September 15th, 2003

Commercialization Of The Mall

By U.S. Senator Jeff Bingaman

Mr. President, I would like to take a minute to talk about recent events on the National Mall. The Mall, as Judge Buckley of the U.S. Court of Appeals for the District of Columbia Circuit has written, “is an area of particular significance in the life of the Capital and the Nation.” It is a two-mile greensward that stretches from the Capitol in the East to the Lincoln Memorial in the West. It is, as another judge noted, “the site of monuments marking great figures and events in our nation’s history.” But it is “more than home to these enduring symbols of our nationhood. Its grassy expanse provides areas for any number of recreational activities....” It is also used for large-scale events, such as the annual Fourth of July festivities, the Cherry Blossom Festival, and every four years, inaugural celebrations. It has been the site of national observances and protests. “It is here,” as Judge Buckley said, “that the constitutional right of speech and peaceful assembly find their fullest expression.”

Congress has entrusted the Department of the Interior’s National Park Service with preserving and regulating the use of this important part of our national heritage. It has “charged the National Park Service with regulating the use of the Mall so as to ‘conform” such use ‘to the fundamental purpose’ of ‘conserving the scenery and the natural and historic objects ... and ... providing for the enjoyment of the same in such manner .... as will leave them unimpaired for their enjoyment of future generations.’” The Mall, as I have said, serves many purposes, but none of them commercial. Accordingly, the Park Service’s regulations provide that demonstrations and special events on the Mall may be held only pursuant to a permit issued by the Park Service. These rules prohibit commercial use of the Mall and specifically provide that “no sales shall be made ... and no article may be exposed for sale without a permit....”

Yet despite the clear prohibitions in its own regulations, the National Park Service has now sanctioned a new use: commercial exploitation.

Earlier this month, to promote the start of its new football season, the National Football League held what the Department of the Interior described as a music and football festival, entitled the “NFL Kickoff Live from the National Mall Presented by Pepsi Vanilla.” To allow for the set-up and removal of the infrastructure associated with the concert, the National Park Service gave the NFL a permit to use the Mall for 17 days, between August 25 and September 10, with the main event occurring September 4th. For many of those days, a large portion of the Mall was fenced off, preventing the public from using one of the most popular spaces in the capital.

Having spent a lot of time on the Mall, I can tell you that it’s already difficult to walk its length from the Capitol to the Lincoln Memorial. Large areas are now closed to the public during the construction of the World War II Memorial and construction of new security features at the Washington Monument. Portions of the Mall are also closed periodically following events such as the Fourth of July activities or after large public gatherings, to allow for clean-up and restoration of the grassy areas. However, in this case, a large segment of the Mall was essentially closed to the public to allow for, what is in my opinion, commercial use and advertising by private corporations. As this photograph shows, the corporate sponsors of the concert were allowed to put a large fence covered with advertising around the perimeter of the area. Apart from keeping the public off the Mall, the clear message was that the Mall had been handed over for commercial purposes.

The National Park Service has published guidelines to help organizations seeking to hold events on the Mall know what is required. The guidelines state “the theme of the special event must be consistent with the mission of the park (in this case, the Mall) and appropriate to the park area in which it is to be held, including consideration for possible damage and/or impairment to park property, facilities, plantings and landscape features ... and park values.”

Secretary of the Interior Gale Norton, whose agency approved the permit for this event, maintains that this was an appropriate use of the Mall, because it was undertaken in partnership with the Department’s “Take Pride in America” slogan promoting volunteerism on public lands, and because it was an event honoring members of our Armed Forces. Clearly nobody objects to an event celebrating public volunteers and military personnel. However, Secretary Norton’s stated rationale for approving this event is simply not consistent with what actually took place on the Mall.

This is a photograph of the event which was published in the Washington Post. This, apparently, is Secretary Norton’s vision of an appropriate use of the Mall. While it is impossible to miss the advertisements for Pepsi, Verizon, Coors, and other sponsors, and you certainly can’t miss the huge football promoting the National Football League, try to find the references to the supposed reasons for the event. The “Take Pride in America” slogan appears at the bottom of the advertising banners and in the other photo, at the top of the fence, but that’s it. In both photographs, the overwhelming image is that of the commercial advertisements. The event was used as the basis for a commercial television production, and commercials were broadcast to the crowd over large screen televisions on the Mall.

Secretary Norton may view this as business as usual, but in my opinion allowing this type of commercial activity with blatant product advertising is contrary to what the policy is for our National Park System, including the Mall, and contrary to what a responsible public policy should be for this area.

