[Congressional Record Volume 141, Number 115 (Monday, July 17, 1995)]
[Senate]
[Pages S10147-S10153]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
      By Mr. ABRAHAM (for himself, Mr. Dole, Mr. Brown, Mr. Hatch, Mr. 
        DeWine, Mr. Kyl, and Mr. Kempthorne):
  S. 1039. A bill to require Congress to specify the source of 
authority under the U.S. Constitution for the enactment of laws, and 
for other purposes; to the Committee on the Judiciary.


    LEGISLATION REQUIRING SPECIFICATION OF CONSTITUTIONAL AUTHORITY

  Mr. ABRAHAM. Mr. President, I rise today to introduce two pieces of 
legislation. One is a bill and the other is a resolution. The effect of 
each is to require that every law that passes through this Chamber 
explicitly state the constitutional authority pursuant to which it is 
being enacted.
  I believe this requirement will help this body by giving us occasion 
to pause and reflect on whether the legislation we are considering is 
in fact within the province of the national government.
  It will also help the American people evaluate our work, keeping in 
mind the question of constitutionality as well as the immediate policy 
questions presented by the bill.
  And it may discourage us, at least at the margin, from adopting 
legislation outside our proper sphere of authority and responsibility.
  All these factors would enhance our citizenry's freedom and make it 
easier for them to exercise their self-governing authority at the State 
and local level--the level closest to the people.
  Mr. President, it has become commonplace to observe that the 
elections of 1994 showed the voters' frustration with big government. 
It seems clear to me that the American people feel that the Federal 
Government is interfering too much in their lives.
  Whether through costly and ineffective Federal programs fraught with 
micro-managing mandates, business regulations that increase prices and 
cost jobs, environmental controls that forbid farmers to use their own 
land in a reasonable fashion, or workplace rules that forbid workers 
from saving fellow workers from danger, the people have had enough of 
Washington-knows-best programs.
  And I believe the people are right to be concerned about a government 
that considers everything in life to be a proper subject for Federal 
legislation. We are in danger in this country of instituting a kind of 
soft despotism that will crush our democratic liberty under the weight 
of well-intentioned but overzealous regulations and programs. Intended 
to serve the people, these laws may enslave them by taking away too 
much of their natural freedom of action.
  That is not the National Government that our Framers envisioned. 
Clearly there are areas where the Federal Government should intervene 
to protect people's health, safety and rights. But there must likewise 
be areas in which the Federal Government cannot intervene in regulating 
the peoples' lives.
  The Framers of our Constitution believed they had devised a system 
that would separate these areas from each other. They thought that one 
of the powerful limitations on the National Government would be the 
principle that the Congress could exercise only the limited, enumerated 
powers granted it by the people and set out in the Constitution.
  That principle was made clear in the original Constitution, which 
gave Congress not general legislative authority but only ``all 
legislative powers herein granted.'' And it was emphasized by the 
adoption of the 10th amendment in the Bill of Rights, which states that 
``The powers not delegated to the United States by the Constitution, 
nor prohibited by it to the States, are reserved to the States 
respectively, or to the people.''
  Until this last term the Supreme Court for decades had not struck 
down a law as outside Congress's powers. As a result many people 
claimed that the principle that Congress has only limited enumerated 
powers is a dead letter. But our everyday experience shows otherwise. 
Everybody knows that we do not turn to the National Government for help 
with most problems in our everyday lives. We turn to family members, 
friends, doctors, community or volunteer organizations, and churches; 
or to local government officials, such as school teachers, police men 
and women, and others.
  The 1994 congressional elections were in large measure about the size 
of government. And in my view, Mr. President, those elections made one 
thing very clear: The belief that our National Government should have 
only limited powers remains alive in the hearts of the people.
  The most important efforts of this Congress have been undertaken to 
respond to the people's demand for prompt and serious action to return 
the National Government to its proper functions.
  The budget that we have been debating for the past few days is the 
first in many years to take that responsibility very seriously.
  The regulatory reform legislation currently on the floor is similarly 
an effort to impose reasonable and meaningful restrictions on the 
interventions of regulatory bureaucracies in our lives.
  The proposals to abolish Cabinet Departments will likewise get the 
National Government out of areas where it does not belong.
  It is in this context that we should consider the Supreme Court's 
decision a few months ago in United States versus Lopez and the rather 
modest legislative proposals I am introducing today. In Lopez, the 
Supreme Court for the first time in 60 years struck down an act of 
Congress as exceeding the powers granted it in the Constitution. The 
Court ruled that a Federal law about guns in schools was beyond 
Congress' powers because its connection to commerce was too remote.
  Now I think there are few higher priorities than reversing the 
accelerating decline of our schools into armed camps. But, not 
surprisingly, so do the States, which is why almost all of them already 
have laws addressing this problem.
 
[[Page S 10148]]

  Thus this important case is not about whether we should have guns in 
schools, but about whether policing the schools is principally the 
responsibility of parents, local governments and States, or the 
responsibility of Congress. The Court correctly found that the Framers 
did not assign us that responsibility--which is just as well, since I 
have no idea how we could possibly be in a position to figure out what 
is needed in every locality in the country.
  The Court's opinion does signal something of a change in approach by 
the Court to issues of this type. But it is always dangerous to read 
too much into an individual Supreme Court decision. Moreover, the Court 
did not give much indication, other than something of a change in 
attitude, about how it would be approaching future cases.
  I do not think we should be disappointed about this. After all, we in 
Congress's new majority should not leave it to the Supreme Court to do 
all of the thinking on this subject. The courts, Congress, and the 
President working together expanded government to its present 
dimensions. A similar cooperative effort by all three branches will 
likely be needed to re-establish our central government's status as a 
government of limited powers.
  This will be no easy task. But it is our duty to make limited 
government as much of a reality in the lives of Americans and American 
culture 30 years from now as the notion of inexorable expansion was 
until Ronald Reagan's election as President and the election of the 
current Congress.
  We have begun the difficult task of restoring ordered liberty in a 
number of ways in this Congress. Our efforts toward a balanced budget 
promise to return our Government to fiscal responsibility; to make us 
recognize our duty to pay our bills and refrain from burdening our 
children with massive debts.
  Our regulatory reform measures promise to rein in government agencies 
by forcing them to conduct real cost-benefit analyses, based on sound 
science. In this way regulation will be reduced and limited to those 
that actually will promote the public good.
  Our steps toward elimination of unnecessary Cabinet Departments 
promise to reduce government's interference with our daily lives. By 
eliminating unneeded Departments we will eliminate bureaucrats' drive 
to justify their jobs by finding new areas to regulate.
  I do not for a minute equate the proposals I am introducing today 
with these other efforts. I do believe however, that a requirement that 
we include a statement of what power, granted it by the Constitution, 
Congress is using in enacting every piece of legislation, will play a 
modest role in assisting our ongoing reexamination of the role and 
limits of the National Government.
  This requirement will perform three important functions.
  First, it will encourage us to pause and reflect about where the law 
we are considering enacting fits within the constitutional allocation 
of powers between the Federal Government and the States.
  As Justices Kennedy and O'Connor noted in their concurrence in Lopez, 
that is one of our important responsibilities:

