When Politicians Make Developers Subsidize Artists, the Constitution Loses

Would it make a difference if all public ‘art’ were good? Nope.

What would you do if you wanted to build a new office building and the government dictated that in exchange for its approval of the project, you had to shovel a certain amount of money into the pockets of artists who would create public works of art? Even if their art weren’t terrible, is that the kind of deal a builder should have to accept?

Pacific Legal Foundation (PLF) recently filed suit challenging an Oakland, Calif., ordinance that requires anyone building new residential or commercial projects to do just that: either create a public art display on the site or help fund local artists to create such a display elsewhere in town. The suit on behalf of the Building Industry Association of the Bay Area has generated some interesting responses, but it also raises a serious point about whether it is constitutional for the government to extract funding for pet projects outside of its taxing authority.

Let’s assume that the vast majority of public art is not terrible, trivial, or unattractive. Let’s forget the lawsuit that was required to remove the intrusively banal Tilted Arc from a New York City federal-building site, the 13-foot-tall bronze thing in San Diego that has been described as a cross between a phallus and giant alien dung, or even this sculpture at the U.S. embassy in Ottawa. For all we know, the embassy sculpture may be secretly picking up electronic signals from Canadian terrorists, and some folks might like giant, phallic dung sculptures.

For the sake of argument, let us suppose that you like at least one public art display somewhere, and that all public art is equally worthy. Would that justify the government’s requiring you to devote part of your property to a public art display, or to fund such a display elsewhere as a condition of building on your property? The answer is no, but the relevant legal distinctions are worth explaining.

Public officials can tax us for essential government functions and projects, and under current judicial rulings, they can even spend money on silly or inappropriate things they might not be able to legislate directly. State and local governments have especially broad latitude to tax us for their pet projects, including public art, but there are constitutional rules for levying taxes. They might not provide many constraints, but they allow public input, which imposes political constraints.

Instead of funding public art directly, it’s tempting for public officials to impose mandates, often unconstitutional ones. The takings clause of the Fifth Amendment, which applies to the states through the 14th Amendment, restricts one method. It provides that if the government takes private property for public use, it must provide compensation.

Art, particularly public art, is an expressive activity that the government can’t force anyone to engage in.

In a series of important decisions that PLF helped secure, the Supreme Court has held that government may not demand or “exact” concessions as a condition of approving construction unless those exactions are related and proportional to public costs caused by the construction at issue. Thus, a city might be able to require a reasonable sewer hook-up fee commensurate with the cost to the city, but it could not lawfully insist on an easement for the public to picnic in your backyard because it wants more public parks. In another win by PLF in 2013, the Supreme Court held that property owners also could not be required to fund government projects on other property that were unrelated to the impacts of the development at issue.

The Oakland public-art requirement (or fee) is illegal, because the construction of residences or office buildings does not reduce the stock of public art or citizens’ enjoyment thereof. In addition, the requirement violates the First Amendment rights of owners who don’t want to speak through “public art,” particularly that which must be approved by the government. The city could not force property owners and developers to engage in or spend money on legislative activism as a condition of building, even if it left it to them what type of legislative activism to pursue. Art, particularly public art, is an expressive activity that the government can’t force anyone to engage in. It’s even worse if the city specifies the art that qualifies.

Although the fee is set at 0.5 percent of the cost of new residential projects and 1 percent of commercial projects, that figure is on top of many other taxes and fees that owners and developers must pay. And cities in the Bay Area wonder why housing is so expensive! But whatever the rate, the public art “exaction” is unconstitutional.

The city’s and artists’ reactions to the lawsuit are sadly typical. The Contra Costa Times reported that Oakland officials were surprised by the suit because other nearby cities have similar exactions. Yes, Bay Area politicians dream up many forced-redistribution schemes, as if one justified another. The artists are reported to be “seething” or “angered” by the lawsuit. According to the news story, there are more artists per capita in Oakland than anywhere else, and many of them “make their living with public art projects, which have decreased since the state ended redevelopment funding in 2012.”

The non-artist working poor and unemployed might prefer cheaper housing and more commercial developments that provide them jobs, but Oakland is free to subsidize as many artists as it wants. It just has to do so with tax receipts rather than through forced transfers of property from owners to special interests.

— Todd Gaziano is executive director of PLF’s DC Center and a senior fellow in constitutional law.

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