Smithsonian: Background, Funding, and Policy Issues

Order Code RL33560

CRS Report for Congress

Received through the CRS Web

Smithsonian:

Background, Funding, and Policy Issues

Updated July 27, 2006

Susan Boren

Specialist in Social Legislation

Domestic Social Policy Division

Congressional Research Service ˜ The Library of Congress

Smithsonian: Background, Funding, and Policy Issues

Summary

The Smithsonian Institution (SI) is a museum, education, and research complex

comprised of 19 museums and galleries, the National Zoo, and 9 research facilities

throughout the United States and around the world. In addition, there are 144

affiliated museums. The Smithsonian Institution is estimated to be 75 to 80 percent

federally funded, and also is supported by private donations, and trust funds.

The Organic Act of 1846 established the Smithsonian Institution in response to

James Smithson’s will and gift. Increases in federal support for the Smithsonian

have developed through the years as a result of adding authority for multiple

museums to the jurisdiction of the Smithsonian Institution. The idea of 19 museums

did not necessarily originate with the Smithsonian. The range of legislation enacted

shows the increasing control of the federal government over the shape of the

Smithsonian Institution and the subsequent justification for increased appropriations.

The Federal commitment in terms of funding for the Smithsonian Institution

appears extensive. Congressional appropriations for the Salaries and Expenses of the

Smithsonian have grown exponentially from $18.5 million in FY1966 to $516.6

million in FY2006. Private trust funds also help sustain the Smithsonian Institution.

In FY2006, trust funds totaled $274 million. In spite of private trust funds, Congress

and the courts tend to characterize the Smithsonian primarily as a federal entity.

A recent contract between the Smithsonian Institution and CBS/Showtime for

a new cable programming service called “Smithsonian on Demand” has called into

question the decision of the Secretary of the Smithsonian and the SI’s Board of

Regents. This issue has captured considerable media attention. Judging from the

vote of the House Members on the FY2007 Interior appropriations bill, the full

House and the Senate Appropriations Committee have differing views on the

Showtime issue.

There are, in addition, other issues of importance concerning the Smithsonian

Institution, including appropriate levels of funding for all Smithsonian research

facilties and museums, and the issue of maintenance and preservation of Smithsonian

buildings. According to Government Accountability Office (GAO), many years of

insufficient investment in “Facilities Capital” and maintenance have led to the long

term deterioration of the physical plant of the SI.

This report will be updated as congressional action occurs.

Contents

Funding for the Smithsonian Institution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

FY2007 Funding for the Smithsonian Institution . . . . . . . . . . . . . . . . . . . . . . . . . 7

Facilities Capital. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

National Museum of African American History and Culture. . . . . . . . . . . . . 8

National Museum of the American Indian (NMAI). . . . . . . . . . . . . . . . . . . . 8

National Zoo. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Private Versus Federal Designation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Showtime Business Venture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Smithsonian Institution Buildings:

Maintenance and Preservation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Appendix A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

List of Figures

Figure 1. Sources of SI Support, FY2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Figure 2. Smithsonian Institution: Funding for Salaries

and Expenses, FY1966-FY2006 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

List of Tables

Table 1. Appropriations for the Smithsonian Institution (SI),

FY1996-FY2006 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Table 2. Appropriations for the Smithsonian Institution,

FY2005-FY2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Smithsonian:

Background, Funding, and Policy Issues

This report provides background and legislative history on the Smithsonian

Institution (SI) as well as delineating funding and current policy issues. It begins with

a discussion about the initial acceptance of James Smithson’s will and gift, and

provides legislative history including the final passage and enactment of the Organic

Act of 1846. It details the Smithsonian’s acquisition and creation of other museums

through legislation and explores growing federal government involvement in the

Smithsonian Institution. It also outlines funding levels for the SI museums and

explains the private trust account. Finally, it discusses the policy issue of private

versus federal funding, recent controversies over the Smithsonian’s contract with

CBS/Showtime, and the condition of Smithsonian buildings.

Background

The Smithsonian Institution is a museum, education, and research complex

comprised of 19 museums and galleries, the National Zoo, and 9 research facilities

throughout the United States and around the world. In addition, there are 144

affiliated museums. The SI is responsible for more than 400 buildings with an

estimated 8 million plus square feet of space. There were more than 24 million

visitors to SI museums last year, a 24% increase over FY2004. The Smithsonian

Institution is estimated to be 75% to 80% federally funded, and also is supported by

private donations, and trust funds.

