Rich contributors to large arts organizations (and to political campaigns) find seats on the National Council, thus obtaining control over tax revenues as well as their own tax deductions, and securing power in the public as well as the private sector. Staff members of arts organizations who sit on Endowment advisory panels establish governmental policy with respect to their own organizations and pass judgment on requests from colleagues. The enormous power of critics is multiplied through their appointment to panels. At the same time, politicians tend to encourage the lobbying of arts charities, thereby hoping to gain support for themselves as well as "the arts." Great difficulties for objective administration are thus created, and the assistance process and the arts in general become politicized. Vested interests gain control over governmental funding. In Congressional hearings on the Museum Services Act. Kyran McGrath, head of the American Association of Museums, complained that ". . . a number of museums throughout the country have been unsuccessful in their efforts to obtain representation on an existing State program, or programs that have given some support to museums, and that is the State arts councils. There are a number of States where there are no museums represented on the State art council and there are others where they are adequately represented."

Obviously McGrath thinks museums should be “represented" on governmental arts bodies although he does not explain which other special interests ought to be represented or excluded.

One case of Endowment domination by special interests is indicated by NEH's lack of interest in non-academic humanism; apparently NEH policy is shaped according to university interests. Another case was heralded in a well publicized meeting some years ago when symphony orchestra representatives decided whether to ask for special governmental aid or attempt to control the music funds of NEA; they adopted the latter course, and even a superficial examination of NEA's music grants indicates their success. Unfortunately orchestral preference as to type of music also prevails at NEA as evidenced by relative lack of attention to contemporary music. As one Pulitzer Prize winning composer puts it, "Everyone knows that the National Endowment is controlled by orchestra managers."

ALTERNATIVES

The need for governmental funding of arts activities does not justify infringements on civil liberties. However, there are excellent alternative forms of governmental assistance which would avoid or minimize the civil liberties and other problems of the present Endowment operations.

It is surprising that the class assistance concept which has worked well in other fields has not been applied recently for the arts. Perhaps the most successful of all Federal arts assistance programs, those of the WPA era, although created by executive order were basically class assistance programs despite technical problems which lessened their fairness of application. Roger L. Stevens, the first director of the National Endowment for the Arts, said this about the WPA: "Although no accurate study has been made, it is generally acknowledged that about 80 per cent of the painters and sculptors who gained world recognition in the Forties and Fifties were supported during the Depression by government funds not to develop art, but for sociological reasons . . An interesting question is, 'What panel of experts in the Thirties would have picked people like David Smith, Mark Rothko, or Jackson Pollock as the most promising artists of the future?' In other words, this shotgun approach gave all outstanding talent a chance to develop and brought our country to its present eminent position in visual art. Ironically enough, the financial gain from increased taxes and values has far exceeded the government cash outlay."

Class assistance programs for individuals are necessarily of large scale and might require special revenue sources; they probably would and should lie outside the scope of the National Endowment.

But given the proper statutory framework, the Endowments could exercise considerable discretion in setting up constitutionally safe class assistance to activities. An innovative bill of this kind to change the Minnesota State Arts Council was introduced in the 1975 St. Paul legislative session. Basically it provided that the agency define two classes for each of its programs: a class of works and a class of sponsors. Sponsors would receive assistance for exposing works of the class which they, the sponsors, would choose. In other words, the bill provided a framework for compound class assistance programs. All classes of works were limited to works by Minnesotans, a useful and reasonable limita

tion; likewise, classes of sponsors were limited to those within the state. A tremendous advantage of the bill was the separation of economic, political and artistic questions. Council decisions would be largely determined by evaluation of social, economic and geographic factors, politics formalized on a public hearing basis, and artistic decisions left entirely in the private sector. Thus representation of vested interests and "experts" could be eliminated entirely from the agency and its governing board, and all interests gain equal opportunity for input. Once a program had been implemented, applications within that program would be pro forma and suitable for routine processing at a low cost per unit; actual assistance would go according to formulas developed by the Council. Direct or indirect financial help would go to performers, institutions, community organizations, publishers, entrepreneurs and others involved with sponsorship; creative artists would benefit from increased opportunities for exposure or marketing, and the public would enjoy the availability of events, exhibits and merchandise as well as the improvement of economics in the arts sector. Newer artistic work usually neglected by private charity would receive more help.

