Monuments and Memorials in the District of Columbia: Analysis and Options for Proposed Exemptions to the Commemorative Works Act
Released: 2015-06-02T00:00:00

Introduction

In 1986, the Commemorative Works Act (CWA) was enacted to guide the memorial and monument creation and siting process in the District of Columbia on land under the jurisdiction of the National Park Service (NPS) or the General Services Administration (GSA). As the statute specifies, the CWA was enacted

(1) to preserve the integrity of the comprehensive design of the L'Enfant and McMillan plans for the Nation's Capital;

(2) to ensure the continued public use and enjoyment of open space in the District of Columbia and its environs, and to encourage the location of commemorative works within the urban fabric of the District of Columbia;

(3) to preserve, protect and maintain the limited amount of open space available to residents of, and visitors to, the Nation's Capital; and

(4) to ensure that future commemorative works in areas administered by the National Park Service and the Administrator of General Services in the District of Columbia and its environs-

(A) are appropriately designed, constructed, and located; and

(B) reflect a consensus of the lasting national significance of the subjects involved.

Pursuant to the CWA, from time to time Congress will authorize a sponsor group (i.e., an organization, often tax exempt, advocating for the creation of the new work) to design and build a monument or memorial in the District of Columbia without the use of federal funds. Congress contemplates issues of CWA interpretation, enforcement, and the possible setting of precedent when considering potential new commemorative works.

This report addresses four proposed exemptions from the CWA. These are memorial siting, including the addition of new elements to existing commemorative works; requiring the use of American materials during memorial construction; altering the deadline for completing an authorized memorial; and the siting of new museums within the statutorily defined commemorative works areas—where they would otherwise be prohibited pursuant to the CWA.

Each exemption has been discussed in legislative proposals, at congressional hearings, or by one of the federal agencies charged with review and approval of commemorative works: the National Capital Planning Commission (NCPC) and the U.S. Commission of Fine Arts (CFA). Additionally, the National Capital Memorial Advisory Commission (NCMAC) provides Congress, the Secretary of the Interior, and the Administrator of General Services with policy and procedures advice for establishing monuments and memorials. This report discusses each exemption and its attendant policy considerations.

Since the CWA's enactment, 33 commemorative works have been authorized, and numerous others have been proposed. For the authorized and proposed monuments and memorials, several sponsor groups have sought—and some have received—exemptions from certain provisions of the CWA. The most common exemption requests are from provisions involving the siting of new memorials, mandating the origin of building materials, and extending the deadline for memorial completion. The status and placement of museums under the CWA has also been discussed after the National Museum of African American History and Culture was granted an exemption from the CWA.

Since its enactment, the CWA has been substantively amended three times. First, during the 103 rd Congress (1993-1994), the CWA was amended to extend the time for monument and memorial completion from five to seven years and to make technical corrections to the act. Second, the CWA was amended during the 108 th Congress (2003-2004), to limit the placement of monuments and memorials on the National Mall and to designate three distinct areas within the District of Columbia for monument and memorial construction. They and their boundaries are noted below.

The Reserve is "the great cross-axis of the Mall, which generally extends from the United States Capitol to the Lincoln Memorial, and from the White House to the Jefferson Memorial ." Area I is reserved for commemorative works of "preeminent historical and lasting significance to the United States," and roughly bounded by the West Front of the Capitol; Pennsylvania Avenue, N.W. (between 1 st and 15 th Streets, N.W.); Lafayette Square; 17 th Street, N.W. (between H Street and Constitution Avenue); Constitution Avenue, N.W. (between 17 th and 23 rd Streets); the John F. Kennedy Center for the Performing Arts waterfront area; Theodore Roosevelt Island; National Park Service land in Virginia surrounding the George Washington Memorial Parkway; the 14 th Street Bridge area; and Maryland Avenue, S.W., from Maine Avenue, S.W., to Independence Avenue S.W., at the United States Botanic Garden. An act of Congress is required for Area I placement. Area II is reserved for "subjects of lasting historical sign ificance to the American people," and encompasses all sections of the District of Columbia and its environs not part of the Reserve or Area I.

The area of the Reserve is considered "a substantia lly completed work of civic art," and within the Reserve, "to preserve the integrity of the Mall … the siting of new commemorative works is prohibited. " Additionally, the placement of museums and visitor centers in the Reserve is also prohibited under the CWA.

