Info You Can Use: Crowdfunding Legislation Update

Thanks to Ken Davenport’s post on the subject, I discovered the bill to facilitate crowdfunding I wrote about at the end of October is nearing approval. The House (H.R. 2930) approved the measure early in November and the Senate’s proposed bill (S. 179) is in committee.

As discussed in my earlier post on the subject, the existing rules for inhibit small investments made by many people because S.E.C. rules kick in after threshold of 500 people. These bills provide a little more leeway.

William Carleton has a good comparison of the passed version of H.R. 2930 and the proposed S. 179. Of most immediate concern to most people will probably be that where the House bill places the per investor, per year limit at the lesser of $10,000 or 10% of annual income, the Senate bill caps investment at $1,000. The North American Securities Administrators Association apparently agrees with the Senate on this point.

At that level, and given the level of required reporting and investor notice, I wonder if it will be worth it to too many people to attempt crowd funding in this manner. But again, I am thinking in terms of the investing prospectus one receives. Presumably, there will be less information to provide to investors in the case of crowdfunding efforts.

Trent Dykes at The Venture Alley provides the details of the House bill. I was particularly interested to see what sort of protections an investor had against fraud.

Not that it isn’t enough motivation to defraud, but you can only raise $1 million annually using the exemption provided by the bill ($2 million if you provide audited financial statements.) In addition to providing warnings of risks to potential investors and sending a collection of information and reporting to the S.E.C., one protection people will have is that the money will be held in escrow by a third party until 60% of the target amount has been raised. Presumably, if the amount has not be raised by the target deadline, additional arrangements must be made to retain it. There are also provisions that ensure the people handling the offering and cash management are qualified to some degree. People with a history as a “bad actor” as determined by the S.E.C. will be prohibited from offering investment opportunities.

As I am not an expert in investing law, I don’t know how vulnerable these arrangements are to fraud. Presumably, moreso then your typical investment opportunity. Individuals will just have less of their personal fortunes exposed to the fraud.

For some people in the arts, this might offer a viable alternative to the non-profit model. I imagine the return on investment might manifest as a hybrid of traditional donor benefits and cash. Providing preferential treatment to encourage people to remain emotionally invested in the organization in addition to paying out cash dividends will probably help keep them financially invested in the company.

Hopefully the limitation on the investing level will insulate arts companies from demands to operate themselves to maximize investor return. Even if the cap is set at $10,000, people aren’t going to be getting immense returns enriching their bank accounts (at least not for a few years). Who knows, perhaps a company will realize so much success thanks to this, they will grow to the point the will be subject to regular S.E.C. investment rules.

Now that this form of investment looks to pass the hurdle of legislation, how long before the arts community will pass the mental hurdle of considering anyone who uses it to finance their operations as selling out their purity and ideals?

About Joe Patti

I have been writing Butts in the Seats (BitS) on topics of arts and cultural administration since 2004 (yikes!). Given the ever evolving concerns facing the sector, I have yet to exhaust the available subject matter. In addition to BitS, I am a founding contributor to the ArtsHacker (artshacker.com) website where I focus on topics related to boards, law, governance, policy and practice.

I am also an evangelist for the effort to Build Public Will For Arts and Culture being helmed by Arts Midwest and the Metropolitan Group. (http://www.creatingconnection.org/about/)

I am currently the Director of the Grand Opera House in Macon, GA.

Among the things I am most proud are having produced an opera in the Hawaiian language and a dance drama about Hawaii's snow goddess Poli'ahu while working as a Theater Manager in Hawaii. Though there are many more highlights than there is space here to list.

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