing!)
But here's the thing: I don't think today, with the kind of media that exist and the easy availability not just of legislative text but legislators themselves, that something completely surprising and tinged with evil could possibly make it out of a session without people knowing, or at least having a good idea about it, before hand. And while I don't believe that voting late at night ought to be the norm--I'm one of those people who likes to be in bed by 9:30 and is pretty sure the rest of the world should just stop working completely until sunrise (except those making the the donuts, they're okay)--the reason why you've seen such votes lately in Madison and Washington have nothing to do with trying to hide from the public and avoid, as Walker accuses, comment from constituents. Instead, you're seeing the inevitable result of filibuster rules (which pushed a lot of US Senate votes to after dark) and an archaic state legislative calendar.
The 24-hour news cycle, the internet, the ability to TiVo WisconsinEye, email alerts and tweets--these things all make every minute of a legislative session anymore just as visible as every other. No one should be surprised at which bills were passed overnight in Madison this week--DPI power grab, raw milk, payday loans, for example--because these are the bills that have been hashed, re-hashed, and hashed again in public and legislative debates for the last six months or more. Final language may have been tweaked during party caucus meetings the day of the vote, but to suggest that the public had no chance to comment or contact their legislators about the issues involved is just false.
Is late-night legislation ideal? Probably not--in no small part because apparently "it passed in the dead of night" is now a legitimate critique of the substance of a bill, if our experience lately, particularly reaction to the Affordable Care Act, is any guide. But it is an utterly phony campaign issue, and insulting. Insulting not just to the media (new media included) who have done a fantastic job using new technology to follow this schedule, but also to the voters who have access to so much more information now and don't need Scott Walker to protect them from boogeymen anymore.