       It would be mistaken and mischievous for the political 
     branches to forget that the sworn obligation to preserve and 
     protect the Constitution in maintaining the federal balance 
     is their own in the first and primary instance.
  A statement of constitutional authority also will put Congress' view 
of its constitutional authority on the record for the people to judge. 
This will spur further useful reflection on our part and open up the 
possibility of conversation with the people on the subject of Federal 
powers.
  Finally, such a statement also will help the courts evaluate the 
legislation's constitutionality. Legislation that falls within our 
enumerated powers will more likely be upheld if it contains an explicit 
statement of its constitutional authority. As important, we will be 
less likely to allow laws or regulations that overstep proper 
constitutional bounds to pass out of this Chamber.
  In this way we will protect the liberties of our people, the 
prerogatives of our States and local communities, and the structure of 
limited government bequeathed to us by our Founders. We will, then, 
defend that constitutional structure designed to foster virtue in the 
people, discipline in the government and peace and prosperity in the 
nation.
  I urge your support of this legislation.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1039

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SPECIFICATION OF CONSTITUTIONAL AUTHORITY FOR 
                   ENACTMENT OF LAW.

       (a) Constitutional Authority.--This Act is enacted pursuant 
     to the power granted Congress under Article I, section 8, 
     clause 18, of the United States Constitution.
       (b) In General.--Chapter 2 of title 1, United States Code, 
     is amended by inserting after section 102 the following new 
     section:

     ``Sec. 102a. Constitutional authority clause

       ``(a) A constitutional authority clause shall follow the 
     enacting clause of any Act of Congress or the resolving 
     clause of any joint resolution. The constitutional authority 
     clause shall be in the following form (with appropriate 
     modifications and appropriate matter inserted in the blanks):
       `` `This Act (or resolution) is enacted pursuant to the 
     power(s) granted to the Congress under Article(s)        
     section(s)       , clause(s)        of the United States 
     Constitution.' ''
       ``(b) A similar clause shall precede the first title, 
     section, subsection or paragraph, and each following title, 
     section, subsection or paragraph to the extent the later 
     title, section, subsection or paragraph relies on a different 
     article, section, or clause of the Constitution from the one 
     pursuant to which the first title, section, subsection or 
     paragraph is enacted.''.
       (c) Technical and Conforming Amendment.--The table of 
     sections for chapter 2 of title 1, United States Code, is 
     amended by inserting after the item relating to section 102 
     the following:

``102a. Constitutional authority clause.''.
                                 ______

      By Mr. STEVENS (for himself, Mr. Inouye, Mr. Murkowski, Mr. 
        Simon, Mr. Inhofe, Mr. Dodd, Mr. Simpson, Mr. Akaka, Mr. 
        Santorum, and Mrs. Feinstein):
  S. 1043. A bill to amend the Earthquake Hazards Reduction Act of 1977 
to provide for an expanded Federal program of hazard mitigation, 
relief, and insurance against the risk of catastrophic natural 
disasters, such as hurricanes, earthquakes, and volcanic eruptions, and 
for other purposes; to the Committee on Commerce, Science, and 
Transportation.
                    NATURAL DISASTER PROTECTION ACT

  Mr. STEVENS. Mr. President, Alaska has three times more earthquakes 
than California. Since 1938, Alaska has had at least nine quakes of 7.4 
magnitude or more on the Richter scale. Alaska's 1965 Good Friday 
earthquake was one of the world's most powerful, at the magnitude of 
9.2 on the Richter scale.
  Senator Inouye and I have been studying this matter. We find that 
over the last two decades Federal taxpayers have paid out over $140 
billion in aid following earthquakes.
  Before 1989, the United States had never experienced a disaster 
costing more than $1 billion in insured losses. Since then, we have had 
nine disasters that have cost more than $1 billion.
  Today, Senator Inouye and I introduced a bill to try and reduce the 
cost to the Federal Government of earthquakes, hurricanes, and floods.
  First, the bill will reduce Federal costs by expanding the use and 
availability of private insurance. The bill also disqualifies those who 
do not buy private insurance from long-term Federal disaster 
assistance.
  Second, the bill will provide incentives to improve the ability of 
buildings to withstand disasters and, in doing so, will reduce the risk 
of injury to people. As one expert put it: ``It is buildings, not 
earthquakes, that kill people.''
  And, third, the bill will create a national, privately funded 
catastrophic insurance pool to shoulder the risk of very large 
disasters.
  Mr. President, the more private insurance individuals buy, the less 
disaster relief Federal taxpayers must pay. For instance, if this bill 
had been in place before Hurricane Andrew and California's Northridge 
earthquake, it would have reduced Federal costs by at least $5 billion.
  Not only will the bill help reduce the costs to the Federal taxpayer, 
it will 

