Today’s blog post is generously shared with us by Stephen Soderberg, the recently retired Senior Specialist for Contemporary Music in the Music Division of the Library of Congress. I’ve included his bio at the end of this blog for those who are interested in getting to know Stephen a little better.

Stephen and I met on Facebook a few months back and he shared with me this very interesting blog, which carries alarming implications for the future health of the American symphony orchestra.

I’m filing this under my Young Person’s Guide series because aspiring orchestra folks should have an idea of the nuts and bolts of how orchestras float, and how they may stand to be restructured, should this Milwaukee ruling go national, to the U.S. Supreme Court. I had intended the second blog in this series to be about outreach, but found myself wanting to reference data from this blog, so I’ve decided to publish this first, then do the outreach blog as third in the series.

Without further ado:

GUEST BLOG

BREWED IN MILWAUKEE

By Stephen Soderberg

First published May 9, 2010, in the blog Logogriffin (now defunct).

To begin this, let me say that I am not a lawyer. The closest I’ve ever come to reading the law was Should Trees Have Standing? by Christopher Stone. I read it three times, so maybe I get extra credit. But still, I’m not a lawyer. Remember that as you read on.

Second, I generally stay away from the raves (as in parties not reviews, but the reviews too) where critics lately have taken to whipping themselves and a few music departments and arts administrators into a frenzy over saving classical music, both old and new. Yes, audiences are aging ~ No, I do not believe “the young people” will flock to hear Yo-Yo Ma play the Bach suites in the men’s room at Le Poisson Rouge. Pretending art is common entertainment won’t save it. Just the opposite. That’s what this post is about.

Four days ago I read an item I was pointed to from the Arts Journal site titled “Court rules against Milwaukee symphony in tax dispute.” The gist of it was that “Wisconsin’s five percent sales tax does apply to the sale of tickets to Milwaukee Symphony Orchestra concerts.” That alone, given the current disarray of performing arts organizations and the state of the economy generally, is sort of a ho-hum. If a little sales tax on tickets is all an orchestra had to fret about, well, they could easily make up for it by shmoozing a little harder on a big donor or two. That’s what they pay “development” offices for. Pay the tax. End of story.

Then it hit me. I remembered something I learned from Christopher Stone (well, not in so many words): It’s not the decision, stupid ~ it’s the argument.

The article goes on to say the courts found: “… the orchestra’s concerts are entertainment events [argument] and therefore are subject to the tax [decision]. The court rejected the symphony’s argument that the 100 to 150 concerts it gives every year are primarily educational and charitable in nature and therefore exempt.”

I have been half-joking (very, very, very quietly) with friends and colleagues for years that performing arts organizations are really lucky to have intelligent friends in high places who agree with us artsy folks that a concert is “educational.” It’s the only non-profit category in the U.S. tax code that an orchestra can reasonably be made to fit into. Here is how it reads:

Internal Revenue Code Section 501(c)(3):The exempt purposes set forth in section 501(c)(3) are charitable, religious, educational, scientific, literary, testing for public safety, fostering national or international amateur sports competition, and preventing cruelty to children or animals. The term charitable is used in its generally accepted legal sense and includes relief of the poor, the distressed, or the underprivileged; advancement of religion; advancement of education or science; erecting or maintaining public buildings, monuments, or works; lessening the burdens of government; lessening neighborhood tensions; eliminating prejudice and discrimination; defending human and civil rights secured by law; and combating community deterioration and juvenile delinquency.

If, like so many seeking quick information, you go to Wikipedia (yes, I do it all the time myself) you’ll find this more comforting summary:501(c)(3) exemptions apply to corporations, and any community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, educational purposes, to foster national or international amateur sports competition, promote the arts, or for the prevention of cruelty to children or animals. [my italics]Whoever the Wikipedia editors were on that one, evidently they thought they should add what “we all know to be the case” ~ but, as far as I know, it is not (literally) the case. There may have been administrative, and, for all I know as a non-attorney, judicial, “interpretations” of the word “educational” to let the arts in, but nothing in the Code reads “promote the arts” in so many words. If it did, every rock group in the land, each of which by currently accepted popular definition is a purveyor of “art,” would incorporate and apply for 501(c)(3) status ~ but no garage band I know of has yet convinced the IRS that its goal is to educate.