The Organic Act was enacted in response to the Smithson will and gift, twenty

years from the date of the will of James Smithson, and eight years from the date of

initial consideration by Congress of a bill to establish the Smithsonian Institution.

The Organic Act, “An Act to Establish the Smithsonian Institution for the Increase

and Diffusion of Knowledge among Men” was passed by Congress and enacted on

August 10, 1846.

In his message to Congress in December 1835, President Andrew Jackson

announced the Smithson will and gift, but added that there was no precedent for this,

and that he had no authority to accept it. A lengthy debate occurred in Congress

concerning the acceptance of the bequest and what shape it would take. The matter

was referred to the Senate Committee on the Judiciary on May 2, 1836 and the

resolution to accept the will and gift passed the Senate. The House explored

legislation to accept the Smithson gift and with the help of Representative and former

President John Quincy Adams, the House and Senate agreement passed in 1836

authorizing the acceptance of the claim to the will and gift and an appropriation of

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$10,000 to cover the costs.1 This was an acceptance of the Smithson will and fund

only, not establishment of the Smithsonian Institution. In December 1838, President

Martin Van Buren announced that the fund of about $500,000 had been received in

the Treasury, and reminded the Congress of its obligation to fulfill the object of the

bequest — i.e., to establish the Smithsonian Institution. There was no precedent for

dealing with bequests of this nature, and there were very few scientific foundations

that could be used as models.2

The final law, the Organic Act of 1846, established the Smithsonian Institution.

It created the Smithsonian Board of Regents, which to this day appears to have

considerable power; it provided for an Executive Committee and Secretary of the

Smithsonian. In addition, it authorized construction of a Smithsonian building; it

provided for the transfer of the collections of James Smithson, and delineated the

duties of the Secretary including providing employment. It provided an appropriation

not to exceed $25,000 a year from the interest of the Smithsonian endowment fund

for operations.3 It authorized the managers of the Smithsonian Institution to spend

income according to “the purposes” set forth by James Smithson; and it reserved the

right of Congress to alter, amend, and repeal any of the provisions of the act.4

Smithsonian Board of Regents

The governing body of the Smithsonian Institution includes the Secretary of the

Smithsonian and its Board of Regents, currently composed of 17 members.5 Eight

of the Regents are United States officials, including the Vice President, the Chief

Justice, three Members of the Senate (appointed by the President of the Senate), and

three Members of the House of Representatives (appointed by the Speaker of the

House). The remaining nine Regents are private citizens, i.e., individuals “other than

Members of Congress,” and are appointed by joint resolution of Congress.6 The

Board of Regents elects an Executive Committee and Secretary as specified by the

Charter. In accordance with the policies established by the Board of Regents, the

Secretary may accept or receive gifts, grants, bequests, and other transfers of property

for the Smithsonian Institution. The Secretary and the Regents provide supervisory

power over the Smithsonian Institution.

Through the years, there have been joint resolutions of Congress to appoint

Members of the Smithsonian’s Board of Regents. For example, in the 103rd Congress

H.J.Res. 105/S.J.Res. 37 provided for the appointment of Hanna Gray (President

Emeritus of the University of Chicago) as a citizen Regent of the Smithsonian (P.L.

1

Further legislative history appears in Paul Oehser’s book, The Smithsonian Institution

(New York: Praeger, 1970), pp. 16-25.

2

Ibid.

3

Ibid.

4

Ibid., p.255.

5

20 U.S.C. § 42-44; Bylaws of the Board of Regents and Charter Provisions of the

Smithsonian, SI, Washington, DC, 1995.

6

20 U.S.C. § 43.

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103-19). In the 104th Congress, H.J.Res. 110 provided for the appointment of

Howard H. Baker Jr. (Former Senator from Tennessee) as citizen Regent (P.L. 10482). In the 109th Congress, H.J.Res 19 provided for the appointment of Shirley Ann

Jackson as a citizen regent of the Board of Regents of the Smithsonian Institution

(P.L. 109-11), and H.J.Res 82 provided for the reappointment of Alan G. Spoon as

a citizen regent of the Board of Regents of the Smithsonian Institution (P.L.109-217).