[[Page S 10149]]
make insurance more available for those in States with higher risk of 
disaster.
  Alaska has three times more quakes than California. Since 1938, 
Alaska has had at least nine quakes of 7.4 magnitude or more on the 
Richter scale. Alaska's 1964 Good Friday quake was one of the world's 
most powerful at a magnitude of 9.2. I lived through that quake. The 
earth shook for 7 minutes. Most quakes last under 2 minutes. For 
example, California's Northridge quake lasted about 30 seconds.
  The Alaska quake destroyed the economic bases of entire communities. 
Whole fishing fleets, harbors, and canneries were lost. The shaking 
generated catastrophic tidal waves. Petroleum storage tanks ruptured 
and the contents caught fire. Burning oil ran into the bay and was 
carried to the waterfront by the large waves. These waves of fire 
destroyed docks, piers, and small-boat harbors. The effects of the 1964 
quake were felt as far away as San Diego and Hawaii. Total property 
damage was $311 million in 1964 dollars. Experts predict that a quake 
this size in the lower 48 would kill thousands and cost up to $100 
billion.
  About 100 miles off Alaska's coast and 10,000 feet below the sea, the 
ocean floor is moving eastward. This drifting floor meets the North 
American seabed at what is called the Yakataga seismic gap. Scientists 
predict that during our lifetimes, it is likely the seabed will move, 
generating a major quake and a huge tsunami.
  Today, seismic instruments detect between 90 and 120 earthquakes per 
week in Alaska. Of these, 1 to 3 quakes per week can be felt by people. 
In May, the citizens of Anchorage awoke in the middle of the night to 
an earthquake that measured 5.5 on the Richter scale.
  It is a mistake, however, to believe that the threat of a major quake 
is confined to California or Alaska.
  Some of America's largest earthquakes have occurred in Tennessee and 
Missouri along the New Madrid fault. In the last century, four quakes, 
measuring up to 8.6 on the Richter Scale, struck that area. The shaking 
rang church bells in Boston 1,000 miles away.
  Should a quake of that size hit this area today, FEMA estimates the 
damage at $52 billion. One expert noted that the impact of a major 
quake in the central United States. today would only be exceeded in 
devastation by a general nuclear attack on the Central Mississippi 
Valley.
  This bill is also important for areas prone to hurricanes and floods.
  Only 20 percent of the homes in flood plains today have the flood 
insurance required by current law.
  Damage in Florida from Hurricane Andrew was 30 to 40 percent higher 
because building codes were not properly enforced. The bill will 
increase the use of private insurance coverage for hurricanes and 
floods. It will also improve the structures we live in to reduce damage 
from these hazards before they occur.
  I hope we can move quickly on this bill this year.
  Thank you, Mr. President.
  Mr. INOUYE. Mr. President, I am pleased to announce the 
reintroduction of the Natural Disaster Protection Act [NDPA] in an 
effort to create a comprehensive Federal strategy for disaster 
preparation and planning. I hope that many of my colleagues will join 
Senator Stevens and me as cosponsors, so that we can ensure that this 
bill is considered by the full Senate at the earliest possible 
opportunity. Time, however, is working against us.
  Since our original legislation was introduced in the last Congress, 
we have experienced time and time again why the bill is so urgently 
needed. The earthquake which struck Los Angeles in January 1994 is now 
rated the second most costly disaster in United States history, adding 
more than $11 billion to the Federal debt and saddling its victims, 
most of whom were uninsured, with even greater losses. The tragic 
earthquake in Kobe, Japan, and the recent California and Midwest floods 
are just two further examples of nature's unpredictability.
  This issue is very important to me particularly since Hurricane Iniki 
struck my State in 1992, causing several billion dollars in damage and 
widespread economic disruption. Unfortunately, there are millions of 
Americans who know firsthand about the destruction and suffering caused 
by these terrible events.
  What troubles me most is that the worst could still be ahead of us. 
The U.S. Weather Service predicts that this year's hurricane season, 
which began a few weeks ago, could be worse than 1992, the year of 
Hurricanes Andrew and Iniki. I am deeply concerned that we are not 
prepared for another major natural disaster. That is why we are 
renewing our effort to enact major disaster policy reform.
  We simply must insist that all segments of Government, not to mention 
insurers and homeowners, are doing all that is prudently possible to 
prevent losses before they occur and to reduce the long term costs of 
disasters to Federal taxpayers. We need better enforcement of building 
codes, more thorough mitigation plans, and a funding mechanism that is 
both predictable and adequate. We must make sure our citizens are 
protected with adequate insurance so that those at greatest risk from 
hurricanes, earthquakes, and floods do not end up totally dependent on 
disaster relief. We must also be certain that such an insurance system 
is capable of withstanding the worst-possible catastrophes. The NDPA 
accomplishes these aims and does so with a program that is totally 
self-funding.
  This bill advocates private insurance as an alternative to costly 
Federal relief. It also creates a national disaster fund to assure the 
availability of private insurance before and after a major disaster and 
promotes better building practices and increased planning for 
catastrophes. This legislation would encourage States and local 
governments to adopt building codes and the type of mitigation 
strategies I mentioned, and it would provide them with funds derived 
from private industry, not the Federal Government, to implement those 
measures. The bill would substantially increase participation in 
insurance programs for the perils homeowners face and provide for a 
Federal backstop of the private insurance market in the event of a 
mega-catastrophe which could result in extreme devastation and economic 
disruption.
  The new bill improves upon last year's legislation by relying 
primarily on the private sector to address insurance availability 
issues and by modifying Federal disaster assistance programs to reduce 
the share of disaster relief borne by U.S. taxpayers.
  The NDPA enjoys the support of numerous State and local government 
officials, and organizations representing homeowners, consumers, 
emergency management and response personnel, realtors, lenders, and the 
insurance industry. It is clear that Members of Congress are beginning 
to recognize the problem we face in dealing with these catastrophic 
events and want to do something about it.
  Must we wait until another disaster on the scale of the Japanese 
earthquake strikes here in America before we do something? We are 
committed to bringing this important matter before the entire Senate at 
the earliest possible opportunity. We need to act now, before it is too 
late. Accordingly, I urge my colleagues to join Senator Stevens and me 
in cosponsoring this bill.
                                 ______

      By Mrs. KASSEBAUM (for herself, Mr. Kennedy, Mr. Jeffords, Mr. 
        Pell, and Mr. Simon):
  S. 1044. A bill to amend title III of the Public Health Service Act 
to consolidate and reauthorize provisions relating to health centers, 
and for other purposes; to the Committee on Labor and Human Resources.


