Conferees Agree to Ban Funding for ‘Obscene’ Art

Senate and House negotiators agreed Friday on a compromise that would prohibit federal funding of “obscene” art but would reject a much broader ban covering works deemed “indecent” or “denigrating.”

Leaders were uncertain whether the full membership of the House and the Senate would accept the proposal, which scaled down substantially a Senate-passed ban sponsored by Sen. Jesse Helms (R-N.C.).

Some thought that the compromise might go through next week, while others said they expect further controversy over the issue.

The new plan emerged hours after the Senate had dealt a pair of resounding setbacks to Helms, a maverick whose disruptive tactics have annoyed many colleagues, although gaining him a wide following among ultraconservatives.

Helms, riding a wave of grass-roots protests against funding of works by Robert Mapplethorpe and Andres Serrano, had won Senate adoption two months ago of an amendment placing broad restrictions on arts funding by the National Endowment for the Arts.

The amendment would have blocked spending for “obscene or indecent” materials depicting sexual activity or the exploitation of children, materials that “denigrate” a particular religion or nonreligion and material that “denigrates, debases or reviles” persons on the basis of race, creed, sex, handicap, age or national origin.

But early Friday, the Senate rejected, 62 to 35, Helms’ attempt to pressure Senate negotiators to back the amendment.

When Helms sought later to pare the ban to cover “obscene” or “indecent” works, the Senate voted, 65 to 31, to embrace a substitute offered by Sens. Wyche Fowler Jr. (D-Ga.) and Warren B. Rudman (R-N.H.) that would prohibit funding only of “obscene” art.

Helms complained that dropping the word “indecent” would leave “a loophole to people who want to continue to abuse” the use of tax dollars. Fowler countered that “indecent” was unconstitutionally vague and that his language adhered to a U.S. Supreme Court decision banning obscenity.

Senators, both Democrats and Republicans, said in interviews that they reversed field and scaled down the original Helms amendment for several reasons:

--An unusually informative and well-attended debate persuaded them that the comprehensive ban went too far in restricting citizens’ First Amendment rights to free speech.

--Helms’ middle-of-the-night attempt to pressure Senate conferees was an insulting challenge to their judgment.

--It was an irresistible opportunity to take a swipe at Helms, whose national political organization has used many Senate votes on moral and patriotic issues as ammunition in election campaigns.

At the same time, some senators who voted to throw out the entire Helms amendment acknowledged that they had felt politically obliged to vote later for the Fowler-Rudman ban on “obscene” art. That way, they hoped to be able to please a wide range of voters back home--supporting free speech on the one hand while opposing pornography on the other.

Sen. Pete Wilson (R-Calif.) was scornful of the Fowler-Rudman plan, which he voted against as too limited. “It was supposed to provide some political cover for people who voted no (on the Helms amendment), lest they be accused of promoting obscenity and sexual exploitation of children in the guise of art.”

Asked if he agreed with that assessment, Sen. Paul Simon (D-Ill.), who supported Fowler-Rudman as an alternative to Helms, smiled and said: “Yes.”

Fowler said the debate Friday, which included attacks on the Helms amendment by Republican moderates John C. Danforth of Missouri, Slade Gorton of Washington and Rudman, “really showed that an attempt to ban depictions offensive to a religion or non-religion were not only constitutionally vague but could have unintended consequences. It could have affected books on Judaism offensive to Christians and vice versa.”

Moreover, he contended, Helms’ proposed ban on “denigrating” materials based on gender “knocks out all literature. Not a book has been written that is not offensive to somebody.”

A Democratic senator who asked not to be identified said that “we really rolled Jesse. I didn’t think we would have the courage to say no to him, but we just got tired of these votes that are designed for TV spots and campaign materials.”

A Republican senator who also requested anonymity said: “This had to do with Jesse’s style and history of mischief. If somebody else had proposed the broad ban, there would have been a very different result.”

Sen. Alfonse M. D’Amato (R-N.Y.) said he and others voted to cut back the Helms ban because parts of it were “too vague to be enforced. They would create a great deal of controversy and many court challenges. Obscenity is clearly defined (by the Supreme Court) as being outside of community standards.”

Sen. Terry Sanford (D-N.C.) said Helms had been defeated in part because his effort to pressure conferees “went against the Senate’s long-standing procedure of having confidence in its conferees. You’ve got to give them freedom.”

Besides narrowing the ban, the conference agreement chastised the NEA for funding the Mapplethorpe and Serrano works. It also called for a commission to study how federal arts aid is distributed and whether new standards should be set for works to qualify for government funds.

A series of photographs by Mapplethorpe depicted homoerotic and sadomasochistic acts. A photo by Serrano depicted a crucifix in a bottle of urine.

Anne C. Murphy, lobbying against a funding ban on behalf of writers and artists, said that her American Arts Alliance reluctantly supported the compromise. It is not what she wanted, she said, “but my name is not Dorothy and I’m not in Oz. I have to deal with the reality of all these worlds.”

In a related development, the Senate confirmed on a unanimous voice vote the nomination of Portland, Ore., attorney John E. Frohnmayer as new chairman of the National Endowment of the Arts. Frohnmayer, who is expected to take over his new duties within the next two weeks, will be in Washington on Tuesday for a White House lunch with President Bush.