"The House is in full retread, " Rostenkowski sniffed. He said that the repeal effort was supported by only a minority of seniors. Yet Congress's mail suggested otherwise. Rep. Steve Gunderson (R–Wis.), for example, received 2,172 letters urging him to get rid of the program. Only one person wrote asking him to vote to keep it. Rep. Bill Paxon (R–N.Y.) received 3,807 letters, all asking for repeal. Rostenkowski argued that the tide of battle would turn, that the majority of seniors would speak up in favor of their benefits. But when he left the: House, he, too, was in retreat. He was met by a phalanx of seniors who surrounded his car, blocked his escape, and heaped abuse on him.
Rostenkowski's difficulties aside, the vote on catastrophic care was astounding: It was the first time a major entitlement program was dismantled. That the political will existed to end the program even before it had really begun ought to be no surprise, however.
Though the package was to protect seniors from the overwhelming cost of a major illness, it did not protect them from the overwhelming cost of paying for the program. Here the act was significantly different from other entitlement programs. Most programs give benefits to a subsection of the population and are financed broadly by all taxpayers. The catastrophic care program would have given benefits to a subsection of the population—seniors. But it would have financed the benefits with taxes on a portion of that subsection—wealthy and middle-income seniors. This rare approach was the idea of the Reagan administration, which demanded that the program be self-financing. As Congress added to the benefits originally proposed by the administration, the costs of the program exploded, and seniors were given the bill for an expensive program that many did not need.
Most of the discussion of the catastrophic care repeal has focused on the conflict of interests between poor seniors and wealthy ones. Rostenkowski argued that the poor outnumber the rich and simply needed to be mobilized for the program to be reinstated. "Mark my words," Rostenkowski said of the supposed majority of seniors who would benefit from the program, "their voices will be heard in this chamber in the very near future."
He may be right. But more illuminating than the conflict between the rich and the poor or the question of how long it will take to mobilize the poor is the change in the interests of wealthy and middle-income seniors.
Those seniors who lobbied for repeal argued that they already have pension plans and private insurance that quite adequately protect them, and they resented paying up to $800 apiece each year for benefits they already have. But is there any question that had the program been funded through general revenues most of these seniors would have heralded the plan and promptly signed up for the benefits? The question of whether private or public insurance is more cost-effective would have never been raised by them. When a program is financed by everyone, self-interest compels each of us to take as many of the benefits as possible.
Unfortunately, most government programs are set up this way. We each have an incentive to grab as large a share of the public pie as possible, even though we know that our taxes must go up to pay for these services. This is a classic example of what economists call a commons problem.
The term comes from Garret Hardin's account of overgrazing on public, or common, pastures. Each farmer could put as many cows as he wanted on the commons and would own the milk that his cattle produced. But the cost of maintaining the pasture was divided equally among all farmers. Each then had an incentive to put as many animals on the commons as he could. A farmer received the full benefit of his animals but paid only a fraction of the cost of their upkeep. The pasture was soon overgrazed, and the value of all the animals fell as they lost weight; but there was no incentive for a farmer to remove any cattle because the benefit would be shared with everyone, including farmers who removed no cattle.
Commons problems, similar to that described by Hardin, are all around us: air pollution, highway traffic, littering. And it appears that with government money, too, its the model—like an all-you-can-eat buffet at which we eat more than we want or need because we've paid the price of admission. Unlike most entitlement programs, however, catastrophic care did not fit that model. Rather, at least for wealthy and middle-income seniors, there was some link between costs and benefits.
The structure of catastrophic care, albeit unwittingly, reflected the kind of solution economists usually suggest to solve commons problems—bring costs and benefits together. For example, we may want to make our buffet a cafeteria, where we each pay for as much as we eat. The solution for the farmers was for each to own the land on which his cattle grazed.
