A REPORT TO CONGRESS ON THE NATIONAL ENDOWMENT FOR THE ARTS submitted by The Independent Commission September 1990 Washington, D.C. THE INDEPENDENT COMMISSION John Brademas and Leonard Garment, Co-Chairmen Members appointed by the President John Thomas Agresto, Santa Fe, New Mexico Theresa Elmore Behrendt, Tuxedo Park, New York Leonard Garment, Washington, District of Columbia Charles Kinsley McWhorter, New York, New York Members appointed by the President upon the recommendation of the President pro tempore of the Senate in consultation with the minority leader of the Senate Marcia Laing Golden, Goodland, Kansas Kay Huffman Goodwin, Ripley, West Virginia Peter Nicholas Kyros, Jr., Westlake Village, California Rosalind Weiner Wyman, Los Angeles, California Members appointed by the President upon the recommendation of the Speaker of the House of Representatives in consulation with the minority leader of the House of Representatives John Brademas, New York, New York David E. Connor, Peoria, Illinois Joan White Harris, Chicago, Illinois Kitty Carlisle Hart, New York, New York Staff Margaret J. Wyszomirski, Staff Director Jason Hall, Associate Director for External Affairs David B. Pankratz, Associate Director for Research and Administration Catherine Melquist Jost, External Affairs Associate Carla Hanzal, Research Associate Anthony Tighe, Administrative Liaison from NEA Ruth Ann Stewart, Sr. Consultant from Congressional Research Service Michael C. Dorf, Legal Affairs Consultant A REPORT TO CONGRESS ON THE NATIONAL ENDOWMENT FOR THE ARTS submitted by The Independent Commission September 1990 Washington, D.C. This report was prepared by the Independent Commission and although not every member subscribes to every view or recommendation, it reflects the substantial agreement of all the members. This report is a public document and may, with attribution, be reproduced wholly or in part. The Independent Commission Memorandum to: Honorable George H.W. Bush President of the United States Honorable Thomas S. Foley Speaker of the House of Representatives Honorable Robert C. Byrd President pro tempore of the Senate From: John Brademas and Leonard Garment Co-Chairmen The Independent Commission We have the honor to submit to you the unanimous report of the Independent Commission created by Congress to review the grant making procedures of the National Endowment for the Arts and to consider whether the standard for publicly funded art should be different from the standard for privately funded art. As authorities who either nominated or appointed the members of the Commission, you will, we hope, as Congress considers legislation to extend the authorization of the National Endowment for the Arts, find our work helpful. On behalf of our fellow Commissioners, we wish to express our appreciation for the opportunity to serve on the Commission. September 11, 1990 Digitized by the Internet Archive in 2015 https://archive.org/details/reporttocongressOOinde Contents Foreword v Introduction 1 Part One: Background and History 5 I. Origins of the National Endowment for the Arts 7 Historical Background 7 Purposes of the Law 11 The Principles Underlying the NEA 15 II. NEA Structure and Operations 19 The Chairperson 20 The National Council 22 The Grant Advisory Panels 25 The Programs 31 The NEA Record 34 HI. The Independent Commission 43 Background 43 Witnesses Appearing Before the Commission 46 Part Two: Findings and Recommendations 55 IV. Standards for Publicly Funded and Privately Funded Art 57 V. Grant Making Procedures 63 VI. Obscenity and Other Content Restrictions 83 Conclusion 93 Appendices 95 A. Commission Biographies B. Staff Biographies C. Establishment of the Independent Commission (Public Law 101-121) D. NEA Enabling Legislation (Public Law 89-209) IV Foreword We, the members of the Independent Commission, wish to express our deep appreciation to all those persons who contributed to the preparation of this report. We extend special thanks to the many individuals who provided oral and written testimony on the issues before the Commission. Their views—diverse, informed and strongly-held-- played a major role in the Commission's work. We commend for their contribution the outstanding staff of the Independent Commission, in particular, Margaret jane Wyszomirski, Staff Director, without whose professionalism this report could not have been completed. We also voice appreciation for their excellent work to the other members of the Commission staff: Jason Hall, David Pankratz, Catherine Melquist Jost, Carla Hanzal, Michael Dorf, Ruth Ann Stewart and Anthony Tighe. Jackie Goldenberg of New York University provided invaluable editorial assistance and Suzanne Naylor, of Dickstein, Shapiro and Morin, important logistical support. Ana Steele of the National Endowment for the Arts was consistently helpful in response to the Commission's requests for information. Introduction Congress has given the Independent Commission two mandates: 1) To review the National Endowment for the Arts grant making procedures, including those of its panel system; and 2) To consider whether the standard for publicly funded art should be different from the standard for privately funded art. When the National Endowment for the Arts was established twenty-five years ago, its authors saw a special problem in ensuring artistic freedom for institutions and individuals receiving NEA funding. Advocates of the new agency did not want government funds used solely for established art forms and activities. The report of the Senate Labor and Public Welfare Committee on the 1965 legislation made clear that conformity for its own sake is not to be encouraged, and that no undue preference should be given to any particular style or school of thought or expression. Nor is innovation for its own sake to be favored. For a quarter of a century, the National Endowment for the Arts has worked to preserve the cultural heritage of the United States, assist the nation's cultural institutions, make the arts accessible to millions who might otherwise not have enjoyed them and foster creativity in the arts. The Endowment has been widely supported by the public, Congress and a 1 succession of presidents. Thousands of grants have been made and only a handful have resulted in public controversy. Today, twenty-five years after its creation, the original system no longer works as it once did, for reasons that the NEA's founders could not have foreseen. On certain social and cultural issues, the nation has become more polarized; such tensions continue to play an important role in our politics. Relations among various cultural, ethnic, racial and religious groups continue to pose serious challenges to American institutions. As with other federal agencies, these developments affect the NEA and the environment in which it operates. In consequence, a number of grants has produced, within the past eighteen months, significant public controversy that poses a danger to the NEA and its programs. Public confidence in the agency has been impaired. The Independent Commission believes it is time to restate what the founders of the NEA took for granted: The National Endowment for the Arts is a public agency established to serve purposes the public expresses through its elected representatives. In a country like ours, these goals are not likely to be articulated in a formal declaration of federal policy for the arts. We can say, however, that the Endowment exists to bring the benefits of the arts to the American people. While the artists and the arts institutions receiving NEA funds are indispensable to the achievement of the purposes of the agency, the NEA must not operate solely in the interest of its direct beneficiaries. As with every federal agency, the Endowment must do its part in pursuing worthy social objectives but the agency cannot let such goals take precedence over its primary task of strengthening the role of the arts in American life. Publicly funded art must be measured, like privately funded art, against standards of artistic excellence. Publicly 2 funded art must be judged by other standards as well. It should serve the purposes which Congress has determined for the Endowment. It should be chosen through a process that is accountable and free of conflicts of interest. It should be selected with an awareness of the geographic and cultural diversity of the United States and with respect for the differing beliefs and values of the American people. The Endowment is charged with one of the most complex and delicate tasks that an agency of government can perform in a democracy. On the one hand, it must seek to offer a spacious sense of freedom to the artists and the arts institutions it assists; from such freedom grows the capacity of the arts to expand our horizons. At the same time, the NEA must, if it is to maintain public confidence in its stewardship of public funds, be accountable to all of the American people. With its discretion to spend public money, the Endowment must make sure that its policies and procedures are fair, reasonable and efficient. Insuring the freedom of expression necessary to nourish the arts while bearing in mind limits of public understanding and tolerance requires unusual wisdom, prudence, and most of all, common sense. The success of the Endowment will always depend crucially on the quality of the individuals chosen to lead it. The Independent Commission hopes that Congress and the American people will find this report a constructive contribution to the resolution of the issues Congress asked us to consider. 3 . Part One: BACKGROUND AND HISTORY I. Origins of the National Endowment for the Arts Historical Background. Since the founding of the United States, American political leaders have recognized the importance of the arts to the life of the nation. George Washington, in a letter to Reverend Joseph Willard of March 22, 1781, remarked that The arts and sciences essential to the prosperity of the state and to the ornament and luippiness of human life have a primary claim to the encouragement of every lover of his country and mankind. Thomas Jefferson wrote to James Madison in September 20, 1785 that You see I am an enthusiast on the subject of the arts. But it is an enthusiasm of which 1 am not ashamed, as its object is to improve the taste of my countrymen, to increase their reputation, to reconcile them to the respect of the world, and procure them its praise. Congress, recognizing the value of the arts, created a National Conservatory of Music in 1891 and the National Fine Arts Commission in 1897. President Dwight D. Eisenhower's 1955 State of the Union message called for the creation of a Federal Advisory Commission on the Arts, arguing that 7 In the advancement of the various activities which would make our civilization endure and flourish, the Federal Government should do more to give official recognition to the importance of the arts and other cultural activities. President John F. Kennedy also expressed approval for a Federal Advisory Council on the Arts (February 6, 1962; H. Doc. 330), noting that Our Nation has a rich and diverse cultural heritage. \Ne are justly proud of the vitality, the creativity, and the variety of the contemporary contributions our citizens can offer to the world of the arts. If we arc to be among the leaders of the world in every sense of the word, this sector of our national life cannot be neglected or treated with indifference. The publication of a report by the Commission on the Humanities in 1964 provided further impetus for an expanded federal role in support of culture. Scholars in the humanities—a body of disciplines that includes history, literature and philosophy —had noted the increased visibility of science in American life following the launching of Sputnik and the creation of the National Science Foundation. The report of the Humanities Commission urged the establishment of a similar foundation for the promotion of the humanities. On September 3, 1964, President Lyndon B. Johnson signed into law a bill passed by Congress to create a National Council on the Arts (P.L. 88-579), a twenty-five member body which was to advise the President on ways to increase both the cultural resources of the United States and private support for the arts. 8 The publication in 1965 of a Rockefeller Foundation Panel Report on the financial straits of the performing arts increased the momentum for a greater federal presence in cultural life. In asking for the establishment of a National Foundation for the Arts and the Humanities, President Johnson declared on March 10, 1965 that Government can seek to create conditions under which the arts can flourish: through recognition of achieveniettts, through helping those who seek to enlarge creative understanding , through increasing the access of our people to the works of our artists, and through recognizing the arts as part of the pursuit of American greatness. That is the goal of this legislation. Public Law 89-209, enacted in September of 1965, created such a foundation; it included a National Endowment for the Humanities (NEH) and a National Endowment for the Arts (NEA). Since the founding of the two Endowments, there has been bipartisan support for a federal role in the arts and humanities. President Richard M. Nixon noted in September 1968 (Cultural Affairs ) that Through the National Endowments for the Arts and Humanities we should seek to encourage and develop individual artistic talent and new concepts in art, just as we do in science and technology. I will support that institution as the instrumentality of the Federal government to nourish individual talent and contribute to the support of our museums, of the performing arts and of a flourishing of all the arts. But we will focus 9 heavily on fostering the participation of our schools, our community organizations, our foundations, our local governments and individual artists and patrons to achieve a true national renaissance of the arts. We don't want a state directed culture. We must be very careful to maintain a vigorous climate of cultural endeavor not dependent on Federal largess. We must not risk drying up wells of private support by creating the impression that they are no longer needed. But our government does have an interest in a national culture to which all our people and institutions contribute. It should, within prudent limits, fostei * artistic and cultural expression which stands close to the center of the American effort to nourish freedom in the world. Every subsequent President has spoken of the importance of the arts and humanities to national life. President Gerald R. Ford remarked in a message to Congress of June 23, 1976 that Our Nation has a diverse and extremely rich cultural heritage. It is a source of pride and strength to millions of Americans who look to the arts for inspiration, communication and the opportunity for creative self-expression. President Jimmy Carter noted in an address of April 2, 1980 that The relationship between government and art must necessarily be a delicate one. It would not be appropriate for the government to try to define what is good or wliat is true or wlwt is beautiful. But government can provide nourishment to the ground within which these ideas spring forth from the seeds of inspiration within the human mind. 10 President Ronald W. Reagan, in a speech on June 18, 1987, asked Why do we, as a free people, honor the arts? Well, the answer is both simple and profound. The arts and humanities teach us who we are and what we can be. They lie at the very core of the culture of which we're a part, and they provide the foundation from which we may reach out to other cultures so that the great heritage that is ours may be enriched by— as well as itself enrich— other enduring traditions. And President George Bush observed in the May 1988 issue of Vantage Point that The arts. ..contain the signposts of civilization and provide the symbols and vocabularies of our national identity. They contribute to a community's morale and thus improve its quality of life and contribute to its economic development . The arts also provide for that diversity of expression that is peculiarly American, reflecting our many different origins and the bonds that unite us. Purposes of the Law. In creating the NEA and NEH in 1965, Congress made an explicit "Declaration of Purpose" in Section 2 of the law: Sec. 2. The Congress hereby finds and declares— (1) that the encouragement and support of national progress and scholarship in the humanities and the arts, while primarily a matter for private and local initiative, is also an appropriate matter of concern to the Federal Government; 11 (2) that a high civilization must not limit its efforts to science and technology alone but must give full value and support to the other great branches of man's scholarly and cultural activity; (3) that democracy demands wisdom and vision in its citizens and that it must therefore foster and support a form of education designed to make men masters of their technology and not its unthinking servant; (4) that it is necessary and appropriate for the Federal Government to complement, assist, and add to programs for the advancement of the humanities and the arts by local. State, regional, and private agencies and their organizations; (5) that the practice of art and the study of the humanities requires constant dedication and devotion and that, while no government can call a great artist or scholar into existence, it is necessary and appropriate for the Federal Government to help create and sustain not only a climate encouraging freedom of thought, imagination, and inquiry but also the material conditions facilitating the release of this creative talent; (6) that the world leadership which has come to the United States cannot rest solely upon superior power, wealth, and technology, but must be solidly founded upon worldwide respect and admiration 12 for the Nation's high qualities as a leader in the realm of ideas and of the spirit; and (7) that, in order to implement these findings, it is desirable to establish a National Foundation on the Arts and Humanities and to strengthen the responsibilities of the Office of Education with respect to education in the arts and the humanities. This "Declaration of Purpose" emphasizes both how the arts and the humanities can benefit the American people and the primacy of private initiatives in supporting these activities. The enumeration of the kinds of projects which the Chairman 1 may support in Section 5(c) of the law elaborates ways in which these purposes are to be achieved: (c) The Chairman, with the advice of the Federal Council on the Arts and the Humanities and the National Council on the Arts, is authorized to establish and carry out a program of grants-in- aid to groups or, in appropriate cases, to individuals engaged in, or concerned with the arts, for the purpose of enabling them to provide or support in the United States— (1) productions which have substantial artistic and cultural significance, giving emphasis to American creativity and the maintenance and encouragement of 1 The 1965 law used the word "Chairman," which was later amended to "Chairperson." The term "Chairperson" will be used in this report except in the case of the 1965 legislation. 13 professional excellence; (2) productions, meeting professional standards or standards of authenticity, irrespective of origin which are of significant merit and which, without such assistance, would otherwise be unavailable to our citizens in many areas of the country; (3) projects that will encourage and assist artists and enable them to achieve standards of professional excellence; (4) workshops that will encourage and develop the appreciation and enjoyment of the arts by our citizens; (5) other relevant projects, including surveys, research, and planning in the arts. The 1965 authorizing statute provides the Chairman advisers to help make decisions about funding. Section 6(b) indicates that the National Council on the Arts will advise the Chairman on policies and review specific grant applications, with the Chairman required to receive the recommendation of the Council before making decisions on specific grant applications. Sections 10(a)(5) and (6) give the Chairman the power to hire "panels of experts" and to pay travel and per diem expenses for "voluntary" personnel (who might be used in the review process). The 1965 statute also gives the Chairman guidance, in Section 5(c) cited above, on how to make judgments about what kinds of art to support. This section authorizes support for 14 projects of artistic significance but also speaks of other values such as American creativity, local access to the arts, the achievement of professional standards and arts education. The Senate Labor and Public Welfare Committee, in its Report on the 1965 bill, declares It is the intent of the committee that in the administration of this act there be given the fullest attention to freedom of artistic and humanistic expression. One of the artist's and humanist's great values to society is the mirror of self-examination which they raise so that society can become aware of its shortcomings as well as its strengths. The Report goes on to affirm that The intent of this act should be the encouragement of free inquiry and expression. The committee wishes to make clear that conformity for its own sake is not to be encouraged, and that no undue preference should be given to any particular style or school of thought or expression. Nor is innovation for its own sake to be favored. The standard should be artistic and humanistic excellence. While evaluation in terms of such an abstract and subjective standard will necessarily vary, the committee believes such a standard to be sufficiently identifiable to serve the broad purpose of the act and the committee's concern with the cultural values involved. The Principles Underlying the NEA. The major themes that characterized the 1965 statute that created the National Endowment for the Arts and that continue to contribute to thinking about the role of government and the arts 15 in the United States are: The encouragement of excellence; The importance of access to the arts for all of our citizens; The role of local and state efforts in the arts; The primacy of private initiative and support; The need to prevent centralized federal control of culture; The importance of freedom of expression; The encouragement of education in the arts; and The need to encourage cultural diversity and to avoid the dominance of a single school or artistic style. Congress and the President provided only a few administrative signposts for the Chairman in seeking to implement these goals. The law made possible the use of grant advisory panels but did not require them. The National Council on the Arts was expected to advise but not overrule the Chairman with respect both to policy and grants. The Chairman would have authority to make final decisions on both policy and grants, and he would be the individual accountable to the President and Congress. In making grants, the Chairman, with the advice of the grant advisory panels and National Council, was to consider, among other factors, artistic and cultural significance, standards of professional excellence, and the development of appreciation 16 and enjoyment of the arts by citizens. Congress has also, over time, added other considerations, such as reaching and reflecting the culture of minority, inner city, rural or tribal communities. The 1965 mandate for the National Endowment for the Arts was complex but it is one that has enabled the NEA to enhance the lives of the American people through the arts. 17 n. NEA Structure and Operations Grants to the arts— to individual artists and arts institutions— are at the heart of the National Endowment for the Arts and the process of making grants determines, in large part, the structure and operations of the agency. At present, the principal participants in the process of reviewing applications for grants and making recommendations for them are the Chairperson of the National Endowment for the Arts, the National Council on the Arts and the grant advisory panels. All three entities make a distinctive contribution to the consideration of the artistic merits of an application. Each entity possesses, and should exercise, the power to make an independent evaluation of an applicant's suitability for funding. Moreover, each of these entities should contribute to the achievement of the purposes of the Endowment in an accountable manner. Although this multi-layered structure may appear inefficient, it in fact provides a set of checks and balances indispensable to the responsible review of individual applications for grants. Making decisions about awarding grants to the arts is not an objective activity, subject to quantitative measures or improved by formulaic prescriptions. Professional expertise, aesthetic discernment and an awareness that federal funds are being expended— all these qualities are essential to successful grant making by the NEA. From the grant advisory panels through the National Council to the Chairperson, who has the authority to make final decisions, prudence and a sensitive awareness of the shifting tenor and tastes of society are required. 