Unfortunately, organized resistance from arts administrators and institutional boosters, insincerity on the part of the bill's principal Senate author, and a certain lack of "quality" in the legislature prevented consideration of the basic issues. Several Senators said they'd only listen to arguments on constitutional issues when the courts say they must.

The bill is undergoing refinement and considerable simplification for possible reintroduction in the 1977 session; excerpts of an interim version are appended.

CONCLUSION

The United States is known internationally for its individualism of artistic expression, an appropriate characteristic for a nation founded to protect individual rights and liberties. Paradoxically, the demands of arts interests, especially those of organizations, have resulted in the establishment of a form of governmental assistance which runs against the grain of the American artistic and legal traditions. Lobbyists and legislators cite European tax support for the arts as an example to be emulated, and the Endownments and the various state and local arts councils increasingly resemble their European counterparts. With the growth of organized lobbying (much of it done by governmental agencies themselves, by charities seeking assistance, and by newsmen) no realistic political observer could be optimistic about the chances of alternatives to the government's new establishment of artistic expression unless litigation forces the issue. Politicians will think of Solzhenitsyn in terms of international relations, not as a creative artist who denounced a government appropriating "to itself the role of unfleeting time-of separating good books from bad. . ." Actions in state or federal courts will be a way to celebrate the bicentennial: a sort of "put Christ back in Christmas" movement for the American arts.

The legislators, the institutional lobbyists, the arts administrators and surely many of the artists themselves will praise the moral value of the arts, warn of the dangers of low governmental funding, enjoy the politics of their Ministry of Culture, and foregt the dream of Samuel Adams, Madison, Lincoln and others like Charles Ives who, disappointed by each loss of collective integrity, could not go on expressing American freedom and idealism. Sincerely,

APPENDIX

DAVID MARKLE,

Reporter.
RUSSEL HARRIS,
HUBERT KAPPEL,
DAVID MARKLE,

JIM MARTIN,
RUSSELL ROTH,

For the Central Committee.

Excerpts and commentary on an interim version of a bill to change the Minnesota State Arts Board (previously known as the Minnesota State Arts Council).

Sec. 1. Definitions: Arts includes belles-lettres, humanistic creation (but not educational use), crafts and other types not always included under fine arts.

Works include improvisatory works, choreographed works, etc. as well as works in artifact. A sponsor is neither "the creator of any works in the category to be sponsored, nor directly or indirectly controlled by any creator or creators of works in the category to be sponsored as to general practice, policy, administration, or conduct of business." This rule regarding sponsors helps insure the full exercise of private critical judgment.

Sec. 2. Governing board; organization; powers and duties.

Sec. 3. Disqualifications from membership; employment. Comment: Eliminates significant conflicts of operational or financial interest, obvious bias, from Board and staff.

Sec. 4. Manner of operation; records; not to establish advisors. Comment: Provides for unusually open manner of operation.

Sec. 5. General purpose. "The board shall generally encourage the enjoymnt and consumption of works of the contemporary Minnesota creative arts by all citizens of this state."

Sec. 6. Functions of council; programs; subordinate function. "The principal function of the board shall be to establish and implement or dissolve programs of financial or operational assistance to classes of sponsors for the purpose of efficaciously encouraging or enabling sponsorship, and all other activities, operations and functions of the board shall in in furtherance thereof, with the exception of the board's subordinate functions. Such assistance shall be provided according to formulas and qualifications which operate uniformly without fostering invidious discrimination."

Sec. 7. Categories. "The board shall determine and define, from time to time, those categories of works of the contemporary creative arts of Minnesota which it finds suitable for sponsorship and, because of one or more of the following conditions, most in need of sponsorship:

(a) precarious business conditions of private enterprise making a critical situation for the category or its presentation or promulgation;

(b) relative lack of appropriate charitable assistance with respect to the category or its presentation or promulgation;

(c) lack of reasonable opportunity for citizens of rural localities to enjoy, use, purchase or otherwise consume the type of works in a category because of geographic reasons, when such opportunity is unlikely to become available without encouragement or assistance by the board.

