Philanthropy and decadence: What would Walter Berns do?

Editorial note: this essay originally appeared at The Giving Review.

***

In order to see a persistent problem in a radically new way, it may be useful to recur to some old questions that are seldom asked any more. Should we consider a dramatic re-ordering of how philanthropy is regulated and understood today? A reorientation of our thinking might be found in the work of the late Walter Berns. Although he never wrote directly about the politics of philanthropy, Berns did write at length about controversies over art and free expression, arguing that virtue and decency were not subjective values, but essential to the health of civil society.

Berns argued throughout his entire academic career that we err when we limit our consideration of speech and free expression to narrow legal contests and mere process reforms. But understanding how his broader vista might apply to philanthropic reform requires some background.

Older readers may recall an arts controversy from nearly 40 years ago, when it became known that several controversial pieces by avant garde modern artists such as Andres Serrano and Robert Mapplethorpe had been funded by taxpayers though the National Endowment for the Arts (NEA). Serrano had received a $20,000 NEA grant that went toward the production and display of “Piss Christ,” which featured a crucifix in a jar of his own urine, while photographer Robert Mapplethorpe was the recipient of a $30,000 NEA grant for a collection of photos featuring scenes of homosexual sadomasochism—including children­ among the subjects—to be displayed at the Corcoran Gallery in Washington, D.C.

We needn’t reopen the perennial debate over “what is art” to make a general objection to taxpayer support for any art, and the controversy in the late 1980s and early 1990s resulted in budget cuts to the NEA along with new guidelines to prevent a recurrence of government-funded art that offends the sense of decency of the overwhelming majority of Americans. The “arts community” screamed that this amounted to “censorship,” as though artists are somehow entitled to taxpayer support, and even though there was never any effort to prevent artists from producing whatever they want—on their own dime.

After all, art has always been supported by wealthy art patrons since antiquity, and if a private donor like the Ford Foundation wishes to support repulsive art, it is free to do so. This seems sensible except for one detail that is usually overlooked: because American philanthropy exists within the special tax-exempt structure for nonprofit organizations, philanthropic support for the arts represents indirect taxpayer support, after all.

Is this a significant problem? In the abstract, probably not. The tax-exemption for nonprofit organizations has long been intended to encourage charitable giving and efforts to promote the public welfare that are beyond the capacity or means of government. Think of the countless museums, libraries, monuments, hospitals, and educational programs that private charity has made possible over the decades, not to mention religious charities that offer help to people in need that is vastly superior to the government welfare state.

By degrees, however, big philanthropy has taken a decidedly left-wing cast over the past few decades, and in areas well beyond art. Whether this has come about because of an undertow from our growing welfare state is a subject for another day, but the pernicious effect of this ideological drift is freshly on our mind again in the aftermath of a recent Atlantic magazine article on the degradation of the humanities on college campuses abetted by the Andrew Mellon Foundation, one of the largest foundation donors to the humanities. How large? In 2024, the National Endowment for the Humanities had a total grant budget of $78 million. The Mellon Foundation’s grant budget for 2024 was $540 million.

In 2020, the Mellon Foundation announced that it was henceforth “prioritizing social justice in all of its grantmaking.”It does not require a special decoder ring to know this means highly ideological leftist pedagogy. Don’t take my word for it. The author of the Atlantic feature, Tyler Austin Harper, is a left-of-center academic, but he declares of the Mellon influence: “A multibillion-dollar politicized grant-making entity has a stranglehold over humanities research and teaching, and is using that power to push them in a direction that blurs the boundaries between scholarship and activism, pedagogy and politics.” Harper displays the receipts in the form of numerous university curricula and projects that lack even a tenuous connection to the humanities rightly understood.

Tax-exempt philanthropies have always been prohibited from “partisan” activity, meaning any support for individual candidates, parties or formal political organizations, and ballot measures. But what about support for insidious ideological projects that exert a “partisan” effect in a different way, distorting education and having deleterious effects on civic virtue and the basic bonds necessary for common citizenship?