During her confirmation hearing, I expressed my concern to Ms. Norton that as Secretary of the Interior, she would hold one of the highest positions of public trust in our Federal Government. The Secretary of the Interior is the principal guardian of our national parks and most revered historic sites. Certainly the National Mall is among the most important symbolic spaces in the country. I was concerned that based on her previous public statements and writings, that she championed the interests of individuals and corporations opposed to the Federal Government. At her confirmation hearing, Secretary Norton assured me that she would enforce the laws as they are written. It was my understanding that the laws and regulations made clear that the National Mall is not to be used as a venue for commercial purposes, including advertising. I do not see how anyone can look at these photos and believe that Secretary Norton upheld her public trust responsibilities in this instance.

Earlier this year, the Senate passed legislation to authorize construction of an education center near the Vietnam Veterans Memorial, very much along the lines of a similar bill passed by the Senate last Congress. In negotiating the language for that bill, I tried to ensure that the National Park Service would retain its ability to approve the site and design for the center, and at the Park Service’s request, we included language stating that the center should be built “consistent with the special nature and sanctity of the Mall.” If these photographs are Secretary Norton’s definition of “the special nature and sanctity” of the Mall, I am left wondering what we have protected with respect to the Vietnam Veterans Memorial.

The National Park Service’s regulations generally prohibit commercial advertisements on park lands. In addition, the specific permit authorizing this event stated that no commercial activity may be conducted. Nonetheless, Department of the Interior officials decided that this was not a commercial activity, and that these banners were not advertisements, but merely “sponsor recognition.” Even though the National Football League was the organization sponsoring the concert, it could solicit other companies to underwrite the event’s expenses. Those companies, in turn, were allowed to advertise on the Mall, or as the Interior Department put it, provide for sponsor recognition.

It is not clear what authority the Park Service has to allow such sponsor recognition. The agency’s regulations clearly prohibit the display of commercial notices or advertisements on National Park Service lands except where the park superintendent determines that the notices relate to products available at that park area and the superintendent determines that the notices or advertisements are “desirable and necessary for the convenience and guidance of the public.” I don’t see how these banners and fence advertisements fit within that requirement.

It would have been one thing if this event had been permitted and following it, the Interior Department and National Park Service admitted they made a mistake and would take the appropriate steps to prevent this from occurring in the future. But the political leadership at the Interior Department and National Park Service, from Secretary Norton on down, continue to insist that this was an appropriate activity.

Secretary Norton may not care whether this type of event takes place again, but I do. To better understand the Secretary’s reasoning that this was not a commercial event, that there was no commercial advertising, today I am sending her a letter requesting copies of all correspondence, e-mails, planning memos and other documents that the Secretary relied on to conclude that this event was not commercial activity.

The Secretary of the Interior and the National Park Service leadership maintain that commercial activity is not allowed on the Mall, and what took place there wasn’t commercial. Since there apparently is a disconnect between their rhetoric and the reality of what took place, I think the only solution is to change the law to make clear – even to Secretary Norton – that this type of use isn’t appropriate. When the Interior Appropriations bill comes to the floor, I intend to offer an amendment to make clear that future permits to hold special events on the Mall may not include commercial advertising, whether couched as “sponsor recognition” or not.

I want to emphasize that the Mall clearly should continue to be available for large-scale events. If the Secretary of the Interior had approved a large concert to celebrate our troops and to promote her volunteer program, there wouldn’t have been the public outcry that we’ve seen. It was her decision to allow the concert to be used for commercial purposes, and to allow commercial advertising that crossed the line. If the Department of the Interior and the National Park Service officials had made any effort to advocate the protection of the resource with which they are charged to manage, then this wouldn’t have been a problem. Since they refused to do so, it seems to me that the statutory requirements for what is permissible need to be more explicitly defined.

Last week, Albert Eisele wrote an excellent article in the Hill newspaper entitled “Desecration of the Mall,” and I ask unanimous consent that a copy of that article be printed in the Record following my remarks. I also ask unanimous consent that the Washington Post editorial “Marketing the Mall” and an article by Tom Shales entitled “America, brought to you by...” be printed in the Record.

Mr. President, the National Mall is more than an expanse of grass or an undeveloped field. It is a national treasure. It is, by the Park Service’s own account, “the single most significant public park and open space” in the Nation’s Capital. It is visited by millions of citizens and visitors from abroad each year. It “provides a formal work of landscape architecture of monumental proportions and provides the unifying element for the carefully placed, diverse architectural symbols, repositories and shrines of the heritage of our democracy on and along its length.”

There has been broad public agreement both here in Washington and around the country that allowing this type of commercial event is a low point in the storied history of the Mall. Perhaps this will only be remembered as an unfortunate incident. My concern, however, is that with the attitude prevalent with the current leadership at the Department of the Interior and the National Park Service, this is the model for future events on the Mall and just another step in their efforts to permit increasing commercialization in our national parks.

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