              THE HEALTH CENTERS CONSOLIDATION ACT OF 1995

  Mrs. KASSEBAUM. Mr. President, I am pleased to introduce with 
Senators Kennedy, Jeffords, Pell, and Simon, the Health Centers 
Consolidation Act of 1995. This legislation consolidates and 
reauthorizes the community and migrant health center programs, the 
health care for the homeless program and the health services for 
residents of public housing program as one streamlined, flexible 
program authority.
  These programs play a vital role in ensuring access to health care 
services for millions of medically-underserved Americans. Consolidating 
the current, often duplicative authorities will simplify grant 
application and recordkeeping requirements, freeing up time and money 
better spent on expanding 

[[Page S 10150]]
access to care. The legislation provides the enhanced program 
flexibility necessary to respond to the unique challenges of providing 
health care services to medically underserved populations.
  This legislation also substantially strengthens the ability of health 
centers to respond to our nation's changing health care environment 
through the development of provider networks and health plans to 
improve access to better-coordinated, more cost-effective services. The 
ability to form networks and health plans, including managed care 
plans, is particularly important as states are increasingly moving 
their Medicaid beneficiaries into managed care plans.
  Finally, the Health Centers Consolidation Act responds to the unique 
challenges of delivering health care services in rural areas. The 
legislation authorizes and focuses the current rural health outreach 
grant program on the formation of provider networks, including 
telemedicine networks, to strengthen the rural health care delivery 
system, encourage the consolidation and coordination of services on a 
local and regional basis, and bring access to specialized services to 
remote rural areas.
                                 ______

      By Mr. ABRAHAM (for himself and Mr. Coats):
  S. 1045. A bill to amend the National Foundation on the Arts and the 
Humanities Act of 1965, the Museum Services Act, and the Arts and 
Artifacts Indemnity Act to privatize the National Foundation on the 
Arts and the Humanities and to transfer certain related functions, and 
for other purposes; to the Committee on Labor and Human Resources.


                   THE NEA AND NEH PRIVATIZATION ACT
  Mr. ABRAHAM. Mr. President, today I introduce my bill to privatize 
the National Foundation for the Arts and the Humanities. I have sent a 
detailed memo to all my colleagues regarding this bill, which I would 
like to enter into the Record. The memo sets forth my reasons for 
designing a privatization plan, how it will work, and why I believe it 
will work.
  Here's a quick summary: Controversy and anger have swirled around the 
Endowments virtually since their creation. On one side we have 
constituents who are upset that their tax dollars are subsidizing work 
that they find aggressively offensive. This includes the work of 
Mapplethorpe, funded by the NEA, as well as the National History 
Standards, funded by the NEH. On the other side we have artists and 
writers who believe the Government is engaging in censorship when their 
grant proposals are denied or their projects are edited.
  The Endowments' troubles are not recent phenomena and they show no 
sign of dissipating anytime soon.
  If we cannot re-create the NEA and NEH in a way that gets the 
Government out of the vortex of this maelstrom, at some point, the NEA 
or the NEH are going to fund one more project so objectionable that the 
American people are going to take the matter out of our hands. And then 
the endowments are going to be re-created right out of existence.
  My bill provides for the gradual privatization of the endowments over 
a 5-year period. It will reduce the budgets of the Endowments by 20 
percent each year during that period, and also specifically allows the 
Endowments to use a portion of their budgets for the express purpose of 
promoting private fundraising activities during the phase-out period. 
At the end of the 5 years, the Endowment's charter with the Federal 
Government will end. Finally, as a further inducement to private-
fundraising, my bill includes a sense-of-the-Senate resolution 
endorsing changes in the Tax Code to spur charitable giving to the arts 
and humanities.
  The ``Endowments''--or, as I envision, the ``American Endowment for 
the Arts and Humanities''--will then be free of Government control 
either as censors or as tax collectors for controversial artists.
  I am confident that private national foundations in support of the 
arts and humanities can succeed. The people we have heard from in 
support of the NEA and NEH--art enthusiasts, philanthropists, actors, 
and singers--will want to contribute to private arts and humanities 
foundations. Assuming their belief in a national organization 
supporting the arts and humanities is as ardent as they claim when they 
lobby Congress, there will be a wellspring of support for private 
endowments.
  I ask unanimous consent that my ``Dear Colleague'' be printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                  U.S. Senate,

                                    Washington, DC, July 14, 1995.
     Re Privatizing the NEA and NEH: The right way to get 
         government out of arts.

       Dear Colleague: I invite you to cosponsor my legislation to 
     privatize the National Endowment for the Arts and the 
     National Endowment for the Humanities.
       It is beyond dispute that the arts and humanities are of 
     unparalleled importance to a civilized nation. Unfortunately, 
     the federal government's current method of ``supporting'' the 
     arts is neither substantial nor fair. Amid all the critical 
     accounts on both sides of the debate over the Endowments, it 
     seems to have been lost that these agencies actually 
     contributed surprisingly little to the arts or the humanities 
     in this country.
       However sincere is Mary Chapin Carpenter's suggestion that 
     the ``Arts are as important as school lunches . . .,'' a 
     majority of citizens simply do not agree with this view. In a 
     time of extreme pressures on the federal budget, the NEA and 
     NEH's appropriations simply cannot be a priority expenditure. 
     For this reason alone (putting the Mapplethorpe and the 
     national history standards controversies et. al. aside) there 
     needs to be a plan to reduce the taxpayer's role in these 
     national endowments.
       This attached memorandum outlines the Abraham legislation 
     to privatize the national endowments for the arts and 
     humanities.
       If you would like to cosponsor this legislation, please 
     contact Ann Coulter at 4-3807.
           Sincerely,
     Spencer Abraham.
                                                                    ____

 I. The National Endowment For The Arts And The National Endowment For 
                    The Humanities: Current Problems


 A. the national endowment for the arts and the national endowment for 
              the humanities are organizations in trouble