It is perhaps tempting to propose expanding the legal guardrails around tax-exempt activity, or instituting a review process that could strip the tax-exempt status of foundations and grant recipients who engage in egregious ideological projects. In concept, expanding the definition of “partisan activity” to include clearly and intentionally political teaching and activism is not difficult.  The practical difficulties with this idea are significant, however, as a bright line between politicized content and merely controversial content would be hard to fix. Is all research and teaching about racism politicized, or just 98% of it?

Likewise, there is reason to worry that such a change would likely also sweep up many conservative foundations and organizations, especially under a hostile administration Above all, it will be said to be censorship, even though such a reform wouldn’t be censoring anyone’s speech at all—it would merely limit indirect taxpayer support.

All of these practical difficulties could be solved through the simple step of narrowing the tax-exemption completely for broad categories of philanthropy, such as humanities and social science in higher education, but also art, “public broadcasting,” “creative writing” workshops, and so forth. Tax-exempt philanthropy could still support college buildings, libraries, art-gallery buildings, hospitals, homeless shelters, soup kitchens, youth camps, and other non-political or “bricks-and-mortar” purposes. Many of these charitable purposes receive significant support from individuals who don’t even take advantage of the charitable tax deduction, and there is no reason to think this would change even among the very wealthy. The Medicis and other Florentine patrons didn’t support Renaissance art for the tax deductions.

To the objection that this amounts to ending large swaths of current philanthropy, Berns would likely say—”precisely.” I know from private conversations with Berns over the years that he deplored the effect of “big money” in politics in terms very close to what so-called “political reformers” use, but he was resolutely opposed to both public financing of political campaigns or government regulation of campaign spending, which he knew would be much more insidious than our current political-finance practices. A term he used in those conversations about money in politics provides a pivot to philanthropy in the arts and humanities: it was “indecent” that politicians had to grub for money in such large quantities, and he thought it contributed to a degradation of civic virtue in contemporary politics.

One of Berns’s distinct contributions to constitutionalism was his very first book, whose unusual title suggests immediately why it stands out: Freedom, Virtue, and the First Amendment. Seldom do discussions of freedom of speech and the First Amendment regard virtue as a serious factor in interpreting law. While the book masterfully exposes the incoherence and inconsistency of the various Supreme Court improvisations of circumstances for which the government might rightly limit freedom of speech (such as the “clear and present danger” test or the “fighting words” doctrine), he thought ultimately the Supreme Court was fated to fail in its attempt to find an “impossible exactitude in the precepts guiding the affairs of men.”

Regarding the “danger” test, for example, Berns wrote that “[t]he Court might have reserved its use for national security cases, or it might have conceded that the Constitution permits the law to act against dangers to civility as well as national security.” (Emphasis added.) The problem with the “danger” test, he wrote, was that it did not recognize virtue: “For liberals in general and libertarians in particular, the word virtue carries overtones of authoritarianism, bigotry, Kulturkampfen, and autos-da-fe. The one inexpiable sin is for government to get into the business of distinguishing good from evil.”

Freedom, Virtue, and the First Amendment appeared in 1957, before the Supreme Court expanded the reach of the First Amendment to include “free expression,” which meant pornography, naked dancing, and f-bombs on t-shirts in the courtroom, not to mention the right of Nazis to parade in a town with a high number of Holocaust survivors. Liberals then and today think the remedy for noxious or hateful speech intended to intimidate (such as Jews on college campuses and elsewhere) is “more speech,” and kind of “Gresham’s law in reverse,” as Berns put it.