During the 113 th Congress (2013-2014), the CWA was amended to allow donor recognition "inside an ancillary structure associated with the commemorative work or as part of a manmade landscape feature at the commemorative work." Further, donor acknowledgement was applied retroactively to all commemorative works dedicated after January 1, 2010, is to be paid for by the sponsor, and is subject to the permission of the Secretary of the Interior or the Administrator of General Services. The acknowledgment also must

(A) be limited to an appropriate statement or credit recognizing the contribution;

(B) be displayed in a form in accordance with National Park Service and General Services Administration guidelines;

(C) be displayed for a period of up to 10 years, with the display period to be commensurate with the level of the contribution, as determined in accordance with the plan and guidelines described in subparagraph (B);

(D) be freestanding; and

(E) not be affixed to—(i) any landscape feature at the commemorative work; or (ii) any object in a museum collection.

Siting Commemorative Works

All commemorative works legislation must authorize a sponsor group to raise funds to design and build a monument or memorial. Many sponsor groups would like to place their proposed commemorative works on unoccupied land on or near the National Mall or add an element to an existing monument or memorial.

The CWA, however, contains provisions that prohibit the siting of new monuments and memorials around the National Mall; considers monuments and memorials, once dedicated, to be completed; and protects existing works from further additions or intrusions by other memorials.

A commemorative work shall be located so that - (A) it does not interfere with, or encroach on, an existing commemorative work; and (B) to the maximum extent practicable, it protects open space, existing public use, and cultural and natural resources.

Regardless of the CWA provisions against siting new commemorative works in the Reserve and prohibiting the placement of new elements at existing monuments and memorials, sponsor groups continue to request exemptions from these requirements.

Current Site Location Process

To guide the site selection process, the CWA created a two-step approach. First, following congressional authorization of a monument or memorial, the sponsor group works with the NPS or GSA, NCMAC, NCPC, and CFA to determine which area of Washington, DC, would be the most appropriate location for the monument or memorial.

As part of this initial site selection process, the sponsor group may request the Secretary of the Interior or the Administrator of General Services to approve placement of the monument or memorial in Area I. Following this request, the Secretary or Administrator determines whether the memorial is of "preeminent historical and lasting significance to the United States." If the Secretary or Administrator determines that an Area I site location is warranted, he or she notifies, in writing, NCMAC, the House Committee on Natural Resources, and the Senate Committee on Energy and Natural Resources.

Second, to place a memorial within Area I, an act of Congress approving the Secretary or Administrator's recommendation is required within 150 calendar days. Should the Secretary or Administrator not recommend placement in Area I or Congress not act upon the recommendation, the memorial can be placed in Area II without further action.

Some commemorative works legislation has included provisions that would potentially bypass the current commemorative works process and directly designate a site, providing an exemption from the building prohibition within the Reserve. For example, H.R. 222 (113 th Congress), as introduced, would have authorized a World War I Memorial in the District of Columbia. In addition to authorizing the World War I Memorial Foundation to establish a commemorative work, the bill would exempt the memorial from the CWA prohibition against placement in the Reserve.

Further, other legislation authorized the placement of a new element at the site of an existing commemorative work. For example, P.L. 113-123 authorized the placement of a plaque with the text of President Franklin D. Roosevelt's D-Day prayer within the area of the World War II Memorial.

Encroachment on Existing Works

The CWA requires that new monuments and memorials be sited to avoid interference with or encroachment on existing works, unless Congress grants a waiver from this provision. Between the passage of the CWA in 1986 and the 105 th Congress (1997-1998), Congress did not authorize the addition of any new elements at existing commemorative works sites. Since the 106 th Congress (1999-2000), however, Congress has authorized four new elements to be added at existing monuments and memorials:

a plaque to veterans who died as a result of service during the Vietnam War at the Vietnam Veterans Memorial; a plaque commemorating Reverend Dr. Martin Luther King, Jr.'s "I Have a Dream" speech at the Lincoln Memorial; a plaque to honor Senator Robert J. Dole's leadership "in making the [World War II] Memorial a reality on the National Mall... "; and a plaque with the text of the D-Day Prayer delivered by President Franklin D. Roosevelt at the World War II Memorial.