       It is clear that the NEA and NEH are in trouble. They are 
     in trouble because many people question the need to spend the 
     taxpayers' money on such non-vital programs. Further, in this 
     era of budget austerity where funding for many social 
     programs is being significantly reduced, it is difficult to 
     rationalize full funding for the NEA and NEH. Finally, the 
     activities of the NEA and NEH run against the sensitivities 
     of many American taxpayers who are opposed to seeing their 
     dollars fund projects that they find objectionable. It is 
     this latter concern that has come into focus in recent weeks.
       Shortly before the first scheduled Labor Committee mark-up 
     of the NEA and NEH, there were several critical news accounts 
     of the summer schedule at ``Highways,'' an NEA-funded 
     performance art center in California. The theater's brochure 
     listed acts intended ``to push the right wing into spiritual 
     contortions.'' Performances included ``Dyke Night,'' 
     described as ``our series of hot nights with hot dykes,'' and 
     ``Boys `R' Us,'' similarly billed as ``our continuing series 
     of hot summer nights with hot fags.'' Another number, titled 
     ``Not For Republicans,'' included a comedienne's discourse on 
     ``sex with Newt Gingrich's mother.''
       The NEA's response to public criticism of this NEA grant? 
     ``[Highways] is consistent with the Endowment's 
     Congressionally-mandated mission of fostering `mutual respect 
     for the diverse beliefs and values of all persons and 
     groups,' '' wrote the current NEA Chairperson, Jane 
     Alexander, in a letter to various Senators dated June 26, 
     1995. Alexander went on to describe her alarm, not at 
     Highways' ``Ecco Lesbo-Ecco Homo'' summer program, but at 
     criticisms leveled at these NEA-funded performances: ``I am 
     concerned that once again the Endowment is being criticized 
     for supporting an institution that serves its community 
     well--this time, one that supports the work of homosexual and 
     minority artists . . . .'' She dismissed criticisms of the 
     ``sex with Newt Gingrich's mother'' routine as being 
     politically motivated: ``I am also concerned that we are 
     being criticized for Highways having presented comedienne 
     Marga Gomez because her stand-up routine pokes fun at the 
     current Congressional leadership.''
       While much of the public objects to taxpayer-supported 
     performances like these, that is not the only quarter from 
     which opposition to federal funding of the NEA has come. The 
     Progressive Policy Institute, for example, (an offshoot of 
     the Democratic Leadership Council) stated in its 1993 
     ``Mandate for Change'' that there should be ``no federal 
     role'' in the arts. In a Lou Harris poll taken in January, 
     1995, the NEA was at the top of the list of federal programs 
     Americans would like abolished--ahead of the Department of 
     Housing and Urban Development, Public Broadcasting Service, 
     and the Energy Department. (43% of respondents wanted the 
     Endowment eliminated.)
       Long before the ``Ecco Lesbo-Ecco Homo'' summer program at 
     Highways, there was Mapplethorpe and ``Piss Christ'' and the 
     performance art of Karen Finley and Ron Athey, to name just a 
     few of the more notorious NEA-funded projects. Provocations 
     like these may be a small percentage overall, 

[[Page S 10151]]
     but each such sensational affront adds to the growing list of people 
     irrevocably opposed to the Endowment. Citizens who are 
     offended by having their tax revenues supporting the likes of 
     Mapplethorpe do not forget that offense just because the 
     Endowment manages to avoid funding another offensive project 
     for a short while. And Chairman Alexander's reaction to this 
     latest public outcry demonstrates pretty clearly that the NEA 
     is out of touch with the public's concerns.
       The NEH is no less out of touch with the public whose tax 
     dollars it consumes. Through less outrageous--and less 
     suitable for sound-bites--the NEH's projects may well have a 
     longer lasting impact than the NEA's, because they infect 
     American education rather than only its art museums and 
     theaters. The national history standards released last 
     January by a group at UCLA were the product of an NEH grant. 
     Though intended to improve the education of all United States 
     students, so objectionable were the standards that, before 
     the ink was dry, 99 Senators voted in favor of a Sense of the 
     Senate resolution denouncing the standards.
       Perhaps there are still enough votes in the Congress to 
     save the NEA and the NEH in their present form for a few more 
     years. But that will not end the disquietude and rancor 
     surrounding the agencies. And that will do nothing to prevent 
     any new NEA or NEH-funded affronts, each one adding to the 
     growing list of citizens opposed to the Endowments. Sooner or 
     later the Endowments are going to fund one more project so 
     offensive that the public will rise up and demand their 
     elimination. And then, there will be no time to assemble an 
     alternative mechanism to fund the arts and humanities on a 
     national level. Many of our States have arts and humanities 
     institutions that are not going to be able to survive a 
     withdrawal of federal funds cold turkey.
       We shirk our obligation to the arts and humanities as well 
     as our obligation to the people if we refuse to acknowledge 
     that these are federal programs teetering toward abolition. 
     Now is the time to reconfigure the agencies in a way that is 
     built to last. The following proposal does just that. The 
     proposed bill combines a gradual phase-out of direct federal 
     funding with inducements to privatization, such as earmarking 
     a portion of the funds for private fundraising and proposing 
     additional tax incentives for charitable gifts to the arts 
     and humanities.
                     b. halfway measures won't work

