6/20/00 2:05 p.m.
Elephant Mania!
The misunderstood pachyderm.

By Stephen F. Hayes

ast week, the House Judiciary Committee's subcommittee on crime considered testimony on a bill that would ban nationally the use of elephants for certain entertainment purposes. Sponsored by California Representative Sam Farr, and co-sponsored by 48 representatives (including 10 political pachyderms, er, Republicans) the Captive Elephant Accident Prevention Act of 1999 would prohibit elephants from, among other things, doing the old stand-on-two-legs trick at circuses and giving rides to anyone, anywhere in America.

Among the witnesses were a zookeeper, a veterinarian, a professor, a police officer, and a Barker. The Barker was not of the circus variety — "a person who advertises by hawking at an entrance to a show." It was Bob Barker, of the game-show variety — "a person who achieves mild celebrity status by yelling 'Come on Down!'"

Barker also goes by "animal-rights activist," and is thus qualified to lecture lawmakers on what he sees as a pressing issue of national concern. He detailed for the panel the "three basic needs" of elephants — food, social relationships, and freedom of movement — all of which are compromised, Barker argued, when elephants live in captivity, much less when they stand on one leg on an upside-down pail. "Is it any wonder that these tragic captive elephants," Barker pleaded, "deprived of any semblance of the life intended for them by nature, mercilessly beaten, some of them daily, to force them to perform ridiculous tricks, robbed of every shred of dignity, is it any wonder that these magnificent, highly intelligent creatures finally rebel?"

Representative Farr took the argument a bit further in an op-ed in the Monterey Herald last fall explaining how elephants are "brutalized" in order to coerce them to perform tricks. "It is therefore understandable that when they get the chance, they kill people," he wrote.

But according to David Rawls, president of the Kelly Miller Circus, elephants had more than 20 million opportunities last year and didn't lift a trunk. "In 1999, over 20 million people attended circuses with animals without incident."

Representative Farr, perhaps anticipating the most obvious and compelling arguments in opposition to his bill, introduced it as "practical and reasonable." He continued, "It addresses a fundamental wrong in the entertainment industry."

His first point — practical and reasonable — is debatable. But for argument's sake, let's concede to him his second assertion, that the mistreatment of captive elephants is indeed a "fundamental wrong." Need it be said that virtually no one favors brutalizing animals?

A rather obvious question is this: Could the Framers of the Constitution possibly have imagined our lawmakers considering such legislation when they gave Congress the power "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes"? Is regulating elephant use in the entertainment industry within the scope of the strictly limited government the Founders designed?

Even if we use Representative Farr's numbers, which are disputed as exaggerations by those who oppose his bill, the rampant problem of rampaging elephants has touched only 100 people since 1983, killing 30 and injuring 70. No one, of course, wants to minimize even one death. But if his bill "is mostly about performing people rather than performing animals," as he declared at last week's hearing, it's really only about 100 performing people — performing people who largely choose to work with elephants.

The paternalistic instinct of Congress to protect foolish citizens is understandable. But it often leads to very bad law. If eliminating harm were as easy as passing laws, we would have long ago woken up to the newspaper headline "Congress Outlaws Danger."

(Warning: the next sentence contains the words "Statistical Abstract." Please keep reading anyway.)

If 100 elephant injuries over 17 years merits congressional hearings and a Captive Elephant Accident Prevention Act, a quick look at Table 224 of the Statistical Abstract of the United States (compiled by the U.S. Census) tells us Congress had better roll up its collective sleeves. There is, as the saying goes, a lot of work to be done.

The table documents "Injuries Associated With Consumer Products" in 1996. (page 33) Some of the findings are expected: 21,807 Americans were injured using BBs or pellets, 35,132 of us hurt ourselves with chainsaws, and 63,600 people were injured operating all-terrain vehicles. Some of us might grouse a bit about things like, well, freedom, if Congress tried to eliminate these things, but the BB lobby isn't as powerful as the NRA, so this stuff could happen.

But here is where Congress might face stiff resistance. 400,648 Americans injured themselves on their beds last year. 318,185 on "doors (excluding garage)," and 228,431 on "walls and ceilings." And still another 109,954 got banged up on "sofas, couches, davenports, etc." (Though there is no mention in the abstract about statistical overlap, it's reasonable to assume that some of those attacked by their sofas are the same folks who bit it in a confrontation with a door.)

There is no formal bed lobby, as far as I know, but quite a few Americans are surrounded by walls and ceilings every day. And not just at home, but at work, too. Where's OSHA?

Despite what Representative Farr says, though, his bill is about the elephants, too. Representative Bill McCollum (R) says "there are 2000 elephants held in captivity in the United States, the vast majority in zoos. About 200 are owned by traveling circuses, shows, and other enterprises, where they perform tricks and give rides to children."

If this bill passes, then we, as a nation, will have a minimum of 200 — and, depending on how the law is interpreted, upwards of 2200 — unemployed elephants.

Farr and the others don't provide an answer for this potential crisis. There are at least two possibilities.

As CBS's Sunday Morning detailed this week, there is a growing market for elephant art — art, that is, made by elephants. Reporter Bill Geist chronicled "an art movement" some call "early Dumboism," in which the really, really accomplished elephant artists earn up to $100,000 annually. (Insert gratuitous elephants-not- working-for-peanuts joke here.) In fact, most painting elephants are fetching sums that would surely keep them from becoming starving artists, if only they didn't eat 400 pounds of food each day. Renee, an elephant-painter at the Toledo Zoo, sold a piece for nearly $1000 and has been "collaborating with Vitaly Komar and Alexander Melamid, two prominent Russian conceptual artists," according to Geist's report.

Elephant art is auctioned at the world's most prestigious and distinguished auction houses, such as Sotheby's of London. In March, at a Christie's auction sponsored by "The Asian Elephant Art and Conservation Project" — in New York City (where else?) — art aficionados paid $50 each to attend a Christie's art auction where the bidding for each elephant piece began at $350. According to Renee's trainer/art teacher Don Redfox, there are more than 20 painting elephants nationwide. That's great news. But these 20 masters don't do much to solve the much bigger unemployment issue. (Indeed, it could be argued that there is a troubling and growing gap between elephant haves and have-nots.)

The second solution is also artsy, it's easier and sometimes it's subsidized. It's effortless and it's all very, very natural. No tricks. No training. And, with that 400 pounds of food a day, elephants can be extremely productive.

British artist Chris Ofili put an elephant to work in a feculent piece featured in the aptly named "Sensation" exhibit, held at the publicly funded Brooklyn Museum of Art. Lost in the highly publicized controversy surrounding the painting — in which New York City mayor Rudy Giuliani attempted, unsuccessfully, to withhold funding from the museum and evict it from a city building — was the work of an elephant who, to this day, lives in anonymity. This seems patently unfair. After all, the elephant produced the dung that Ofili used to decorate a portrait of the Virgin Mary, and it was the dung, not the Mary alone, that created all the hoopla.

Even these possible solutions may prove unacceptable, as the elephants in question are still "captive" and they're essentially doing stuff to entertain humans.

We can only hope that Congress will hold more hearings — perhaps with art instructors, First Amendment attorneys, black-clad SoHo gallery owners, and even, perhaps, a fecund fecal expert.