These are solutions based on the assignment of property rights. It is unclear how similar rights can be assigned to break the logic of the entitlement commons. Perhaps the best that can be done is to tie costs to benefits as the catastrophic care program tried to do. That, however, is unlikely to happen any time soon. Congressional leaders, burned by the catastrophic care revolt, are already talking about a revised program in which funding would be "fairer." In other words, next time, they'll keep costs as far away from benefits as possible.
Pundits often point to the deficit and say it shows that Americans want expensive government services but are unwilling to pay for them. Usually, their conclusion is that taxes should be raised to cover the costs of the programs that we appear to want.
But our seemingly insatiable appetite for government services may not reflect the amount we really want, or, at least, the amount we want badly enough to pay for. Our appetite may simply be a function of the logic of the commons. Until we pay directly for the services we receive, we will never know how many government programs Americans really want. As long as government money is treated as a cormmons, we will all overgraze.
Eric Felten covers Congress for Insight magazine.
The post Washington: A Commons Problem appeared first on Reason.com.
]]>At the NEA's August meeting in Washington, D.C., council member Lloyd Richards, dean of the Yale School of Drama, said "the revolutions of the last year would not have been possible without the ideal of artists from the United States." Thus, he argued, the NEA should support controversial performance artists like Karen Finley—known for lathering herself with chocolate—and Holly Hughes, the "tough girl" lesbian eroticist. They challenge the government, he said, not unlike "Vaclav Havel, an artist who traduced the state."
But it is unlikely that a woman who puts gelatin in her bra and bounces around reciting Village Voice verities inspired East Europeans to throw out their Soviet masters. The comparison with Havel is particularly strained. Havel experienced censorship: The government banned his works and threw him in jail. Hughes and Finley simply found their subsidies cut off, which caused the tough-girl revolutionary to leave the meeting room crying. Pauvre enfant terrible.
The council threw out these grants and three others recommended by the advisory Inter-Arts Panel. The panelists who had backed them were members of the organizations that would sponsor the performances and stood "to receive remuneration."
The NEA is shot through with such conflicts of interest. There is a revolving door at the endowment that would send a tachometer into the red. NEA grants to the Guthrie Theater Foundation in Minneapolis jumped from $300,000 in 1986 to $1.2 million in 1988, after Edward Martenson, formerly head of the NEA's theater program, became president of the Guthrie, reports George Archibald of the Washington Times. The Spoleto Festival USA in Charleston, South Carolina, found its NEA booty similarly augmented the year after Nigel Redden resigned as the head of the NEA's dance program to become the festival's general manager.
NEA Administrator John E. Frohnmayer promised at the hearing to devise stronger, stricter rules governing conflicts of interest in grant-recommending panels. But several council members argued such rules would hurt experimental art. They claimed that the NEA could not avoid having panelists who are involved with the grants it considers.
Council member Wendy Luers said that the performance art "field is much smaller [than traditional art circles], and you have to draw panelists from a much smaller pool." And Phyllis Curtain, also on the council, said, "If you're going to find peer panels to judge a particular field, you have to find the people who are involved in it." Luers and Curtain defended the experimental arts panel, but with a curious defense—one refuting the claims that NEA-sponsored performance art is challenging and creative. "Finding a panel of, let's say, diverse views in this field is not all that easy," said Curtain. And that's the problem. How committed to experimentation can a group of artists be if their views are all the same? Indeed, there is something fundamentally absurd about peer review of avant-garde art: Truly original artists have no peers.
The majority of the projects the Inter-Arts Panel recommended reflect the left-wing sensibilities for which performance art has become famous. One project brings together Los Angeles homeless to participate in performance pieces. One bestows money on the Citizen's Environmental Coalition to plant toxic-eating foliage in some contaminated soil. (The process of the soil becoming clean will produce an "invisible aesthetic.")
But the paradigm grant is for a roundtable discussion by the Road Company of Johnson City, Tennessee: "Community leaders, scholars and Road Company members will develop the specific agenda of discussion. Possible topics include industrial and economic development in the area, the definition of culture for the region, and ethics in city government and in other local institutions." This is art only in the sense that someone claiming to be an artist says it is.