       One thing that the history of the endowments proves is that 
     no matter who runs the organizations, maddening government 
     grants to the arts will continue to be made. Virtually since 
     the Endowment's first grant in 1965, the organization has 
     inspired opposition. In 1967, Congressional hearings were 
     held in response to public outcry over NEA-funded projects. 
     More recently, controversies in the late eighties begot not 
     quietude, but the Ron Athey performance \1\ in 1994--long 
     after ``Piss Christ.'' Endowment supporters are whistling 
     past the Endowments' graveyards if they operate on the 
     assumption that the affronts can be entirely eliminated with 
     a series of statutory restrictions. There will be more 
     controversies. Those interested in the NEA have considered a 
     variety of modifications to the Endowment's granting 
     authority intended to circumvent the problems. Across the 
     board and without question, these are doomed to failure.
     \1\ Athey's performance consisted of slicing the back of 
     another man with razors, blotting the blood, and sending the 
     bloodied towels over audience members' heads. This caused 
     some consternation among the audience members, many of whom 
     fled the room. Athey and, it was assumed, his artistic 
     companion, are HIV-positive.
---------------------------------------------------------------------------
       1. Eliminating Individual Grants, For Example, Will Not 
     Stem Offensive Projects. A number of the more notorious 
     Endowment-supported projects have, in fact, been made 
     possible by Endowment grants to museums and other 
     institutions, rather than directly to the offending artists 
     themselves. These include NEA grants to the Walker Art Center 
     in Minneapolis and to P.S. 122, a theater in New York City, 
     both of which used NEA grant money to fund Ron Athey's 
     performance. In addition, the Whitney Museum of Art in New 
     York used a portion of its $200,000 NEA grant to sponsor 
     ``Abject Art: Repulsion and Desire in Art,'' which exhibited 
     excrement, dead animals, and similar objects to make the 
     artistic statement of: degrading the purity of an art museum. 
     These exhibits and others will not be affected by a ban on 
     individual grants.
       2. Block Granting Endowment Money To The States Also Fails 
     To Prevent The Use Of Federal Dollars On Dubious Or 
     Potentially Objectionable Art. Indeed, many of the 
     institutions which have taken part in controversial projects 
     are also recipients of monies allocated by state arts 
     councils. Thus, for example, both the Walker and Whitney 
     Museums have been the beneficiaries of state and municipal 
     arts funding, the latter receiving $134,952 from the New York 
     State government and $5,000 from the city government in 1994. 
     Since New York will undoubtedly continue to receive a 
     disproportionate amount of Endowment money, taxpayers in 
     Tennessee, Ohio, and Illinois will essentially be subsidizing 
     art in New York. There is no reason to think New York State 
     arts panels will suddenly begin to use Endowment money only 
     to fund that which will play in Peoria.
       3. An Across-The-Board Reduction In The NEA and NEH's 
     Budgets Doesn't Make Sense. Some have suggested punishing the 
     NEA and NEH for their irresponsible funding projects by 
     cutting the Endowments' budgets by some arbitrary percentage. 
     But the NEA and NEH are either beneficial in their current 
     structures or they aren't. The better solution is to attempt 
     to preserve both a national arts foundation and a national 
     humanities foundation at appropriate funding levels, but 
     without requiring the taxpayers' involuntary contributions.
       4. Direct Federal Funding Of The Arts Forces The Federal 
     Government Into The Thankless Role Of Playing Either Censor 
     On One Hand Or Obscenity-Promoter On The Other. Since the 
     actual monetary value of NEA funding is virtually negligible 
     compared to private giving to the arts, the principal 
     argument for Endowment grants is their tremendous influence. 
     This, however, is a risky role. On one side we have 
     constituents who are upset that its tax dollars are 
     subsidizing work that they find aggressively offensive. And 
     it bears repeating that since 1967--two years after the NEA's 
     creation--its grants have been inciting controversy.
       On the other side we have artists who believe the 
     government is engaging in censorship. One recipient of NEA 
     grants, Leonard Koscianski, has written that the NEA 
     ``excludes whole categories of art . . . from serious 
     consideration,'' citing watercolors as one of the categories 
     that has received very few NEA grants. Moreover, the NEA was 
     recently forced to settle a case for $252,000 brought by four 
     performance artists--Karen Finley, John Fleck, Holly Hughes, 
     and Tim Miller--who claimed they had been denied Endowment 
     grants on political grounds. Many other artists will not even 
     apply for an NEA grant because of the paperwork involved. 
     Reed Zitting, an instructor of theater arts and design at the 
     Interlochen School at Michigan, has observed that the 
     bureaucratic necessities of governments are antithetical to 
     the creative processes of art.
       5. The More The Congress Tries To Respond To Taxpayer 
     Complaints About Their Money Funding Obscene Art--By Imposing 
     A Variety Of Restrictions On Endowment Grants--The More 
     Artists Will Have Legitimate Grounds To Complain About 
     Federal Government Censorship. Rules such as requiring 
     theaters to submit a complete and immutable schedule of the 
     entire season's events are unworkable, excessive and 
     intrusive. Another proposal has been to jettison seasonal 
     grants altogether. While that measure would provide the 
     federal government with a needed measure of control over 
     government grant money, it would also deprive an important 
     segment of the arts community of any grant money whatsoever. 
     It is simply impossible for the federal government to design 
     an organization to fund the arts staffed with federal 
     bureaucrats that does not in some sense engage in censorship 
     through its regulation. It doesn't help that the NEA has a 
     tin ear with respect to the public's concerns with projects 
     such as Highways' ``Ecco Lesbo-Ecco Homo'' summer program. 
     Furthermore, the much vaunted power of an NEA grant places 
     the federal government in a highly questionable role: Why 
     should the federal government be the arbiter of what is and 
     is not art and which artists will be famously successful and 
     which will wait tables?
  c. the federal government's direct funding of the nea and neh also 
subjects it to claims of discrimination by certain states and areas of 
                              the country

       Some states' citizens are clearly short-changed by the 
     federal government's current distribution of NEA and NEH 
     grant money. In 1994, for example, New York City alone 
     received about 15% of the NEA's total budget, about 10-20 
     times the amount the NEA gave certain states. Further, many 
     believe that rural areas are short changed by the Endowments. 
     Privately-funded Endowments remove the government as the 
     decisionmaker--and the federal taxpayer as the funding 
     source--from a selection process that inevitably strikes some 
     as unfair.