19 The Chairperson The National Endowment for the Arts is an independent agency, headed by a Chairperson, who is appointed by the President and confirmed in office with the advice and consent of the Senate. The Chairperson is appointed for a four-year term and is eligible for reappointment. By statute, the Chairperson is authorized to establish and carry out a program of contracts with, or grants-in-aid or loans to, groups or, in appropriate cases, individuals of exceptional talent engaged in or concerned with the arts. ..[Sec 5(c)] to establish and carry out a program of grants-in- aid to assist the several States in supporting existing projects and productions which meet the standards enumerated in subsection (c) of this section, and in developing projects and productions in the arts in such a manner as will furnish adequate programs, facilities, and services in the arts to all the people and communities in each of the several States... [Sec 5(g)(1)] to establish and carry out a program of contracts with, or grants-in-aid to, public agencies and private nonprofit organizations on a national, State, or local level, for the purpose of strengthening [artistic] quality... [Sec 5(1)(1)] [to develop] in consultation with State and local agencies, relevant organizations, and relevant 20 Federal agencies... a practical system of national information and data collection on the arts, artists and arts groups, and their audiences... [Sec 5(m)] Although the Chairperson is directed to consider the advice of the National Council or to consult with others, he/ she alone has the authority to establish policy and to award grants. Former NEA Chairperson Frank Hodsoll stated before the Independent Commission that The Arts Endowment's authorizing statute specifically places the authority to run the program in the Chairman; all other players (panels, Council, staff) are advisory to the Chairman. The present NEA Chairperson, John Frohnmayer, told the Commission The Chair man... has the responsibility for overseeing the entire grant process to assure that the funds are spent appropriately (in accordance with the laws set down by Congress) and that the monies appropriated for specific programs or disciplines are used as directed.... A Chairman's view is broader than either the Council's or the panel's in that he is responsible for the overall operation of the agency and the accomplishment of its goals in both the short and long term. The concept of the authority of the Chairperson can be traced back to the discussions in 1965 by members of Congress who helped establish the National Endowment for the Arts. Some members, particularly in the House of Representatives, considered placing constraints on the Chairperson in order to address concerns that he or she might become a "cultural czar." An amendment requiring approval of the National Council for 21 final award of grants was considered and rejected. By limiting the National Council to an advisory role, Congress implicitly vested full authority for making awards in the Chairperson, who was to be held accountable to the President and to the authorizing and appropriations committees of Congress for the actions of the agency ( Congressional Record, September 15, 1965). The National Council Although final authority both for making policy and for making grants at the National Endowment for the Arts rests with the Chairperson, Congress took steps to assure that he/she would receive advice from private citizens knowledgeable in the arts. Advising the Chairperson is the twenty-six member National Council on the Arts, whose members are appointed by the President, with the advice and consent of the Senate, for staggered terms of six years. By statute [Sec 6(b)] Council members are selected (1) from among private citizens of the United States who (A) are widely recognized for their broad knowledge of, or expertise in, or for their profound interest in, the arts and (B) have established records of distinguished service, or achieved eminence, in the arts; (2) so as to include practicing artists, civic cultural leaders, members of the museum profession, and others who are professionally engaged in the arts; and (3) so as collectively to provide an 22 appropriate distribution of membership among the major art fields. In making these appointments, the President is also "requested" to "...give due regard to equitable representation of women, minorities, and individuals with disabilities who are involved in the arts." The Chairperson convenes the meetings of the National Council, and by statute, the group must meet at least twice a year. In practice, the National Council holds three-day meetings four times each year. Since the beginning of the Endowment in 1965, 137 artists, arts administrators and educators, patrons and trustees of the arts as well as architects, critics, and leaders of state and local arts, agencies have served on the National Council. Members of the National Council bring a variety of views and perspectives— artistic, ethnic, geographic, racial, religious and social— to their work for the Endowment. By law, [Sec 6(f)] the Council is asked to (1) advise the Chairperson with respect to policies, programs, and procedures for carrying out the Chairperson's functions, duties or responsibilities... and (2) review applications for financial assistance. ..and make recommendations thereon to the Chairperson. Thus, the National Council provides advice to the Chairperson on both policy and grant making. Over the past two-and-a-half decades, the involvement of the National Council in these two activities has changed. In 23 the beginning, the Council was active both in the development of programs and in the making of grants. Later, growth in the number and variety of applications to the Endowment compromised the ability of the National Council to perform these functions. As the volume of applications soared, the Council was less able to provide in-depth grant reviews and recommendations. As the Endowment welcomed new fields and disciplines to its fold, the National Council did not have the time fully to consider policy for each of these programs. Greater burdens and responsibilities, therefore, devolved upon another advisory layer of the agency—the panels. The Council, in turn, directed its attention to the consideration of more general matters of arts policy. Chairperson Frohnmayer explained to the Commission The National Council's perspective should be broader than that of the panels, namely: the consideration of the tools of the agency; the overall condition of the arts in America; and the manner by which the agency can best act as a bridge between the arts and the American people so that quality art may be delivered to and enjoyed by as many Americans as possible. In pursuing this broader role, the National Council became involved in the following activities: advocacy of legislative and regulator}' policies favorable to artists and cultural institutions; efforts to draw the resources of other federal agencies into programs which assist or make use 24 of the arts; encouragement of greater support of the arts by corporations, foundations and state and local governments; and contact with the media to increase public awareness of, exposure to and support for, the arts. Until the spring of 1990, those parts of National Council meetings devoted to the review of grant applications were closed in order to protect the privacy of individuals and groups whose finances, plans and problems might be under discussion and to permit Council members to express their views frankly. In May 1990, the National Council, with the support of Chairperson Frohnmayer, voted to open its sessions to the public. The first such meeting was held in Washington, D.C. in August 1990. In addition to their work at the meetings of the National Council, Council members have contributed in other significant ways to the activities of the Endowment. Members serve on ad hoc committees of the National Council; observe meetings of panels; represent the Council at Congressional hearings and other public forums; and, through their professional and personal contacts, provide a network to explain the programs of the Endowment. The Grant Advisory Panels At the present time, grant advisory panels bear the principal burden of evaluating applications to the Endowment. In 1989, the NEA convened 103 panels, on which nearly 800 25 persons served. The Endowment uses two types of panels: policy and grant advisory. Policy panels provide an overview of a field and of the agency's relation to it. They advise on priorities, practices, guidelines and the allocation of resources for individual programs. Members of policy panels for a particular program have generally already served on grant advisory panels within that program. In contrast, grant advisory panels judge the merits of applications and make recommendations for grants and the amounts to be awarded. Such panels have been known by various names, such as "peer panels," "peer review panels," or simply "panels." The Independent Commission is intentionally using the term "grant advisory panels" to emphasize the function and composition of the panels. Their task is to provide advice on grant applications. Their composition is not limited to peers but includes persons who are experienced in the discipline under review but do not earn their living in the arts. These panels also advise on policy concerning the areas each panel reviews and make preliminary recommendations about guidelines. Grant advisory panels, through their recommendations, have come to be the determining element in the grant making process. The legislation establishing the Endowment did not, however, call for panels per se. Rather, the Chairperson was authorized to utilize from time to time, as appropriate, experts and consultants, including panels of experts... [Sec 10(a)(4)] The National Council on the Arts, at its first meeting in 1965 , discussed the use of panels of experts to advise it about projects and policies and decided to "...engag[e] citizens in this 26 fledgling partnership between the federal government and the arts world." 1 A year later, dance, literature and visual arts advisory panels made recommendations for grants to the Council, and by 1967, grant advisory panels were common throughout the agency. As the Endowment branched into other disciplines and the number of grant applications and the size of the NEA budget grew, the use of grant advisory panels became routine and their significance increased. At the 1973 reauthorization hearings, the Senate Committee on Labor and Public Welfare noted with favor the efficient operation of both Endowments and the involvement of panels of experts who aid the two Endowments and Council in reaching their decisions and which broaden the base of private citizen participation. Composition. At the present time, NEA Program Directors, in consultation with staff as well as with persons already on panels and prominent individuals in particular fields, prepare rosters of potential panelists. Expert knowledge, dedication to the arts, aesthetic diversity, geographic distribution, ethnic and gender representation, ability to serve and to articulate issues in the field are all taken into consideration in this process. These various criteria for serving on panels have evolved over the years. Panelists are appointed for one-year terms and may be reappointed for a maximum of three years. To assure a diversity of representation and a blend of experience and fresh views, panels rotate membership annually, with from one-third to all the members of individual panels changing. National Endowment for the Arts, Panel Study Report , (Washington, DC.: October 1987), p. 8. 27 The panels, numbering from five to twenty persons, are composed of creative and performing artists, arts administrators, critics, representatives of state arts agencies and other experts. A seventeen-member Opera/Musical Theater panel, for example, may include theater directors, musical directors, librettists, composers and singers. In contrast, a six- member Visual Arts fellowship panel may include professional photographers and museum curators. Congress, exercising its oversight authority, has sought to make the panels more representative, broaden their cultural perspective and minimize the potential for conflicts of interest. Concern that the panelists be drawn from the entire country led the House Committee on Education and Labor to recommend in 1973 that broad geographic representation be required in order to "help avoid domination. ..of any one part of the country." [Report, House Committee on Education and Labor, June 5, 1973] Members of Congress have also raised the issue of conflicts of interest. A House Appropriations Committee Report in 1979 said that the panels operated as a closed circle of advisers with little regard for the aesthetic needs and views of those not represented on the panels. [Report, House Committee on Appropriations, March 27, 1979] A 1985 House Committee on Education and Labor Report maintained that while "panels provide continuity and expertise," the grant advisory process also offered a "potential for favoritism, inertia and lack of objectivity." The Committee, therefore, in the authorizing statute, [Sec 10(a)] directed that each Chairperson shall appoint individuals who have exhibited expertise and leadership in the field under review, who broadly represent 28 diverse characteristics in terms of aesthetic or humanistic perspectives, and geographical factors, and who broadly represent cultural diversity... Panels of experts appointed to review or make recommendations with respect to the approval of applications or projects for funding by the National Endowment for the Arts shall, when reviewing such applications and projects, recommend for funding only applications and projects that in the context in which they are presented, in the experts' view foster excellence, are reflective of exceptional talent, and have significant literary, scholarly, cultural, or artistic merit. The grant advisory panel system, subject to criticism over the years, has also been strongly endorsed. For example, the report of the 1981 Presidential Task Force on the Arts and Humanities, appointed by President Reagan, reaffirmed that the panel reviezo system [is] a tested principle [and zee commend] the continuation of this system which [leaves] decisions about artistic and scholarly merit to the judgment of respected professionals in the arts and humanities. Procedures. Although procedures may vary, Program Directors usually send to grant advisory panelists, two to four weeks before panel meetings, special books, which contain copies of grant applications and supplementary materials, including site visit reports if available. 29 To determine if any conflicts of interest exist, the NEA requires panelists to complete a confidential statement detailing their affiliations, employment and financial interests. Individuals with pending applications for fellowships cannot serve on panels reviewing them. Although panelists are not permitted to sit on panels considering an institutional proposal which they themselves have signed, they may serve on panels reviewing applications from an institution with which they are otherwise affiliated. Panelists must leave the room when proposals from their own institutions are discussed. Grant advisory panels meet in Washington, D.C. for one to six days. When a panel is considering applications, its meetings are closed. Meetings are customarily chaired by a panel member, with information provided by staff. The panel deliberation process involves five stages: (1) presentation of materials; (2) discussion of applications; (3) formulation and recording of panel judgments; (4) determination of recommended grant amounts, and (5) final review and adjustment of recommended grants and amounts. During the second and third stages, panelists evaluate the quality and significance of the proposed projects and the applicant's ability to carry it out. The panelists then propose the amount of any grants to be recommended. The panelists consider the project cost, the budget requested by an applicant, the relative merit of the application and the amount of money available from the Endowment. If a panel's initial recommendations total more than the funds available, it may drop some applicants altogether, reduce amounts recommended for others, or employ some combination of these adjustments. In general, NEA panels make recommendations not only on merit but also for the amount of the award to be granted. Following panel meetings, program staff compile the panel's recommendations for presentation to the National 30 Council before its meetings. Council members may raise questions about an application. Although the Council or Chairperson may single out an application for further discussion, in most cases, the Council votes on blocks of grants, program by program. The Chairperson reviews these recommendations and has the final authority to make grants. Ninety days after the end of a grant period, grantees, except individual fellowship recipients, must submit final reports, including a financial statement and project description. If a recipient has failed to use a grant for the purpose for which he received it, the Chairperson may direct that the agency conduct a special post-award evaluation (including an audit of the grantee's final report). The results of the evaluation may be taken into consideration in the review of subsequent applications from that grantee. Based on the evaluation, the recipient may be prohibited from publicly associating the Endowment with a project. The Programs When establishing the NEA, Congress defined the arts as including but not limited to music (instrumental and vocal), dance, drama, folk art, creative writing, architecture and allied fields, painting, sculpture, photography, graphic and craft arts, industrial design, costume and fashion design, motion pictures, television, radio, tape and sound recording, the arts related to the presentation, performance, execution, and exhibition of such major art forms, and the study and application of the arts to the human environment. [NFAH Act, Sec (3)(b)] 31 The agency began with ten programs: Architecture, Arts and Education, Creative Writing, Dance, Drama, Music, Public Media, Miscellaneous Art Forms, Visual Arts and the State Program. Since that time seven programs have been added: Museums, Folk Arts, Expansion Arts, Opera/Musical Theater, Inter-Arts, the Locals Program, and Challenge and Advancement Grants. Each of these programs accepts applications in a number of categories—ranging from three in Folk Arts to twenty in Music. The Endowment each year processes nearly 19,000 grant applications in 115 categories and awards nearly 4,500 grants. The programs vary, reflecting the differences among disciplines. Program budgets in 1988, for example, ranged from $3 million for Folk Arts to $15 million for Museums. The number and size of grant advisory panels for each program vary considerably, from one panel in Folk Arts to fourteen in Music, with the State Program using only twelve panelists and the Music Program over one hundred. The Endowment makes grants to: (1) non-profit organizations; (2) other public agencies, state and local; and (3) individuals of exceptional talent. Most of the NEA's budget goes to non-profit arts organizations such as symphonies; theater, dance and opera companies; museums; arts festivals, centers and colonies; literary magazines and small presses; film, video and radio production; archival facilities; and arts service organizations. In 1989, approximately $90 million, or 60% of the Endowment's program funding, went to non-profit arts organizations. Because the Endowment does not support more than 50% of the cost of a project, all grants to organizations must be matched by non-federal monies on at least a one-to-one basis. In practice, relatively few grants to non-profit organizations 32 provide as much as 50% of project cost; most awards are for a much smaller percentage. Although the NEA is a partner in many privately initiated projects, it is usually a minority shareholder. A special type of matching grant is the Challenge Grant. Established in 1976, Challenge Grants were designed to address the long-term needs of the