Statutory Authority of the Smithsonian

Increases in federal support for the Smithsonian have developed as a result of

adding authority for multiple museums to the jurisdiction of the institution. The idea

of 19 museums did not necessarily originate with the Smithsonian — in many

instances the Smithsonian was not the initiator of the concept of additional museums,

but rather these were placed under the jurisdiction of the Smithsonian through acts

of Congress, thus, adding responsibility to the institution, and with it, the need for

additional appropriations.

Statutory authority for the Smithsonian Institution has been amended and added

to by numerous acts over time. The range of legislation enacted shows the increasing

control of the federal government over the shape of the Smithsonian Institution and

the subsequent justification for increased congressional appropriations. Some

examples are listed here:

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Incorporation of the Institute: August 10, 1846, c. 178, 9 Stat. 102,

amended; March 20, 1871, 17 Stat. 1, amended March 12, 1894, 28

Stat. 41.

National Zoo — placed under the authority of the Regents of the

Smithsonian April 30, 1890, 26 Stat. 78, amended by P.L. 87-360,

75 Stat. 779.

National Gallery of Art, March 24, 1937, 50 Stat. 51; acceptance of

the Mellon Educational and Charitable Trust by the Smithsonian.

Establishment of the National Portrait Gallery, March 28, 1958, 72

Stat. 68, P.L. 87-443, amended April 27, 1962, 76 Stat. 62, P.L. 94209; February 5, 1976.

Joseph H. Hirshhorn Museum and Sculpture Garden, P.L. 89-788,

November 7, 1966, 80 Stat. 1403.

National Museum of the American Indian, P.L. 101-185, November

28, 1989, 103 Stat. 1336.

Authorize construction of the Smithsonian Institution’s National Air

and Space Museum extension at Dulles Center Oct 1, 1996, 110

Stat. 3025, P.L.104-222.

To establish within the Smithsonian the National Museum of

African American History and Culture, P.L. 108-184, 117 Stat 2676,

December 16, 2003. (A precursor to this act was P.L. 107-106).

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Funding for the Smithsonian Institution

The federal commitment in terms of funding for the Smithsonian Institution

appears extensive. The chart below (see Figure 1) shows that Congressional

appropriations combined with government grants and contracts from federal agencies

provide the largest share of support for the Smithsonian, totaling an estimated 74%

of the total Smithsonian budget.

The Private Smithsonian — Trust Funds

In addition to congressional appropriations, the Smithsonian Institution

receives income from trust funds to expand its programs. The SI trust fund account

includes three types of funds: general trust funds, contributions from private sources

or donor designated funds, and federal government grants and contracts from other

agencies. General trust funds include but are not limited to investment income from

the endowment, earnings from unrestricted endowments, proceeds from the museum

shops, SI books and publications sales, and membership programs such as

Smithsonian Resident Associates. For FY2006 (the most recent estimate available),

the total Trust funds available for operations were estimated at $274.0 million,

comprised of $59.0 million from general trust funds, $109.0 million from

government grants and contracts from federal agencies, and $106.0 million from

donor-designated funds. The chart (Figure 1) below is based on actual FY2005

dollars from trust funds and from Congressional appropriations.

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Figure 1. Sources of SI Support, FY2005

(FY2005 Actual Dollars in Millions)

$615.2 m 62%

$203.0 m 20%

$120.0 m 12%

$60.0 m 6%

Congressional Appropriations

Government Grants and Contracts

General Trust Funds

Donor Designated Funds

Source: Smithsonian Budget Justification to Congress, FY2007.

The Smithsonian was created by the instrumentality of a private trust, and is

sustained by a private endowment, the income from which is in the general trust and

is always kept separate from federal funding in terms of accounting.7 In addition,

there is no restriction or limitation on the power of the Smithsonian to “receive

money or other property by gift, bequest, or devise, and to hold and dispose of the

same in promotion of the purposes thereof.”8

Congress recently expressed concern over the extent to which the SI’s financial

managers are investing in “hedge funds,” i.e., higher risk funds, to boost the

endowment. The SI has tried to assure the Congress that it is not reducing the

endowment from these investments.

