WASHINGTON – A U.S. Supreme Court ruling May 23 determined the beef checkoff is not unconstitutional.
The court, by a 6-3 vote, upheld the generic beef advertising as “government speech” and therefore not a violation of the First Amendment right to free speech.
The decision overturned lower court decisions that ruled the checkoff unconstitutional.
‘Government speech.’ In bringing the case, the Livestock Marketing Association claimed a producer-funded and -directed checkoff program is not government speech and is therefore unconstitutional.
Not so, said Monte Reese, chief operating officer of the Cattlemen’s Beef Board.
“It is government speech in that it is a government-approved message,” Reese said during a teleconference May 23 following the announcement.
The Supreme Court agreed. “The message is effectively controlled by the federal government,” said Justice Antonin Scalia, in writing the opinion for the majority.
“The secretary of agriculture, a politically accountable official, oversees the program appoints and dismissed the key personnel, and retains absolute veto power over the advertisements’ content, right down to the wording.”
Livestock Marketing Association President Randy Patterson said that should surprise many producers.
“This was not the way the program has been, and is now, promoted to producers,” Patterson said in a prepared statement.
Questions remain. Harvard School of Law Professor Laurence H. Tribe, who argued the case on behalf of the association, called the Supreme Court ruling a “narrow conclusion,” and added that there are at least as many questions left open as there are closed.
“The government, in reality, has not really controlled the program,” Tribe said during a separate teleconference Monday.
The secretary of agriculture now has an obligation, Tribe added, to exercise that power.
$1 per head. The mandatory program is funded by an assessment of $1 per head, collected each time cattle are sold. A similar assessment is collected on all imported cattle, and beef products.
The 108-member Cattlemen’s Beef Promotion and Research Board awards contracts to carry out the checkoff programs. USDA’s Agricultural Marketing Service monitors the board.
The money is used for promotion, research, and education. The checkoff is widely known for its popular “Beef It’s What’s for Dinner” campaign.
USDA’s role. U.S. Secretary of Agriculture Mike Johanns said USDA is reviewing the decision to determine its implications on the beef program and other checkoff programs being challenged in court.
Back to court? The Supreme Court decision addresses only the First Amendment question and not the association’s original intent to seek a court-mandated referendum.
While Livestock Marketing Association officials have not determined their next action, they would not rule out returning to the lower court to push for a checkoff vote.
“The reason we got into this was periodical referendums and that’s what we’re still for,” said association spokesman John McBride.
Olive branch? Can a bruised beef industry heal after the wounds inflicted during the multiyear court battle? Both sides say they hope so.
“We would be very interested in working LMA or any other group that represents cattle interests to pursue unity within the cattle industry,” said Cattlemen’s Beef Board leader Monte Reese.
“But there will always be some opposed to the checkoff.”
Other checkoffs. Numerous other producer-funded promotional programs are under court scrutiny, including the pork and dairy checkoffs.
Following the Supreme Court decision Monday, the National Pork Producers Council said it expected “the beef checkoff’s ruling will be applied to the pork checkoff program.”
In a statement, National Dairy Promotion and Research Board officials said they don’t know what the ruling will mean for the dairy checkoff litigation (Cochran v. USDA), but “we believe this is extremely good news for dairy and other commodity checkoff programs.”
Lots of support. Upon the Supreme Court’s acceptance of the beef checkoff case in May 2004, 113 state and national beef industry and general agriculture organizations signed a friend-of-the-court amicus brief in support of the beef checkoff.
The brief was also signed by attorneys general from 35 states and Puerto Rico and the chairmen of both the U.S. House and Senate Agriculture Committees.
(Editor Susan Crowell can be reached at 1-800-837-3419 or at editorial@farmanddairy.com.)
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Related past Farm and Dairy articles:
Cattlemen wait for checkoff results (1/20/2005)
U.S. Supreme Court listens to beef checkoff arguments (12/16/2004)
Beef checkoff changes: Ohio producers vote on backup plan (12/9/2004)
Cattlemen urged to sign petition for checkoff’s security (7/15/2004)
Supreme Court to decide beef checkoff 05/27/2004