Sec. 8. Sponsorship; classes of sponsors. "Subd. 1. Sponsorship means the direct or indirect providing of an opportunity (other than the providing of support or assistance) reasonably available to the citizens of one or more localities of this state to experience or purchase works of the contemporary creative arts of Minnesota.

"Subd. 2. The board shall determine and define from time to time those classes of sponsors or potential sponsors which it finds likely to provide, or likely to better provide, efficacious sponsorship because of assistance by the board. In the establishment of classes of sponsors, the board shall give due consideration to individuals, partnerships, business enterprises, unincorporated associations, nonprofit and other corporations, and other persons, insofar as sponsorship by such persons may tend directly or indirectly to benefit the public."

Sec. 9. Classification; basis; popularity; programs involving few sponsors or creators; burden of proof. "Subd. 1. The board shall define categories and classes of sponsors according to reasonable and nonarbitrary distinctions based upon fact or otherwise clearly and convincingly justified, and artistic style or merit shall not be a basis for classification."

"Subd. 2. Classification according to popularity or nonpopularity of intent or effect is not necessarily a matter of artistic style when adequately based upon consideration of such factors as success or lack of success of marketing, the type of market intended or achieved in social or economic terms, the type of production employed if any, or the stated or proved intention of the creators or potential sponsors, but classification as nonpopular implies that neither popularity of intent nor popularity of effect can be demonstrated."

"Subd. 3. No program or any class, category, formula or qualification involved therein shall be designed so as to effectively involve only one or few persons as sponsors or creators of works. In the case of a program effectively including ten or less members in a class of sponsors or employing a category which involves

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ten or less creators of works, there must be a reasonable expectation for the inclusion of new or additional members in the class of ten or less sponsors, and for the involvement of new or additional creators in the category which involves ten or less creators." Comment: object is to insure that classification is real, so that programs will not become mere doles for operating assistance.

Subd. 4. Contains rule on burden of proof to facilitate classification in areas where many cases will not qualify. For example, many instances of photography are basically a technological process rather than an artistic process (the analogy in sound is the making of recordings).

Sec. 10. Residence; determination; liberal construction of requirements; employment; foreign extension. Comment: Foreign extension provides for mutual agreements with other states.

Sec. 11. Prohibition of certain council influence; general limitations; not to misrepresent as credentials; folk arts or crafts. Part of Subd. 1(b) reads as follows: "... the board shall exercise no direction, supervision or control over the policy determination, personnel or curriculum, or the administration or personnel of any governmental body, agency, authority or official, or of any other person. The council shall neither develop nor adopt an opinion on, nor furnish advice on, any matter of artistic style or merit, nor shall it create or give citation, prize or other merit award, nor establish or provide artistic or literary credential or professional certification, nor advise any governmental body, agency, authority or official, or any other person, on the financial need or financial condition of any particular person. Insofar as feasible the board shall not affect the reputation of any particular person nor substantially and adversely affect the financial condition of any particular person or class of persons . . ." This goes far beyond the limitation in 20 U.S.C. Sec. 953 (c).

Sec. 12. Labor standards of certain personnel. "Subd. 1. Minimum prevailing wage has the meaning given it in Minnesota Statutes, Section 177.42.

"Subd. 2. It shall be a condition of board financial assistance of sponsorship that all artistic performers and closely allied personnel, and all printing pressmen, typographers and similar personnel, whose hire by the sponsor or a contractor to the sponsor is integral to or an essential feature of sponsorship, shall in connection with such sponsorship be paid, without subsequent deduction or rebate on any account, not less than the minimum prevailing wage for persons employed in similar activities; and no part of any sponsorship financially assisted by the board shall be performed or engaged in under conditions which are unsanitary, hazardous or dangerous to health or safety. Standards of prevailing minimum compensation to be utilized in the application of this section shall be determined by the board unless such standards are established by the commissioner of labor and industry." Comment: Avoid the circular language of 20 U.S.C. Sec. 954 (i), and includes printing trades due to the likelihood of assistance to publishing.

