NEWS ANALYSIS : Changed NEA Likely Even Without Content Rules

Congress appears to have significantly redesigned the National Endowment for the Arts with the Friday decision by a House-Senate conference committee to adopt a House bill giving the arts agency a $180-million appropriation for fiscal 1991 and extending its life for three years.

The committee rejected virtually all specific controls over the content of government-funded arts projects--an action that dealt a decisive and final defeat to congressional conservatives led by Sen. Jesse Helms (R-N.C.) and Rep. Dana Rohrabacher (R-Long Beach), who had wanted legislation to cordon off vast areas of artistic expression as inappropriate for federal support.

But the committee also accepted major changes in NEA grant-making practices, directing a vastly greater portion of the agency’s budget to state arts councils, primarily for new programs to expand access to the arts in rural and inner city areas.

The final bill rejects all prior restraints on the content of NEA-funded art. Instead, the bill, sponsored in the House by Reps. Tom Coleman (R-Mo.) and Pat Williams (D-Mont.), empowers the endowment to get the money back if a criminal appeals court sustains the conviction of a grant recipient on an obscenity count.

But the bill also includes language that some arts observers believe may become as infamous as the so-called obscenity oath provision in the NEA’s 1990 appropriation bill. The new law requires the NEA to establish regulations to “ensure” that endowment-funded work takes into consideration “general standards of decency and respect for the diverse beliefs and values of the American public.”

In a candid weekend telephone interview, Coleman conceded that he shared constitutional concerns raised more than three weeks ago by First Amendment lawyers after the House originally passed the Coleman-Williams compromise bill.

“My preference was that it not go in at all,” Coleman said of the decency wording, which was included to appeal to a small group of influential Republicans. “I have always had problems with the constitutionality of trying to limit indecent speech and expression. I tried to craft a constitutional bill, and I would hope a court would toss off this clause as (really meaning) something less than opponents think it means.”

Both Coleman and a senior NEA official who discussed the situation Sunday morning on the condition that he would not be identified said they had been surprised that the Coleman-Williams bill was approved by the conference committee. Because most observers had not expected it to prevail, some of its most apparently onerous provisions had been discounted as unlikely to ever become law.

A parliamentary anomaly led House and Senate negotiators to conclude that they had to pass either the entire Senate or House version of the NEA bill--and could not mix the provisions. The House version prevailed at the insistence of Republicans.

The NEA, said the top official Sunday, felt the so-called “decency paragraph” was so certain to be dropped in congressional negotiations that the arts endowment never fully focused on how regulations to ensure decency can be promulgated. “We didn’t really count on that one and, frankly, I’m at a loss to understand how that can be, quote--regulated--unquote,” the senior official said. “There’s no accounting for taste.”

“We’re troubled by it,” said Melanne Verveer, executive vice president of the Washington-based People for the American Way, a liberal group. “I think it’s a good question whether the NEA will be recognizable. Even though this is a victory, it is really a half victory.”

Both NEA and congressional sources said they expected--and, the senior NEA official said, hoped--that the decency provision would be quickly challenged on constitutional grounds. The striking down of the provision as hopelessly vague would, these sources agreed, resolve the key uncertainty about just what kind of NEA is now to exist.

Aside from the decency standard, artists and others applying for NEA grants will be required to describe and defend to visiting NEA inspectors work they produce far more intensively than ever before. Grant review panels will be prohibited from having members directly involved in grant applications the panel is to evaluate. The NEA will be required to increase the size of panels, broaden their ethnic and geographical diversity and include non-artists.

The office of the NEA chairman--occupied for the moment by John E. Frohnmayer--will be granted significantly increased powers. Grant review panels will find their power to make decisions on who gets NEA money largely transferred to Frohnmayer.

“The restructuring of the panels, I think, holds some interesting possibilities in terms of more citizen involvement,” said Bill Bushnell, artistic director of the Los Angeles Theatre Center. “But I am really concerned with the current chairman. I feel that Frohnmayer is extremely compromised.”

Internal endowment estimates show that the Coleman-Williams plan will entail the transfer of $11 million in its first year from the NEA’s traditional grant programs to the new state-funding operation. Instead of earmarking 20% of the NEA budget for state assistance--the percentage that has been in place for several years--the Coleman-Williams plan puts the figure to a total of 32.5% this year, rising to 35% by 1993.

The senior NEA official said the shift will necessitate across-the-board cuts in such NEA programs as visual arts and play-writing fellowships, artist-in-residence programs and the NEA’s traditional big-ticket programs of operating support for symphonies, opera companies, ballets and theaters.

“This vastly alters the endowment,” said Anne Murphy, executive director of the American Arts Alliance. “The fact that (Coleman-Williams plan) became law took a lot of people by surprise. It reminds me of a child who has been severely chastised. You don’t really know how the child is going to act after the shock wears off. I just don’t know how the agency is going to play itself out.”