7

20 U.S.C. §54.

8

20 U.S.C. §55.

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Appropriations for the Smithsonian Institution

Congressional appropriations for the Smithsonian Institution are provided

through the Interior, Environment and Related Agencies appropriations bills. This

funding reinforces the concept that the Smithsoinan is a “federal entity.” Through

these appropriations, the funding for the Smithsonian’s Salaries and Expenses have

grown exponentially from a total of $18.5 million in FY1966 to $516.6 million in

FY2006. (See Figure 2.)

Figure 2. Smithsonian Institution: Funding for Salaries and

Expenses, FY1966-FY2006

($ in millions)

600

500

516.6

400

300

308.2

200

169.4

100

77.8

0

18.5

1966

1976

1986

1996

2006

Salaries and Expenses

Source: Smithsonian budget office (excerpted from unpublished tables).

Salaries and Expenses cover administration of all of the museums and research

institutions that are part of the SI. (See Appendix A.) Total appropriations for the

Smithsonian (which includes Facilities Capital/Construction plus Salaries and

Expenses) have grown dramatically as well from $373.1 million in FY1996 to $615.1

million in FY2006. (See Table 1.) Both Salaries and Expenses and Total

appropriations for the SI are indicators of a substantial federal commitment to the

Smithsonian Institution.

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Table 1. Appropriations for the Smithsonian Institution (SI),

FY1996-FY2006

Fiscal year

Salaries and Expenses

Total SI appropriations

1996

$308,188,000

$376,092,000

1997

$318,492,000

$371,342,000

1998

$333,408,000

$402,258,000

1999

$351,854,000

$412,254,000

2000

$371,230,000

$438,130,000

2001

$386,902,000

$453,854,000

2002

$420,960,000

$518,860,000

2003

$446,096,000

$554,875,000

2004

$488,652,000

$596,279,000

2005

$489,035,000

$615,158,000

2006

$516,568,000

$615,097,000

Source: Smithsonian Budget Justification to Congress (annual budget documents).

FY2007 Funding for the Smithsonian Institution

FY2007 Actions. For FY2007, the House passed Department of Interior,

Environment, and Related Agencies bill (H.R. 5386) would provide $624.1 million

for the Smithsonian, a decrease of $20.3 million from the Administration’s proposed

$644.4 million for FY2007, but a $9.0 million increase over the enacted FY2006

level ($615.1 million). (See Table 2.) For Salaries and Expenses, the House

approved $517.1 million, a decrease from the Administration’s request of $537.4

million, and a slight increase over the FY2006 amount of $516.6 million. Salaries

and Expenses cover administration of all of the museums and research institutions

that are part of the SI. It also includes program support and outreach, and facilities

services (security and maintenance). The House passed bill cut the Smithsonian’s

Salaries and Expenses funding on the grounds that Congress was not consulted on

the contract that the Smithsonian Institution made with Showtime. (See the

discussion under “Showtime Business Venture.”) During House consideration, an

amendment was adopted to prohibit funds from being used to support activities that

could in any way limit access to SI’s collections and research materials. Currently,

SI’s outreach programs extend to many communities across all states.

For FY2007, the Senate Appropriations Committee-reported bill would provide

$644.4 million for SI, the same as the Administration’s request, an increase of $20.3

million over the House-passed bill ($624.1 million) and an increase of $29.3 million

over the FY2006 level. For Salaries and Expenses, the Senate Appropriations

Committee would provide $537.4 million, the same as the Administration’s request,

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$20.8 million above the FY2006 level, and $20.3 million above the House-passed

bill. The Senate Appropriations Committee-reported bill had no punitive

amendments with regard to the Showtime deal, nor did it have any language limiting

the salary of the Secretary of the Smithsonian. (See the later discussion under

“Showtime Business Venture.”)

Facilities Capital. For FY2007, the House and the Senate Appropriations

Committee approved $107.0 million for facilities capital, the same as the

Administration’s budget. This would be an increase over the FY2006 level of $98.5

million. The House-passed bill and the Senate Appropriations Committee-reported

bill provided $91.1 million for revitalization, $5.4 million for construction, and $10.5

million for facilities planning and design. Revitalization funds are for addressing

advanced deterioration in SI buildings, helping with routine maintenance and repair

in SI facilities, and making critical repairs. (See the later discussion on “Smithsonian

Institution Buildings: Maintenance and Preservation.”)

