Smithsonian Institution: Background and Issues for Congress
Released: 2017-01-04T00:00:00

Introduction and Background

By statute, "the President, the Vice President, the Chief Justice, and the heads of executive departments are constituted an establishment by the name of the Smithsonian Institution for the increase and diffusion of knowledge among men." Congress created the Smithsonian Institution (SI) in 1846, 10 years after it agreed to accept the bequest of James Smithson, an English scientist who lived much of his life in continental Europe. Smithson, who died in 1829, left the bulk of his estate to the United States of America to found at Washington the establishment that bears his name. Today, SI is a complex of museum, education, research, and revenue-generating entities primarily located in the Washington, DC, region, with additional facilities and activities across the United States and world that reportedly employs 6,500 staff, supplemented by 6,300 volunteers. In fiscal year (FY) 2015, SI's museums and zoo, which are open to the public largely without admission fee, were visited 29.3 million times, while its websites were accessed 134 million times.

As a government "establishment" (as applied to SI, the term appears to originate from Smithson's will) or "trust instrumentality of the United States" (the term sometimes used by SI or government entities attempting to characterize its functions ), it occupies a unique position. Governmental, but organizationally separate and distinct from the legislative, executive, or judicial branches of the national government, SI is overseen by a board composed of representatives of each branch. SI oversees a number of entities created by Congress, as well as a number of entities SI established pursuant to its authorities to: accept and dispose of gifts, bequests, or money provided to SI or one of its components; seek grants; and raise funds. In addition to any explicit statutory authority that may exist, any of the current activities of SI arguably might support "the increase and diffusion of knowledge," as stated in law and the Smithson bequest. In some instances, it appears that with one exception, these entities are funded from trust resources, appropriated funds, or both.

SI receives an annual appropriation—in FY2016, this was approximately $696 million —but executes no direct government program or policy beyond the regulation of its buildings and property of the United States that have been assigned to it. Appropriations typically comprise approximately 60% of SI's annual expenditures from year to year. Some of these expenditures include the employment of staff who are considered federal employees. At the same time, SI has separate funding streams from proceeds received through grants, gifts, bequests, commercial revenue-generating activities, and investments, which SI refers to as "trust funds." Those resources build and maintain its collections or fund its activities, including employment of nonfederal, "trust employees." In its most recent budget request for FY2017, SI reported that an estimated $484.7 million in trust funds was available for operational expenses in FY2016. In addition to annual budget submissions to Congress, SI files an accounting of resources as a tax-exempt educational organization under Section 501(c)(3) of the Internal Revenue Code.

SI is overseen by a Board of Regents (Regents), who are authorized by Congress to carry out a number of activities and oversee certain entities authorized by Congress. In addition to carrying out those authorities, it appears that SI acts pursuant to its role as trustee of the Smithson and other bequests and gifts to create additional entities to further SI missions. Table 1 provides a summary of entities established pursuant to the authority of Congress and that of SI.

SI Leadership

The activities of SI are overseen by the Regents of the Smithsonian Institution. Day-to-day operations of SI and some related entities are overseen by the secretary and staff. Some individual SI entities also have boards of overseers as well as independent professional leadership and staff. With some exceptions, the Regents have broad authority to oversee and amend their activities.

Board of Regents

The Regents are composed of the Vice President, Chief Justice of the United States, three Members of the Senate, three Members of the House of Representatives, and nine other citizen Regents, other than Members of Congress. Two citizen Regents must reside in the city of Washington, DC. The remaining seven must reside in a state, and no more than one citizen Regent may come from any state.

Although under the law any Regent may be elected as chancellor, the group is traditionally led by the Chief Justice, who serves as chancellor, or presiding officer. The law also specifies the election of a three-Regent executive committee. In practice, two citizen Regents serve as chair and vice-chair of the board and, along with a third citizen Regent, comprise the executive committee.

Regents who are Senators are appointed by the Vice President for the duration of their current term of office. Regents who are Members of the House of Representatives are appointed by the Speaker for a term of two years. Congressional appointments are renewable. Citizen Regents are appointed to six-year terms by joint resolution of Congress.

Secretary

The secretary of the Smithsonian Institution is appointed by the Regents and is responsible for SI buildings and property, and keeping a record of the proceedings of the Regents. The secretary is also the librarian and the keeper of museums, and is authorized to employ staff to assist with these duties. David J. Skorton began service as the 13 th secretary of the Smithsonian in July 2015.

In modern practice, the secretary oversees a complex organization currently organized into eight broad areas including the following:

Science History, Art, and Culture Finance and Administration Collections and Interdisciplinary Support Education and Access Communications and External Affairs Advancement Smithsonian Enterprises

Issues and Legislation

Proposed Smithsonian Museum in London

In 2014, Boris Johnson, then mayor of London, announced plans to establish a large cultural area in Queen Elizabeth Olympic Park, a part of East London that had been cleared and used to support the 2012 Summer Olympic Games. In January 2015, the Regents authorized SI to work with the London Legacy Development Corporation (LLDC) to develop terms for an agreement for Smithsonian exhibit space in the cultural complex. The Regents' terms included a minimum of a $50 million funding commitment from the United Kingdom, the ability of SI to withdraw from the plan, and a commitment from the LLDC to assist in raising additional donations prior to exhibit openings in 2021, subject to the approval of the executive committee, the Regents, the SI secretary, and the SI general counsel.

