A scathing review from Roger Ebert could persuade millions of Americans not to buy tickets to a new film. This man has done him one better: a film that he doesn't like won't even make it to the big screen.
One quirk of the arts tax imposed by the City of Portland through the will of the well-meaning voters in November is that it taxes the full-year 2012 income of Portland residents even though it didn't take effect until December 5, 2012, when 339 days of the year had already passed. The act defines a "resident" of Portland to include persons who spent 200 days or more in the City, with some exceptions not important here, bringing up the delightful possibility that the estates of Portlanders who died between June 18 and December 4, 2012 are liable for the $35 head tax even though they died before the tax came into being, giving the government an unexpected reason to reread the obituaries.
It's now been reported that prominent Portland blogger and tax professor Jack Bogdanski has filed suit to declare the $35/head Portland arts tax unconstitutional. Here's why Professor Bogdanski will win.
In 2000, in the case of Cook v. City of Portland, the Oregon court of appeals described a poll tax as "a fixed tax assessed on each eligible person." In that case, Vern Cook (1925-2008), a Gresham lawyer, legislator, and longtime civic gadfly, challenged the City of Portland business license tax for four reasons, one of which was that it was (in Mr. Cook's view) an unconstitutional head tax. The court of appeals easily decided that the business license tax was not an unconstitutional head tax, using these words:
Portland's business license fee is not a head or poll tax. It is not assessed per capita. Rather, it is assessed only on those persons or corporations who choose to do business within the city. Moreover, although there is a minimum tax, the tax is proportional. The amount of the tax is generally a function of the income a licensee earns. The tax does not possess the same characteristics that prompted the people to add Article IX, section 1a, to the Oregon Constitution.
By contrast, Portland's arts tax is assessed per capita (per person), and it is not a function of the income that a Portland resident earns. The tax is either $0 or $35.
Does the Portland arts tax "possess the same characteristics that prompted the people to add Article IX, section 1a, to the Oregon Constitution"? Here's how the court of appeals described those characteristics:
Article IX, section 1a, which prohibits those taxes, was
added to the constitution in 1910. The amendment's supporters explained that a poll or
head tax "is unjust not only because it is collected from very few of the men who are
supposed to pay, but also because it bears so unequally on men in proportion to their
ability to pay." Voters' Pamphlet, General Election, November 8, 1910, at 24-25.The
problem that the measure's supporters perceived was that poll or head taxes are not
graduated. As they explained, "[t]he laborer supporting a family on $2 a day pays exactly
the same poll tax as the corporation manager with a salary of ten thousand dollars a year."
That sounds exactly like the Portland arts tax, if you adjust for inflation: the laborer supporting a family on $100 a day pays exactly the same arts tax as the corporation manager with a salary of $200,000 a year. Based on the 1910 Voter's Pamphlet arguments as interpreted by the Oregon courts, the arts tax is an unconstitutional head tax.
"But wait," you might say, "didn't a judge already declare that the arts tax is not an unconstitutional head tax?" Yes -- and no. In August 2012 a Multnomah County judge, John A. Wittmayer, ruled that the arts tax was not a head tax, but he did not rule that it was constitutional. Rather, he ruled only that the tax did not need to be described on the ballot as a head tax or poll tax, in response to challenges brought against the proposed ballot title and summary. In Judge Wittmayer'>s words: "The proposed tax at issue here is not a head tax or a poll tax because it is not assessed per capita -- it is assessed only upon income-earning individuals age 18 or older in households above the federal poverty guidelines." (Judge Wittmayer's opinion, at page 5.)
The good judge is saying that a flat tax of $35 per person is not a head tax if not everyone has to pay it, suggesting that a $35/person tax is not a head tax unless absolutely everyone has to pay it. Because the petitioners were challenging the ballot title, and not arguing that the measure was unconstitutional, the judge never ruled that the arts tax is constitutional -- no one asked him to decide that question. Likely none of the parties invited him to read the 1910 Voter's Pamphlet and the decision in Cook v. City of Portland to see that the voters and the appellate courts consider "head tax" and "poll tax" to include taxes that are assessed at a flat amount per eligible person.