Can one listen to M.K. Wegman, the chair of the Inter-Arts Panel, defending the group's choices before the council without yawning a weary yawn? "This work is often about something," Wegman said. "These artists are incorporating the complexities of science and technology into art or taking as subject matter the hopes of the disenfranchised, the anger of the oppressed, the corruption of the environment, or the breakdown of political systems.…The subject matter of these contemporary artists is contemporary life in all of its complexity and diversity."
Diversity? Right. The community of performance artists represented by the Inter-Arts Panel is no less insular than a Connecticut country club, and no less homogeneous in its views. Most of the votes on grant proposals were unanimous or nearly so.
And as the council discussed grants, in front of the Old Post Office, OUT!/DC, a gay group, held a homoerotic performance-art festival. The group had disrupted the NEA meeting in the traditional fashion, chanting "We're here! We're queer! Get used to it!" Thrown out of the hearing, the group set up shop on the dais of a statue of Benjamin Franklin. Over the statue's pedestal, the group taped crudely rendered drawings of lesbian lovemaking.
The performances disappointed; they lacked even the base shock-appeal that is performance art's main currency. The randiest the event got was a ritual denunciation of Jesse Helms, accompanied by a chorus of gay couples kissing and fondling. It was not particularly shocking to anyone who has lived in San Francisco. (They're here. They're queer. We're used to it.) And without the shock, the show evaporated: There was nothing there. The material was as dull as anything the NEA did approve.
Franklin seemed unperturbed, even though a condom had been looped over his outstretched hand. Had he been able to speak, I doubt he would have expressed outrage. He would just have told them all to get a job.
Eric Felten covers Congress for Insight magazine.
The post Art: Political Theater appeared first on Reason.com.
]]>The rich vandal who wants to buy and slash should avoid Massachusetts, California, and New York, however. In these states, simply owning a work of "fine art" does not give one the right to destroy it. All three have passed laws against the destruction or mutilation of paintings and sculptures—laws that grant artists and their estates an ongoing interest in their work. And soon there may be such a law at the federal level, too. Sens. Edward Kennedy and Robert Kasten have introduced a visual artists' rights bill in Congress.
The art preservation laws are all based, quite explicitly, on the French legal concept of droit moral, or moral right. Under the droit moral, artwork cannot be mutilated or destroyed without the artist's permission, even after the work is sold. And an artist also retains the right to disavow her work. In French law these rights are nearly absolute: An artist need give no reason if she wishes to disavow a given painting—she may, for example, simply be dissatisfied with an early work as an immature expression. The state statutes, on the other hand, require a "just and valid reason" for disavowal. For example, an artist may disown a work if it has been altered in some way or is being displayed in a setting that she considers an insult to the integrity of the work.
The law proposed by Kennedy and Kasten comes much closer to the French doctrine than do any of the state laws. Specifically, the act calls for a commission to study the possibility of granting artists the right to royalties when their works are resold. Earlier versions of the bill would have given artists the right to royalties, but it was on that issue that the measure met the most resistance. Supporters of the act think that leaving the royalties issue aside for a while will give the bill a much better chance of passing.
But the Kennedy-Kasten bill illustrates how radical a departure such laws are from two of the most fundamental doctrines of British and American common law: the alienability of property and freedom of contract. In French law, artists' rights are inalienable: The artist cannot sign them away as part of the sales contract. Similarly, under the proposed federal Visual Artists Rights Act of 1989 artists can neither waive nor transfer their rights when they sell their work.
It is hard to figure out why these state laws have been passed and why such a measure is being considered in Congress.
Perhaps if Peter Sellers and Ringo Starr were roaming about the nation doing damage to paintings there would be a reason. But when I looked for such colorful villainy in the lawsuits that have been brought under the art preservation statutes, I was disappointed. There simply don't seem to be any vandals rich enough to buy art just to trash it.
