Serrano, Maplethorpe, and the Constitution

Helms as Art critic

The flap in the Congress over the funding of art exhibits is more than a controversy over tastes in art. It is the constant threat of censorship of the arts by people in power who do not agree with the artist's view of the world. In Nazi Germany and in Stalinist Russia art was vigorously contained only to propaganda themes under pain of death, disgrace, and internal exile, or concentration camp.

In the United States with its Constitutional guarantees of freedom of expression some aspects of censorship persist even though strong countervailing forces exist.

No Definitive Ruling

The Supreme Court has not handed down the definitive ruling on pornography. In addition, the composition of the Court has changed radically with the appearance of the Reagan majority. The case of Helms, Mapplethorp and Seranno differs somewhat since different aspects of the law are involved.

Censor Helms

The first principle asserted by Senator Helms is that the art of Serrano and Mapplethorp do not meet a "public standard" which Senator Helms claims to represent. Therefore they do not merit support of the United States government. Specifically the art of Serrano and Mapplethorp do not deserve to be supported by taxpayers dollars.

Pretty Strong Stuff

Mapplethorp's art consists of photographs of homosexuals, sado-masochists, homoeroticism, and other sexual activity. Serranos photographs included a crucifix, in a mason jar of his own urine.

Artists as a Lower Form of Life

Aside from considering the artists as a lower form of life and their art as despicable, Senator Helms did not think the government should have paid to support the creation or the exhibition of such art.

No Apologies Necessary

Spokespersons for the Endowment for the Arts argued that of some 80,000 exhibits only 20 were controversial. Neither position is correct. The managers of the Endowment should not have to apologize for their judgement and the artistic merit of their panels and Senator Helms is not an art critic. What the endowment did was motivated by law. What Senator Helms did is motivated by emotion. He would not have been chosen to sit on a review panel for the Endowment for the Arts. The Congressional Yellow Book describes his professional qualifications as 'Journalist and Broadcast Executive' neither of which qualifies him as an art critic.

Abusing Legislative Authority

The law that established the Endowments was written and is overseen by an authorizing committee of the Congress, and the procedures for conducting the operations of the endowments is derived from that legislation. The advisory committees and other review committees are assembled in accordance with this authorizing legislation. Senator Helms does not sit on this committee. He sits on the appropriations committee.

In theory the authorizing committees of the Congress are supposed to write the legislation that forms the corpus of the law. The appropriating committees are then to examine executive branch budgets based on the authorizing legislation and appropriate the money necessary to carry out the program. Authorizing committees are the program people and the appropriations committees are the budget and finance people.

Authorization = Curriculum;
Appropriations = Administration

If the Congress were a University the authorizing committee would be the deans and the faculty and the appropriations committees would be the administration — the bean counters.

In the recent past the Congress reorganized itself and established a budget committee. Now spending targets are supposed to be established and honored. More and more the real power of the Congress resides in its appropriating committees and more and more the appropriating committees are writing authorizing legislation. They are writing program laws into the appropriation language.

They are not Obliged

The appropriating committees are not obliged to make money available simply because another committee of the Congress wrote a bill authorizing it. In other words an authorizing committee can not appropriate money for one of its bills, and in theory the appropriating committees are not supposed to write program legislation in an appropriations law. They are to provide some or all the money authorized in the authorizing legislation.

Usurped Authority

The committee on which Senator Helms sits and into whose appropriations bill he inserted language directly affecting the Endowment for the Arts, is not the committee that wrote the laws authorizing the Endowment and setting its ground rules. Senator Helms is exerting the power of the purse and he is doing it contrary to the authority of the committee that has the responsibility to write the legislation governing the endowments. Senator Helms, because of the widespread usurpation of authority by the appropriations committees, has the authority to change the law for the Endowments but not the responsibility of writing the program legislation. He has not only usurped the authorizing committees' authority, he is commanding through the appropriations process, the Executive Branch to acquiesce to his will. His individual influence will be disguised as a bill in the Congress, but there can be no mistake that he is its author and therefore it is his will. Senator Helms is acting like both like a member of the authorizing committee for the Endowments and the President of the United of States.

Separation (Ho Hum) of Powers

The so called separation of powers makes Senator Helms' actions possible. The Constitution makes no provisions for a Presidential Cabinet. It provides only for the President and the Vice President and gives the Vice President the job of running the Senate. By usage and custom — not law the Vice President absents himself from the day to day activities of the Senate which elects a President pro tempore to preside over the Senate in the Vice President's absence. By authorizing the establishment of the Executive branch agencies, the Congress exempted itself from any responsibility for the way the government operates except to pass some laws and appropriate the money. How the money is spent, how effective the programs are that they authorize, is always determined after the fact by a Congressional hearing, or investigation.

They Can Run And They Can Hide

Congress passes a law; appropriates the money, then stands back and lets the President do whatever he thinks the Congress wants done. The Congress gets to hide because it says its the President's responsibility to execute the law. The President says the Congress passes laws and doesn't know what it wants and passes the buck back to the Congress. During the Reagan Iran Hostage hearings executive branch witnesses said it was the fault of the Congress for leaking the secrets, and Congressional statements indicated that the Executive Branch leaked secrets when it was to the advantage of the Executive Branch. Neither branch took responsibility for what happened and low level people have been or are about to be punished for actions the President and leaders of the Congress were at loggerheads over.