Baritone Robert Orth, in town to play Don Alfonso in Portland Opera's production of Cosi Fan Tutte, is often away from home, appearing on stage. This week in Portland, someone asked him if he ever felt lonely being away from home so much. "When I started to travel," he replied, "yes, I did feel lonely. But now that I've spent thirty years on the road," he said with a whimsical tone that the dry words don't reflect, "I find myself endlessly fascinating."
The National Portrait Gallery reopened last July 4 after being closed for six years for renovations. One of its central collections is of portraits of the Presidents, ranging from the standard stately depictions to drawings by Herblock and whimsical, biting sculptures by Patrick Oliphant. (His statuette of Richard Nixon shows Mr. Nixon riding a horse, hunched over, with his hand behind his back in the Napoleonic manner.)
The gallery, like most cultural institutions, has its hand out, in a nice way, to prospective donors. (Admission is free, because it's part of the Smithsonian Institution, though it's several blocks north of the Mall.) One way to support the gallery is to "adopt a portrait." If you adopt a painting by making a gift of a certain size, the gallery will invite you to special events, offer you private tours, and, most visibly, place a small plaque above the description of your adopted portrait identifying you as its adoptive parent.
The gallery includes a striking portrait of John Kennedy, done by Elaine de Kooning. It's one of the few paintings that has been adopted. A small plaque identifies the generous donors as Walter and Joan Mondale. So far no one's adopted Ronald Reagan or Bill Clinton.
The stories this week about our legislators enjoying weekends in Maui at the expense of the Oregon Restaurant and Beverage Association and its members brought to mind this passage from The Apple Cart, a play by George Bernard Shaw. The play describes a polite power struggle between Magnus, the king of Great Britain, and his prime minister, Proteus. The cabinet includes a number of party hacks, some devoted public servants, and a union leader, Boanerges, as the minister of labor. Early in the play the ministers admit that most of them are directed by a large industrial combine, Breakages, Ltd., which wines and dines them regularly. As they discuss this, one minister, Crassus, invites them all to lunch at the Ritz, saying grandly that Breakages, Ltd. will pay, and only Boanerges turns him down:
PROTEUS. His last wriggle. Never mind: we have him safe enough. What about lunch? I am starving. Will you lunch with me, Lizzie.
LYSISTRATA. Dont speak to me. [She rushes out distractedly].
AMANDA. Poor darling Lizzie! She's a regular old true blue Diehard. If only I had her brains and education! or if she had my variety talent! what a queen she'd make! Like old Queen Elizabeth, eh? Dont grieve, Joe: I'll lunch with you since youre so pressing.
CRASSUS. Come and lunch with me--all of you.
AMANDA. What opulence! Can you afford it?
CRASSUS. Breakages will pay. They have a standing account at the Ritz. Over five thousand a year, it comes to.
PROTEUS. Right. Let us spoil the Egyptians.
BOANERGES [with Roman dignity] My lunch will cost me one and sixpence; and I shall pay for it myself [he stalks out].
Who among our legislature buys his or her own lunch instead of accepting the hospitality of our state's version of Breakages, Ltd.? Now would be a good time to mention that happy fact in public.
In the mid-1970s I came to know an academic named J. Leroy Davidson (1908-1980), a professor who had been the chairman of the Art Department at UCLA and who after retiring spent a little time in Portland. Mr. Davidson and his wife Martha were experts on the art of Asia, and of India in particular, and had a splendid collection of Indian, Tibetan, and Chinese scrolls, sculptures, and artifacts. They willingly talked about their collection and where the pieces came from. And they had some interesting pieces: one Tibetan statue dated back to the 13th century.