National Museum of African American History and Culture. A new

National Museum of African American History and Culture (NMAAHC) has been

authorized within the Smithsonian Institution through P.L. 108-184. The museum

will collect, preserve, study, and exhibit African American historical and cultural

material and will focus on specific periods of history, including the time of slavery,

Reconstruction, the Harlem Renaissance, and the Civil Rights Movement. For

FY2007, the House-passed bill and the Senate Appropriations Committee-reported

bill supported the Administration’s budget request for $3.0 million, a slight increase

from the FY2006 appropriation of $2.9 million. The funding will cover operating

costs, including personnel for planning, and capital fund raising. Space has been

selected on the Mall near the Washington Monument. Other groups, such as Latinos,

have been seeking museum space on the Mall, and legislation has been introduced

(H.R. 2134, S. 2475) that would appoint a Commission to study the feasibility of an

American Latino museum on the Mall or adjacent to it. The House Appropriations

Committee’s report on FY2006 appropriations stipulated that the SI’s purchase of

any additional buildings would require initial consultation with the House and Senate

Committees on Appropriations.

National Museum of the American Indian (NMAI). The FY2007 Housepassed bill, the Senate Appropriations Committee, and the Administration budget

would provide $31.2 million for operating expenses for the National Museum of the

American Indian. For FY2006, Congress enacted $30.5 million. The estimated total

cost of construction for the NMAI was approximately $219.3 million. The

groundbreaking ceremony for the NMAI took place September 28, 1999, and the

grand opening ceremony was September 21, 2004.

National Zoo. For FY2007, the House-approved and the Senate Appropriations

Committee-reported bill provided $21.4 million for salaries and expenses at the

National Zoo. The Senate Appropriations Committee approved $20.7 million, the

same as the budget request. In the House-passed bill, $1 million is to address critical

infrastructure including fire detection and suppression systems. Recently, Members

of Congress and the public have expressed increased concern about the National Zoo’s

facilities and the care and health of its animals. The Smithsonian Institution has a plan

to revitalize the zoo to make the facilities safer for the public and healthier for the

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animals. The Administration’s FY2007 request estimated $13.0 million (under the

Facilities Capital account) to begin Phase II of the Asia Trail and Elephant Trails to

provide ample space for the elephants. It also included renewing facades, roofs, and

skylights at Rock Creek ($2.0 million); and an upgrade of critical infrastructure ($1.0

million), including installing fire protection systems and upgrading utilities. The new

construction and renovation will help the Zoo come into compliance with the

Department of Agriculture and American Zoo and Aquarium Association standards,

and help correct “infrastructure deficiencies” found throughout the National Zoo. The

House agreed to provide the full amount for Facilities Planning and Design, but

asked to review the list of the Zoo’s projects for Facilities Planning and Design before

approval. The Senate Appropriations Committee-reported bill does not contain

similar language.

Table 2 below lists the appropriations for the Smithsonian Institution for FY2005

through FY2007, the FY2007 Administration request, and the House-passed and

Senate Appropriations Committee-reported figures for FY2007.

Table 2. Appropriations for the Smithsonian Institution,

FY2005-FY2007

($ in thousands)

Smithsonian Institution (SI)

FY2005

Approp.

FY2006

Approp.

FY2007

Request

FY2007

House

Passed

FY2007

Senate

Comm.

Salaries and Expenses

Facilities Capital

Total SI Appropriations

$489,035

126,123

$615,158

$516,568

98,529

$615,097

$537,394

107,000

$644,394

$517,094

107,000

$624,094

$537,394

107,000

$644,394

Source: Compiled by CRS.

Issues

Private Versus Federal Designation

Congress wants to assure greater accountability for the Federal funds expended

by the Smithsonian Institution. Therefore, Congress and the courts are still grappling

with how to characterize the Smithsonian: as primarily an institution governed by a

private trust and therefore a “private trust instrumentality,” or primarily as a “federal

entity” or “federal agency.”9

9

Information on the court cases in this discussion have been provided by Terry Halstead,

Legislative Attorney, American Law Division, CRS.

CRS-10

In 1997, the D.C. Circuit Court held that the Smithsonian was not an executive

branch “agency” (Dong v. Smithsonian Institution) for purposes of the Privacy Act10.

