Just a week after it was introduced by Steve Chabot (R-OH), the Foreign Cultural Exchange Jurisdictional Immunity Clarification Act (HR 4292) was marked for hearing today. Three members spoke in favor, a voice vote was taken, and bill was referred favorably to the full House.
Chairman Bob Goodlatte (R-VA) began the hearing with a statement. He argued that the Act strengthens the ability of museums to borrow foreign art and cultural artifacts. He cited what he called the long-recognized importance of the exchange of cultural ideas, which expose Americans to other cultures. As Goodlatte put it, future exchanges are threatened by the disconnect between the FSIA and IFSA, in particular because of rulings undermining protection by IFSA. In his view, the existing law opens foreign governments to jurisdiction in U.S. federal court “simply because they loan” artworks or cultural objects. Goodlatte argued that this has significantly limited U.S. museums’ ability to borrow items. He closed by staying that the bill is “very narrow legislation” that only applies to one exception under FSIA (28 U.S.C. §1605(a)(3), the “expropriation exception).
Jerrold Nadler (D-NY) then spoke up to identify the inconsistency between two laws. He alluded to the Malevicz case (though not by name), citing what Nadler called a chilling effect that has followed. Nadler believes that the bill would immunize governments from lawsuits for damages related to art that is exempt from seizure. He also touted the Nazi-era exception.
Steve Chabot (R-OH) repeated much of what Rep. Nadler said. Interestingly, Chabot referred to the Russian exhibition loan embargo as a justification for the Act. In this respect Chabot is somewhat misguided. The Russian loan embargo is in direct retaliation for the Chabad Library judgment. But the commercial activity that the DC Circuit upheld as justification for invoking the expropriation exception was not the loan of IFSA protected property into the United States—the discrepancy that this bill would revise—the Chabad Library has never left Russia. And, just as importantly, the embargo is not a principled response to fear of seizure: the Chabad plaintiffs have stipulated that they will never seek to attach cultural property loaned into the United States, which even if they did, would be protected by IFSA (or, presumably, not lent in the first place). Put another way, had HR 4292 been the law when the Chabad case began, the result would have been no different by virtue of the bill. So, as a rationale for this bill, it is worth scrutiny.
Lastly, Steve Cohen (D-TN) also spoke in favor of the bill, similarly underscoring what he said was the importance of the Nazi-era exception. To me, one of the questions that this emphasis raises—if the lion’s share of restitution claims continue to be related to Nazi-era theft—is how much the bill would really change.