                  II. How the Abraham Bill Would Work


       a. moving toward privately funded endowments for the arts

       Private Endowments awarding grantees money from private 
     donors will preserve the good things about the Endowment such 
     as the imprimatur of a national organization and the 
     financial support for the arts and humanities. Meanwhile, 
     though, the government will be out of the business of using 
     taxpayer money either to support obscenity or to censor 
     artists.
       The Abraham bill would reduce the budgets of the Endowments 
     gradually over a five year period and also would allow the 
     Endowments to use a portion of their budgets for the express 
     purpose of promoting private fundraising activities during 
     the phase-out period.
       At the end of five years, the Endowments' charter with the 
     federal government would end. The ``Endowments''--or as we 
     suggest, ``the American Arts and Humanities Endowment''--
     would then be free of government bureaucrats either as 
     censors or as tax collectors for the arts. The newly free 
     arts and humanities organizations could reconfigure 
     themselves as a single tax deductible organization, as two 
     separate organizations, or in any manner their private boards 
     of directors deem desirable.


     b. a progressive decrease in the nea and neh's federal budgets

       Using the 1995 fiscal year appropriations as the base line, 
     the Endowment's budgets 

[[Page S 10152]]
     would be reduced by twenty percent each year over a five year period. 
     This approach permits a gradual, orderly transition from 
     government-sponsored organs to private entities.
       1. A Specific Set-Aside For Fundraising. In addition to 
     these absolute decreases, the Endowments will be authorized 
     to use an amount of their appropriations equal to 10% of the 
     cut amount for fundraising purposes alone. This amounts to 2% 
     of each Endowment's 1995 appropriation the first year, 4% the 
     second year, and so on. Thus, for example, in the first year 
     the NEH will be permitted over $3.5 million (2% of $175 
     million) federal dollars for the sole purpose of encouraging 
     private fundraising on behalf of the humanities endowment.
       2. Tax Incentives For Donations To The Arts and Humanities. 
     Finally, the bill would include a Sense-of-the-Senate 
     resolution proposing a return to tax deductions for 
     nonitemizers, elimination of the cap on deductions for 
     charitable contributions, and other tax benefits for 
     charitable donations. Since amending the Tax Code to 
     encourage charitable giving is not within the purview of the 
     Labor Committee, the Sense-of-the-Senate resolution appended 
     to the Endowment Privatization bill would simply make the 
     point that the Committee favors creating additional tax 
     incentives for charitable giving to the arts and humanities 
     (and all 501(c)(3)s), in lieu of direct government funding of 
     the NEA and NEH.

                   III. The Abraham Proposal Can Work


a. although raising money is always hard, the nea and neh budgets are a 
    very small part of the nation's total arts and humanities budget

       Some have expressed doubt that private donations can take 
     up the slack in government funding. It bears mentioning at 
     the outset then, that the NEA and NEH do not, in fact, 
     constitute a significant proportion of funding for the arts 
     and humanities in this country. It is difficult to isolate 
     ``the humanities'' for calculating private donations because 
     it encompasses such a wide range of prospective 
     philanthropies--museums, colleges and universities, music 
     academics, writing workshops, to name a few. Private 
     donations to the arts, however, are easily quantifiable.
       In 1993, private giving to the arts totalled $9.57 billion. 
     Meanwhile, the NEA's total budget for 1995 is $167.4 million. 
     Thus, private giving to the arts in this country dwarfs the 
     NEA's contribution 50 times over. Not only does the NEA's 
     total annual funding of the arts amount to less than 1.7% of 
     private donations to the arts, but it is also less than the 
     states' contributions to the arts. In 1994, state 
     legislatures gave $265 million to the arts. Perhaps the more 
     striking comparison is to the annual operating budget of the 
     Lincoln Center for the Performing Arts in New York City. Its 
     budget for 1995 is almost twice that of the NEA's: $316 
     million. Moreover, looked at from the perspective of the 
     recipient arts organization, the NEA's contributions are 
     still relatively insignificant. Thus, for example, the 
     sources of income for all the country's nonprofit theaters 
     breaks down as follows:
B. LEAVING THE TAXPAYER OUT OF THE EQUATION DOES NOT REDUCE A NATIONAL 
                         ENDOWMENT'S PRESTIGE.

       Since the actual monetary value of arts and humanities 
     funding provided by the NEA and NEH is very small compared to 
     private giving to the arts, the principal argument for NEA 
     and NEH grants is their glamour--the imprimatur of excellence 
     an Endowment grant provides. According to NEA Chairman Jane 
     Alexander, ``[T]he prestige of getting a grant from the 
     Endowment is often critical in leveraging legislatures to 
     provide additional funding.'' The prestige associated with a 
     grant from a national arts organization will not be lost 
     under a privately-funded Endowment. Indeed, the glamour of an 
     NEA grant will most likely expand because of the private 
     interests involved: Corporate sponsors will want to publicize 
     the results of their philanthropy--as will the privately-
     funded Endowment itself, in order to attract more private 
     dollars.