The Privacy Act incorporated the definition of “agency” from the Freedom of

Information Act, which defines “agency” as an “executive department, military

department, Government corporation, Government controlled corporation, or other

establishment in the executive branch of the Government (including the Executive

Office of the President), or any independent regulatory agency.”11 Applying the

Freedom of Information Act definition to the Smithsonian, the court held that the

Smithsonian was not an “establishment in the Executive branch” or a “Government

controlled corporation.” The Smithsonian characterized itself as a “trust

instrumentality of the United States.”12

The unique character of the Smithsonian has featured prominently in other court

cases. It would appear that the Smithsonian is, at a minimum, an “establishment of

the United States.” All moneys received by the Smithsonian are held in the U.S.

Treasury.13 The Smithsonian is required to submit annual reports on its operations to

Congress, and is further audited by the Government Accountability Office.14 If there

is a lawsuit against the Smithsonian, the SI is generally represented by government

attorneys from the Department of Justice.

The aforementioned factors imply “federal” status, and under some federal

statutes the Smithsonian is considered a “federal agency.” For example, in certain

court cases under the Federal Tort Claims Act, the Federal Employment

Compensation Act, and the Inspector General Act, the Smithsonian, for these

purposes, is considered a “federal agency.”15 Several other court cases have

determined that the Smithsonian is at its core a “federal entity” in spite of the

existence of a private funding source.16

However, there is still some reluctance to declare the Smithsonian a “federal

agency” or “federal entity.” The decisions in numerous court cases are based on the

precise language of the “agency” definition in the particular statute being cited in a

10

Dong v. Smithsonian (125 F.3d 877, 883 (D.C. Cir. 1997). There were other court cases

that conflicted with Dong including Cotton v. Adams 798 F. Supp. 22 (D.D.C. 1992).

11

5 U.S.C. §552(f); 5 U.S.C. §552a(a)(1).

12

O’Rourke v. Smithsonian Institution Press, 399 F.3d 113 (2d Cir. 2005)

13

20 U.S.C. §53.

14

20 U.S.C. §49, §§57-58.

15

Expeditions Unlimited Aquatic Enterprises, Inc. v. Smithsonian; Marley v. Ibelli, 203 F.

Supp.2d 302, 308 (S.D.N.Y. 2001); 5 U.S.C.App.3, § 8G(a)(2).

16

Marley v. Ibelli, 203 F. Supp.2d 302, 308 (S.D.N.Y. 2001) There appears to be a

“constitutional” component to the determination that the Smithsonian is a “federal entity.”

SI was created by Congress to further the government’s objective of increasing and diffusing

knowledge. Although not a Smithsonian case, Lebron v. National R. R. Passenger

Corporation, 513 U.S. 374 (1995) provides a precedent in a parallel sense that the

Smithsonian is constitutionally regarded as a “government entity.”

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case, as the Department of Justice’s Office of Legal Counsel confirms.17 Therefore,

declaring the Smithsonian a “federal entity” is determined on a case by case basis, but

it appears that the majority of case findings tend to favor the characterization of

“federal entity.” The impact Congress has on the SI is greater if the SI is considered

a federal entity, particularly with regard to the next issue, the Showtime Business

Venture.

Showtime Business Venture

Members of Congress have expressed concern over the new business venture

between the Smithsonian and Showtime. The venture, called “Smithsonian On

Demand,” is a new cable programming service that will offer commercial-free shows

about Smithsonian resources and collections. According to the SI, the Smithsonian

will take advantage of the power of cable television to expand access to objects,

scientists, and scholars in keeping with its mission to “diffuse knowledge.”

Congress’s primary concern is that the national collections of the Smithsonian

might not be available to the public and that access by other film makers could be

limited or restricted completely. The SI asserts that its collections will remain open

to all researchers. Further, according to the SI, it will not limit access to other

producers, and in fact will hire independent film makers to help in production of the

programs for the channel. The SI originally claimed that it did not need to divulge the

terms of its contract with CBS/Showtime, because it was a private business contract

that did not involve federal funds. Some lawmakers asserted that, because of the

substantial federal support of the SI, they had a right to know about this contract,

while others contended that they should have been informed as a courtesy.