Keep in mind that the young Berns, fresh out of the Navy after World War II, wanted to be a novelist, and went through a bohemian phase living in an artist commune in Santa Fe centered around Frieda Lawrence (D.H. Lawrence’s widow). He quickly abandoned this quest and moved to political science instead. But it helps explain why, even as he deplored the accelerating cultural rot in America in the 1960s and after, he thought that even “obscene” art could nonetheless be high art, such as James Joyce’s Ulysses. Even as Berns’s great friend Robert Bork was openly advocating that some regime of censorship should be considered, Berns resisted when he revisited this issue in the early 1970s:

Just as it is no simple task to formulate a rule of law that distinguishes the nonobscene from the obscene, it is still more difficult to distinguish the obscene from a work of genuine literary merit. In fact, it is impossible, and our failure to understand this may be said to be a condition, if not a cause, of our present situation. Our laws proscribe obscenity as such and by name, and we are unwilling to admit that great literary and dramatic works can be, and frequently are, obscene. In combination these two facts explain how it came about that we now have, with the sanction of the law, what is probably the most vulgar theater and literature in history. The paradox is readily explained. The various statutes making up the law have made obscenity a criminal thing, and our judges assume that if a work of art is really a work of art, and not vulgar rubbish, it cannot be obscene. Thus, Judge John M. Woolsey, in his celebrated opinion in the Ulysses case, recounts how he asked two literary friends whether the book was obscene within the legal definition, which he had to explain to them, and how they both agreed it was not. But of course Ulysses is obscene. No so obscene as an undoubted masterpiece, Aristophanes’ Assembly of Women, for example, would not be a masterpiece—which would not be anything—were its obscenity removed, but obscene nevertheless.

While Berns admits that finding a stable legal standard to make “bright-line” discriminations about what is obscene is likely impossible, he thought censorship more broadly considered was a serious idea that a democratic nation should embrace. He understood that vulgarity and nihilist decadence was not simply a matter of aesthetic taste or literary preference, and that the gradual loss of shame portended serious political consequences:

There is a connection between self-restraint and shame, and therefore a danger in promoting shamelessness and the fullest self-expression or indulgence. …  Tyranny is the mode of government for the shameless and self-indulgent who have carried liberty beyond any restraint, natural or conventional. … Anyone can be ruled by a tyrant, and the more debased his subjects the safer his rule.

What prompted his extended reflections on the issue was a surprising (to any conservative) New York Times house editorial, “Beyond the (Garbage) Pail,” that deplored a recent stage play explicitly portraying sexual intercourse. This and other fresh examples provoked the usually “sophisticated” and urbane Times editorial board:

Far from providing a measure of cultural emancipation, such descents into degeneracy represent caricatures of art, deserving no exemption from the laws of common decency merely because they masquerade as drama or literature. It is preposterous to banish topless waitresses when there is no bottom to voyeurism on the stage or in the movie houses.

Just as Berns or Bork might have put it themselves!

Berns thought the ultimate case for censorship was not protecting the morals of individuals, but protecting democracy itself:

Censorship, because it inhibits self-indulgence and supports the idea of propriety and impropriety, protects political democracy; paradoxically, when it faces the problem of the justified and unjustified use of obscenity, censorship also serves to maintain the distinction between art and trash and, therefore, to protect are and, thereby, to enhance the quality of this democracy.

It is probably too much to hope that our jurists would revisit or revive legal scrutiny of obscenity, which is too narrow for current purposes and the question of philanthropy anyway. The example of the political branches restricting the scope of NEA grantmaking suggests going a step further—and beyond merely the arts. With the degradation of the humanities and social sciences at our universities today, I can imagine Berns embracing the proposal to end indirect taxpayer support for the arts, humanities, and social sciences—the latter two because they have become so dominated by forces essentially hostile to western civilization and the open-market system that generates the very wealth that our elite new class uses to attack it. Ending the indirect taxpayer support through tax-exempt grantmaking wouldn’t be censoring anyone; it would only mean that the destructors in our midst would no longer enjoy a taxpayer subsidy.

Source: https://capitalresearch.org/article/philanthropy-and-decadence-what-would-walter-berns-do/