          C. WAYS TO PRIVATELY FUND A NATIONAL ENDOWMENT . . .

       1. The Federal Government Can Still Play An Important Role. 
     There are several ways the federal government can help 
     private endowments succeed without direct contributions. 
     These include:
       (a.) Tax Code Revisions Designed To Generally Stimulate 
     Charitable Giving Or Specifically Aid The New Foundations. A 
     variety of possible tax code changes could greatly enhance 
     private giving to the new foundations. Possible approaches 
     are:
       Reinstituting tax deductions for nonitemizers, as was 
     permitted until the Tax Reform Act of 1986;
       Elimination of the caps on charitable deductions; and
       Instituting a tax credit of $50--$100 for charitable 
     donations to the newly-created private endowments.
       (b.) Government Leaders' Involvement In National 
     Fundraising Efforts. Even if the government is not directly 
     funding the NEA and NEH, government officials can play a role 
     in helping the new endowments succeed. For example, a series 
     of Washington fundraising events featuring the President or 
     other highranking government officials can serve as a spur to 
     donations by major donors. Another option would be 
     fundraising appeal letters from prominent arts supporters in 
     government. Finally, government leaders who back the arts can 
     play a very helpful role recruiting major benefactors for the 
     Endowments.
       2. Other Private Fundraising Efforts Have Unlimited 
     Potential. Besides the things the government can do to 
     support private Endowments, there is a role for private 
     organizations, individuals and corporations as well. Many 
     organizations will be able to raise money for a private NEA 
     and NEH through a wide array of activities. It also includes 
     several innovative ideas devised as potential unique sources 
     of funding for the endowments by those seeking a solution to 
     this situation.
       Below are some ideas to be explored. This list is by no 
     means exclusive but it nonetheless illustrates the private 
     fundraising opportunities that have been used by other 
     charitable causes and which could be employed effectively for 
     the benefit of a private arts and humanities national 
     endowment.
       (a.) Fundraising Events.--The actors, artists and musicians 
     who have publicly declared their avid commitment to the NEA 
     and NEH could conduct special concerts or benefits to support 
     the private endowments. Individual entertainers as well as 
     groups of entertainers routinely hold such benefits for 
     various charities and causes. Such star-supported events 
     certainly seem plausible when the beneficiaries are the arts 
     and
      humanities. Moreover, now that cable television and pay-per-
     view has penetrated such a substantial percentage of 
     America's households, the potential income from a 
     televised pay-per-view benefit concert featuring some of 
     the greats who have campaigned on behalf of the NEA (Garth 
     Brooks, Kenny G., Michael Bolton, etc.) is phenomenal. 
     Consider this: pay-per-view sports events such as 
     Wrestlemania and heavyweight championship boxing matches 
     bring in receipts of over $50 million.
       (b.) Special Event Revenues.--Each year, during various 
     televised award ceremonies celebrating the arts such as the 
     Oscars, Emmys, Tonys, and so on, one hears a great deal of 
     support expressed for the NEA and NEH. These programs, which 
     are built around the appearance of entertainers who 
     frequently use these opportunities on camera to promote 
     funding for the endowments, are hugely profitable and 
     generate sizeable revenues for the networks that broadcast 
     them. In light of this--the question is, why not let the 
     Endowments receive some of the profits from these shows? If 
     the artists and entities who make these shows feasible want 
     to help the endowments, these shows constitute a great 
     vehicle.
       As an alternative to the endowments receiving a share of 
     the profits from these programs, the artists who appear on 
     them and the academies who support such events could simply 
     turn the shows into pay-per-view programs from which the 
     endowments could receive virtually all of the net profits. 
     This year, for example, the Academy Awards show drew a world-
     wide audience of over 500 million. If only 5% of that 
     audience was still willing to pay to watch the Oscars in the 
     amount that households across America pay to watch a second-
     run movie on pay-per-view ($4.95 in the Washington metro 
     area) the Endowments could generate gross revenue of over 
     $100 million from the Oscars show alone! Add to that similar 
     revenues from such shows as the Emmy Awards, the Tony Awards, 
     the Country and Western Music Awards and the Grammys and 
     we're talking about total revenue greater than the current 
     funding for the NEA or the NEH.
       (c.) Other Collaborative Efforts.--In addition to benefit 
     concerts and awards programs, there are other collaborative 
     efforts through which those who care deeply about the arts--
     the artists themselves--can make privately funded endowments 
     work. The ``We Are The World'' recording is a good example of 
     the collaborative good that charitable causes can engender. 
     That recording brought together 45 music superstars to record 
     a single song; the resulting single, album, video, television 
     and radio specials, merchandise and associated enterprises 
     raised over $60 million for ``U.S.A. For Africa.'' In that so 
     many recording artists are supporters of the National Arts 
     and Humanities Endowments, private entities supporting the 
     arts and humanities would seem to be a natural beneficiary of 
     such collective philanthropy. Certainly, if the musicians who 
     have appeared before Congress to promote the Endowments (the 
     aforementioned Garth Brooks, Kenny G. Michael Bolton etc.) 
     were themselves to collaborate and recruit others for a 
     single recording each year or two, the private Endowments' 
     fundraising events would be hugely successful.
       (d.) Paybacks for Commercially Successful Grants/Events.--
     On occasion, the NEA and NEH have funded projects that become 
     great commercial successes, earning the grantee far more than 
     the amount of the original grant. When this happens, the 
     grantee could be required to reinvest some portion of the 
     proceeds back in the Endowment in return for the original 
     grant money. NEH-sponsored tourism events, for example, have 
     allowed grant recipients to reap financial benefits. 
     According to the NEH's own review, an endowment-sponsored 
     exhibit called ``The Age of Rubens'' at the Toledo Museum of 
     Art brought in approximately 226,000 visitors benefiting the 
     whole geographic region. Similarly, individual NEA and NEH 
     grantee who are able to bring their creative works to 
     lucrative markets like Broadway have some 

[[Page S 10153]]
     moral debt to make the catalyst of their success--NEA and NEH support--
     more widely available to other artists.
       (e.) Traditional Major Donor Fund Raising.--In addition to 
     the ideas listed above, the new private endowments would also 
     be the beneficiaries of traditional philanthropic efforts 
     that other major institutions receive. Certainly, a national 
     organization charged with supporting the nation's arts and 
     humanities would attract large corporate and individual 
     donors who will want to be part of such prestigious 
     organizations. Since private giving to the arts in this 
     country already exceeds $9 billion a year, an increase of 
     just 1% in this base of support would establish a strong 
     funding foundation for the private endowments.

                             IV. Conclusion

       Through a five-year privatization of the NEA and NEH, the 
     Abraham bill permits the growth of private giving to the arts 
     (with government-supported fundraising during the 
     transition). The Abraham approach also proposes tax 
     incentives for charitable donations to create broad-based 
     opportunity for private giving; reinstatement of tax 
     deductions for non-itemizers may very well engender increased 
     funding of the arts.
       More importantly though, privatization has the distinct 
     advantage of allowing the citizenry to direct those funds 
     more efficiently and without controversy. Simply decreasing 
     federal funding of the Endowments or providing for increased 
     block grants to the states fails to resolve the fundamental 
     problem associated with today's NEA and NEH. By contrast, 
     privatization removes the government from the unwinnable task 
     of balancing censorship and obscenity, once and for all.
       Federal bureaucracies on every level are being scaled back 
     or eliminated entirely. Government programs, particularly 
     non-essential ones like the NEA and NEH, that can be replaced 
     with privately-run entities, must be. The manifest support 
     from an array of celebrities and arts patrons for the arts 
     and humanities makes clear that a reconstituted NEA and NEH 
     will thrive. In short, a privately-funded ``American 
     Endowment for the Arts'' and an ``American Endowment for the 
     Humanities'' can provide as much support for artists and 
     writers without the attendant, ongoing disputes faced by a 
     government-managed entity.
       The people we have heard from in support of the NEA and 
     NEH--art enthusiasts, philanthropists, actors, and singers--
     will want to contribute to private arts and humanities 
     foundations. Assuming their belief in a national organization 
     supporting the arts and humanities is an ardent as they claim 
     when they lobby Congress, there will be a wellspring of 
     support for private endowments.
     

                          ____________________