arts. Initially directed toward increasing the financial stability of arts institutions, Challenge Grants are now used to support major projects that will have a national impact on achieving excellence in the arts, increasing access to the arts, improving appreciation of the arts or expanding support for them. Under this highly competitive program, the NEA awards large grants which range from $50,000 to $1 million for a three-to-four-year period. Challenge Grants must be matched by at least three-to-one from non- federal sources. Since 1976, 863 Challenge Grants from the Endowment, totaling $258 million dollars, have leveraged non- federal matching funds of $2 billion, an eight-to-one match. The NEA also encourages private contributions through Treasury Fund grants. When the Endowment receives a donation from a non-fed eral source, the agency frees an equal amount from its own Treasury fund. The doubled amount (gift plus Treasury Fund match) is made available to a grantee, on the condition that the grantee, in turn, match these funds on a one-to-one basis. Twenty percent of the funds expended by the Endowment go, by law, to the states and territories, for the most part as block grants to state arts agencies and regional organizations. Although federal grants were instrumental in the growth in the number of state arts agencies, the states themselves, over the years, have steadily increased support from state funds to their arts agencies. In 1990, state arts agency budgets combined— $284 million— exceeded the appropriations for the National Endowment for the Arts— $171.2 33 million. Finally, grants to individuals are usually awarded in the form of non-matching fellowships to enable artists of exceptional talent to create their work. These fellowships, which are not given for specific projects, account for approximately five percent of the agency's funds for programs and fifteen percent of the number of grants awarded annually. The NEA Record The National Endowment for the Arts has helped transform the cultural landscape of the United States. When the Endowment was created in 1965, there were relatively few professional non-profit performing arts organizations in the United States. There were only 58 orchestras, 22 professional theaters, 37 dance companies and 27 opera companies. On the East coast, most of these groups were confined to a narrow corridor running from Boston to Washington; and on the West coast, a similar strip, reaching from Los Angeles to San Francisco. Between the coasts were pockets of activity around Chicago and in parts of Texas. The number of artists and the size of audiences were also small. A little over half a million persons were artists, and audiences for the arts were clustered in or near cities with arts organizations. Each year 9 million persons went to symphony performances; no more than 3 million persons attended the opera; non-profit theater and dance audiences each numbered one million. Television and radio performances were limited, sporadic and often technically disappointing. Before 1965, financial support for the arts from state governments and private sources was relatively modest. In the decade preceding the creation of the Endowment, private philanthropy to the arts had held more or less steady, at 34 approximately $250 million per year, including corporate support of $40 million annually. Only seven states had arts agencies. Since 1966, the National Endowment for the Arts has awarded more then 83,000 grants, spending $2.1 billion in federal funds, which have been more than equally matched by non-federal sources. The National Endowment for the Arts has played a significant role both as a catalyst for the growth of the arts and for financial contributions to them. By 1990, the country had over 120 opera companies, 230 orchestras, 420 theaters and 250 dance companies. Non-profit arts organizations covered the country, reaching from coast to coast and into the heartland, from large cities to middle-sized towns to rural areas. By 1989, the number of artists in the United States had nearly tripled, with more artists active in their own regions. Tire number of such persons in the South, for example, increased from 136,000 in 1970, a time when the South had the fewest artists of any region in the country, to nearly 300,000 in 1980, making the South the home of more artists than any other region. 2 Arts audiences also escalated. By 1988, symphony attendance had increased to 24 million; opera attendance, 18 million; theater, 15 million; and dance, 16 million. There was more and higher quality programming in the arts on public television and radio. The reliance of the NEA on matching grants has proven highly effective in stimulating private support and public interest in the arts. Private giving to the arts is now estimated at $6 billion annually, with every state in the Union, the territories and the District of Columbia having arts agencies. In 2 National Endowment for the Arts, Five-Year Planning Document, 1986-1990 , (Washington, D.C.: February 1984), p.84. 35 fiscal year 1990, combined, state arts agencies are spending $284 million on the arts. In addition, over 3,000 communities have local arts agencies, with a combined budget of more than $250 million each year. The range of activities that have benefited from Endowment assistance is impressive. The agency has been indispensable, for example, to television programming in the arts, to regional theater and dance. As one of the few sources of funds for both folk art traditions and emerging art forms, the Endowment has helped preserve and advance America's cultural heritage. All four Pulitzer Prize winners in 1990--for music, fiction, poetry and playwriting— received, at critical points in their careers, grants from the NEA. The Alexander Calder sculpture in Grand Rapids, Michigan; the Vietnam War Memorial in Washington, D.C.; the Dance Theater of Harlem- all might not exist had each not received support from the NEA. By contributing to unprecedented growth in virtually every field of the arts, the NEA has opened new doors to American artists so that today the United States has moved to the first rank in world terms in almost every major art form. In addition to providing financial support to creative artists and arts institutions, the Endowment has been instrumental in bringing the arts to millions of Americans who might otherwise never have experienced them. Boundaries of wealth, geography, birth and culture have given way so that persons throughout the country now have the opportunity to know and enjoy the arts. Indeed, in carrying out its mission, the Endowment has sought to rely on the judgments of audiences as well as those of artists. The principle of the matching grant— conditioning the giving of funds from the federal government on matching funds from non-federal sources— symbolizes the intention of the 36 Endowment to respond to the initiatives of American citizens. The NEA record establishes that a relatively small investment of federal funds has yielded a substantial financial return and made a significant contribution to the quality of American life. No program financed by government monies, however, is exempt from error or criticism. Controversies are even more likely when subjective matters of taste or opinion are involved. A small number of grants out of the 83,000 made by the Endowment since 1966 has provoked significant controversy. These grants were said either to lack artistic quality or significance, to be political rather than artistic, or to be offensive or obscene. The first Endowment grant said by some to lack artistic quality was made in 1968 to the Theater Development Fund "...to stimulate creativity and experiment in commercial theater.. .for plays of merit which are unlikely to be produced or are likely to close prematurely without funding assistance...." A poem by Aram Saroyan, "Lighght," in The American Literary Anthology , a project supported by the NEA in 1969, was called "illiterate." In 1977, then Senator William Proxmire gave a "golden fleece award" to the Endowment for its grant to an artist to throw crepe paper from an airplane. And finally, five years ago, some persons questioned the significance of a grant to record sounds beneath the Brooklyn Bridge. Other grants were attacked for their "political content." In 1972, critics said that a black dance group, performing in the Washington, D.C. public schools with support of the Endowment, was imposing "'a Black Panther' ideology upon impressionable black children." In the late 1970s, the then Chairperson of the NEA, Livingston Biddle, stopped a grant approved by a panel and the National Council, to enable a 37 filmmaker to record the shooting and death of a dog. Because the applicant said his project would show the cruelty of man, Mr. Biddle called the work politics, not art. Chairperson John Frohnmayer voiced a similar concern in 1989 when he withdrew a grant already made to a gallery'. Artists Space, in New York for a show called "Witnesses: Against Our Vanishing," saying that the exhibit had become more political than artistic. He later reinstated the grant. Critics of the Endowment have also said that particular grants were "offensive." In 1971, for example, a grant to the Living Stage, an improvisational theatrical group, was charged with encouraging children to use profane language. When several members of Congress demanded the grant be revoked, the then Endowment Chairperson, Nancy Hanks, agreed that "federal money should not be used to promote the use of profanity" but found the group worthy of support. In 1983, then Congressman Mario Biaggi criticized a grant to the Virginia Opera Company for its promotion of an English National Opera production, Rigoletto , which he felt contained "disparaging ethnic images." Mr. Biaggi's attempt to amend the statute governing the NEA to prevent grants that would "in any manner.. .denigrate any ethnic, racial, religious or minority group" was rejected by Congress. Finally, grants were also made for works called "obscene." In 1970, then Chairperson of the NEA, Nancy Hanks, acted to remove an erotic story from an anthology' supported by the Endowment. Three years later, a Senator protested the use of an NEA fellowship to help the writer Erica Jong produce the novel Fear of Flying, calling the book "smutty 7 , obscene and filthy." In 1985, some members of Congress deemed seven poems supported by the Endowment "obscene or pornographic" and asked that language be added to the reauthorization bill of 1985 directing the panels "when reviewing such applications and projects, not [to] recommend for funding those which, in the context in which they are 38 presented, in the experts' view, would be patently offensive to the average person and lack serious literary or artistic merit." Congress, instead, adopted language directing panels to ...recommend for funding only applications and projects that in the context in which they are presented, in the experts' view foster excellence, are reflective of exceptional talent, and have significant literary, scholarly, cultural, or artistic merit.[NFAH Act, Sec 10(a)] None of these earlier controversies, however, matched the situation that arose during 1989. In the spring, the American Family Association, led by Reverend Donald Wildmon, denounced a photograph by Andres Serrano as "anti- Christian bigotry," and several members of Congress called it "blasphemous." The Serrano work, "Piss Christ," was of a photograph of a crucifix submerged in a container of the artist's urine. The Southeastern Center for Contemporary Art (SECCA) in Winston-Salem, North Carolina, had received $75,000 from the Endowment for an exhibition. SECCA, in turn, had made a $15,000 subgrant to Serrano for his work, including the controversial photograph, which appeared in the exhibition. A second controversy erupted in the summer of 1989 when the Corcoran Gallery of Art in Washington, D.C., canceled a planned exhibit of the work of the late Robert Mapplethorpe, which included explicit photographs portraying sadomasochistic and homoerotic activities, and nude children. The exhibit had been curated by the Institute of Contemporary Art in Philadelphia, with the support of a $30,000 NEA grant. The furor aroused by these two grants generated an acrimonious debate about the National Endowment for the Arts and led to the creation by Congress of the Independent Commission. Some members of the public and Congress 39 believe that, in light of the largely exemplary work of the Endowment, there has been an overreaction to the small number of grants that has produced the debate. Others stress what they consider to be the offensive nature of the criticized grants as well as their disagreement with what are said to be tendencies toward particular aesthetic, political or social viewpoints of certain Endowment panels. Still others argue that the Endowment is supporting mediocre work. Some simply oppose any federal support for the arts. Obviously, these differing views are not easy to reconcile or accommodate. The Commission, itself reflecting a diversity of political and philosophical perspectives, believes that although there are deficiencies in the operation of the Endowment and some mistakes are inevitable, these problems can be ameliorated, if not eliminated, by a combination of Congressional guidance and oversight, significant reforms in grant making procedures and prudent administration of the Endowment. These goals can be achieved while at the same time assuring both freedom of expression and accountability for expenditure of public funds. To balance freedom and accountability is a complex challenge and no precise code can be devised to achieve a balance but this is no reason to abandon the effort. What is at stake is too important. The tools of the democratic process- reasoned debate, negotiation and accommodation— are available to deal with legitimate competing interests. The Commission, strongly affirming the value of the National Endowment for the Arts and the high quality of its contributions to the general welfare, commends to Congress, the Endowment and the American people the importance of cooperative efforts to strengthen the Endowment and assure confidence in its activities. It is in this spirit that the Independent Commission considered the testimony and other information presented to it and, after full discussion, 40 formulated the recommendations in this report. 41 HI. The Independent Commission Background. In 1989, in response to a debate triggered by the use of funds from the National Endowment for the Arts to exhibit some works of art which subsequently proved controversial. Congress called for the creation of the Independent Commission. This debate yielded proposals in Congress to cut funds to the Endowment and to alter the criteria used to judge applications to the agency, including a legislative prohibition on grants for the promotion, dissemination or production of material deemed obscene, offensive or denigrating of religions or peoples. The following language, intended to draw on the 1973 Miller vs. California Supreme Court decision on pornography, was written into Public Law 101-121: None of the funds authorized to be appropriated for the National Endowment for the Arts.. .may be used to promote, disseminate, or produce materials which in the judgement of the National Endowment for the Arts... may be considered obscene, including but not limited to, depictions of sadomasochism, homoeroticism, sexual exploitation of children, or individuals engaged in sex acts which, when taken as a whole, do not have serious literary, artistic, political, or scientific value. 43 The statute mandated That a Commission be established to review the National Endowment for the Arts grant making procedures, including those of its panel system, to determine whether there should be standards for grant making other than "substantial artistic and cultural significance, giving emphasis to American creativity and cultural diversity and the maintenance and encouragement of professional excellence" (20 U.S.C. 954 (c)(1)) and if so, then what other standards. The criteria to be considered by the commission shall include but not be limited to possible standards where (a) applying contemporary community standards would find that the work taken as a whole appeals to a prurient interest; (b) the work depicts or describes in a patently offensive way, sexual conduct; and (c) the work, taken as a whole, lacks serious artistic and cultural value. Congress thereupon mandated the creation of a temporary Independent Commission, to expire on September 30, 1990, for the purpose of (A) Reviewing the National Endowment for the Arts grant making procedures, including those of its panel system; and (B) considering whether the standard for publicly funded art should be different than the standard for privately funded art. The law further stipulated that: The Commission shall be composed of twelve members as follows: 44 A) four members appointed by the President; B) four members appointed by the President upon the recommendation of the Speaker of the House of Representatives in consultation with the Minority Leader of the House of Representatives; C) four members appointed by the President upon the recommendation of the President pro tempore of the Senate in consultation with the Minority Leader of the Senate. Although Congress called on the Independent Commission to make its report to Congress by April 23, 1990, the twelve members of the Commission were not sworn in until June 6, 1990. Members appointed by President Bush are: John Thomas Agresto; Theresa Elmore Behrendt; Leonard Garment; and Charles Kinsley McWhorter. Members appointed by the President upon the recommendation of the President pro tempore of the Senate (Robert C. Byrd) in consultation with the Minority Leader of the Senate (Robert Dole) are: Marcia Laing Golden; Kay Huffman Goodwin; Peter Nicholas Kyros, Jr.; and Rosalind Wiener Wyman. Members appointed by the President upon the recommendation of the Speaker of the House of Representatives (Thomas S. Foley) in consultation with the Minority Leader of the House of Representatives (Robert H. Michel) are: John Brademas; David E. Connor; Joan White Harris; and Kitty Carlisle Hart. (See Appendix) 45 At its first meeting, on June 6, 1990, the Commissioners elected as co-chairmen, John Brademas and Leonard Garment. Witnesses Appearing Before the Commission. Public Law 101-121, which created the Independent Commission, said that The Commission may, for the purpose of carrying out its duties, hold such hearings, sit and act at such times and places, take such testimony and receive such evidence, as the Commission considers appropriate. Three principles informed the work of the Commission: 1) To gather as much accurate information as possible; 2) To hear, read and evaluate the broadest array of opinions and perspectives; 3) To consider a broad array of opinions and perspectives on the two issues before the Commission: a) "the NEA's grant making procedures, including those of its panel system"; and b) "whether the standard for publicly funded art should be different than the standard for privately funded art." 46 The Independent Commission drew upon a wide variety of published materials— agency reports, journal articles, legal briefs and articles, books and newspapers. The staff, at the request of Commissioners, undertook special research projects and prepared briefing papers. In addition, the Commission held six days of public hearings in June, July and August 1990, and invited testimony— both oral and written— from individuals and organizations. Finally, all Commissioners were asked to invite written statements from any interested individual or group. The following witnesses testified before the Commission: June 25, 1990 Philip Amoult , Director of the Baltimore Theater Project; Chairman, 1989 to 1990, of the NEA Theater Program panel on fellowships for mimes and solo performance artists; Dr. Daryl Chubitt, Senior Analyst, Congressional Office of Technology Assessment, and coauthor,Peerless Science: Peer Review and U.S. Science Policy; Julianne Davis, General Counsel, National Endowment for the Arts since January 1990; Derek Gordon, Executive Director of the Pennsylvania Council on the Arts; member of various NEA panels; Susan Lubowsky, Director of the NEA Visual Arts Program; former director of the Whitney Museum of American Art at Equitable Center, New York City; Dr. Jerry Martin, Assistant Chairman for Programs and Policy, National Endowment for the Humanities; 47 Randolph McAuslattd, Deputy NEA Chairman for Programs and former Design Arts Program Director; former President of Design Publications, Inc.; Andrew Oliver, Director, NEA Museum Program since 1982; former director, the Textile Museum in Washington, D.C.; Andrew Spellman, Director, NEA Expansion Arts Program, since 1978; author of books on jazz; and Ella King Torrey, Program Officer for Culture, Pew Charitable Trusts in Philadelphia since 1985; former artist, curator and educator. July 23, 1990 Alberta Arthurs, Director of the Division on Arts and Humanities, Rockefeller Foundation; Chairman of the Independent Committee on Arts and Humanities; Karen Brosius, Manager of Cultural Affairs and Special Programs at Philip Morris Companies Inc., a leading corporate supporter of the arts; Cynthia Gehrig, President of the Jerome Foundation; former Chair of Grantmakers in the Arts, 1987 to 1989; Michael S. Joyce, President of the Lynde and Harry Bradley Foundation in Milwaukee; former Executive Director of the John M. Olin Foundation in New York City; former chair of a Heritage Foundation arts task force; W. McNeil Lowry, creator of the first national philanthropic program in the arts at the Ford Foundation; current President of the San Francisco Ballet; 48 Cynthia Mayeda, Chair of the Dayton-Hudson Foundation, one of the nation's largest supporters of the arts; Timothy McClimoti, Vice President of the Arts & Culture Program, the AT&T Foundation; former Program Director for NEA's Inter-Arts Program; Richard Mittenthal, formerly associated with the New York Community Trust; Partner-in-Charge of Foundations and Cultural Institutions at the Conservation Company; and Dr. Michael Useem, professor of sociology and a specialist in corporate philanthropy from the University of Pennsylvania; former consultant to NEA, the Massachusetts Cultural Council, and the American Council for the Arts; July 24, 1990 Thomas Bergin, Dean of Continuing Education and professor of management at the University of Notre Dame; member of the board of Young Audiences; former chairman of the Education Program of the NEA and of the Indiana Arts Commission; Theodore Bikel, President of Actors' Equity; Vice Chairman of the Board of Directors of the American