At this point, if you are a serious arts administrator ~ or a critic ~~ or professional arts blogger who would enthuse over a music video featuring the members of the string section of the Chicago Symphony in clown costumes jumping through fiery hoops to throw complimentary cakes of rosin into a crowd of crazed seniors flicking Bics ~~ you need to do what I did to sober up:

Read the Wisconsin Supreme Court decision ~ every word of it:

I truly hope there are attorneys out there who might chime in to enlighten further and correct me, but my own very amateur opinion after reading it (and before correction by those who might know what they’re talking about) is this:(A) The Wisconsin Supreme Court is probably technically “correct” in its decision to uphold the state Department of Revenue’s interpretation of the tax statute. They kept to a strict reading that focused on “entertainment” as the legislative basis for the tax and found that (1) people go to a symphony concert primarily to be “entertained” and (2) promotion of symphony concerts emphasized the entertainment aspect and barely mentioned any “educational” value.(B) The decision specifically insulated itself (or tried to insulate itself) from 501(c)(3) because entertainment, not education, was the issue. This is where it gets dicey. The Symphony’s mission statement (just as that of every performing arts group in the U.S.) says that their services are “educational” and the federal government tacitly backs that claim by accepting the Symphony as a non-profit. Ignoring this as irrelevant to the specific case at hand, the Wisconsin Supreme Court found that the Symphony’s primary function for purposes of the state tax law is entertainment. (The Court came close to calling the Symphony’s mission statement a fabrication.) So the Court agreed with the state Department of Revenue’s determination that (1) an event that is 50% or more entertainment is subject to state sales tax, (2) by that definition the Symphony was obliged to pay the tax, and (3) any counter-determination by IRS that a symphony concert is “educational” is irrelevant.I am probably missing some subtle points of law and logic here that would make my judgement seem silly ~ a lot like those I rail at for rendering pseudo-authoritative opinions on technical matters in music when they haven’t the foggiest idea what they’re talking about. But fools rush in, so ….It appears to me that, despite the Wisconsin Court’s disclaimer, they have, albeit unintentionally, set the stage for a potentially apocalyptic battle that the performing arts community in the U.S. REALLY doesn’t want to have and, given circumstances of their own making as demonstrated in the Milwaukee case, can’t win.The Wisconsin courts were right, I think, in the specific case before them ~ that they couldn’t reach into 501(c)(3) as the Milwaukee Symphony wanted them to, such that determination of federal tax status on one basis trumped the state’s right to tax ticket sales on a different basis. But now this issue puts the question on the table as to whether “promoting the arts” is legally considered an “educational” endeavor or merely an attempt to maintain a favored status for certain forms of “entertainment,” striking right at the heart of the basis for charitable arts support in the U.S. ~ namely the tax exemption under 501(c)(3). 501(c)(3) is the Ace in the bottom floor of a house of cards. Take it away and the house falls (just ask the executive director of any local orchestra, dance company or theater).Right now the Milwaukee Symphony is certainly “weighing its options” as one web article says. But this is no longer only a local matter. The arguments in this case have forced us to confront a false dichotomy: entertainment versus education. It does no good in this case and, arguably, from this point on, to point out that these two things need not be in competition and are often complementary. It is now case law that in Wisconsin, if a concert is 65% entertainment, it cannot also be 65% educational ~ these things are now in opposition. When an orchestra deals with the state, it has to admit it entertains; when it deals with the Federal Government, it has to pretend it educates. By indicating that I personally still think the Wisconsin courts were “right” in this decision, I am also indicating that they really had no choice based on the situation we’ve created in our attempt to make peace with a dominant popular culture where the word “Art” can’t be whispered without shouts of “elitist snob.” Neither the Court nor the state Department of Revenue invented this stupid situation ~ we did.The court was merely affirming the Janus face we in the arts community have been presenting for the past half century or more and hoping would pervade our culture without anyone noticing. We have succeeded. Even if the court had decided a Milwaukee Symphony concert is primarily educational and denied the tax, that would also have affirmed the dichotomy. We just never thought anyone would call us on this: we’re selling apples and oranges because we don’t want anyone to know we’re really mango growers. There’s a gigantic mango in the room, and its name is Art with a capital A. And we keep telling everyone to ignore it, it’s not there, mangoes don’t exist (or, as with the art-is-everywhere approach, it’s all mangoes, so mangoes are irrelevant ~ same difference). And they believed us.