To express its disapproval with the Smithsonian over the Showtime business

venture, the House Interior, Environment, and Related Agencies Appropriations

Subcommittee included bill language limiting the Smithsonian’s ability to execute any

contract or legal agreement which could limit access by the public to the Smithsonian

collections.18 This bill language was retained in the House Appropriations

Committee-reported bill and the House-passed bill. The House also reduced funding

below the Administration’s request for the Smithsonian Institution’s Salaries and

Expenses by $20.3 million from $537.4 million to $517.1 million. Additionally, the

House agreed to limit the salary of the Secretary of the Smithsonian to not more than

that of the President of the United States (approximately $400,000) and to reduce the

salaries of any other SI officer or employee now receiving more than the President to

the level of the President. According to the Smithsonian’s most recently available

return, the current Secretary, Lawrence Small, received a salary of $813,000 for the

17

18

12 Op. A.G. 122, 123-24 (1988).

A copy of the letter from the chairman and ranking member of the Subcommittee on

Interior, Environment and Related Agencies Appropriations to the Secretary of the

Smithsonian, Lawrence Small, is available at [http://www.current.org/pbpb/documents/

Smithsonian-letter-from-house-Ap06.pdf].

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2003 tax year.19 Generally, the Secretary and his assistants receive compensation for

their services “as may be allowed by the Board of Regents.”20

On May 25, 2006, the House Administration Committee21 conducted an oversight

hearing on the Smithsonian’s contract with Showtime. Secretary Small testified,

admitting in hindsight that Congress should have been consulted about the 30-year

contract with Showtime. The Secretary indicated that he did not realize the contract

would be so controversial. In the hearing on May 25, 2006 the Secretary did provide

for the Congress details of the 30-year contract with Showtime. There was criticism

of the contract as an instrument with a 30-year term.

On June 29, 2006, the Senate Appropriations Committee reported the Interior

Appropriations bill for FY2007 (S.Rept. 109-275). The Senate Appropriations

Committee expressed concern about the House-passed reduction of SI funds, stating

that the Smithsonian admitted its “missteps” in not consulting Congress in the process

of negotiating with Showtime. The Senate Appropriations Committee stated that the

reduction will not have a noticeable impact on the venture, and that any reduction may

damage “already thin program budgets in each of the institution’s existing museums,

research centers and the National Zoo” (S.Rept. 109-275, p. 110). Finally, the Senate

Appropriations Committee does not believe that the “visiting public would be wellserved by a reduction of the Federal resources required by the Institution to carry out

its mission.” There has been no final action by the Senate on the FY2007 Interior

Appropriations bill.

Smithsonian Institution Buildings:

Maintenance and Preservation

The Facilities Capital program is a vital component of the Smithsonian. It has

as its goal to provide modernized facilities and to preserve the historic structures of

the SI in order to serve the public and preserve collections. According to the SI and

GAO, many years of insufficient investment in both Facilities Capital and

maintenance have led to deterioration of the physical plant of the SI. The Smithsonian

has some buildings that are well over 100 years old. More than half of the buildings,

according to the Smithsonian, have heating, air-conditioning and electrical systems

19

Jacqueline Trescott, “Smithsonian Investigating Its Sales Division’s Salaries,” Washington

Post, p. C1, Apr. 19, 2006.

20

To compare with the salaries of other museum directors, we found that the Director of the

Metropolitan Museum of Art received over $800,000 (including a housing allowance) using

2003 data. The president of the Getty Museum received over $600,000 including a housing

allowance, using 2004 data. The Director of the Guggenheim Museum in New York

received over $600,000 using 2003 data. Both the Director of the Museum of Modern Art

and the Whitney Museum in New York received over $500,000 using 2003 data. The

Director of the Kimball Museum in Dallas, Texas received slightly over $500,000 according

to the Kimball’s press office (2006 data). These are all estimates from consultations with

press offices.

21

The Committee on House Administration can conduct oversight on any activity related

to the operations and activities of Smithsonian Institution, other than construction of its

facilities.

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that are well beyond repair and are in need of replacement. A study in 2001 by

professional engineers entitled Smithsonian Institution Museums and Facilities:

Critical Assessment and Improvement Objectives (2001) and another report by the

National Academy of Public Administration (NAPA) indicated that there was at a

minimum $1.5 billion in unmet need for capital revitalization of the Smithsonian over

the next decade as reported in 2001. These reports did not take into consideration any

anti-terrorism modifications needed, since the reports were published prior to 9/11.