Additionally, in previous Congresses, legislation to add supplementary elements to existing commemorative works was introduced, but not enacted. For example, in the 111 th Congress (2009-2010), House and Senate companion proposals were introduced to rededicate and rename the District of Columbia War Memorial as the "National and District World War I Memorial," and add "an appropriate sculptural or other commemorative element, which shall complement and preserve the existing memorial and its landscape.... " Neither bill was voted on by the House or Senate.

Analysis and Options for Congress

Pursuant to the site selection process, most legislation authorizing commemorative works neither includes specific location references nor authorizes the addition of new elements to existing monuments or memorials. Instead, site selection is generally left to the sponsor group in consultation with the NPS, NCMAC, NCPC, and CFA—followed by an act of Congress, when necessary.

Further, because the CWA requires that new monuments and memorials be sited to avoid interference with or encroachment on existing works, allowing the placement of additional elements at existing works generally requires an exemption from Congress. CWA provisions prohibiting encroachment are intended not only to protect existing commemorative works, but also to ensure that newly authorized works can be considered as "stand-alone" commemorations. Congress, however, has authorized new elements to existing monuments and memorials, and additional legislation has been introduced that would further that practice.

Should Congress decide to become more involved in the site selection process or provide supplementary guidance on the addition of new elements to existing monuments or memorials, several options exist. These include amending the CWA, granting individual exemptions, or retaining the existing commemorative works process.

Commemorative Works Act Amendment

If Congress desires more statutory involvement in the monument and memorial site selection process, or if Congress wants to allow the addition of new elements to existing commemorative works, the CWA could be amended to require an act of Congress for the siting of all commemorative works—not just in Area I—or to remove the statutory prohibition against adding new elements or features to existing commemorative works.

Siting Commemorative Works

Currently, the CWA contemplates formal congressional intervention only if the Secretary of the Interior or Administrator of General Services recommends a monument or memorial be sited in Area I. Congress could amend the CWA to require congressional action for siting in Area II. Such an amendment could serve to involve Congress further in the approval of all monument and memorial sites, not just ones to be placed in Area I.

Additionally, in instances where Congress has accepted the Secretary or Administrator's recommendation for monument or memorial placement in Area I, the accompanying legislation has specified the placement in Area I. It has not, however, provided for a specific site location within the broader area. Future site authorizations could contain more specific information about the monument's or memorial's location, thus granting statutory approval for a specific (instead of general) site location. Historically, the exact site location has been left up to the sponsor group in consultation with the federal planning agencies in the District of Columbia.

Adding New Elements to Existing Commemorative Works

Removing the statutory prohibition against adding new elements to existing commemorative works would potentially allow sponsor groups to commemorate an event or group in a manner not contemplated by the original memorial design. For instance, the addition of the plaque to the Vietnam Veterans Memorial site was seen as an opportunity to memorialize a group not originally included when the Vietnam Veterans Memorial was first authorized.

Amending the CWA to allow additional elements to be placed at existing commemorative works could change the nature of commemoration in the District of Columbia. Instead of each monument or memorial being considered a completed work of art upon dedication, potential additions could be included on an individual basis. Adding such elements after the original work is completed, however, could change the intended nature or scope of the monument or memorial. Additionally, NCPC and CFA might consider limitations on the design of future additions to ensure that the new element complements the original design.

Individual Exemptions

Should Congress choose to be involved in the site selection process for some—but not all—commemorative works, or allow additions to specific monuments or memorials, it may recall that past individual authorization statutes have contained exemptions from the CWA.

Siting Commemorative Works

Congress has previously granted exemptions from the CWA to site monuments or memorials at specific locations. Should Congress decide that direct site designation is appropriate for future commemorative works, it could include that designation in the authorization legislation. This specific site location information could be included in either the original statutory language or subsequent legislation authorizing an Area I site location.

Providing an individual exemption to the siting clause of the CWA allows Congress to be involved, when necessary, in siting a monument or memorial. For all other authorized monuments and memorials, the current site selection process would continue to operate. Granting individual exemptions to some groups and not others, however, would likely require Congress to continue to decide when an exemption is appropriate.