Council for the Arts; actor, folk singer, guitarist, author and lecturer; Martin Friedman , Director of the Walker Art Center, Minneapolis; former President of the Association of Art Museum Directors; member of the Federal Advisory Committee on International Exhibitions and of the Smithsonian Council; 49 Arthur Jacobs, partner in the Florida law firm of Jacobs and Tomassati; former board member of the American Arts Alliance, the Ringling Museum of Art and the Southern Arts Foundation; Samuel Lipman, co-founder and publisher of The New Criterion; music critic for Commentary; winner of three ASCAP/Deems Taylor Awards for musical journalism; pianist; Michael Straight, Deputy Chairman of the NEA (1969 to 1978) under Chairperson Nancy Hanks; and Mary Ann Tighe, Deputy Chairman of the NEA (1978 to 1981) under Chairperson Livingston Biddle. July 30, 1990 Gary L. Bauer, a former Assistant to President Reagan for domestic Policy Development from 1985 to 1988; president of the Family Research Council, Inc.; Dr. Robert Bergman, Director of the Walters Art Gallery; adjunct professor in the department of the history of art, The Johns Hopkins University; Robert Brustein, drama critic, producer and director; Artistic Director of the American Repertory Theater; John E. Frohnntayer, Chairman of the National Endowment for the Arts; Mary Hays, Chairman of the National Assembly of State Arts Agencies; Director of the New York State Arts Council; 50 Invema Lockpez, Gallery Director of INTAR Latin American Gallery in New York City; former President of the National Association of Artists' Organizations; Ruth Mayleas, former NEA Program Director; director of cultural programs of the Ford Foundation; President of the Independent Committee on Arts Policy; Dr. Norman f. Omstcin, writer and commentator on American politics; Resident Scholar at the American Enterprise Institute; and Dr. Patric Overton, assistant professor of communications and religious studies and Director of the Center for Community & Cultural Studies, Columbia College in Columbia, Missouri. July 31, 1990 Floyd Abrams , partner in the New York law firm of Cahill, Gordon & Reindel; a noted litigator specializing in First Amendment issues; Professor Michael McConnell, of the University of Chicago Law School and Director of its Law and Government Program; Professor Henry P. Monaghan, the Harlan Fiske Stone Professor of Constitutional Law at Columbia University Law School; a leading First Amendment scholar; Theodore B. Olson, partner in the Washington, D.C. office of the law firm of Gibson, Dunn & Crutcher; a litigator experienced in the field of constitutional law; former Assistant Attorney General (1981 to 1984); 51 Professor Geoffrey R. Stone, Dean of the University of Chicago Law School; co-author of a casebook on constitutional law and an expert on content neutral restrictions; and Professor Kathleen M. Sullivan, of the Harvard University Law School; authority on unconstitutional conditions on government benefits and political restrictions on funding for the arts. August 1, 1990 Samuel Hope, Executive Director of the National Office for Arts Accreditation in Higher Education; Executive Editor of Design for Arts in Education ; Dr. Kevin V. Mulcahy, associate professor of political science, Louisiana State University; and author of books and articles on public policy, the arts and arts education; Stephen Stamas, Chairman of the Board of Trustees of The American Assembly; former Vice President of Exxon in charge of world-wide government and public affairs activities; Chairman of the New York Philharmonic and member of the board of Lincoln Center; and Stephen E. Weil, Deputy Director of the Smithsonian Institution's Hirshhorn Museum and Sculpture Garden since 1974; teacher, lecturer and writer on museums and art law. 52 The Commission also received written testimony from two former Chairpersons of the National Endowment for the Arts: Livingston Biddle (1977 to 1981); and Frank Hodsoll (1981 to 1989). 53 Part Two: FINDINGS AND RECOMMENDATION S 55 IV. RECOMMENDATIONS ON "...WHETHER THE STANDARD FOR PUBLICLY FUNDED ART SHOULD BE DIFFERENT THAN THE STANDARD FOR PRIVATELY FUNDED ART* 1) The Independent Commission finds that the standard for publicly funded art must go beyond the standard for privately funded art. The Commission agrees that when measured solely in terms of aesthetic or artistic qualities, there should be no difference in the standard for publicly funded art from the standard for privately funded art— and that standard should be artistic excellence. But to support art from public funds entails considerations that go beyond artistic excellence. Publicly funded art must take into account the conditions that traditionally govern the use of public money. In addition, publicly funded art must, of course, serve the purposes which Congress has defined for the National Endowment for the Arts. 2) The Independent Commission reaffirms that the guiding standard for grant making by the National Endowment for the Arts must be artistic excellence. Although the National Endowment for the Arts 57 encourages a diversity of artistic perspectives, the principal criterion for making grants must be artistic quality. Another major consideration must be the encouragement of artistic excellence. 3) The Independent Commission reaffirms the several other purposes, articulated in the present statute, for the public funding of art. The National Endowment for the Arts, as a public agency, has a responsibility to serve the public interest and promote the general welfare. In the private realm, corporations may make decisions to support art based on considerations such as proximity to company headquarters or benefit to customers and employees. Private foundations and private individuals may base their choices on an unlimited range of purposes. The NEA, however, serves public purposes. The statute authorizing the Endowment articulates several considerations which must guide the expenditure of public funds on the arts, and the Commission endorses these considerations. The Chairperson, for example, is directed to support projects and productions that: [meet] professional standards of authenticity.. .which, without such assistance, would otherwise be unavailable to our citizens for geographic or economic reasons; will encourage and assist artists and enable them to achieve wider distribution of their works, to work in residence at an educational or cultural institution, or to achieve standards of professional excellence; have substantial artistic and cultural significance and 58 that reach, or reflect the culture of, a minority, inner city, rural, or tribal community; will encourage public knowledge, understanding, and appreciation of the arts; and will encourage and develop the appreciation and enjoyment of the arts by citizens. [NFAH Act, Sec. 5 (c)] ' 4) The Independent Commission recommends that the preamble of the legislation that authorizes the National Endowment for the Arts be amended to make clear that the arts belong to all the people of the United States. The Independent Commission believes it is time to restate what the founders of the NEA may have taken for granted: The National Endowment for the Arts is a public agency established to serve purposes the public expresses through its elected representatives. The preamble, which is the "Congressional Declaration of Purpose," in the legislation authorizing the National Endowment for the Arts, expresses the intent of Congress. Lost in the current debate on the National Endowment for the Arts is the recognition that the arts belong to all the American people and not only to those who benefit directly from the agency. The Commission believes the preamble to the authorizing legislation should make this proposition clear. The preamble should also affirm that the Endowment depends upon the expenditure of public funds and that it must take into account the nature of public sponsorship. The preamble 59 should further recognize that in addition to seeking to strengthen the nation's rich cultural heritage, the American people assign a high place to the ways in which the arts can foster mutual respect among all persons and groups. The Independent Commission, therefore, recommends that Congress add to 20 U.S. Code, Section 951 (Section 2), Congressional Declaration of Purpose, a new (1), an amended (4) and a new (9): The Congress hereby finds and declares -- (1) that the arts and the humanities belong to all the people of the United States; (4) that it is necessary and appropriate for the Federal Government to complement, assist, and add to programs for the advancement of the humanities and the arts by local, state, regional, and private agencies and their organizations; and that, in doing so, it must be sensitive to the nature of public sponsorship; (9) that the arts and the humanities reflect the high place accorded by the American people to the nation's rich cultural heritage and to the fostering of mutual respect for the diverse beliefs and values of all persons and groups. 60 These proposed additions to the "Congressional Declaration of Purpose" should convey a clear sense of Congressional intent that the Endowment in making grants, should act to strengthen, not to weaken, public confidence in its prudence and sensitivity as a steward of public funds. If the Endowment loses the trust and support of the American people, it will have failed. Although the Commission is not unmindful that certain recent grants by the Endowment have been offensive to some members of the public and Congress, the Commission is convinced that the thousands of grant decisions the Endowment makes cannot be determined on a grid of legislative directions. Ultimately, the responsible and sensitive administration of the law is the best, indeed, the only effective, way to achieve the purposes of Congress. 5) The Independent Commission recommends that in order to assure that the National Endowment for the Arts operate in a manner accountable to the President, Congress and the American people, the procedures of the Endowment for scrutiny and evaluation of applications for grants be reformed. The Commission recommends that in order to assure the American people that the National Endowment for the Arts is carrying out the public purposes intended by Congress, the agency's grant making procedures be reformed in significant ways. As Mr. Olson, one of the members of the Legal Task Force, told the Commission Procedural revisions in the NEA grant process may prove to he of value in implementing any 61 Congressional direction to the NEA to be more sensitive to the source of its funding and more mindful in its grant decisions of public acceptance and sensibilities. Among the major reforms the Commission believes necessary are: (1) strengthening the authority of the Chairperson; (2) making the National Council more active; (3) eliminating real or perceived conflicts of interest; (4) assuring that evaluation of grant applications be fair, accountable and thorough; (5) clarifying the function of the grant advisory- panels and broadening their membership to make them more representative; and (6) making clear that the National Endowment for the Arts belongs not solely to those who receive its grants but to all the people of the United States. 62 V. RECOMMENDATIONS ON "...THE NATIONAL ENDOWMENT FOR THE ARTS GRANT MAKING PROCEDURES, INCLUDING THOSE OF ITS PANEL SYSTEM..." Procedures for making grants at the National Endowment for the Arts involve three principal entities— the Chairperson, the National Council and grant advisory panels. To work effectively, the grant making system must operate on the principle of checks and balances, with each tier of review having clear notions of its own responsibilities and the Chairperson having authority to make final decisions. The public /private partnerships resulting from the matching requirements of the Endowment are also an integral part of the process. CONCERNING THE NEA CHAIRPERSON 1) The Independent Commission recommends that the sole authority of the Chairperson to make grants be made explicit in legislation. The authority of the Chairperson must be made explicit. He is neither bound by law nor should he be bound by custom to accept the advice or recommendations given him by the National Council, grant advisory panels or staff. The Chairperson is the only official accountable to the President and Congress, who can, by law, make grants. The National Council 63 serves in an advisory capacity. The Chairperson holds final authority with respect to all activities of the agency, including the oversight of programs, the making of policy, the development of grant criteria and the awarding of grants. Currently, the Chairperson's statutory authority is distributed throughout various parts of the statute, notably Sections 5(c), 6(f) and 10(a). The Commission recommends that Congress consider adding to Section 5(c) of the statute governing the NEA a clear statement of the authority of the Chairperson to make final decisions on grants. 2) The Independent Commission recommends that in order to carry out his responsibilities more effectively, the Chairperson be given more authority and more choices. Therefore, a. The Independent Commission affirms the authority of the Chairperson to select policy- level staff, including Deputy Chairpersons and Program Directors, and to determine their tenure. Staff must be accountable to the Chairperson rather than to the particular artistic fields or disciplines with which they work. Deputy Chairpersons and Program Directors play a central role in the administration of the Endowment. The Chairperson must appoint an administrative team who are reliable, responsible and competent, and who recognize that they are accountable only to the Chairperson. The Chairperson must be free to determine the tenure of policy-level staff, and with respect to Program Directors, appropriate legislation should be enacted. Vacancies should be filled as quickly as possible. Lengthy vacancies (or acting appointments) impede 64 the efficiency of the agency and deprive the Chairperson of necessary assistance and advice. b. The Independent Commission recommends that the Chairperson be given a range of options beyond the ratifying of decisions made by staff or by grant advisory panels. In particular, a system should be established to require that die grant advisory panels and the National Council recommend more grants than funds available for them, thereby giving the Chairperson a genuine choice in awarding grants. Under the present system, a grant advisory panel recommends a package both of projects to receive grants and of specific amounts to be awarded; these decisions are adjusted to total program funds that are available. Instead, panels should be required to recommend all grant applications judged worthy of funding not tailoring their decisions to available program funds. In making this recommendation, the Commission endorses a proposal of Professor Michael McConnell of the University of Chicago Law School and a member of the Commission's Legal Task Force: ...that each reviewing panel at each stage in the selection process be required to recommend more projects for funding than there are funds available, leaving the selection among the projects to higher authority, and ultimately the Chairman of the Endowment. c. The Independent Commission recommends that the Chairperson act to ensure that members of grant advisory panels have no 65 real or perceived conflicts of interest. At the present time, NEA procedures allow individuals affiliated with an institution applying for a grant to serve as a member of the grant advisory panel evaluating that grant so long as the panelist is neither the director of the proposed project nor the person who signed the application. A panelist must leave the room when his or her institution's application is being considered. These procedures are less effective in guarding against apparent or actual conflicts of interest than procedures of other federal grant making agencies. In designing stricter conflict of interest rules, the NEA should consider those of the National Endowment for the Humanities. The Chairperson should ensure that panelists do not serve as members of panels that consider applications for grants from institutions with which they are affiliated. The Chairperson may also organize panels so as to minimize the potential for conflicts of interest (see Panel Recommendations). Panels should not advance, and should not appear to advance, personal interests of individual panelists. d. The Chairperson must also act to ensure that the membership of panels represents a variety of aesthetic and philosophical views. Panels must not be dominated by any particular interest, viewpoint or school. The Chairperson must ensure that panels embody the broad diversity of membership intended by Congress. e. The Independent Commission recommends that the Chairperson exercise greater authority over the development of program guidelines. 66 At the present time, subject to only minor review and revision by the National Council and the Chairperson, grant advisory panels write guidelines. Because guidelines articulate the policies and priorities of the agency, their formulation falls within the purview of the Chair. She/ He should take the responsibility for proposing guidelines for all programs. Eligibility criteria will vary greatly from one art form to another. Both institutions and individual artists will also vary in the record of their publication, performance or work. The Chairperson and the staff should review each set of program guidelines periodically to assure compliance with the authorizing legislation and the highest artistic standards of each discipline. f. The Independent Commission recommends that, in the interest of administrative efficiency and careful evaluation, the Chairperson, from time to time, review the number and scope of grant advisory panels and where necessary make changes. Although most grant advisory panels review applications for a single funding category within a Program, the volume of applications considered by each panel varies significantly. In those programs which must review large numbers of applications, careful evaluation may be constrained by time and workload while applications reviewed by panels with smaller workloads face only limited competition. Where it would not do disservice to a particular discipline, and where reorganization of panels would provide more careful evaluation and enhance efficiency, such reorganization should be undertaken. Indeed, the Commission recognizes that a number of matters concerning governance of the agency might benefit 67 from periodic management reviews. The Chairperson may be well served by obtaining, as needed, independent analysis of such matters as assuring a workable span of administrative control by the Chairperson and improving the utility of final reports and post-award evaluations. Finally, 3) The Independent Commission recommends that the term of the Chairperson be coterminous with that of the President. If the term of the Chairperson were coterminous with that of the President, the Chairperson would be directly accountable to the President who appointed him/her. While tills coterminous arrangement was originally intended by Congress, an accident of history caused the tenure of the Chairperson not to be synchronized with the term of the President. This situation could be corrected either legislatively or by Congress making clear that, as with most other Presidential appointees, an incumbent Chairperson should be expected to tender Ills or her resignation to the incoming President. 68 CONCERNING THE NATIONAL COUNCIL ON THE ARTS 1) The Independent Commission recommends, in order to provide another tier of independent and comparative review of grant applications, that the Chairperson form "Committees" of the National Council. The experience and abilities of the National Council should be more effectively employed. With membership drawn from many disciplines and various walks of life, the National Council can bring a broader perspective to its deliberations than can the discipline-based grant advisory panels. The Council represents all of the arts rather than individual fields. Private citizens who serve on the National Council— arts patrons and trustees, civic cultural leaders, arts critics and educators— together bring a blend of experiences and judgments to their discussions. This broader perspective must be more effectively brought to bear on the process of grant making. The National Endowment for the Arts should reinstate "Committees" of the National Council. These Committees would represent another opportunity for review. Such Committees should be multi-disciplinary in membership. Tire Committees should make independent evaluations of recommendations concerning a cluster of grant categories, and then pass on to the full National Council two sets of recommendations— their own and those forwarded from the Programs. Because service on the Committees would require more time and energy on the part of members of the National Council, this added responsibility should be made clear to nominees to the Council and their willingness to make such a commitment should be a condition of their appointment and confirmation. 69 2) The Independent Commission recommends that the meetings of the full National Council be open and endorses the decision of the Endowment to do so. Given the general and relatively undetailed review the full Council accords grant applications, the interest of the public in observing these proceedings outweighs the need to protect the confidentiality of applicants. The Council can, however, go into executive session when necessary. 3) The Independent Commission recommends that the meetings of the Committees of the National Council be closed. Because the Committees of the National Council will discuss the merits of particular applicants, Committee meetings should, in order to protect the confidentiality of applicants and to promote candor, be closed. 70 CONCERNING GRANT ADVISORY PANELS 1) The Independent Commission recommends that the Endowment continue to ask panels of outside advisers— the grant advisory panels— to consider the artistic merit of applications for grants. The grant advisory panels provide a valuable source of expert knowledge and judgment to the Endowment and are essential to the evaluation of applications for grants. 