Both reports determined that a critical investment was needed to improve and preserve

the Smithsonian’s physical plant for the 21st century.

A later study by the Government Accountability Office22 indicated that SI needs

a substantial investment, for revitalization and construction and maintenance projects,

i.e., $255 million a year for the next nine years totaling $2.3 billion. These estimates

could also grow, as they were only initial estimates and assessments.

The National Zoo is now well over 100 years old, dating back to the 1890’s.

The American Zoo and Aquarium Association states the critical importance of

completing a strategic plan for the zoo, including improvement of structural,

electrical and fire safety systems. The National Academy of Sciences study of Zoo

animal care suggests that plans should move forward expeditiously for the Zoo to

keep the animals from harm. The Asia Trail project will provide a larger expanse for

the Asian elephants. The projected cost for Phase II of the elephant trails is $13.0

million for FY2007. In addition, according to the SI, there is a need for renovating

roofs, facades, and skylights at the Rock Creek facility and upgrading of

infrastructure.

According to NAPA and GAO, concern over asbestos in some storage areas of

the older SI buildings has led to restricted access to some collections. Artifacts such

as historic aircraft have sustained water damage. Maintaining climate control and

desired temperature levels for conserving collections has become a problem in some

of the older buildings.

A new report from the National Trust for Historic Preservation places the

Smithsonian’s 135-year-old Arts and Industries building (constructed between 1879

and 1881) on the most endangered historic sites list. Originally called the “National

Museum,” the building was closed indefinitely in 2004 because of its deteriorating

roof and its infrastructure. It served as the only Smithsonian museum on the Mall

until the completion of the National Museum of Natural History in 1910. The

National Trust for Historic Preservation recommends the creation of an advisory panel

to study how to preserve the building.23

There has been no consensus on how to deal with the long-term deterioration in

the SI buildings or how to fund the Smithsonian Institution’s revitalization and repair.

Appropriations for “Facilities Capital” from the Congress do not appear to meet more

22

GAO, Smithsonian Institution: Facilities Management Reorganization is Progressing, but

Funding remains a Challenge, GAO-050369, Apr. 25, 2005.

23

National Trust for Historic Preservation, America’s 11 Most Endangered Historic Places.

2006.

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than a portion of the total estimated need with at least $1.5 billion in maintenance

backlog. Private fund-raising is difficult when it comes to renovation/repair type

funding — repair of leaky pipes, roof repairs, and replacement of heating and airconditioning systems are not high profile items for which contributors will readily

donate. Some groups recommend an aggressive fund-raising campaign. Others

suggest entry fees as a solution. However, the Smithsonian prides itself on “free

access” to its collections, without entry fees.24

24

One construction success story is the Old Patent Office Building of 1846, which has been

renovated, and after a six-year project reopened to the public on July 1, 2006, as the

National Portrait Gallery and the Smithsonian Art Museum (at a cost of $298 million).

(Benjamin Forgey, “Museums Reborn: Patently Inspiring,” Washington Post, June 25,

2006.) According to SI, donors were willing to contribute to “enhancements” and did so for

the Portrait Gallery and the Smithsonian Art Museum — contributing, among other

“enhancements,” to the auditorium and the roof over the courtyard.

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Appendix A

Museums and Research Centers

Under the Smithsonian’s Jurisdiction

American Museums

Anacostia Museum/Center for African American History and Culture

Arts and Industries building (closed)

Center for Folklife and Cultural Heritage

National Museum of African American History and Culture

National Museum of American History, Behring Center

National Museum of the American Indian

Cultural Resources Center (Suitland Maryland)

George Gustav Heye Center (New York)

National Postal Museum

Ripley Center and Discovery Theater

Art Museums

Archives of American Art

Arthur Sackler Gallery

Freer Gallery of Art

Cooper-Hewitt, National Design Museum

Hirshhorn Museum and Sculpture Garden

National Museum of African Art

National Portrait Gallery

Renwick Gallery

Smithsonian American Art Museum

Science Museums and Research Centers

National Air and Space Museum

& Udvar-Hazy Center & and NASM Silver Hill facility

National Museum of Natural History

National Zoological Park

Smithsonian Astrophysical Observatory

Smithsonian Center for Materials Research and Education

Smithsonian Environment Research Center

Smithsonian Tropical Research Institute