Adding New Elements to Existing Commemorative Works

When Congress determines that additions to existing commemorative works are desirable, individual exemptions can continue to be granted on a case-by-case basis. Separate examination of each proposed additional element would continue the past practice of congressional review of such proposals. Moreover, the original sponsor group could be consulted to determine if such additions are consistent with the monument's or memorial's original purpose.

Creating individual exemptions to 40 U.S.C. §8905(b)(2), however, could undermine the commemorative works planning processes that ensure a monument or memorial is reviewed for site location, design, fundraising, construction, and perpetual maintenance. Additionally, since the design of completed commemorative works has been approved by the NCPC and CFA, adding more elements could compromise the original monument or memorial's design and could require renewed review of the work's design.

Continue Current Site Selection Process

Instead of amending the CWA or providing individual exemptions for certain monuments or memorials, Congress could stop allowing new monuments and memorials to be sited in Area I and deny requests to add new elements to existing commemorative works.

Siting Commemorative Works

Continuing the current site selection process would allow the federal planning agencies to guide sponsor groups through this process. Additionally, since the NCPC approves of planning throughout the National Capital Region and the CFA approves of public art work design and location, these entities can provide a holistic view of monument and memorial placement.

Maintaining the status quo for site selection, however, might not stop individual memorial sponsor groups from requesting that Congress provide exemptions to locate monuments or memorials on specific sites. Such requests could still be considered on an individual basis. Alternately, chamber or committee rules could be written to prohibit the consideration of monument or memorial legislation that includes a specific site location.

Adding New Elements to Existing Commemorative Works

Instead of providing individual exemptions for additions to existing commemorative works, Congress could choose to prohibit these additions. Since commemorative works are considered to be complete upon dedication, a new element added to a completed monument or memorial has been interpreted by some as a new commemorative work. As an example of a congressional prohibition, the House Committee on Interior and Insular Affairs, in its report to accompany the CWA in 1986, specifically discussed its intention that new commemorative works not encroach on open space or other monuments and memorials.

The Committee intends that consideration of site alternatives shall be inclusive of the following: possible conflicts with other activities at that site, the visual impact of the commemorative work on adjacent commemorative works, and the effect on the adjacent parking, transportation, and existing open space.

Further, the committee reiterated that the "commemorative work shall be located to prevent interference with or encroachment upon any existing commemorative work and to protect open space in a manner compatible with existing public use."

Continuing to prohibit the addition of elements to existing commemorative works, however, would probably not stop interested groups from proposing memorial additions in restricted areas. Should Congress continue to prohibit additions, proposals to add elements would likely be treated as proposals for new commemorative works and would, if authorized, require new site locations. Additionally, authorizing new commemorative works with related or substantially similar topics could create confusion as to the status of each memorial. Under this scenario, more than one monument or memorial to a war, event, or individual could be authorized. Duplicative monuments or memorials might detract from existing commemorative works.

Use of American Materials

Once Congress authorizes a sponsor group to build a commemorative work in the District of Columbia, the group must work with NCPC, CFA, and either the Secretary of the Interior (through the NPS) or the Administrator of the GSA—depending on who has jurisdiction over the land that would house the proposed memorial—to choose a site and receive design approval for the memorial. As part of this process, the NCPC, CFA, and the Secretary or Administrator evaluate several criteria, including the proposed memorial's surroundings, location, material, and landscape features.

Pursuant to current law, the only criterion related to materials requires the consideration of the proposed material's durability to ensure it is "suitable to the outdoor environment." In recent Congresses, at least one proposal would have required that all memorials be constructed of material that is mined or produced in the United States or manufactured "substantially ... from articles, materials, or supplies mined, produced or manufactured ... in the United States." The proposal would have further required that construction permits could not be issued by the Secretary or the Administrator without contract documents demonstrating "that material to be used in the construction of the commemorative work complies with [these] criteria ... as determined in accordance with regulations implementing chapter 83 of title 41, United States Code (popularly referred to as the 'Buy American Act')."

Should Congress want to mandate the use of American materials for commemorative works in the District of Columbia, there are several options available including statutorily mandating American materials or continuing current policies which do not directly address the origin of construction material. Mandating the use of American materials in the construction of commemorative works could provide assurances that national memorials would be constructed of American materials. Requiring the use of domestic products may have an economic as well as symbolic benefit. Visitors to Washington, DC, would know that the materials used to build national memorials came from the United States.