Mr. Davidson, who was related to me in a convoluted way,never talked about his past, and I didn't think to ask. Only recently did I discover his involvement in a small bit of Americana that involved Mr. Davidson, the State Department, a $50 Georgia O'Keeffe painting, and President Truman moonlighting as an art critic.
After World War II the State Department decided to sponsor a traveling art show. They determined to gather a collection of American works of art and send them on tour through South America and Europe to build cultural goodwill. In 1946 the Department engaged Leroy Davidson, an energetic man in his late 30s who had been an assistant director of the Walker Art Museum in Minneapolis, to select and gather two collections of American art.
For the first collection, Mr. Davidson persuaded American corporations with art collections to lend some of their significant pieces to the State Department. These were mainly pieces that, by American standards, would be considered old masters: pieces done by artists, often deceased, with established reputations. Most of their names are recognizable today.
Mr. Davidson wanted the second collection to be more interesting. He persuaded the State Department to let him buy, rather than borrow or rent, the artworks for the second show, and the government gave him about $50,000 toward the task. These are in the dollars of 1946; think about $500,000 or so in today's dollars.
And Mr. Davidson bought art, descending on Gallery Row in Manhattan's 57th Street with the State Department's checkbook. He ultimately bought 117 pieces of modern American art, organized them, and gave the show a title with two meanings: "Advancing American Art."
The names of most of the artists in this show mean nothing today to anyone except the art expert or the serious collector, but the show did include works by Georgia O'Keeffe, Ben Shahn, and John Marin, all still important names in the history of art. Most of the works were from the Social Realism school, depictions of the grittier side of American life made in the 1930s and 1940s. (Keep in mind that the artists of this period had the Great Depression and the War to use as raw material.) Artists such as Gregorio Prestopino, Pietro Lazzari, Philip Evergood, Douglas Brown, Reginald Marsh, and William Gropper, all more significant then than they are today, were represented in the show, mainly with pictures of city scenes. These were not urbanely cool "Metropolis"-like pictures of American progress and modernization, but of things like gas stations and subway riders. And the show headed for the ruined capitals of Europe.
While the show was in Paris, the American Artists Professional League complained to Congress that "Advancing American Art" didn't represent American art and were full of European radicalism. The chairman of the House Appropriations Committee complained to the Secretary of State, and the show (which had made it to Prague but not to its other scheduled stops) was cut short and brought home. Harry Truman himself ridiculed the show, and said of one of the paintings, "If that's art, then I'm a Hottentot."
This left the Secretary of State, George Marshall, with a problem. Who would rid him of these troublesome paintings? (He apparently rejected the idea of using them to start a gallery in the State Department.) After some thought, the department offered the paintings for sale by written bid. Private persons who won an item had to pay the bid amount, but qualifying colleges were given the right to buy works at 5% of their fair value, if their bids were accepted. That is, if a school made the high bid of (say) $1000 for a work, the school would have to pay only $50,which is what one lucky school paid for the Georgia O'Keeffe work. The sale wasn't advertised, and attracted very few bidders -- some colleges, and a few individuals who found out about the sale by chance or from knowing someone involved with the exhibition.
The collection was dispersed. Oklahoma University and Auburn University each got about a third of the works, and an assortment of institutions and individuals got the rest. Altogether the State Department received about $5000 for the works that it had paid $50,000 to acquire only two years earlier. Leroy Davidson left the State Department and entered the academic world, becoming a professor at a prominent Southern college, where he built his expertise and reputation on the art of India.
I'm sorry now that I didn't know to ask Mr. Davidson about this interesting episode in his life. But now I think I know -- I certainly suspect -- how Mr. Davidson's Laquedem cousin, who didn't have spare money to buy art with, came to own works by Gregorio Prestopino, Pietro Lazzari, Philip Evergood, Douglas Brown, and Reginald Marsh. William Gropper's painting escaped the cousin's net.