In a June 2015 hearing held by the Committee on House Administration, SI's outgoing acting secretary, Albert G. Horvath, was asked about the proposal. Mr. Horvath stated that SI was looking into it, and had established several criteria, including the fit with SI mission and the extent of support from London, which reportedly would include substantial private resources, since SI did not anticipate requesting appropriations from Congress to fund any facility. Having asserted that SI had determined the venture to fit with the SI mission, and that space issues were being determined, Mr. Horvath stated that a funding model that would sustain a permanent SI museum was under consideration.

In June 2016, SI and the Victoria and Albert Museum (V&A) announced an agreement to develop "a jointly organized permanent gallery space as a key part of V&A East" in the cultural complex. In public statements, Secretary Skorton was quoted as saying:

This would not be a 'Smithsonian outpost in London….It would be a collaboration with the V&A, giving both of us opportunities to engage with diverse audiences in innovative ways. What we learn through this collaboration will enable us to better tell our stories not only in London, but in the United States and around the world.

It appears that SI has in the past initiated programs and activities without congressional authorization. SI has its own money beyond appropriations, perceives a duty as trustee of the Smithson bequest and other legacies and gifts, and also perceives a general charge to work toward the increase and diffusion of knowledge. In some of those instances, SI later came to Congress asking for appropriations, perhaps when it assessed that the program was to become a permanent component of the institution. That strategy has been applied in establishing the Smithsonian Observatory and the Anacostia Museum, among other ventures.

One potential issue in the case of an SI museum in London arguably may be that the same rationales and authorities SI appears to have relied on when establishing programs on its own authority as trustees of the Smithson bequest may not necessarily apply to the establishment of a museum or other display space beyond the United States.

In the past, SI appears to have been able to explain to Congress's satisfaction why it needs public funding for domestic facilities beyond Washington, DC, despite Smithson's will and statute stating that the United States establish an institution in Washington, DC. Congress has authorized SI to oversee activities in at least one country, Panama, and it carries out activities in another, Belize, apparently with at least after-the-fact approval from Congress, as demonstrated by annual appropriations for work conducted in part in that country by the Smithsonian Tropical Research Institute. Both locations support researchers conducting activities that cannot be carried out in Washington, DC, and the need to go where research can be conducted would seem to provide a rationale that also applies to domestic research facilities beyond the Washington, DC, region.

SI's current activities beyond the Washington, DC, region, with the exception of the New York-based Cooper Hewitt Smithsonian Design Museum and National Museum of the American Indian–New York, the George Gustav Heye Center, arguably support the increase of knowledge, if not its immediate diffusion, since none of the research locations appear to have a museum or other substantial public display component. Any museum or other display mechanism for SI collections appears to support the diffusion of knowledge goal, but that piece of the SI mission has always occurred (or at least originated, in the case of SI's Internet presence and television efforts) in the United States. It is unclear how the London venture, which could be an outpost for the display of SI collections, might fit with reasons to open other SI-affiliated activities outside the United States, or the intentions of Smithson's bequest, or Congress.

Based on past practice, it appears that SI arguably could proceed to establish its outpost in London and maintain it without congressional approval, as long as it used trust resources, and no appropriated funds. At the same time Congress might consider whether the London museum is in keeping with Smithson's intentions to establish SI in Washington. If the program is to become a permanent component of SI activities, it is unclear how SI might justify future appropriations requests, either to fund overseas activities, or the possibility of increased requests to cover U.S.-based activities when trust funds might be redirected to overseas knowledge diffusion activities. These potential concerns likely will be considered in light of the terms of the Smithson bequest, SI's congressional establishment, and a variety of domestic concerns that have featured in SI budget requests, including resources for extensive renovation of SI facilities.

If Congress were interested in pursuing questions related to the establishment of an SI museum or other display opportunity in London, it might seek the assistance of practitioners with detailed knowledge of trust administration, the extent to which a U.S. government entity might embark on overseas initiatives without the prior approval of Congress, and whether or how SI might be an exception to routine practices in those areas.

Legislation, 114th Congress (2015-2016)

H.R. 3169 — Smithsonian Modernization Act of 2015

On July 22, 2015, Delegate Eleanor Holmes Norton of the District of Columbia introduced H.R. 3169 , the Smithsonian Modernization Act of 2015. The bill would have changed the number of Regents; established a standard, six-year term for all Regents; and removed the Vice President, Chief Justice, and Members of Congress as Regents. The measure would have provided for 21 citizen Regents to be appointed by the President based on lists of 12 nominees submitted separately by the Speaker of the House and Majority Leader of the Senate.

In remarks about the measure, Delegate Norton, citing a need for more full-time Regents dedicated to SI oversight and external fundraising, stated that the bill would

help the Smithsonian strengthen its ability to build resources beyond what taxpayers are able to provide. The most important step Congress could take today is to rescue the Smithsonian from its 19th-century governance structure, which keeps it from accessing needed and available private resources and limits close and critical oversight….