Mandating the use of American material, however, may not be appropriate for all commemorative works in the District of Columbia. Several recent works—Mahatma Gandhi, Tomas G. Masaryk, and Victims of the Ukrainian Manmade Famine of 1932-1933—were sponsored by foreign governments. Such memorial sponsors might prefer to use material native to their countries when building a memorial. Further, some memorial designers might find inspiration in non-American materials and want to use them as part of the memorial. Such design elements may or may not be appropriate, but would likely need to be reviewed by NCPC and CFA pursuant to the CWA.

Mandating the use of American materials may also have cost implications. American-made materials might be more or less expensive than imported materials. Further, in instances where a new element has been authorized at an existing memorial it might be desirable to match materials to the existing memorial, regardless of the material's origin. For example, if a new element was added to an existing memorial which was built from Italian marble, it might not be possible to match materials, if necessary, from domestic sources. In this case, consideration of an exemption to the American-made requirement might be requested by the memorial sponsor or designer.

Should Congress choose not to amend the CWA to require American-made materials, the decision would likely continue to reside with the federal planning bodies currently charged with approving memorial designs pursuant to the CWA.

Deadline for Memorial Completion

In 1986, when the CWA was enacted, sponsor groups were given five years from the date of enactment to complete the memorial or receive a construction permit. If a memorial was not completed and a construction permit was not issued within five years, the group's authority would expire. By 1991, only one of the eight memorials authorized between the 99 th Congress (1985-1986) and the 101 st Congress (1989-1990)—the American Armored Force Memorial—had met the five-year deadline. To address this issue, P.L. 102-216 was enacted "to lengthen from five to seven years the expiration period applicable to legislative authority relating to construction of commemorative works on Federal land in the District of Columbia and its environs. "

Even with a seven-year authorization for the completion of the commemorative work or the issuance of a construction permit, several recent memorials have been granted statutory extensions, had their authorizations lapse, or both. In an effort to ensure that memorials are completed in a timely manner, Delegate Eleanor Holmes Norton introduced H.R. 2297 (113 th Congress), which would have amended 40 U.S.C. §8903 to allow the Secretary of the Interior or the Administrator of GSA to recommend to Congress that a sponsor group's authorization be terminated. H.R. 2297 stated the following:

(b) Recommendations Regarding Termination of Authority To Establish Commemorative Work—Section 8903 of such title is amended by adding at the end the following new subsection:

(f) Recommendations Regarding Termination of Legislative Authority—The Secretary of the Interior or the Administrator of General Services may submit a recommendation to Congress that the legislative authority for a commemorative work be terminated before the expiration date applicable to the work under subsection (e) if the Secretary or the Administrator determines the person authorized to establish the work does not possess the capacity or resources to successfully complete the project before that expiration date.

H.R. 2297 was referred to the House Committee on Natural Resources and its Subcommittee on Public Lands and Environmental Regulation. It did not receive any further action.

Providing the Secretary and the Administrator with the power to recommend the termination of a memorial's authorization raises two potential issues: can a memorial be completed or be issued a construction permit within seven years as required by 40 U.S.C. §8903 and what impact might a recommendation for termination have on congressional decision-making.

Memorial Completion

Providing the Secretary and the Administrator with the power to recommend the termination of a memorial's authorization could reduce the need to continually extend memorials that have not met the statutory requirement of completion or the issuance of a construction permit within seven years. Several currently authorized memorials have received more than one extension. For example, the John Adams and His Family's Legacy Memorial, which was originally authorized on November 5, 2001, had its initial authorization expire in November 2008. Since then, Congress has granted a series of extensions, first to September 30, 2010, then until December 2, 2013, and most recently until December 2, 2020. While the memorial to John Adams and his family continues to move forward, if it was not making progress, the Secretary or the Administrator could recommend the termination of its authorization and Congress could avoid using legislative time to provide for its extension.