2) The Independent Commission recommends that the grant advisory panels be one of several sources of advice to the Chairperson and National Council. The Chairperson has final authority in the grant making procedure. The grant advisory panels are the first step in the review process. Since the earliest days of the National Endowment for the Arts, panels of experts have reviewed and evaluated grants. In recent years, these grant advisory panels have come to dominate the process of grant making. This development does not satisfy expectations about public accountability nor does it reflect the purposes of Congress when it created the agency. The Chairperson, who is accountable to the President, Congress and the American people, is the only person with legal authority to make grants. 3) The Independent Commission recommends that the primary responsibility of the grant advisory panels be to evaluate the artistic merit of grant applications. 71 Currently, grant advisory panels make recommendations to the Council and Chairperson not only on which projects are to receive grants but also for specific amounts of awards. These panel recommendations, both as to artistic merit and amounts of awards, have become virtually final grant decisions. It is essential that the NEA receive recommendations about artistic merit from grant advisory panels, which are composed of persons knowledgeable about the artistic discipline in question. The Commission is aware, however, of no other federal grant making agency which asks grant advisory panels to make the initial recommendations for the amount of grant awards. With regard to the procedures for determining the final amounts to be awarded to grant applicants, Program Directors should make an initial funding recommendation for each application for consideration and comment by the grant advisory panel. Recommendations for both grants and amounts of awards would then be made and forwarded by the Program Directors for review by Council Committees before submission to the Council and final decisions by the Chairperson. These recommendations of the Program Directors should include a summary of the views of the panel. 4) The Independent Commission recommends that the conflict of interest rules of the National Endowment for the Arts be strengthened. The proliferation of panels dealing with narrow specialties has contributed to potential conflicts of interest and/or the appearance of them. The perception of panels as the captive of particular interests has done a disservice to the overall record of fairness of the agency. a. The Independent Commission recommends that 72 anyone affiliated with an institution which has a grant proposal pending before the NEA should not sit on a panel reviewing such grants. At the present time, persons affiliated with institutions whose proposals are under review must leave the room when such applications are being discussed, but can, nonetheless, sit on panels considering these proposals. In order to dispel any perception of conflict of interest, individuals should not serve on grant advisory panels considering proposals of institutions with which they are affiliated. b. The Independent Commission recommends that the Endowment consider the following options for restructuring the grant advisory panels: 1) Multiple panels. Two panels or more per year could be formed in a given discipline— such as theater, where there is now only one— so that panelists expert in the field could sit on either panel. Panelists would not be permitted to serve on a panel considering applications from institutions with w r hich they are affiliated. Such multiple panels would not only lessen the possibility of conflicts of interest but would also reduce the number of applications before a panel, allowing more careful evaluation. 2) Multi-year grants. Grant awards could be extended from the present practice of one year to two or three years. Panelists would not be permitted to serve on panels during the year in which an application from an institution with which they are affiliated is under consideration. Multi-year grants would reduce the workload of panels and permit more careful evaluation of proposals. These grants would, however, require greater oversight by the staff of the Endowment. 73 c. The Independent Commission recommends that the pool of advisers sitting on grant advisory panels be expanded. 1) People who do not earn their living in the arts should be part of the pool. The Commission endorses the effort of the Endowment to place on panels more persons who are knowledgeable about the discipline under review but do not earn their living in the arts. Such persons might include art critics, collectors, educators, trustees or others with an aesthetic knowledge of a particular discipline and a view of the world outside the arts. 2) Regional representatives of the Endowment , who play an essential role in its function , as well as officials from state and local arts agencies should be invited on a more systematic basis to recommend possible panelists. Regional representatives of the Endowment as well as officials working at state and local arts agencies may know of persons who might sit on panels of whom officials at the national level may be unaware. d. The Independent Commission recommends that the present rules governing the rotation of panelists be retained, with panelists appointed for one-year terms, renewable for a maximum of three years. In addition, any panelist who serves for a continuous period of three years should not be appointed by the Chairperson to serve again on any panel until the end of a one-year period. Continuity of experience on panels must be balanced with breadth of representation, opportunity for participation and freshness of perspective. 5) The Independent Commission recommends that the grant advisory panels be given adequate 74 information about particular applications, and emphasizes the importance of site visits. Program Directors must make sure that the information they provide panelists is adequate, including a record of an applicant's previous grants from the Endowment, the amount of these grants and an evaluation of the project or performance for which the money was expended. Slides, videotapes and recordings may not do justice to works of art or performances. The information that site visits and regional representatives convey can be invaluable. They should be encouraged when the importance of such information justifies the cost of obtaining it. 6) The Independent Commission recommends that the National Endowment for the Arts provide more information to the public, particularly potential applicants. The Endowment should provide clearer and more extensive descriptions of its programs and operations and greater advance notice of meetings of panels and the Council which are open. The agency should articulate its appeals process for the reconsideration or resubmission of rejected grants and better publicize it. 7) The Independent Commission recommends that post-award evaluation procedures at the Endowment be reviewed and improved. Reports required of applicants on completion of their projects or productions should be used to evaluate their future proposals. Currently the Endowment requires grantees, except 75 individual fellowship recipients, to submit final reports concerning their use of grant funds. The Endowment should require all grantees to submit final reports. These reports should be considered by grant advisory panels in making subsequent grant recommendations. If on receiving these reports, the NEA determines that grant monies have been used for purposes other than those described in the original grant application, the Chairperson may direct post-award evaluations. These may be taken into account in the consideration of subsequent grant applications. Where a project is found to be at significant variance with the application of record, the Endowment may prohibit the recipient from publicly associating the agency with the project. In such cases, the Endowment should also seek to obtain appropriate restitution. 8) The Independent Commission recommends that meetings of the grant advisory panels continue to be closed. There are several reasons to continue the practice of keeping the discussions of grant advisory panels closed. First, panelists are likely to be more candid if they are discussing, behind closed doors, the work of a colleague or prominent competitor. Candor would also be compromised if an applicant were sitting in the room. Second, open panels are an invitation to pressure groups and lobbyists, seeking to influence the decisions of panelists. Third, a frank discussion of a particular proposal could damage the reputation of an artist or institution. Finally, and of particular importance, public knowledge of a panel's deliberations prior to the consideration of an application by the National Council and the Chairperson could act as a restraint on their exercise of discretion. At the same time, careful records of the deliberations of panels should be kept and made available to applicants as requested. Here it should be pointed out that meetings of grant 76 review panels of other major federal agencies—the National Endowment for the Humanities, the National Institutes of Health, the National Science Foundation--are closed. 9) The Independent Commission recommends that once the Chairperson has made his or her decisions on grants, applicants, whether individuals or institutions, have access to the reasons their applications were accepted or rejected. Applicants should know why their proposals were approved or not and should have access to evaluative comments, without attribution, of panelists. 77 CONCERNING PARTNERSHIPS AMONG PUBLIC AND PRIVATE SECTORS 1) The Independent Commission recommends that the matching principle that governs much of the grant making of the National Endowment for the Arts be reaffirmed. The Endowment requires that grants to organizations be matched, from private sources, on a one-to-one basis, a principle praised by representatives from corporations and foundations who testified before the Commission. The matching principle also applies to NEA grants to other public arts agencies. The NEA is required, by statute, to allocate twenty percent of its funds to state arts agencies. Although states are required, as a condition of receiving federal monies, to match them on a one-to-one basis, in practice, all the states taken together have matched NEA funds by six-to-one. Several studies have also endorsed the matching concept. Tire 1981 Presidential Task Force on the Arts and Humanities, for example, concluded that public support for the arts in America is "an important catalyst for the expansion of private support. This diversity of support ensures essential freedom of expression in cultural affairs." In 1988, the President's Committee on the Arts and Humanities, whose charge it is to encourage public-private partnerships in support of the arts, issued a Report to the President which concluded that these partnerships "maximize the use of financial and human resources." The experience of the Endowment provides strong evidence for this view. Indeed, the record indicates that most grantees of the Endowment have raised non-federal monies far in excess of the required one-to-one match. 78 2) The Independent Commission recommends that the Challenge Grant program be singled out as a particularly effective mechanism for encouraging partnerships in support of the arts between the federal government, on the one hand, and, on the other, the private sector, and local and state governments. The Challenge Grant program, which requires a match of three non-federal dollars for each federal dollar, has been a notable success. Since its inception in 1976, under this NEA program, $258 million has leveraged $2 billion in non-federal funds, an eight-to-one match. 3) The Independent Commission recommends that the present statutory formula, which allocates twenty percent of Endowment funds to state art agencies, be maintained. All the witnesses who testified on this subject before the Commission from the public and private sectors; reflecting federal, state and local perspectives; and encompassing conservative and liberal viewpoints, emphasized that the existing formula channeling twenty percent of NEA appropriations to the states has proved effective and should not be changed at this time. Any future change should be preceded by a careful, Congressionally mandated study of its impact on federal, state and local funding. 4) The Independent Commission recommends that the roles and responsibilities of the components of the public funding partnership— the NEA, state arts 79 agencies and local arts agencies—merit further study. One of the great successes of the Endowment has been to stimulate the growth of arts agencies at other levels--in fifty states and 3,000 cities and communities. This network of public support for the arts, which did not exist in 1965, today presents underutilized possibilities. A reassessment of the appropriate roles and responsibilities of the members of this public funding partnership is, therefore, in order. This recommendation was urged by the signers of the May 1990 Arts Summit declaration ("Artistic Freedom: Our American Heritage") as well as by many speakers before the Commission. 5) The Independent Commission encourages the National Endowment for the Arts to collaborate to a greater extent with state and local arts agencies and with other sectors of society to advance arts education. Although Congress did not call on the Independent Commission to consider the role of the Endowment in arts education, the Commission concluded that arts education represented a significant example of how the Endowment could more effectively collaborate with state and local arts agencies and other entities. When the authorization of the Endowment was extended in 1985, Congress added language concerning arts education to the mandate of the agency: "to encourage public knowledge, understanding and appreciation of the arts." Congress also called for a "study of the state of arts education" [NFAH Act, Sec 5(c)(s) and 10(e)(1)(A)]. The result was a comprehensive and thoughtful report, Toward Civilization, prepared by the 80 Endowment in 1988. The report proposed the concept of "basic arts education" for the nation's schools. This concept encompasses the disciplines of literature, visual arts and design, performing arts and media arts. It also stresses instruction in production and performance, history, aesthetics and criticism. The Commission endorses these goals for arts education in American schools. Under the Arts in Education Program, the NEA channels grants to state arts agencies to work with state departments of education to develop basic and sequential arts curricula. Endowment partnerships in arts education also extend to local arts agencies, colleges and universities, private foundations and non-profit arts organizations. Recognizing that contributions to arts education can be made by several federal agencies, the Commission believes that the National Endowment for the Arts should lead this effort. The Commission also recommends that the President himself direct his attention and support to arts education. The stature of his office would be invaluable in transforming arts education from an abstract goal to an actual component of the curriculum of American schools. The Independent Commission believes the Endowment must become a more visible and vigorous advocate of arts education, developing opportunities to foster partnerships with government, education, business and the arts, to provide American children an opportunity to understand and to participate in the arts. The Independent Commission also believes that the Endowment should help preserve and transmit our rich and varied cultural heritage and enable succeeding generations to appreciate it. The arts will not fully contribute to American life until arts education is an integral part of the education of all our children. 81 . 82 VI. RECOMMENDATIONS ON THE ISSUE OF OBSCENITY AND OTHER CONTENT RESTRICTIONS 1) The Independent Commission affirms tnat freedom of expression is essential to the arts. As the Commission has earlier noted, public funding requires accountability and sensitivity. But the Commission also urges all to remember that the clash of ideas and visions is a vigorous and sometimes difficult process, in which all participants —artists, commentators and citizens— have the right to express their views fully and freely and should respect the views of others. 2) The Independent Commission recognizes that obscenity is not protected speech and that the National Endowment for the Arts is prohibited from funding the production of works which are obscene or otherwise illegal. The current definition of obscenity was set forth by the United States Supreme Court in Miller v. California, 413 U.S. 15 (1973). The Court, citing previous decisions, reaffirmed in that case that obscenity is not a form of speech protected by the 83 First Amendment . 1 The Commission also notes that the issue of standards for public funding of the arts raises constitutional considerations beyond that of obscenity. Although public debate and Congressional action have focused on "obscenity," the term is ambiguous. In a narrow, legalistic sense, "obscenity" involves the exacting standards of proof prescribed most recently by the United States Supreme Court in Miller v. California . So far as we know, no NEA grant has ever been judicially found to be "obscene" in this sense. The other meaning of the term, in common parlance, involves grossly "offensive" matter, usually of a sexual nature, to which different persons and groups react and describe as "obscene." Even without the specific proscription on "obscenity" which was directed at the Endowment in the appropriations legislation, the Endowment could not lawfully fund art which was "obscene" in the technical sense. Existing state and federal law criminalizes such obscene matter. We stress this point in order to make clear that although the re-enactment of a ban on obscenity in the Endowment's authorization statute may serve the legitimate objective of emphasis, such a ban has no talismanic capacity to encapsulate and eliminate the problems that are actually involved in the present controversy. These involve difficult questions of First Amendment law. The Commission, therefore, convened a Legal Task Force of distinguished constitutional lawyers and sought their advice 1 If Congress chooses to reenact a specific prohibition against the use of Endowment funds for the production of obscene works, Congress will no doubt wish to use the definition of obscenity in Miller rather than a paraphrase. 84 on this matter . 2 The Commission asked the Legal Task Force both to testify and to draft a statement of principles that would address the legal and constitutional issues involved in the support of art by the federal government, particularly those issues raised by the question of "standards for grant-making other than 'substantial artistic and cultural significance...'" The Legal Task Force endorsed the following statement: LEGAL TASK FORCE CONSENSUS STATEMENT 1. There is no constitutional obligation on the part of the fedeial governmait to fund the arts. That is a policy decision to be determined by Congress based upon its views as to whether it is useful and wise for the federal government to play a role in the arts funding process. The Constitution offers no guidance as to whether the arts should be funded by the federal government. 2. If federal funds are used to subsidize the arts, however, constitutional limitations on how the arts are funded may come into play. The most important of these is that while Congress has broad powers as to how to spend public funds, it may not do so in a way that the Supreme Court has said is "aimed at the suppression of dangerous ideas." Congress plainly may, for example, determine to spend all federal funds The Legal Task Force, a group of six constitutional lawyers, were chosen for their expertise as well as the diversity of their philosophical views, ranging across the spectrum from conservative to liberal. The members of the Legal Task Force were: Floyd Abrams of Cahill, Gordon & Reindel; Professor Michael McConnell of the University of Chicago Law School; Professor Henry Monaghan of the Columbia University Law School; Theodore Olson of Gibson, Dunn & Crutcher; Dean Geoffrey Stone of the University of Chicago Law School; and Professor Kathleen Sullivan of the Harvard University Law School. 85 designated for the arts on music and none on the visual arts. Or vice versa. It may expend funds to celebrate American history or American diversity , even though spending for one purpose naturally means less money is expended on others. And, of course, it may insist on artistic excellence as a prerequisite for any funding. What it may not do, however, is to choose those to be funded— and, often more important, those not to be funded— in a manner which punishes what Congress views as "dangerous content." When funding denials are the product of invidious discrimination with the aim of suppressing a particular message and for no other reason, a particularly powerful case might be made that the decision was unconstitutional. 3. Obscenity is not protected speech under the First Amendment and Congress is under no obligation to fund obscene speech. In fact, under both state and federal laws, obscenity is a crime. The definition of what is and is not obscene was set forth by the Supreme Court in the 1973 case of Miller v. California, which concluded that: [W]e now confine the permissible scope of [obscenity] regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed.... The basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable 86 state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.... 4. Unless a work fits within each of the prongs of the definition stated above, it is not obscene under the Miller standard. For example, any work which, "taken as a whole," has_ "serious. ..artistic. ..value" cannot be obscene under' Miller, whatever its sexual content. 5. The NEA currently requires all grant recipients to certify, under oath, that they will adhere to and enforce a ban on any use of NEA funds for purposes which the NEA "may consider" to be obscene. Some of the legal advisors to the Independent Commission believe this requirement is unconstitutional; all believe the insistence on such a requirement is unwise and all recommend against it. In their appearance before the Commission, members of the Legal Task Force voiced differing views on a number of points raised by Commissioners and in their own comments on each other's testimony. 3) The Independent Commission believes that the National Endowment for the Arts is an inappropriate tribunal for the legal determination of obscenity, for purposes of either civil or criminal liability. The Commission believes it inadvisable for the Endowment to attempt to make determinations of what constitutes legal obscenity. The nature and structure of the Endowment are not such that it can make the necessary due 87 process findings of fact and conclusions of law involved in these determinations. The Endowment must, of course, make grants that comply with federal and state law but the appropriate forum for the formal determination of obscenity is the courts. 