Will the Congress Ever Reform?

To what extent is Senator Helms' restricting amendment a usurpation of the authority of the authorizing committee which established the endowment and oversee its laws? To what extent if any should appropriating committees pass authorizing legislation? Will the Congress ever see fit to reform? Ever since the budget committees were formed, the appropriating committees of the Congress have assumed the major share of the legislative authority of our government. Through the Government Auditing Office and through investigative hearings and operations the Congress is moving ex post facto into the executive area. There is no reason they should not and since they pass the laws there is no law to stop them. The vaunted separation of powers works only when the Congress wants it to work. When the Congress has other ideas no other branch of the government can resist it, executive privilege not withstanding.

A BalI Bat to Slice Baloney

What Senator Helms is doing is moving into the executive sphere of the government by adding an amendment to an appropriations bill that covers not only the Endowment for the Arts. Helm's prime focus, but it covers appropriations for the entire Department of the Interior and Related Agencies. Since it is part of a larger appropriations bill it covers not only the Endowment for the Arts it covers all aspects of the government supported by those appropriations, that is to say the Endowment for the Humanities, the National Park Service and all other agencies covered by the appropriation. Senator Helms is using a ball bat to slice baloney. If his amendment succeeds it will be only the beginning for inevitably the question must be asked, what does his amendment mean?

My Will Be Done

Supreme Courts over the recent decades cannot agree on the definitions of the words in his amendment. Senator Helms has tossed the bomb. His work is done. He has no responsibility for what will follow. If his amendment passes it's up to the Executive Branch and the Courts to figure out what it means and to whom it applies.

We have swollen budgets and wanton debt because the separation of powers allows each branch, particularly the Executive and the Legislative, to duck the issues, pass the buck and hide from the consequences.

Congress Should Get its Act Together

The simplest solution is to reorganize the congress combining the authorizing and the appropriating committees. The struggle in the Congress would then be between the budget committees and the combined appropriations and authorizing committees. The budget committees would worry about where the money was coming from and the amount that would be available in any given fiscal year. The appropriations/authorizing committees would be responsible for both the legislation to establish the programs but would also be responsible for fighting with the budget committees for the money to fund them. We should have no authorizing legislation for which the committee was not ready to provide the funds and the enormous body of authorizations that will never be funded should be greatly reduced and eliminated. It is not likely that Senator Helms amendment would survive in a committee that also contained all the members of the authorizing committee, that is to say the members who wrote the legislation bringing the Endowment into being. They would be in the room to explain to the Senator what the authorizing legislation meant and what they tried to do when they said the art should be innovative.

Art as Statement v Platitude

Not all art glorifies and sanctifies. Not all art is representational. Caulder mobiles, in an earlier day amazed and dazzled us with their uselessness. Now they hang over beer displays. As freedom of expression has evolved so has art. The innocent days when "September Morn" was shocking have receded into a rosy past. Whatever else may be the function of art, we now know one of its most important functions is protest. Art can not merely support a status quo, nor can art speak merely in the platitudes of the day, although the bulk of artists may choose to do so.

Can or Should the Government Buy Conformance

The real question is can Senator Helms purchase with government money the right of artists to speak freely? Can he use taxpayer's dollars to buy and take away their right to express themselves? Can he bribe them not to exercise their Creator-given rights and fund only 'acceptable' art and avoid funding any art that protests or shocks?

We cannot sell ourselves into slavery. The government can't buy slaves. Can and should the government buy conformance by with holding public funding from artists whose viewpoints, opinions, or messages are not what individuals in the Congress wish to recognize as acceptable? Can and should we use government money to buy orthodoxy and to suppress iconoclasm? Can and should we exercise censorship imposed contrary to our Constitutional and unalienable rights? Is the taxpayer's money spent to satisfy the preconception of the individuals in government or to serve Us the People?

"Its My Wall"

John D. Rockefeller, Sr. and Dago Rivera had a disagreement about the subject of a mural Rivera was painting on a wall in Rockefeller Center. Dago Rivera said. "It's my painting. John D. Rockefeller, Sr. said, It's my wall. The painting was removed. John D. Rockefeller, Sr. can and did do any thing he wanted to with his money and his wall. John D. Rockefeller, Sr's. wall was not public, his money was not public, and he did not represent a public interest nor the sovereign.

Its Not a Casual, Sometime, Thing

When the government, speaking for Us the People, discriminates against the unorthodox, a basic trust is violated. Freedom of speech is not a casual, sometime, thing. It is the bedrock of our Creator-given unalienable rights which, in turn, includes our Creator-given freedom and liberties. To use the taxpayer's dollars i.e. the money of We the People—the sovereign—to advance iconodulism, orthodoxy, conformance, or platitudes is to escape the meaning of the American democracy. This is not a government of some of the people, by some of the people, and for some of the people. It is a government of all the people, warts and all.

. . . Ted Sudia . . .

© Copyright 1989
Institute for domestic Tranquility