The measure was silent on the roles of public officials' service on other SI-related boards.

H.R. 3169 was referred to the Committee on House Administration. No further action was taken.

H.R. 3387 — Open and Transparent Smithsonian Act of 2015

On July 22, 2015, Delegate Eleanor Holmes Norton of the District of Columbia introduced H.R. 3387 , the Open and Transparent Smithsonian Act of 2015. The bill would have made SI subject to the Freedom of Information Act, Privacy Act, and Federal Advisory Committees Act, and required SI to hold open meetings.

H.R. 3169 was referred to the Committee on Oversight and Government Reform, which amended and voted to report the measure on November 16, 2016. H.R. 3387 was placed on the Union calendar on December 12, 2016. No further action was taken.

S. 2057 — Smithsonian Collections Space Authorization Act

On September 17, 2015, Senator John Boozman of Arkansas introduced S. 2057 , the Smithsonian Collections Space Authorization Act. The bill would have authorized SI to plan, design, and construct additional storage space for collections storage modules and hangar additions to the National Air and Space Museum Udvar-Hazy Center in Chantilly, Virginia, and additional storage and laboratory space at the Museum Support Center at the Suitland Collections Center in Suitland, Maryland, to accommodate the care, preservation, conservation, deposit, and study of national collections held in trust. The measure would have provided an authorization of $15 million for FY2016, $50 million for FY2017, $32 million for FY2018, and $34 million for FY2019.

S. 2057 was read twice and referred to the Committee on Rules and Administration. No further action was taken.

H.R. 3702 — Smithsonian Collections Space Authorization Act

On October 7, 2015, Representative Sam Johnson of Texas introduced H.R. 3702 , the Smithsonian Collections Space Authorization Act. The bill was a companion measure to S. 2057 and would have authorized provisions identical to that measure.

H.R. 3702 was referred to the Committees on House Administration and Transportation and Infrastructure. On October 8, 2015, the Committee on Transportation and Infrastructure referred the measure to the Subcommittee on Economic Development, Public Buildings and Emergency Management. No further action was taken.

H.R. 4307 — National Museum of Asian Pacific American History and Culture Act

On December 18, 2015, Representative Grace Meng of New York introduced H.R. 4307 , the National Museum of Asian Pacific American History and Culture Act. The bill would have established within SI a new national museum focused on the collection, study, and establishment of programs relating to Asian Pacific American life, art, history, and culture, including the creation and maintenance of permanent and temporary exhibits, and the collection and study of artifacts and documents. The measure would have created a 19-member council to make recommendations to the Regents on construction of the National Museum of Asian Pacific American History and Culture, and advised and assisted on all matters relating to the operation and administration of the museum. The Regents would have been authorized to appoint a museum director, who would have been authorized to hire staff subject to the Regents' direction.

H.R. 4307 mandated the Regents, in consultation with the Secretary of the Interior, the Commission of Fine Arts, the National Capitol Planning Commission, and other federal and local agencies, to have designated a site for the museum not later than 12 months after the date of the bill's enactment.

H.R. 4307 was referred to the Committee on House Administration and to the Committees on Transportation and Infrastructure and Natural Resources, for a period to be subsequently determined by the Speaker, for consideration of relevant provisions. On December 12, 2015, the Committee on Transportation and Infrastructure referred the measure to the Subcommittee on Economic Development, Public Buildings and Emergency Management. On January 4, 2016, the Committee on Natural Resources referred the measure to the Subcommittee on Federal Lands. No further action was taken. For additional information and background on SI museum development, see CRS Report R43856, Contemporary Federal Museum Authorizations in the District of Columbia: Past Practices and Options for Congress , by [author name scrubbed].

H.R. 6001 — Smithsonian American Latino Museum Act

On September 13, 2016, Representative Xavier Becerra of California introduced H.R. 6001 , the Smithsonian American Latino Museum Act. The measure would have established a Smithsonian American Latino Museum in SI's Arts and Industries Building on the National Mall. The measure would have authorized the Regents to plan and construct the museum, including an underground annex facility, and to work with the Secretary of the Interior to construct the underground facility in a manner harmonious with, and protecting the open space and visual sight lines of, the National Mall.

H.R. 6001 was referred to the Committee on House Administration and to the Committees on Transportation and Infrastructure and Natural Resources, for a period to be subsequently determined by the Speaker, for consideration of relevant provisions. On September 14, 2016, the Committee on Transportation and Infrastructure referred the measure to the Subcommittee on Economic Development, Public Buildings and Emergency Management. On September 19, 2016, the Committee on Natural Resources referred the measure to the Subcommittee on Federal Lands. No further action was taken.

S. 3314 — Smithsonian American Latino Museum Act

On September 13, 2016, Senator Robert Menendez of New Jersey introduced S. 3314 , the Smithsonian American Latino Museum Act. The bill was a companion measure to H.R. 6001 , and would have authorized provisions identical to that measure.

S. 3314 was read twice and referred to the Committee on Rules and Administration. No further action was taken.