The cases brought so far in Massachusetts, for example, involve neither malicious canvas slashers nor famous art treasures. In one case, the administrators of Concord-Carlisle High School threw away a ceramic mural made by an art teacher and left in the school's studio at the end of her tenure. And in another, the new owner of a restaurant painted over a mural commissioned by the previous owner. In both cases, the artists have declared their lost works "fine art" and are suing for tens of thousands of dollars in compensatory and punitive damages.
Do these suits do anything to encourage the creation and enjoyment of new art? Elaine Yoneoka, the high school's artist-in-residence whose ceramic mural was thrown out, clearly thinks so. She justifies her lawsuit largely in terms of promoting an appreciation of art. "The town set up this [artist-in-residence] program to tell kids the arts are valuable, and then they turn around and destroy my work," she says. "They don't understand that art isn't a commodity, and that the artist has continuing rights in the work." But is Yoneoka's suit doing anything to further the cultural education of the children of Massachusetts? I doubt it. How long will it be before Concord-Carlisle High School brings in another artist-in-residence? Just as litigation over sports injuries has led many schools to scale back or cancel their athletic programs, so too litigation over art could easily discourage schools from getting involved with it.
The implications are similar in the case of Paul Goodnight, whose restaurant mural was painted over when the building was sold. Goodnight's lawyers argue that the wall should have been removed and replaced, the painting kept intact. If Goodnight wins his suit, what building owner in his right mind will contract a mural to be painted on his walls? And those who nevertheless sponsor paintings on their buildings will be well advised to make sure the works are inoffensively bland, so as not to put off lessees or buyers.
Discrimination against unknown artists pervades these laws. It is most obvious in the way the laws define—or more accurately, avoid defining—art. Lawmakers want to protect "fine art," not just any picture drawn by some clod with a paintbrush. But aesthetic value is an even more slippery concept than moral value, and legislators who try to define it are sure to be embarrassed. Thus they haven't even tried. Instead, the California and Massachusetts statutes and the bill before Congress define "fine art" as work that is of "recognized quality." They leave it up to the courts to determine in each particular case whether the piece in question is of "recognized quality." To do that the courts are instructed to follow the expert opinion of artists, dealers, collectors, curators, restorers, and others involved in making or selling "fine art."
Even the proponents of these laws recognize that defining fine art according to the opinions of experts is likely to "preserve a conservative notion of what art is." Still, these laws give the art establishment the ability to make, for all intents and purposes, legally binding judgments about what is and is not art.
Further, the possibility of litigation may persuade an art buyer to pass on the work of an unknown. The uncertainty in the laws imposes costs on those who would invest in an unknown's work. If the artist later becomes famous, the piece will obviously then be of "recognized quality," and the artist will have an interest in the painting, an interest that a court might not have given him at the time the work was sold. The terms of a sales contract with an unknown artist, then, may change long after the sale.
Thus artists' rights laws do little to help unknown artists or promote education or production of art. Indeed, such laws are likely to work against these goals. Add to these problems the fact that the laws create a legal art aristocracy and that the droit moral conflicts with our common law tradition, and art preservation laws look quite ill-conceived. The final argument against such laws, though, is that they are entirely unnecessary.
The artist who wants to ensure that her work will be preserved, or who wants royalties on the resale of a piece, is perfectly free under existing contract law to enter into an agreement with the purchaser that grants her those rights. Such a carefully worded contract can impose on the purchaser the obligation not only to preserve the work but also to maintain it. Indeed, since 1980, agreements of this sort have been regularly signed by Boston's public transit system when it has contracted works of art for subway stations.
No such contract was ever worked out between Yoneoka and the Concord-Carlisle High School. In fact, the high school never even agreed to keep her work. Yoneoka merely signed it and left it behind. She made no effort to find out what the school had done with the piece until two years later when she came back to get a photo of it for a grant application. All through her tenure Yoneoka had the opportunity to come to an agreement with the school about the fate of her work, but she seems not even to have tried. Somehow I find it hard to mourn her loss.
Eric Felten covers Congress for Insight magazine.
The post Art: Postmodern Art Laws appeared first on Reason.com.
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