4) The Independent Commission recommends that the National Endowment for the Arts rescind its current requirement that grantees certify that the works of art they propose to produce will not be obscene. The statement of policy and guidance issued by the National Endowment for the Arts for the implementation of Section 304 of the Department of the Interior and Related Agencies Appropriations Act of 1990 (effective July 5, 1990) declared that: grant recipients, in order to receive funds, must agree that they will not use those grant funds to promote, disseminate or produce materials that are "obscene’' under the well-settled legal definition employed by the Supreme Court in Miller v. California. This requirement is presently under court challenge. As Professor McConnell observed in testimony submitted to the Commission As a matter of law, it is unnecessary to call attention to any particular restriction, since grant recipients are already bound by all restrictions applicable to the program. Self-certification will be perceived, rightly or wrongly, as implicating the artist in what many artists believe to be improper restrictions on artistic freedom. There may be a public interest in governing 88 their use of public funds , but there is no public interest in forcing them to sign their names to it. It is a recipe for resistance and conflict. Recognizing that the constitutional and other legal issues involved in the certification requirement will be decided by the courts, the Commission believes that as a matter of public policy, the requirement should be rescinded. 5) The Independent Commission recommends against legislative changes to impose specific restrictions on the content of works of art supported by the Endowment. Content restrictions may raise serious constitutional issues, would be inherently ambiguous and would almost certainly involve the Endowment and the Department of Justice in costly and unproductive lawsuits. Although there was disagreement among the Legal Task Force members about the constitutionality of certain proposed restrictions, all agreed that specific legislative restrictions were unwise and should be avoided. As Professor McConnell said ...[Ajdditional criteria for selection , if any, should be incorporated as part of the selection process (perhaps as part of a definition of 'artistic excellence'), rather than isolated and treated as exogenous considerations. ...Whenever a process is set up so that controversial judgments are superimposed on a system, those judgments are legally and popularly vulnerable.... While a work of meager artistic quality should be disallowed because of inappropriateness for public funding, a work of great importance might warrant funding despite the same qualities of inappropriateness. It is better to treat all 89 these factors as aspects of the ultimate aesthetic judgment [by the NEA] rather than to make the additional factors, whatever they may be, absolute prohibitions. Mr. Olson warned that separating quality and offensiveness into separate categories may invite litigation and may inaccurately imply viewpoint discrimination where there has been none....[E]xplicit definitions of 'offensiveness' and 'obscenity'. ..may be open targets for claims of viewpoint discrimination. The NEA Chairperson obviously has discretion to reject grant applications for reasons other than obscenity. As Mr. Abrams stated Constitutionally, the Chairman has great powers, and may be given great powers if he doesn't have them already, to make anything that may reasonably be called an aesthetic judgment. And if he is genuinely making an aesthetic judgment that he believes this just isn't art, or that it is so vulgar that [it] cannot be described as excellent art, I don't think he has to fund it. Indeed, the Chairperson of the Endowment has not only the discretion to reject grants for reasons other than obscenity but the obligation, when, for example, he judges projects to be of mediocre quality, to do so. Congress has, after all, enjoined the Endowment to foster excellence in the arts. The Chairperson must constantly make judgments about the nature and content of projects. Yet if the standards for making these decisions are codified as explicit content restrictions, it seems clear that the result will be not more elevated art but debilitating administrative and legal difficulties. 90 In recommending against specific content restrictions, the Commission by no means endorses all of the Endowment's operations. On the contrary, the Commission's recommendations are based on a judgment that the Endowment is not, in setting policy and making grants, adequately meeting its public responsibilities at the present time. We have thus called for basic structural and procedural reform of the Endowment at every level. We have asked Congress to reaffirm, in its "Declaration of Purpose," that the Endowment serves all of the people rather than artists and arts institutions alone, that it must be aware of the nature of public sponsorship and that it reflects the high place the nation accords to the fostering of mutual respect for the disparate beliefs and values among us. The Commission believes that if these recommendations are adopted, the intent of Congress for the future operations of the Endowment will be clear and should effectively govern the Endowment's decisions. We believe this comprehensive approach preferable to specific content restrictions. The practical obstacles to such restrictions are, as we have explained, great and the constitutional questions troublesome. Maintaining the principle of an open society requires all of us, at times, to put up with much we do not like but the bargain has proved in the long run a good one. 91 ■ Conclusion The present controversy over the National Endowment for the Arts is, as the Independent Commission is aware, part of a larger set of disagreements over the direction of culture in this country. Among the questions at issue are the role that political and social causes should play in shaping the irts and the aesthetic standards to be used in evaluating artists' work. Such disputes have at times become heated, even bitter. As individuals, the members of this Commission-Republicans and Democrats, liberals and conservatives— hold varying positions on these matters. We have, therefore, limited this report to responding to the two questions in our mandate from Congress. On these responses we found that we could come to constructive agreement. We were able to do so because of our shared conviction that the core functions the National Endowment for the Arts performs— helping preserve the finest artistic works of civilization for our descendants, making them accessible to more Americans and fostering artistic creativity and excellence- have an undeniable place in a great nation like ours. We affirm emphatically that mediocrity is not the mission of the National Endowment for the Arts. Members of the Independent Commission have also worked hard to accommodate each other's opinions because we know that if supporters of the arts do not do so, the result may be a much weakened Endowment or no Endowment at all. There are many individuals on both sides of the current debate who think the Endowment a convenient and newsworthy vehicle to advance their own objectives; some do not care a great deal about whether the agency survives. 93 America has had more than enough of this uncompromising kind of behavior. On the eve of the consideration by Congress of legislation to extend its authorization, the NEA is seeking to respond to the concerns of Congress and the country. The Independent Commission hopes that this study will help the Endowment to serve all the people of the United States more effectively. 94 APPENDICES 95 Appendix A Commission Biographies Dr. John Thomas Agresto is President of St. John's College in Santa Fe, New Mexico. He served as President of The Madison Center in 1989 and as Assistant Deputy, and acting Chairman of the National Endowment for the Humanities from 1982 to 1989. Prior to this, he served as Project Director for the National Humanities Center in the Research Triangle Park, North Carolina; visiting ass Dciate professor at Duke University; and assistant professor at Kenyon College. Mrs. Theresa Elmore Behrendt, of Tuxedo Park, New York, served as the White House Liaison to the Arts and Humanities from 1982 to 1984. She has served Presidents Nixon, Ford, Reagan and Bush in a variety of positions including U.S. Representative to the U.N. Commission on the Status of Women, Special Advisor to the White House Office of Public Liaison, Special Assistant to the President for Intergovernmental Affairs and Director of White House Administration. Mrs. Behrendt has directed fundraising efforts in the political and non-profit sectors. She is currently the Chairman of the National Advisory Council for the Center of the Study of the Presidency. Dr. John Brademas is President of New York University which he joined in July of 1981. For 22 years (1959-1981) Dr. Brademas served as United States Representative in Congress from Indiana, the last four as House Majority Whip. A former Chairman of the Board of the Federal Reserve, he is Chairman of the New York State Council on Fiscal and Economic Priorities and also serves on the Consultant Panel of the Comptroller General of the United States and the Carnegie Commission on Science, Technology and Government. A former member of the Board of Overseers of Harvard, Dr. Brademas is a Fellow of the American Academy of Arts and Sciences. Mr. David E. Connor, of Peoria, Illinois, has been President of David E. Connor and Associates since 1985. Mr. Connor also serves as Director of Cilcorp, and is a member of the Boards of Trustees of the Lakeview Museum, the Peoria Area Community Foundation, and The Hult Center for Health Education. Previously, he served as President and CEO (1967- 1984) and Chairman and CEO (1985) of Commercial National Bank of Peoria and was President and CEO of Mid-West Financial Group, Inc. From 1971 to 1974, he was a member of the Illinois Arts Council. He served as its Chairman from 1981 to 1983. Mr. Leonard Garment has been a senior partner of the law firm of Dickstein, Shapiro & Morin in Washington, D.C., since 1980. Mr. Garment served as Special Consultant to President Nixon from 1969 to 1974, Acting Counsel to the President from 1973 to 1974, and Assistant to President Ford in 1974. He presided as Chairman of the Commission on the Federal Judiciary (1976-1988) and Vice Chairman of the Second Circuit Nominating Commission (1979-1980). He has also served as Vice Chairman of the Administrative Conference of the United States; U.S. Representative to the Commission on Human Rights of the United Nations Economic and Social Council; Counselor to the U.S. Delegation to the United Nations; Chairman of the Board of Directors, Brooklyn Academy of Music; and Chairman of the Board of Directors of the Friends of Nancy Hanks. Mrs. Marcia Laing Golden resides in Goodland, Kansas, where she and her husband are engaged in farming, ranching and agri-related business. She is active in many local and statewide activities. She serves as immediate past president and on the Executive Board of the Association of Community Arts Agencies of Kansas and is a member of the Board of Directors of the Goodland Arts Council and the University of Kansas School of Fine Arts. A former member of the Board of Advisors of the Kansas Arts Commission, she currently serves on the Governor's Council on the Arts. Mrs. Kay Huffman Goodwin, of Ripley, West Virginia, is currently an independent arts consultant and most recently assisted the West Virginia Symphony as an outreach and education coordinator. Mrs. Goodwin serves on the University of West Virginia System Board of Trustees and on the West Virginia Educational Broadcasting Authority. In addition, she serves as a member of the Endowment's National Advisory Board on Arts and Education. Mrs. Goodwin's recent past service includes three years as Chairman of the West Virginia Arts and Humanities Commission and a term as President of the Mid-Atlantic States Arts Foundation. Mrs. Joan White Harris, former Commissioner for the Department of Cultural Affairs in Chicago, is Vice-Chairman of the Harris Foundation. She is President of the Illinois Arts Alliance and Chairman Emeritus of the Chicago Opera Theater. Mrs. Harris serves as Trustee of the Museum of Contemporary Art, the Center for the Book, Northwestern Medical Program for Performing Artists in Chicago, the Aspen Music Festival and the U.S.-China Arts Exchange. She is a Director of the National Association of Female Executives. She is active in numerous cultural and civic organizations. Mrs. Kitty Carlisle Hart is Chairman of the New York State Council on the Arts. In her fourteenth year as Chairman, Mrs. Hart is the third person to occupy the post since the Council's founding in 1960. She is an actress and singer with a record of achievement in both the arts and public service. She has chaired the Statewide Conference on Women, issued the Kitty Carlisle Hart Report, and was later appointed Special Consultant to Governor Rockefeller on Women's Opportunities. Her experience in the arts led to her appointment to the Visiting Committee for the Arts at the Massachusetts Institute of Technology. Mr. Peter Nicholas Kyros, Jr. is currently a General Partner of the Western Division of Potomac Investment Associates in Westlake Village, California. Mr. Kyros has held various positions in the arts and humanities in the last ten years. He is presently a member of the American Association of Museums' Government Affairs Committee. As Deputy Counsel to the Vice President in the Carter White House, he chaired the Arts Working Group, a White House staff commmittee which coordinated Carter Administration efforts in the arts. Serving as Deputy Chairman of the Federal Council on the Arts and the Humanities, Mr. Kyros helped to coordinate policies among the various federal programs in the arts and the humanities. Mr. Charles Kinsley McWhorter, of New York City, is an attorney presently serving as a consultant to the Public Affairs Department of AT&T. From 1957 to 1961, he was Legislative Assistant to Vice President Richard M. Nixon. Mr. McWhorter served as a member of the National Council on the Arts from 1970 to 1976, after which he served on the Endowment's Dance Panel for two years. He has also been President and Vice Chairman of the Ballet Theatre Foundation, Inc., and a member of the board of the Alvin Ailey American Dance Theatre, the Interlochen Center for the Arts, Dance/USA and the American Arts Alliance. Mrs. Rosalind Wiener Wyman is currently a board member of the Los Angeles County Music and Performing Arts Commission. She served on the National Council on the Arts from 1979 to 1985 and as former Executive Vice President of the Los Angeles Center Theater Group /Mark Taper Forum and Ahmanson Theatre; Director of Public Affairs for Columbia Pictures and Screen Gems Television; Executive Chairperson of the Producers Guild of America; Presidential appointee to the U.S. Delegation, UNESCO, and to the Commission on Security and Cooperation in Europe. She served on the Los Angeles City Council for 12 years. She also serves on the boards of Betty Clooney Foundation for Persons with Brain Injury, and of Big Sisters of Los Angeles. Appendix B Staff Biographies Margaret Jane Wyszomirski (Staff Director). Currently a member of the Senior Faculty of the Federal Executive Institute, Washington, D.C., of the U.S. Office of Personnel Management, Dr. Wyszomirski has been a Visiting Guest Scholar at the Brookings Institution. From 1985 through 1988, she was director of the Graduate Public Policy Program at Georgetown University. Dr. Wyszomirski has written extensively on both the American presidency and on arts policy. She is the co-editor and contributor to Art , Ideology and Politics (1985), Congress and the Arts: A Precarious Alliance? (1988) and The Cost of Culture: Patterns and Prospects in Private Patronage (1989). She has a Ph.D. in government from Cornell University (1979). Jason Hall (Associate Director for External Affairs). After recieving a Ph.D. from the University of Michigan, he served as a grants officer in the Research Division of the National Endowment for the Humanities from 1977 to 1980. He spent the next two years (1980-82) as Senior Legislative Assistant to U.S. Senator John Heinz (R-PA). In 1982 during the Chairmanship of William J. Bennett, he returned to NEH as Director of Congressional Affairs, and served there until the Fall of 1989. During the latter period, he also served briefly as acting Director of Public Affairs. David B. Pankratz (Associate Director for Research and Administration). Formerly the Director for Program Development at Urban Gateways: The Center for Arts Education, Chicago, he has co-edited two books— The Challenge to Reform Arts Education (1989) and The Future of the Arts: Public Policy Arts Research (1990). He has also published numerous articles on public policy, the arts and arts education. He is completing his Ph.D. in Art Education at The Ohio State University. Catherine Melquist Jost (External Affairs Associate). Ms. Jost has a B.A. in political science from the University of California at Santa Barbara. She has five years of legislative research experience: two years on the staff of Congressman Richard Lehman (D-CA) and three years at a Washington- based law firm where she monitored the NEA reauthorization process. Carla M. Hanzal (Research Associate). In August, 1990 Ms. Hanzal received a master's degree in Arts Management from The American University. She was awarded a fellowship in the Research Division of the National Endowment for the Arts in 1989 and was an intern in the In ter- Arts Program in 1987. She has been a Research Coordinator for the Art in Embassies Program, U.S. Department of State. Ruth Ann Stewart (Senior Consultant). Currently Senior Specialist in Arts and Humanities /Assistant Director for Resource Development at the Congressional Research Service, she has served as Assistant Chief of the Schomburg Center at the New York Public Library (1970-1980), Associate Director for External Services at NYPL (1980-86) and Assistant Librarian for National Programs at the Library of Congress (1986-1989). Michael Dorf (Legal Affairs Consultant). Mr. Dorf currently practices law at the Chicago law firm of Schuyler, Roche & Zwimer and is a consultant on legislative advocacy and political strategy with the Washington-based firm of Michael Sheehan and Associates. He served for over six years as Special Counsel to U.S. Representative Sidney R. Yates (D-IL), Chairman of the House Appropriations Interior Subcommittee. In 1987, Mr. Dorf directed the creation of the first Cultural Plan for the City of Chicago. He holds a J.D. degree from the School of Law of Columbia University and is a member of the bar of Illinois and of the District of Columbia. Appendix C Public Law 101-121 101st Congress An Act Making appropriation* for the Department of the Interior and related agenciea for the p* 1 ** 1 year ending September 30, 1990, and for other purpose*. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled. That the following gums are appropriated, out of any money in the Treasury not otherwise appropriated, for the Department of the Interior and related agencies for the fiscal year ending September 30, 1990, and for other purposes, namely: Ssc. 304. No part of any appropriation contained in this Act s h all be available for any activity or the publication or distribution of literature that in any way tends to promote public support or opposition to any legislative proposal on which congressional action is not complete: Provided, That — (a) None of the funds authorized to be a ppropriated for the National Endowment for the Arts or the National Endowment for the Humanities may be used to promote, disseminate, or produce materials which in the judgment of the National Endowment for the Arts or the National Endowment for the Humanities may be consid- ered obscene, including but not limited to, depictions of sadomasochism, homoeroticism, the mttihI exploitation of children, or individuals engaged in sex acts and which, when taken as a whole, do not have serious literary, artistic, political, or scienti fi c value. (b) It is the sense of the Congress: (1) That under the present procedures employed for awarding National Endowment for the Arts grants, although the Na t io n al Endowment for the Arts has had an excellent record over the yean, it is possible for projects to be funded without adequate review of the artistic content or value of the work. (2) That recently works have been funded which are without artistic value but which are criticized as pornographic and «Knr iring by any standards. (3) That censorship inhibits stultifies the full expression of art. (4) That free inquiry and expression is reaffirmed. Therefore, be it resolved: (A) That all artistic works do not have artistic or human- istic excellence and an application include works that possess both nonexceilent and excellent portions. (B) That thp fThnirmnn of fhp National Endowment for the arts has the responsibility to determine whether such an application should be funded. (O That the National Endowment for the Arts must find a better method to seek out those works that have artistic excellence and to exclude those works which are without Oct. 23. 