Sec. 13. Compensation for use of certain works; council to determine. Defines minimum fair compensation and use with an eye to Federal copyright law, provides for board to make determinations and issue findings in the form of standard rates and values: "The making of such determinations shall involve, among other things, consideration of prevailing rates and values of similar compensation, consideration of economic and social conditions affecting such compensation or lack thereof, and consideration of the purpose and effect of such use, but the fact that a use is not a use for profit shall not constitute a basis or justification for a divergent or low rate of compensation or for lack of compensation." This language helps avoid free use by educational organizations, a major problem for composers and others.

"Subd. 3. It shall be a condition of board financial assistance of sponsorship that the owner or owners of rights in a work shall be entitled to no less than minimum fair compensation for the use of the work in connection with the sponsorship, notwithstanding the place, manner or nature of the use or any other circumstances. Any individual who singly or jointly with another person or persons owns rights in a work sponsored with financial assistance of the board shall be entitled to his proper share of minimum fair compensation without subsequent deduction or rebate on any account, and no individual may waive his right to such compensation. Any person who, subject to transferal of rights in a work, agrees to undertake sponsorship of the work with financial assistance of the

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board, shall agree to render no less than minimum fair compensation for the transferal of such rights without subsequent deduction or rebate on any account. Nothing in this section provides for the granting or registry of copyright by this state or any agency, political subdivision, or public corporation thereof.

Sec. 14. Acquisitions; expenditures. Comment: sets limitations on administrative expenses.

Sec. 15. Judicial review; costs; powers of attorney general and courts. “Subd. 1. Any person may maintain an action in the court of competent jurisdiction for any of the following objects:

(a) to compel performance of duty by the board;

(b) to contest the validity of any rule, regulation, finding, opinion, determination, classification, award, qualification or formula of the council or of any program of the board:

(c) to contest the office or status of any member, employee or agent of the board, but in such an action, no member, agent or employee of the board shall be held personally liable for costs;

(d) to obtain injunctive relief from actual or imminent damage due to an act of the board;

(e) for other lawful objects."

"Subd. 2. In all actions maintained under this section by a private person, full costs shall be allowed, and when the prevailing party is a private person the court may allow him a reasonable attorney's fee as part of the costs."

DEAR NANCY: Your testimony of November 12 before the Joint Subcommittees was extremely helpful. Both your written submission for the record and your verbal presentation in responses to questions have greatly illuminated my understanding of the accomplishments to date and the challenges ahead for the National Endowment. You will recall there were a number of specific questions which I raised at the hearing for subsequent response by the Endowment. My purpose in writing is to concisely reiterate these questions.

I am asking the Chairman that this letter be made part of the hearing record. I would hope that your responses would be timely so that they may also be included in this record. Should you have any questions regarding these matters, please consult with my staff.

The current policy of NEA against supporting "bricks and mortar" (i.e., the establishment of facilities) for the arts was discussed. I wish that a formal study be conducted to review this policy in the light of future needs. To do such a study, would additional appropriation of funds for the NEA be necessary, and what would be the length of time required to complete such a study?

Changes in tax laws since 1969 have limited private grants to the arts, particularly grants by individuals. Would you identify these changes in tax laws, and provide any recommendations you may have to remove these limitations from the incentives for private giving to support the arts?

In the November 13 discussion of the proposed State Humanities Councils, testimony was presented regarding the degree of state matching for humanities grants. States apparently make very little matching effort directly to projects funded by the existing NEH sponsored state committees. Arts have a different pattern of state support, led by the outstanding effort by my own state of New York. Regarding State Arts Councils, do any states fail to fully match National Endowment grants made under the state program? Please provide a state table of most recent available data on the NEA State Arts Councils funding and the amount of state funds.

Regarding membership of the National Council on the Arts, I shall shortly submit to the President my recommendations for representatives from the