Case Study: How Political Can We Be? Anne Pasternak, Creative Time
Legal Restrictions Developing an Art Project
26 U.S.C.A. § 501(c)(3) Code:
Corporations, and any community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes [...] no part of the net earnings of which inures to the benefit of any private shareholder or individual, no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation (except as otherwise provided in subsection (h)), and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.
In May 2010, the internationally recognized performance artist Tania Bruguera began a conversation with Creative Time and The Queens Museum of Art about a new commission that would address issues surrounding immigration. She was interested in the idea of artistic and political representation as it pertains to the recent, historically produced notion of “immigrant.” Bruguera observed that, as global migration becomes a more central element of our contemporary existence, the status and identity of those who live outside their place of origin becomes increasingly defined not by a shared language, class, culture, or race, but instead by their common experience as immigrants. With this in mind, Bruguera proposed a process-based project that would engage immigrants in conversation and action in the extremely diverse neighborhood of Corona, Queens, New York.
In her desire to not create an art that “just points at something,” Tania queried whether she could create an art that is “the thing itself.” In particular, she hoped to deal with issues of immigration through art as well as politics. The notion was exciting to us, but we came to realize that Bruguera’s proposal of being politically involved required us to research the extent to which Creative Time and The Queens Museum of Art—as 501(c)(3), tax exempt, nonprofit presenting organizations—could support, financially and otherwise, an artistic project of a more specific political nature than commenting on a timely issue (e.g. artist posters on ending war, educating publics about HIV, etc.). It is Creative Time’s mission to foster artists’ dreams, and we are accustomed to taking on projects that are complex, socially timely, and politically urgent. In this case, however, we were entering into new territory with an artist who not only wanted to discuss political issues through her work, but also possibly work within the political system to influence it. We needed to become educated to make sure that, as 501(c)(3) organizations, we were legally allowed to support her vision.
Last June, we began meeting with legal advisors. We learned that 501(c)(3) organizations by law “may not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office” (Section 501(c)(3).) This prohibition extends to any sort of direct or indirect intervention made by the organization or even an artist receiving a grant or other support from that organization. (While it is clear that a 501(c)(3) could not support a political candidate, let alone produce one, what remains legally murky is what constitutes indirect intervention.) We also learned that, in determining whether an organization was indeed intervening in a political campaign (or conducting any sort of political activity that went beyond non-partisan voter education or issue advocacy), the IRS would look at the entirety of the project rather than individual pieces, meaning that we could not support Bruguera even early on in the process on a project that was to eventually lead to interfering with actual political process. In short, nonprofits can support projects that raise political questions and address political issues, but cannot do anything that ultimately influences a campaign or election. The risks for a 501(c)(3) to engage in such activity are significant, including the revocation of its nonprofit status. It would, therefore, also put funding from nonprofit foundations (who fall under the same tax code and restrictions), government agencies, and individuals in jeopardy.
Given these real legal limitations and potentially ominous consequences, we discussed with the artist the extent to which her project could engage political activity if she were to work with a 501(c)(3): To be clear, if the artist was to work with a 501(c)(3), the work could not directly or indirectly involve itself in a political campaign. Fortunately, Bruguera took this information in stride, saw it as an opportunity to refine her intentions, and embraced it as a productive constraint in conceiving the form of her project. Ultimately, Bruguera began to frame her project as a social “movement”—a rather compelling albeit ambiguous formation without a specific political agenda, and a way to create a sense of dialogue, understanding, and community across a diverse group of people.
Anne Pasternak
Executive Director
Creative Time, NY, NY
