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Checkoff is government speech?

By John Stencel

More than a month after the Supreme Court’s May 23 ruling upholding the Beef Promotion and Research Act of 1985 (beef checkoff), I am still reeling from shock that the court affirmed the defendant’s position that the checkoff is government speech.

Those bringing the case argued it is an issue of free speech and that the mandatory checkoff forced producers to fund “speech” with which they do not agree.

The question of constitutionality of the beef checkoff began at least a decade ago when Montana cattle ranchers Steve and Jeanne Charter refused to pay their assessment. They disagreed with promoting foreign, imported beef generically with U.S. beef, saying the checkoff violated their First Amendment Right to free speech.

Producer discontent continued to grow over the U.S.-foreign beef promotion issue as well as other questions of accountability of the gigantic beef checkoff program, which pockets $1 per head every time a calf, steer, heifer or older animal is sold. At this time, the Livestock Marketing Association (LMA), which had been one of the checkoffs biggest supporters when it was first offered, began at its member sale barns to distribute petitions calling for a referendum.

In what has become a reoccurring problem, the secretary of agriculture in January 2001deemed the 146,000 petition signatures as insufficient, despite the fact that the Beef Promotion and Research Act, which established and regulates the checkoff, provides for a referendum when just 10 percent or 117,000 producers request it by signing a petition. Following the agriculture secretary’s decision, the LMA took the issue to court, arguing that the mandatory checkoff violated a producer’s right to free speech. Both a district court and a court of appeals agreed with the plaintiffs. The U.S.

Department of Agriculture then appealed to the nation’s highest court, which in May of 2005 reversed the lower courts rulings, opining that the checkoff is government speech and therefore not a free speech issue. This, of course, conflicts with the Supreme Court’s 2001 ruling that the mushroom checkoff was a violation of free speech.

The checkoff is overseen by the U.S. Department of Agriculture, but is fully funded by producers. Even the government’s administrative costs are reimbursed with (private) checkoff dollars. How can this be considered “government speech?”

Checkoff programs have veered far from their original intent—to assist producers in voluntarily coming together to promote their products and earn a higher return on their investments. The nation’s largest 12 commodity promotions boards collect more than $700 million annually in checkoff funds.

That’s real money that the nation’s handful of food processing and marketing companies benefit from when producer dollars are used to advertise their products. You can bet they will put up a fight and wield their influence in Washington, D.C. when it is threatened.