Cuccinelli legal position may end Virginia funds for cultural, historical groups

Art museums, historic sites and symphonies in Virginia fear that a recent ruling by the state’s attorney general, banning public funding of charitable organizations, could largely spell the end of taxpayer support for cultural institutions.

Since the January legal opinion by Attorney General Ken T. Cuccinelli, state officials have scrambled to secure public funding for nonprofit groups that form the backbone of the state’s public-health safety net for low-income residents — free clinics, community health groups and the Virginia Health Care Foundation.

State officials say they will need to write new contracts with at least 14 such organizations, an approach that lawyers for Cuccinelli (R) agree is legal and will allow funding for health-care groups to continue. Also, some funds briefly frozen for the groups after Cuccinelli’s opinion that the state constitution prohibits the funding will now flow with the new contracts, they said.

But the future of grants to Virginia cultural groups is less clear.

As recently as 2008, Virginia doled out more than $27 million to 300 groups around the state. The funding largely dried up as the recession led to deep state budget cuts, but many had hoped state dollars would return as the economy improves. They are now concerned that Cuccinelli’s legal opinion would make that unlikely.

“It’s our worst fear,” said Jo Hodgin, director of planning and initiatives for the Wolf Trap Foundation for the Performing Arts, traditionally one the largest recipients of state funding.

From 2004 to 2008, Wolf Trap received $3.57 million in state money, which Hodgin said paid for an early-childhood education program that uses the arts to teach kids to read in 35 communities statewide.

Without public support, the initiative has been scaled back and now serves only children in Northern Virginia.

“While it’d be a great loss for Wolf Trap, it’d be an equally great loss for our colleagues throughout the commonwealth,” Hodgin said.

Legislators have secured the grants for years despite language in the state constitution that bars “any appropriation of public funds . . . to any charitable institution which is not owned or controlled by the Commonwealth.”

Cuccinelli’s legal opinion came in response to an inquiry from a state delegate who asked about the constitutionality of grants Gov. Robert F. McDonnell (R) proposed for two charities. Cuccinelli’s response: unequivocally not.

“It doesn’t give us any joy — but the constitution is the constitution,” Stephen McCullough, senior appellate counsel for Cuccinelli, told a legislative committee this month. “These are very worthwhile things. But we’re duty-bound in our advice to follow the constitution and precedent.”

He said contracts that provide state funding to groups for a particular service should pass constitutional muster. However, those that award direct grants would not, he said.

That prohibition could end the practice of “non-state agency funding” — earmarks requested by individual legislators for community groups that historically have served as a lifeline to small cultural institutions and a prized plum for elected officials.

There are some small additional operational grants available for arts and historical sites, and it is unclear how the Cuccinelli opinion affects that money. But for years, cultural groups have leaned on the more sizable “non-state agency” grants for major projects, particularly expansions, money now likely off-limits.

The funding has ebbed and flowed with the economy — the record was $45 million, paid out in the late 1990s, when a booming economy overflowed state coffers.

In fiscal 2008, the last year the grants were awarded before the economic collapse largely forced spending cuts, the funding included dollars for Arlington’s Signature Theatre, the Chatham Train Depot, the Roanoke Symphony Orchestra, the Richmond Ballet and the Steamboat Era Museum in Irvington.

The grants were supported by lawmakers in both parties. A Washington Post analysis of non-state agency funding in 2006 found that Republicans, who at the time controlled both chambers of the legislature, had been far more successful than Democrats at securing funding for projects in their districts. Senior lawmakers also won more funding for their preferred charities than newer legislators.

But a number of Republican legislators have said they now believe state funding of cultural organizations is not appropriate, even if the economy fully recovers.

“I think it’s pretty much the end of that era,” said Del. M. Kirkland Cox (R-Colonial Heights). “They’re just not core functions of government, and people want us to fund core functions.”

With a watchful tea party movement asking the General Assembly to use a strict interpretation of the state constitution, many are also uninterested in looking for legal wiggle room that might allow such grants in the future.

McCullough told delegates this month that they might be able to write contracts with some cultural groups, in which the organizations offered the state something of value in exchange for funding — for instance, free admission for schoolchildren.

But a number of Republicans said that kind of arrangement would make them uncomfortable.

“I don’t want to see us do cartwheels around the constitution,” said Del. James P. Massie III (R-Henrico). “These are wonderful organizations. They deserve private support. But I think it’s pretty clear that the constitution says the taxpayer shouldn’t be supporting them.”

Leaders of groups that have benefited from state funding say such attitudes ignore that cultural organizations provide key creative education for schoolchildren, improve quality of life for state residents and spark economic development in their communities.

“Some folks view the arts as a luxury,” said Nancy Perry, executive director of the McLean Project for the Arts, which received a $25,000 state grant in 2006 to help construct a more noticeable entryway to its art galleries to attract more visitors. “What we’ve found is that in the 21st century, two of the most important qualities that business leaders want in their employees are creativity and innovation. And the arts are exactly the kind of training that inspires that kind of left-brain thinking.”

The nonprofits may find allies in the Virginia Senate, where, during a Thursday committee meeting, leading members of both parties asked pointed questions about Cuccinelli’s legal position.

Sen. R. Edward Houck (D-Spotsylvania) said he believed the attorney general had launched a “political fishing expedition” that has wreaked unnecessary havoc across state agencies, Houck argued, because Virginia’s funding of nonprofits has not been challenged since the 1950s.

Senate Minority Leader Thomas K. Norment Jr. (James City), the chamber’s top Republican, said he’d like to find a way to constitutionally fund the groups — perhaps by contracting with an outside organization to make grants to cultural institutions.

“I think that many of these organizations and institutions provide an enhanced quality of life for Virginians,” he said.

And if all else fails, senators may push for another solution.

“Ultimately,” said Senate Majority Leader Richard L. Saslaw (D-Fairfax), “we may be faced with changing the constitution.”

Rosalind Helderman is a political enterprise and investigations reporter for the Washington Post.
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