The Washington National Opera would like its seventeen million dollars back. The Kennedy Center, a federally chartered institution of the United States government, has reviewed this request and responded with what legal scholars are calling “the charter did it.” The charter, for the record, is a document the federal government wrote and handed to the Kennedy Center, making this roughly the equivalent of a bank robber citing the bag as his alibi.
Here is how the argument works, as best I can follow it: the Kennedy Center is a federal entity, and as a federal entity it is governed by its federal charter, and its federal charter apparently contains provisions about what happens to donated funds, and those provisions apparently say the Kennedy Center keeps them. Which is a wonderful thing to put in your own charter. I have been trying for years to get a clause like that into my own operating documents, but apparently you need congressional authorization, and Congress has been busy.
The Opera, which split from the Kennedy Center after the current administration installed new leadership and the institution pivoted away from, among other things, opera, argues that these were restricted donations given specifically to support the Opera’s work. The Kennedy Center’s position appears to be that “restricted” is a word with a very flexible relationship to seventeen million dollars.
What we have here is an institution invoking the authority of its own founding document to block the return of private funds to the private donors’ intended recipient. The charter exists because Congress created it. Congress created it to serve a cultural mission. The cultural mission is now suing the charter. At some point the charter is going to have to testify about what it remembers from that night.
The donors gave money to hear opera sung. The Kennedy Center is using a federal instrument to explain that this money now belongs to the entity that no longer provides the opera. This is not embezzlement. This is far more impressive than embezzlement. Embezzlement requires concealment. This is embezzlement with a podium.
I would never join an institution that would have me as a charter member — but I begin to see the advantages of writing the charter yourself.