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Friday, November 7, 2008

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Legislative Update

NASAA Legislative Counsel Thomas L. Birch

Congress Adjourns, Leaving Unfinished Business

Much of the arts advocacy legislative agenda for the 110th Congress, though favorably received, did not see completion by the end of the legislative session in October. Action on appropriations and most other issues was deferred until the new Congress takes office in January.

Appropriations: Eager to adjourn without doing protracted battle over appropriations issues, Congress passed an omnibus continuing appropriations bill at the end of September just before the start of the new fiscal year, carrying FY09 spending well into the 2009 calendar year at 2008 funding levels for most federal agencies. The funding package was signed into law by President Bush on September 30.

The funding bill for the Department of the Interior—which includes money for the National Endowment for the Arts—had moved no further than the House Appropriations Subcommittee, which had approved an increase in arts funding from $144.7 million in 2008 to $160 million for 2009. No action was taken on the measure in the Senate. The continuing resolution that carries the arts funding at the 2008 level of $144.7 million includes level funding as well for the National Endowment for the Humanities at $144.7 million, the Office of Museum Services at $31.2 million, and Arts in Education at the Department of Education at $37.53 million.

Extending the date for the continuing resolution to March 6, 2009, allows Congress to postpone any budget negotiations until a new president takes office. Initially opposed to calling legislators back for a lame duck session after the November 4 elections, House and Senate Democratic leaders now plan to reconvene the Congress in November to take up an economic stimulus package dealing with the financial credit crisis.

Artists' Visas: Legislation requiring U.S. Citizenship and Immigration Services (USCIS) to reduce the total processing times for visa petitions filed by, or on behalf of, nonprofit arts-related organizations to a maximum of 45 days passed the House on April 1, 2008. The Arts Require Timely Service (ARTS) Act, H.R. 1312, introduced by Rep. Howard Berman (D-CA), would improve the artist visa process by requiring USCIS to treat as a Premium Processing case, free of additional charge, any arts-related O and P visa petition that it fails to process within 30 days.

Similar legislation, S. 2178, introduced by Sens. John Kerry (D-MA) and Orrin Hatch (R-UT), failed to move off the pending legislative agenda of the Senate Judiciary Committee. The visa issue will be back on the legislative calendar next year for reintroduction.

IRA Rollover: The financial bailout package passed by Congress before adjournment included a two-year extension of the Individual Retirement Account (IRA) Charitable Rollover Provision. The provision in the Emergency Economic Stabilization Act signed into law on October 3, 2008, was one of the "tax extenders" that legislators and the White House were eager to enact before the current tax provisions expired.

The IRA Charitable Rollover Provision—which allows donors age 70-1/2 and older to make tax-free charitable contributions directly from their IRAs of up to $100,000 annually without having to count the distributions as taxable income—represents an important opportunity for nonprofit arts organizations. The provision is especially attractive to taxpayers age 70-1/2 and older who are required to make annual distributions from their IRAs, which are then taxed as income. The provision, which had expired at the end of 2007, has been extended through December 2009.

Orphan Works: Just when it seemed as though no action would be taken in this Congress on orphan works legislation, the Senate passed the Shawn Bentley Orphan Works Act of 2008, S. 2913, on September 27. The bill passed under an expedited procedure by voice vote. The bill would limit the liability of individuals and organizations using copyrighted material for which the copyright holder cannot be located after a statutorily defined "diligent search." Because the House had not taken action on a companion measure pending before the Judiciary Committee, the issue will be back on the agenda next year.

Artists' Gifts Charitable Deduction: Although bills in the House and Senate providing artists a full fair-market value tax deduction for works they donate to nonprofit collecting and educational organizations carried a record number of cosponsors this year, neither chamber moved the legislation beyond the tax-writing committees. Once again, next year, arts advocates will press Congress for action on the issue.

Keep abreast of current congressional news and federal legislative updates, and be sure to take advantage of NASAA's arts advocacy tools and services.