1989 [HJL 2788] 20 USC 954 note. 103 STAT. 742 PUBLIC LAW 101-121— OCT. 23, 1989 £gt*bli«hment. Re para. any redeeming literary, scholarly, cultural, or artistic value. CD) That a commission be established to review the National Endowment for the Arts grant making proce- dures, inrlnHinp those of its p»nei system, to determine whether there should be standards for grant making other than “substantial artistic and cultural significance, giving emphasis to American creativity and cultural diversity and the mnintpnBnnn Anri pnpw nrH gpmmt of prn f a ani nnnl excel- lence” (20 U.S.C. 954(cXl)) if so, then what other stand- ards. The criteria to h*» wtmririM nri by Ab c ommission shall include but not be HmitAri to ponaime standards where (a) applying co ntemp o r ary community standards would find that the work taken as a whole appeals to a prurient interest; (b) the wo rk depicts or descr ib es in a patently offensive way, a at h aI conouct; and (c) the work, as a whole, lacks serious artistic and cultural value. (cXl) There is hereby established a temporary Independent Commission for the p nyrirtfi of— (A) reviewing the National Endowment for the Arts grant making procedures, inrlnriing those of its panel system; and (B) considering whether the standar d for publicly funded art should be different thwn the standard for privately funded art. (2) The Commission sHaII be com posed of twelve- members as follows: • » (A) four members appointed by the President; (B) four members appointed try the President upon the rec- ommendation of the Speaker of the House of Representatives in consultation with the minority leader of the House of Rep- resentatives; (C) four members appointed by the President upon the rec- ommendation of the President pro t e m p o re of the Senate in consultation with the minority lowriwr of the Senate; CD) the ehairmAw rHaH be Ha^igwAtAri by vote of the Commis- sion members; and (ED a quorum for th* p*u poses of fmrinrrtwg meetings shall be (3) Members of the nnmmiB «nn shall serve without pay. While away from their homes or regular places of business in the perform- ance of serv ic es for the Commission, member s of the Commission shall be allowed travel , including per diem in lieu of subsistence, in the mw marmw as pe r so n s employed intermittently in Government service are allowed under 5 U.S.C. 5703. (4) Hie Commission may, for the pur pose of carnring out its duties, hold such hAAfiwg^ ait Anri act at times ana places, take such testimony, and rece i ve such evidence, as the Commission considers appropriate. (5) The Commission issue a l eport to the Speaker of the House of Re presentat i v es «*tri the President of the Senate no later than 180 days after the date of enactment of this Act. (6) The flnmmiwinn ichnil expi re on September SO, 1990. (7) Expenses of the Commission not to excee d $250,000, including administrative support, *Ka 11 be furnished by the National Endow- ment for the Arts. Sec. 305. No part of any approp ri ation contained in this Act shall remain available for obligation beyond the current fiscal year unless ex pre ss ly so provided herein. Appendix D UNITED STATES CODE TITLE 20 — EDUCATION CHAPTER 26 — SUPPORT AND SCHOLARSHIP IN HUMANITIES AND ARTS; MUSEUM SERVICES SUBCHAPTER I — NATIONAL FOUNDATION ON THE ARTS AND THE HUMANITIES Sec. 951 (sec. 2*) CONGRESSIONAL DECLARATION OF PURPOSE The Congress hereby finds and declares — (1) that the encouragement and support of national progress and scholarship in the humanities and the arts, while primarily a matter for private and local initiative, is also an appropriate matter of concern to the Federal Government ; (2) that a high civilization must not limit its efforts to science and technology alone but must give full value and support to the other great branches of scholarly and cultural activity in order to achieve a better understanding of the past, a better analysis of the present, and a better view of the future; (3) that democracy demands wisdom and vision in its citizens and that it must therefore foster and support a form of education, and access to the arts and the humanities, designed to make people of all backgrounds and wherever located masters of their technology and not its unthinking servant; (4) that it is necessary and appropriate for the Federal Government to complement, assist, and add to programs for the advancement of the humanities and the arts by local. State, regional, and private agencies and their organiza- tions; SHORT TITLE Section 1 of Pub.L. 89-209 provided: M That this Act may be cited as the ‘National Foundation on the Arts and the Humanities Act of 1965 * . " •Following the citations to the United States Code there are in parentheses references to the applicable section number in the National Foundation on the Arts and Humanities Act of 1965, as amended . (5) that the practice of art and the study of the humanities requires constant dedication and devotion and that, while no government can call a great artist or scholar into existence, it is necessary and appropriate for the Federal Government to help create and sustain not only a climate encouraging freedom of thought, imagination, and inquiry, but also the material conditions facilitating the release of this creative talent; (6) that museums are vital to the preservation of our cultural heritage and should be supported in their role as curator of our national consciousness; (7) that the world leadership which has come to the United States cannot rest solely upon superior power, wealth, and technology, but must be solidly founded upon worldwide respect and admiration for the Nation's high qualities as a leader in the realm of ideas and of the spirit; (8) that Americans should receive in school, background and preparation in the arts and humanities to enable them to recognize and appreciate the aesthetic dimensions of our lives, the diversity of excellence that comprises our cultural heritage, and artistic and scholarly expression; and (9) that, in order to implement these findings, it is desirable to establish a National Foundation on the Arts anc the Humanities. sec. 952 (sec. 3) DEFINITIONS As used in this subchapter — (a) The term "humanities" includes, but is not limited to, the study and interpretation of the following: language, both modern and classical; linguistics; literature; history; jurisprudence; philosophy; archeology; comparative religion; ethics; the history, criticism, and theory of the arts; those aspects of the social sciences which have humanistic content and employ humanistic methods; and the study and application of the humanities to the human environment with particular attention to reflecting our diverse heritage, traditions, and history and to the relevance of the humanities to the current conditions of national life. (b) The term "the arts" includes, but is not limited to, music (instrumental and vocal), dance, drama, folk art, creative writing, architecture and allied fields, painting, sculpture, photography, graphic and craft arts, industrial design, costume and fashion design, motion pictures, television, radio, tape and sound recording, the arts related to the presentation, performance, execution, and exhibition of such major art forms, and the study and application of the arts to the human environment. (c) The term "production" means plays (with or without music), ballet, dance and choral performances, concerts, recitals, operas, exhibitions, readings, motion pictures, television, radio, and tape and sound recordings, and any other activities involving the execution or rendition of the arts and meeting such standards as may be approved by the National Endowment for the Arts established by section 954 of this subchapter. (d) The term "project" means existing programs which further the purposes of this subchapter and programs newly organized to further such purposes, including programs to foster American artistic creativity, to commission works of art, to create opportunities for individuals to develop artistic talents when carried on as a part of a program otherwise included in this definition, and to develop and enhance public knowledge and understanding of the arts, and includes, where appropriate, rental, or purchase of facilities, purchase or rental of land, and acquisition of equipment. Such term also includes — (1) the renovation of facilities if (A) the amount of the expenditure of Federal funds for such purpose in the case of any project does not exceed $250,000, or (B) two-thirds of the members of the National Council on the Arts or the National Council on the Humanities, as the case may be (who are present and voting) approve of the grant or contract involving an expenditure for such purpose; and (2) for the purposes of section 5(1) and 7(h) only, the construction of facilities if (A) such construction is for demonstration purposes or under unusual circumstances where there is no other manner in which to accomplish an artistic or humanistic purpose, and (B) two-thirds of the members of the National Council on the Arts and the National Council on the Humanities, as the case may be, (who are present and voting) approve of the grant or contract involving an expenditure for such purpose. (e) The term "group" includes any State or other public agency, and any nonprofit society, institution, organization, association, museum, or establishment in the United States, whether or not incorporated. (f) The term "workshop" means an activity the primary purpose of which is to encourage the artistic development or enjoyment of amateur, student, or other nonprofessional participants, or to promote scholarship and teaching among the participants. (g) The term "State" includes, in addition to the several States of the Union, the Commonwealth of Puerto Rico, the District of Columbia. Guam, American Samoa, the Northern Mariana Islands, and the Virgin Islands. Sec. 953 (sec. 4) NATIONAL FOUNDATION ON THE ARTS AND THE HUMANITIES (a) There is established a National Foundation on the Arts and the Humanities (hereinafter referred to as the •'Foundation"), which shall be composed of a National Endowment for the Arts, a National Endowment for the Humanities, a Federal Council on the Arts and the Humanities, and an Institute of Museum Services. (b) The purpose of the Foundation shall be to develop and promote a broadly conceived national policy of support for the humanities and the arts in the United States and for institutions which preserve the cultural heritage of the United States pursuant to this subchapter. (c) In the administration of this subchapter no department, agency, officer, or employee of the United States shall exercise any direction, supervision, or control over the policy determination, personnel, or curriculum, or the administration or operation of any school or other non-Federal agency, institution, organization, or association. Sec. 954 (sec. 5) NATIONAL ENDOWMENT FOR THE ARTS (a) There is established within the Foundation a National Endowment for the Arts. (b) (1) The Endowment shall be headed by a chairperson, to be known as the Chairperson of the National Endowment for the Arts, who shall be appointed by the President, by and with the advice and consent of the Senate. (2) The term of office of the Chairperson shall be four years and the Chairperson shall be eligible for reappointment. The provisions of this subsection shall apply to any person appointed to fill a vacancy in the office of Chairperson. Upon expiration of the Chairperson's term of office the Chairperson shall serve until the Chairperson's successor shall have been appointed and shall have qualified. (c) The Chairperson, with the advice of the National Council on the Arts, is authorized to establish and carry out a program of contracts with, or grants-in-aid or loans to, groups or, in appropriate cases, individuals of exceptional talent engaged in or concerned with the arts, for the purpose of enabling them to provide or support — (1) projects and productions which have substantial artistic and cultural significance, giving emphasis to American creativity and cultural diversity and the maintenance and encouragement of professional excellence; (2) projects and productions, meeting professional standards or standards of authenticity, irrespective of origin, which are of significant merit and which, without such assistance, would otherwise be unavailable to our citizens for geographic or economic reasons; (3) projects and productions that will encourage and assist artists and enable them to achieve wider distribution of their works, to work in residence at an educational or cultural institution, or to achieve standards of professional excellence; (4) projects and production which have substantial artistic and cultural significance and that reach, or reflect the culture of, a minority, inner city, rural, or tribal community; (5) projects and productions that will encourage public knowledge, understanding, and appreciation of the arts; (6) workshops that will encourage and develop the appreciation and enjoyment of the arts by our citizens; (7) programs for the arts at the local level; and (8) other relevant projects, including surveys, research, planning, and publications relating to the purposes of this subsection. In the case of publications under clause (8) of this subsection such publications may be supported without regard for the provisions of section 501 of title 44, only if the Chairperson consults with the Joint Committee on Printing of the Congress and the Chairperson submits to the Committee on Labor and Human Resources of the Senate and the Committee on Education and Labor of the House of Representatives a report justifying any exemption from such section 501. Any loans made by the Chairperson under this subsection shall be made in accordance with terms and conditions approved by the Secretary of the Treasury. In selecting individuals and groups of exceptional talent as recipients of financial assistance to be provided under this subsection, the Chairperson shall give particular regard to artists and artistic groups that have traditionally been underrepre- sented. (d) No payment may be made to any group under this section except upon application therefore which is submitted to the National Endowment for the Arts in accordance with regulations and procedures established by the Chairperson. (e) The total amount of any grant to any group pursuant to subsection (c) of this section shall not exceed 50 per centum of the total cost of such project or production, except that not more than 20 per centum of the funds allotted by the National Endowment for the Arts for the purposes of subsection (c) of this section for any fiscal year may be available for grants and contracts in that fiscal year without regard to such limitation. (f) Any group shall be eligible for financial assistance pursuant to this section only if (1) no part of its net earnings inures to the benefit of any private stockholder or stockholders, or individual or individuals, and (2) donations to such group are allowable as a charitable contribution under the standards of subsection (c) of section 170 of title 26. (g) (1) The Chairperson, with the advice of the National Council on the Arts, is authorized to establish and carry out a program of grants-in-aid to assist the several States in supporting existing projects and productions which meet the standards enumerated in subsection (c) of this section, and in developing projects and productions in the arts in such a manner as will furnish adequate programs, facilities, and services in the arts to all the people and communities in each of the several States. (2) In order to receive assistance under this subsection in any fiscal year, a State shall submit an application for such grants at such time as shall be specified by the Chairperson and accompany such applications with a plan which the Chairperson finds — (A) designates or provides for the establishment of a State agency (hereinafter in this section referred to as the "State agency") as the sole agency for the administration of the State plan; (B) provides that funds paid to the State under this subsection will be expended solely on projects and productions approved by the State agency which carry out one or more of the objectives of subsection (c) of this section; (C) provides that the State agency will make such reports, in such form and containing such information, as the Chairperson may from time to time require, including a description of the progress made toward achieving the goals of the State plan; (D) provides - (i) assurances that the State agency has held, after reasonable notice, public meetings in the State to allow all groups of artists, interested organizations, and the public to present views and make recommendations regarding the State plan; and (ii) a summary of such recommendations and the State agency's response to such recommendations; and (E) contains - (i) a description of the level of participation during the previous 2 years by artists, artists' organizations, and arts organizations in projects and productions for which financial assistance is provided under this subsection: (ii) a description of the extent to which projects and productions, receiving financial assistance under this subsection are available to all people and communities in the State; and (iii) a description of projects and productions receiving financial assistance under this subsection that exist or are being developed to secure wider participation of artists, artists' organizations, and arts organizations identified under clause (i) of this subparagraph or that address the availability of the arts to all people or communities identified under clause (ii) of this subparagraph. No application may be approved unless the accompanying plan . satisfies the requirements specified in this subsection. (3) Of the sums available to carry out this subsection for any fiscal year,- each State which has a plan approved by the Chairperson shall be allotted at least $200,000. If the sums appropriated are insufficient to make the allotments under the preceding sentence in full, such sums shall be allotted among such States in equal amounts. In any case where the sums available to carry out this subsection for any fiscal year are in excess of the amount required to make the allotments under the first sentence of this paragraph — (A) the amount of such excess which is no greater than 25 per centum of the sums available to carry out this subsection for any fiscal year shall be available only to the Chairperson for making grants under this subsection to States and regional groups, and (B) the amount of such excess, if any, which remains after reserving in full for the Chairperson the amount required under clause (A) shall be allotted among the States which have plans approved by the Chairperson in equal amounts but in no event shall any State be allotted less than $200,000. ( 4 ) (A) The amount of each allotment to a State for any fiscal year under this subsection shall be available to each State, which has a plan approved by the Chairperson in effect on the first day of such fiscal year, to pay not more than 50 per centum of the total cost of any project or production described in paragraph (1). The amount of any allotment made under paragraph (3) for any fiscal year which exceeds $125,000 shall be available, at the discretion of the Chairperson, to pay up to 100 per centum of such cost of projects and productions if such project (sic) and productions would otherwise be unavailable to the residents of that State: Provided, That the total amount of any such allotment for any fiscal year which is exempted from such 50 per centum limitation shall not exceed 20 per centum of the total of such allotment for such fiscal year. (B) Any amount allotted to a State under the firs sentence of paragraph (3) for any fiscal year which is not obligated by the State prior to 60 days prior to the end of the fiscal year for which such sums are appropriated shall be available for making grants to regional groups. (C) Funds made available under this subsection shall not be used to supplant non-Federal funds. (D) For the purpose of paragraph (3) and paragraph (4) of this section the term "regional group" means any raultistate group, whether or not representative of contiguous States . (E) For purposes of paragraph (3)(B), the term "State" includes, in addition to the several States of the Union, only those special jurisdictions specified in section 952(g) of this title which have a population of 200,000 or more, according to the latest decennial census . (5) All amounts allotted or made available under paragraph (3) for a fiscal year which are not granted to a State during such year shall be available at the end of such year to the National Endowment for the Arts for the purpose of carrying out subsection (c) of this section. (h) Whenever the Chairprtdon, after reasonable notice and opportunity for hearing, finds that — (1) a group is not complying substantially with the provisions of this section; (2) a State agency is not complying substantially with terms and conditions of its State plan approved under this section; or (3) any funds granted to a group or State agency under this section have been diverted from the purposes for which they were allotted or paid, the Chairperson shall immediately notify the Secretary of the Treasury and the group or State agency with respect to which such finding was made that no further grants will be made under this section to such group or agency until there is no longer any default or failure to comply or the diversion has been corrected, or, if compliance or correction is impossible, until such group or agency repays or arranges the repayment of the Federal funds which have been improperly diverted or expended. (i) It shall be a condition of the receipt of any grant under this section that the group or individual of exceptional talent or the State or State agency receiving such grant furnish adequate assurances to the Secretary of Labor that (1) all professional performers and related or supporting professional personnel (other than laborers and mechanics with respect to whom labor standards are prescribed in subsection (j) of this section) employed on projects or productions which are financed in whole or in part under this section will be paid, without subsequent deduction or rebate on any account, not less than the minimum compensation as determined by the Secretary of Labor to be the prevailing minimum compensation for persons employed in similar activities; and (2) no part of any project or production which is financed in whole or in part under this section will be performed or engaged in under working conditions which are unsanitary or hazardous or dangerous to the health and safety of the employees engaged in such project or production. Compliance with the safety and sanitary laws of the State in which the performance or part thereof is to take place shall be prima facie evidence of compliance. The Secretary of Labor shall have the authority to prescribe standards, regulations, and procedures as the Secretary of Labor may deem necessary or appropriate to carry out the provisions of this subsection. (j) It shall be a condition of the receipt of any grant under this section that the group or individual of exceptional talent or the State or State agency receiving such grant furnish adequate assurances to the Secretary of Labor that all laborers and mechanics employed by contractors or subcontractors on construction projects assisted under this section shall be paid wages at rates not less than those prevailing on similar construction in the locality as determined by the Secretary of Labor in accordance with the Davis-Bacon Act, as amended (40 U.S.C. 276a et seq.). The Secretary of Labor shall have with respect to the labor standards specified in this subsection the authority and functions set forth in Reorganization Plan