The fairly recent disappearance/denial of the word Art can actually be seen in the Wisconsin court decision, paragraph 88:The [Wisconsin Tax Appeals] Commission highlighted the Milwaukee Symphony Orchestra’s Articles of Incorporation from both 1976 (the Milwaukee Symphony Orchestra’s “primary purpose[s]” are “to organize and maintain and conduct a symphony orchestra and to present performances by the said orchestra . . .to further the cultivation and appreciation of the art of Music. . . . “) and 1988 (“The purposes for which the Corporation is organized are educational, to present classical and other orchestral music, performed with the highest degree of artistic excellence, to promote and develop public appreciation of and to educate the public in such music . . . .”). [italics are mine]With the exception of vestigial (and mostly meaningless) derivatives such as “artistic excellence,” for the most part the word “Art” just plain disappeared. In the present case, it was gone in just 12 years, between 1976 and 1988. And this is not to fault the Milwaukee Symphony’s administration or board. It happened everywhere. The pragmatic reason (denials will be ignored) was to align with 501(c)(3) ~ to survive and maybe thrive hiding behind the skirts of sacrosanct “education.” I doubt you will find a non-profit performing arts organization anywhere in the U.S. today that is so stupid as not to put “education” up front in its mission statement. But the demands of a pragmatic business model (“the business of music is too important to be left to musicians” ~ an actual quote of a real board member of my acquaintance) are not the only reasons.

This dubious connection became even more dubious as public education, pushed by school boards and later “No Child Left Behind,” began going in a much different direction. During approximately the same time frame that orchestras were discovering how to disguise Art as “education” in the 1970s-80s, the word hadn’t gotten to school boards. Art was being escorted out the door of public schools for “budgetary reasons” based on the notion that Art is not a fundamental aspect of education, but a “frill” (read: entertainment).

The idea that music, especially music, is merely a cultural-generational spice to sprinkle on life’s truly important and nourishing food groups such that a meaningful distinction needn’t (can’t) reasonably be made between Bach and Bacharach took hold in just one generation.

It is no surprise, then, that the Wisconsin Supreme Court decided as it did. And it should come as no surprise to the performing arts community when the next shock hits. I don’t pretend to know the exact form it will take, but I feel it’s near.

* * *

And just to be clear, I do not deny a relationship between education, entertainment, and Art. But I see Art as covering the other two, not the other way around. Art can be educational, but in the popular sense of “education” today as nearly synonymous with “training,” the goal of Art is not to educate. Art can also be entertaining, but in the popular sense of “entertainment” today that embraces American Idol, the goal of Art is not to entertain. But it’s too late.

* * *

I started by admitting my only experience in “reading the law” ~ Christopher Stone’s Should Trees Have Standing? I’ll end with the words of another important environmentalist ~ not a legal scholar but a novelist, the late John Fowles who wrote in The Tree: “It is far less nature itself that is yet in true danger than our attitude to it. Already we behave as if we live in a world that holds only a remnant of what there actually is …. I believe the major cause of this more mental than physical rift lies less in the folly or one-sidedness of our societies and educational systems, or in the historical evolution of man into a predominantly urban and industrial creature, a thinking termite, than in the way we have, during these last hundred and fifty years, devalued the kind of experience or knowledge we loosely define as art; and especially in the way we have failed to grasp its deepest difference from science.”

About

With my primary interest in the field of compositional and mathematical music theory, I have published articles in Journal of Music Theory, Perspectives of New Music, and Music Theory Online (see the accompanying CV for a list of publications). My essay, “Transformational Etudes,” appears in the collection Music Theory and Mathematics, ed. Jack Douthett, Martha Hyde and Charles Smith, University of Rochester Press, 2008. My essay “At the Edge of Creation: Elliott Carter’s Sketches in the Library of Congress” will appear in Elliott Carter Studies, ed. Marguerite Boland and John Link, Cambridge University Press, forthcoming 2012.

I have delivered papers at various conferences, including the American Mathematical Society and the Society for Music Theory. I have been a guest lecturer at the University of Maryland and the University of Iowa, and I am currently on the editorial board of the Journal of Mathematics and Music. My professional memberships include The Society for Music Theory, The Music Theory Society of the Mid-Atlantic, and The Society for Mathematics and Computation in Music.

I am recently retired as Senior Specialist for Contemporary Music in the Music Division of the Library of Congress where I planned and coordinated internet-, concert- and collections-related projects focused on American contemporary classical music.

As a violinist, I performed semi-professionally in various orchestras and chamber ensembles and taught privately for 45 years. I studied violin with Ludwig Schmidt and Charles Treger, viola with William Preucil, and conducting with Henry Veld, Charles Gigante and James Dixon. I was a founding performing member of the former Washington Sinfonia and served as its program director for three years.

I have served on the boards of directors for Lorton (Virginia) Arts Foundation, Garth Newel Music Center, and Contemporary Music Forum/Verge Ensemble.