Congressional Decision Making

Providing explicit power to recommend the termination of a memorial's authorization could potentially lead to a recommendation being made before a sponsor group has exhausted its initial seven-year period. Some memorials take longer to select a site, raise necessary funds, and secure approval from the NCPC and CFA. Under this option, should the Secretary or the Administrator determine that the sponsor group "does not possess the capacity or resources to successfully complete the project before [the] expiration date," and recommend the project's termination, Congress could find itself under pressure from both proponents and opponents of the memorial to allow the work its initial seven-year authorization or to terminate the project ahead of the statutory deadline. Alternately, a recommendation by the Secretary or the Administrator could serve as a warning to the sponsor group that the project is not on track for completion or the issuance of a construction permit within the seven-year authorization, and that it should redouble its efforts to complete the memorial, as a new authorization may or may not be forthcoming.

Museums and the CWA

In 1846, Congress accepted James Smithson's gift to create the Smithsonian Institution. Since then, the Smithsonian has expanded to include 17 museums in the District of Columbia, most of which are located on or adjacent to the National Mall. In recent years, Congress has authorized a new Smithsonian museum—the National Museum of African American History and Culture, which is under construction—and legislation has been introduced to establish another—the National Museum of the American Latino.

The CWA applies only to land administered by the NPS or GSA in the District of Columbia. Thus, museums sited on non-NPS or -GSA administered land would not be subject to the CWA. Additionally, the CWA does not include museums in its definition of commemorative works. Pursuant to 40 U.S.C. §8902(a)(1),

any statue, monument, sculpture, memorial, plaque, inscription, or other structure or landscape feature, including a garden or memorial grove, designed to perpetuate in a permanent manner the memory of an individual, group, event or other significant element of American history, except that the term does not include any such item which is located within the interior of a structure or structures which is primarily used for other purposes.

Further, the CWA prohibits the siting of museums in Area I or East Potomac Park. Pursuant to 40 U.S.C. §8905(b)(5),

No commemorative work primarily designed as a museum may be located on lands under the jurisdiction of the Secretary in Area I or in East Potomac Park as depicted on the map referenced in section 8902(2).

When authorizing the National Museum of African American History and Culture in 2003, Congress specifically exempted it from the CWA prohibition against the creation of museums on NPS- or GSA-administered land. The granting of this exemption arguably suggests that Congress believes the CWA applies to museums at any District location, if they are located on NPS- or GSA-administered land. This application of the CWA to a museum would be in contrast to the specific CWA prohibition against the placement of a museum in Area I or East Potomac Park. Whether the CWA applies to museums, therefore, is an open question.

To reconcile the application of the CWA to museums, Congress could choose to apply the CWA and its process to museums. This could standardize the process for creating museums in the District of Columbia. Codifying congressional intent could also streamline the museum-creation process; set guidelines for the placement of museums in certain locations within the District of Columbia; and clarify the role of third-party organizations for the creation, funding, and design of future museums in a manner similar to the CWA's requirement for monuments and memorials.

Expanding the scope of the CWA to include non-NPS or non-GSA administered land and museums could put an additional burden on the commemorative works process. In addition to evaluating the site location, design, and progress of monuments and memorials, the NCMAC, NCPC, and CFA could be required to evaluate authorized museums under the same conditions as monuments and memorials. Current commemorative work guidance, however, does not provide direction on museums and interior spaces. The Vietnam Veterans Memorial Visitor Center, however, could provide precedent for the evaluation of "museum" space. The Visitor Center's authorization specifically provides that it is a commemorative work.

Conclusion

In recent Congresses, several bills have been introduced to authorize new commemorative works in the District of Columbia. As new commemorative works proposals are introduced and new exemptions from the CWA are sought, Congress will face choices on how to commemorate events and individuals. This report provided four proposed exemptions: siting commemorative works, use of American materials, deadlines for memorial completion, and museums under the Commemorative Works Act. For each proposed exemption, congressional options include providing an exemption from the CWA for an individual monument or memorial, amending the CWA and thereby providing changes applicable to all new commemorative works, and continuing the current commemorative works process.

For each proposed exemption, the options available to Congress are not mutually exclusive. It might be possible, for example, both to grant a one-time exemption to a sponsor group and to amend the CWA for future monuments and memorials. Similarly, Congress could choose to be more involved in some aspects of the commemorative works process established by the CWA or delegate additional authority to the NCPC, CFA, or NCMAC, as appropriate.