Numbered 14 of 1950 (Appendix to title 5, Government Organization and Employees) and section 276(c) of title 40. (k) The Chairperson shall correlate the programs of the National Endowment for the Arts insofar as practicable, with existing Federal programs and with those undertaken by other public agencies or private groups, and shall develop the programs of the Endowment with due regard to the contribution to the objectives of this subchapter which can be made by other Federal agencies under existing programs. The Chairperson may enter into interagency agreements to promote or assist with the arts-related activities of other Federal agencies, on a reimbursable or nonreimbursable basis, and may use funds authorized to be appropriated for the purposes of subsection (c) of this section for the costs of such activities. (l) (1) The Chairperson of the National Endowment for the Arts, with the advice of the National Council on the Arts, is authorized, in accordance with the provisions of this subsection, to establish and carry out a program of contracts with, or grants-in-aid to, public agencies and private nonprofit organizations on a national. State, or local level, for the purpose of strengthening quality by — (A) enabling cultural organizations and institutions to increase the levels of continuing support and to increase the range of contributors to the programs of such organizations or institutions; (B) providing administrative and management improvements for cultural organizations and institutions, particularly in the field of long-range financial planning; (C) enabling cultural organizations and institutions to increase audience participation in, and appreciation of, programs sponsored by such organizations and institutions; (D) providing additional support for cooperative efforts undertaken by State arts agencies with local arts groups and local arts agencies to promote effective arts activity at the State and local level, including - (i) support of professional artists in community based residencies; (ii) support of rural arts development; (iii) support of and models for regional, statewide, or local organizations to provide technical assistance to cultural organizations and institutions ; (iv) support of and models for visual and performing arts touring; and (v) support of and models for professional staffing of arts organizations and for stabilizing and broadening the financial base for arts organizations; (E) stimulating greater cooperation among cultural organizations and institutions especially designed to serve better the communities in which such organizations or institutions are located; and (F) fostering greater citizen involvement in planning the cultural development of a community. (2) The total amount of any payment made under this subsection for a program or project may not exceed 50 per centum of the cost of such program or project. (3) In carrying out the program authorized by this subsection, the Chairperson of the National Endowment for the Arts shall have the same authority as is established in subsection (c) of this section and section 959 of this title. (m) The Chairperson of the National Endowment for the Arts shall, in consultation with State and local agencies, relevant organizations, and relevant Federal agencies, develop a practical system of national information and data collection on the arts, artists and arts groups, and their audiences. Such system shall include artistic and financial trends in the various artistic fields, trends in audience participation, and trends in arts education on national, regional, and State levels. Such system shall also include information regarding the availability of the arts to various audience segments, including rural communities. Not later than one year after the date of the enactment of the Arts. -Humanities, and Museums Amendments of 1985, the Chairperson shall submit to the Committee on Education and Labor of the House of Representatives and the Committee on Labor and Human Resources of the Senate a plan for the development and implementation of such system, including a recommendation regarding the need for any additional funds to be appropriated to develop and implement such system. Such system shall be used, along with a summary of the data submitted with State plans under subsection (g), to prepare a periodic report on the state of the arts in the Nation. The state of the arts report shall include a description of the availability of the Endowment's programs to emerging, rural and culturally diverse artists, arts organizations, and communities and of the participation by such artists, organizations, and communities in such programs. The state of the arts report shall be submitted to the President and the Congress, and provided to the States, not later than October 1, 1988, and biennially thereafter. Sec. 955 (sec. 6) NATIONAL COUNCIL ON THE ARTS (a) There shall be, within the National Endowment for the Arts, a National Council on the Arts (hereinafter in this section referred to as the "Council"). (b) The Council shall be composed of the Chairperson of the National Endowment for the Arts, who shall be Chairperson of the Council, and twenty-six other members appointed by the President, by and with the advice and consent of the Senate, who shall be selected — (1) from among private citizens of the United States who (A) are widely recognized for their broad knowledge of. or expertise in, or for their profound interest in, the arts_and (B) have established records of distinguished service, or achieved eminence, in the arts; (2) so as to include practicing artists, civic cultural leaders, members of the museum profession, and others who are professionally engaged in the arts; and (3) so as collectively to provide an appropriate distribution of membership among the major art fields. The President is requested, in the making of such appointments, to give consideration to such recommendations as may, from time to time, be submitted to the President by leading national organizations in these fields. In making such appointments, the President shall give due regard to equitable representation of women, minorities, and individuals with disabilities who are involved in the arts. (c) Each member shall hold office for a term of six years, and the terms of office shall be staggered. The terms of office of all Council members shall expire on the third day of September in the year of expiration. No member shall be eligible for reappointment during the two-year period following the expiration of such member's term. Any member appointed to fill a vacancy shall serve for the remainder of the term for which such member's predecessor was appointed. Notwithstanding any other provision of this subsection, a member shall serve after the expiration of such member's term until such member's successor takes office. (d) The Council shall meet at the call of the Chairperson but not less often than twice during each calendar year. Fourteen members of the Council shall constitute a quorum. (e) Members shall receive compensation at a rate to be fixed by the Chairperson but not to exceed the per diem equivalent of the rate authorized for grade GS-18 by section 5332 of title 5 of the United States Code and be allowed travel expenses including per diem in lieu of subsistence, as authorized by law (secion 5703 of title 5) for persons in the Government service employed intermittently. (f) The Council shall (1) advise the Chairperson wi ;h respect to policies, programs, and procedures for carrying out the Chairperson's functions, duties, or responsibilities under this subchapter, and (2) review applications for financial assistance under this subchapter and make recommendations thereon to the Chairperson The Chairperson shall not approve or disapprove any such application until he has received the recommendation of the Council on such application, unless the Council fails to make a recommenda- tion thereon within a reasonable time. In the case of an application involving $30,000 or less, the Chairperson may approve or disapprove such request if such action is taken pursuant to the terms of a delegation of authority from the Council to the Chairperson, and provided that each such action by the Chairperson shall be reviewed by the Council; Provided, That the terms of any such delegation of authority shall not permit obligations for expenditures of funds under such delegation for any fiscal year which exceed an amount equal to 10 per centum of the sums appropriated for that fiscal year pursuant to subparagraph (A) of paragraph (1) of section 960(a) of this title. Sec. 958 (sec. 9) ESTABLISHMENT OF THE FEDERAL COUNCIL ON THE ARTS AND THE HUMANITIES (a) There is established within the Foundation a Federal Council on the Arts and the Humanities. (b) The Council shall be composed of the Chairperson of the National Endowment for the Arts, the Chairperson of the National Endowment for the Humanities, the Director of the Institute of Museum Services, the Secretary of Education, the Secretary of the Smithsonian Institution, the Director of the National Science Foundation, the Librarian of Congress, the Director of the National Gallery of Art, the Chairman of the Commission of Fine Arts, the Archivist of the United States, the Commissioner, Public Buildings Service, General Services Administration, the Commissioner on Aging, a member designated by the Director of the United States Information Agency, and a member designated by the Secretary of the Interior, a member designated by the Chairman of the Senate Commission on Art and Antiquities, and a member designated by the Speaker of the House. The President shall designate the presiding officer of the Council from among the members. The President is authorized to change the membership of the Council from time to time as the President deems necessary to meet changes in Federal programs or executive branch organization. (c) The Council shall — (1) advise and consult with the Chairperson of the National Endowment for the Arts and the Chairperson of the National Endowment for the Humanities on major problems arising in carrying out the purposes of the Foundation; (2) advise and consult with the National Museum Services Board and with the Director of the Institute of Museum Services on major problems arising in carrying out the purposes of such Institute; (3) coordinate, by advice and consultation, so far as is practicable, the policies and operations of the National Endowment for the Arts, the National Endowment for the Humanities, and the Institute of Museum Services, including joint support of activities, as appropriate; ( 4 ) promote coordination between the programs and activities of the Foundation and related programs and activities of other Federal agencies; (5) plan and coordinate appropriate participation (including productions and projects) in major and historic national events; and (6) undertake studies and make reports which address the state of the arts and humanities, particularly with respect to their economic needs and problems. (d) The Council shall conduct a study to determine- (1) _the nature and level of Federal support provided to museums ; (2) the areas in which such support overlaps or is inadequate, particularly in case of emerging museums; (3) the impact of the Institute of Museum Services in carrying out its stated purpose; and (4) the impact and nature of conservation and preservation programs being carried out under this Act and other Federal laws and the areas in which such programs overlap or are inadequate. Sec. 959 (sec. 10) ADMINISTRATIVE PROVISIONS (a) In addition to any authorities vested in them by other provisions of this subchapter, the Chairperson of the National Endowment for the Arts and the Chairperson of the National Endowment for the Humanities, in carrying out their respective functions, shall each have authority — (1) to prescribe such regulations as the Chairperson deems necessary governing the manner in which the Chairperson's functions shall be carried out; (2) in the discretion of the Chairperson of an Endowment, after receiving the recommendation of the National Council of that Endowment, to receive money and other property donated, bequeathed, or devised to that Endowment with or without a condition or restriction, including a condition that the Chairperson use other funds of that Endowment for the purposes of the gift, except that a Chairperson may receive a gift without a recommendation from the Council to provide support for any application or project which can be approved without Council recommendation under the provisions of sections 955(f) and 957(f) of this title, and may receive a gift of $15,000, or less, without Council recommendation in the event the Council fails to provide such recommendation within a reasonable period of time, and to use, sell, or otherwise dispose of such property for the purpose of carrying out sections 954(c) and 956(c) of this title; (3) to appoint employees, subject to the civil service laws, as necessary to carry out the Chairperson's functions, define their duties, and supervise and direct their activities; (4) to utilize from time to time, as appropriate, experts and consultants, including panels of experts, who may be employed as authorized by section 3109 of title 5, United States Code; (5) to accept and utilize the services of voluntary and uncompensated personnel and reimburse them. for travel expenses, including per diem, as authorized by section 5703 of title 5 for persons in the Government service employed without compensation; (6) to make advance, progress, and other payments without regard to the provisions of section 529 pf title 31*; (7) to rent office space in the District of Columbia; and (8) to make other necessary expenditures. In any case in which any money or other property is donated, bequeathed, or devised to the Foundation (A) without designation of the Endowment for the benefit of which such property is intended, and (B) without condition or restriction other than that it be used for the purposes of the Foundation, such property shall be deemed to have been donated, bequeathed, or devised in equal shares to each Endowment and each Chairperson of an Endowment shall have authority to receive such property. In any case in which any money or other property is donated, bequeathed, or devised to the Foundation with a condition or restriction, such property shall be deemed to have been donated, bequeathed, or devised to that Endowment whose function it is to carry out the purpose or purposes described or referred to by the terms of such condition or restriction, and each Chairperson of an Endowment shall have authority to receive such property. For the purposes of the preceding sentence, if one or more of the purposes of such a condition or restriction is covered by the functions of both Endo^snts , or if some of the purposes of such a condition m.B. Renumbered to 31 G.S.C. 3324 or restriction are covered by the functions of one Endowment and other of the purposes of such a condition or restrictioi are covered by the functions of the other Endowment, the Federal Council on the Arts and the Humanities shall determine an equitable manner for distribution between each of the Endowments of the property so donated, bequeathed, or devised. For the purpose of the income tax, qift tax, and estate tax laws of the United States, any money or other property donated, bequeathed, or devised to the Foundation or one of its Endowments and received by the Chairperson of an Endowment pursuant to authority derived under this subsection shall be deemed to have been donated, bequeathed, or devised to or for the use of the United States . In selecting panels of experts under clause (4) to review and make recommendations with respect to the approval of applications for financial assistance under this Act, each Chairperson shall appoint individuals who have exhibited expertise and leadership in the field under review, who broadly represent diverse characteristics in terms of aesthetic or humanistic perspective, and geographical factors, and who broadly represent cultural diversity. Each Chairperson shall assure that the membership of panels changes substantially from year to year, and that no more than 20 per centum of the annual appointments shall be for service beyond the limit of three consecutive years on a subpanel. In making appointments, each Chairperson shall ■ give due regard to the need for experienced as well as new members on each panel. Panels of experts appointed to review or make recommendations with respect to the approval of applications or projects for funding by the National Endowment for the Arts shall, when reviewing such applications and projects, recommend for funding only applications and projects that in the context in which they are presented, in the experts' view foster excellence, are reflective of exceptional talent, and have significant literary, scholarly, cultural, or artistic merit. Whenever there is pending an application submitted by an individual for financial assistance under section 5(c), such individual may not serve as a member of any subpanel (or panel where a subpanel does not exist) before which such application is pending. The prohibition described in the previous sentence shall commence on the date the application is submitted and continue for so long as the application is pending. (b) The Chairperson of the National Endowment for the Arts and the Chairperson of the National Endowment for the Humanities shall each submit an annual report to the President for transmittal to the Congress on or before the 15th day of April of each year. The report shall summarize the activities of the Endowment for the preceding year, and may include such recommendations as the Chairperson deems appropriate . (c) The National Council on the Arts and the National Council on the Humanities, respectively, may each submit an annual report to the President for transmittal to the Congress on or before the 15th day of April of each year setting forth a summary of its activities during the preceding year, or its recommendations for any measures which it considers necessary or desirable. (d)(1) The Chairperson of the National Endowment for the Arts and the Chairperson of the National Endowment for the Humanities shall conduct a post-award evaluation of projects, productions, and programs for which financial assistance is provided by their respective Endowments under sections 5(c) and 7(c). Such evaluation may include an audit to determine the accuracy of the reports required to be submitted by recipients under clauses (i) and (ii) of paragraph (2) (A). As a condition of receiving such financial assistance, a recipient shall comply with the requirements specified in paragraph (2) that are applicable to the project, production, or program for which such financial assistance is received. (2) (A) The recipient of financial assistance provided by either of the Endowments shall submit to the Chairperson of the Endowment involved- (i) a financial report containing such information as the Chairperson deems necessary to ensure that such financial assistance is expended in accordance with the terms and conditions under which it is provided; (ii) a report describing the project, production or program carried out with such financial assistance; and (iii) if practicable, as determined by the Chairperson, a copy of such project, production, or program. (B) Such recipient shall comply with the requirements of this paragraph not later than 90 days after the end of the period for which such financial assistance is provided. The Chairperson may extend the 90-day period only if the recipient shows good cause why such an extension should be granted. (3) If such recipient substantially fails to satisfy the purposes for which such financial assistance is provided and the criteria specified in the last sentence of subsection (a), as determined by the Chairperson of the Endowment that provided such financial assistance, then such Chairperson may- (A) for purposes of determining whether to provide any subsequent financial assistance, take into consideration the results of the post-award evaluation conducted under this subsection; (B) prohibit the recipient of such financial assistance to use the name of, or in any way associated such project, production, or program with the Endowment that provided such financial assistance; and (C) if such project, production, or program is published, require that the publication contain the following statement: “The opinions, findings, conclusions, and recommendations expressed herein do not reflect the view of the National Endowment for the Arts or the National Endowment for the Humanities . “ (e)(1) The Chairperson of the National Endowment for the Arts and the Chairperson of the National Endowment for the Humanities, with the cooperation of the Secretary of Education, shall conduct jointly a study of- (A) the state of arts education and humanities education, as currently taught in the public elementary and secondary schools in the united States; and (B) the current and future availability of qualified instructional personnel, and other factors, affecting the quality of education in the arts and humanities in such schools . (2) The Endowments shall consult with the Committee on Labor and Human Resources of the Senate and the Committee on Education and Labor of the House of Representatives in the design and implementation of the study required by this subsection. (3) Not later than two years after the date of the enactment of the Arts, Humanities, and Museums Amendments of 1985, the Endowments shall submit to the President, the Congress, and the States a report containing- (A) the findings of the study under paragraph (1); (B) the Endowments* views of the role of the arts and humanities in elementary and secondary education; (C) recommendations designed to encourage making arts and humanities education available throughout elementary and secondary schools; (D) recommendations for the participation by the National Endowment for the Arts and the National Endowment for the Humanities in arts education and humanities education in such schools; and (E) an evaluation of existing policies of the National Endowment for the Arts and the National Endowment for the Humanities that expressly or inherently affect the Endowments' abilities to expand such participation. (£) Not later than October 1. 1987, each Endowment shall submit to the Congress a report detailing the procedures used in selecting experts for appointment to panels and the procedures applied by panels in making recommendations with respect to approval of applications for financial assistance under this Act, including procedures to avoid possible conflicts of interest which may arise in providing financial assistance under this Act.